Torts Cerezo Onwards

[No. 10107. February 4, 1916.
]
CLARA CEREZO, plaintiff and appellant, vs. THE ATLANTIC, GULF & PACIFIC
COMPANY, defendant and appellant.
1. 1.MASTER AND SERVANT; EMPLOYERS' LIABILITY FOR INJURY TO

SERVANT; EMPLOYERS' LIABILITY ACT; STATUTORY CONSTRUCTION.—
When a statute has been adopted from some other state or country and such statute
has previously been construed by the courts of such state or country, the statute is
usually deemed to have been adopted with the construction so given it. The
Employers' Liability Act having been adopted from the Massachusetts act, which in
turn (as well as similar statutes in some other States of the United States) was
adopted from the English act, decisions of the high courts in those jurisdictions
construing and interpreting- the Act should receive the careful attention of this court
in the application of our own law.
1. 2.ID.; ID.; ID.; EFFECT UPON COMMON LAW LIABILITY OF EMPLOYER.—

Under the common law in the United States, an employer was obliged to provide
reasonably safe ways, works, and machinery for his employees. He could defend an
action for damages arising out of an industrial accident by proving his own freedom
from negligence, the plaintiff's contributory negligence, that the injury was caused
by the negligence of a fellow servant, or that it happened through one of the risks
assumed by the employee. The Employers' Liability Act did not affect his duty to
provide safe ways, works, and machinery; nor the doctrines of assumption of risks
and contributory negligence. It did abolish, in part, the fellow servant doctrine, that
is to say, so far as it related to the negligence of a superintendent, with a special
clause of even greater scope in favor of railroad employees.
426
426 PHILIPPINE REPORTS ANNOTATED
Cerezo vs. Atlantic, Gulf & Pacific Co.
1. 3.ID.; ID.; ID.; EFFECT UPON THE LAW IN THIS COUNTRY.—The act was not
intended to curtail any of the rights which an employee had under the preexisting
law. Its provisions may be resorted to or not as the injured person may deem fit.
Under the act the defense of contributory negligence would defeat an action for
damages, whereas, under the Civil Code, as heretofore inter-preted by this court it
would not.
1. 4.ID.; ID.; ID.; DEFECTS IN WAYS, WORKS, AND MACHINERY.—An employee

cannot recover for a defect in the ways, works or machinery when he was not called
upon to encounter the danger for the reason that it was in fact located at a point
upon the premises where his duties did not call him and where he had no right to be.
1. 5.ID.; ID.; LIABILITY OF EMPLOYER.—After providing reasonably safe ways,

works, and machinery and exercising the care of a good father of a family, the
employer's liability is limited, under the Civil Code, to those accidents which could
have been foreseen.
1. 6.ID. ; ID. ; ID. ; FACTS OF THIS CASE.—The plaintiff's son was engaged in filling
in a trench in which a gas main had been. laid. He entered a portion of the trench at
a point a little distance away from where he was working for purposes of his own,
and while there the trench caved in and buried him, causing suffocation before he
could be rescued. The trench was only a little over four feet deep, and its walls had
stood, unshored, for over a week. There was no evidence that the walls showed signs
of giving way. Furthermore, had the deceased been erect in the trench his head could
not possibly have been covered with the dirt and it is probable that he would have
escaped without serious injury whatever. The accident was a most unusual one and
must be considered one that could not have been foreseen. Hence, the employer
cannot be held liable therefore.
APPEAL from a judgment of the Court of First Instance of Manila. Crossfield, J.

The facts are stated in the opinion of the court.
Luciano de la Rosa for plaintiff.
William A. Kincaid and Thomas L. Hartigan for defendant.
TRENT, J.:
This is an action for damages against the defendant for negligently causing the
death of the plaintiff's son, Jorge
427
VOL. 33, FEBRUARY 4, 1916. 427
Ocumen, on the 8th of July, 1913, deceased being plaintiff 's only means of support.
Judgment was entered in favor of the plaintiff for the sum of P1,250, together with
interest and costs. Defendant appealed.
The deceased was an employee of the def endant as a day laborer on the 8th of
July, 1913, assisting in laying gas pipes on Calle Herran in the city of Manila. The
digging of the trench was completed both ways from the cross-trench in Calle Paz,
and the pipes were laid therein up to that point. The men of the deceased's gang were
filling the west end, and there was no work in progress at the east end of the trench.
Shortly after the deceased entered the trench at the east end to answer a call of
nature, the bank caved in, burying him to his neck in dirt, where he died before he
could be released. It has not been shown that the deceased had received orders from
the defendant to enter the trench at this point; nor that he entered there to perform
any duty for the defendant; nor that the trench had been prepared by the defendant
as a place to be used as a watercloset; nor that the defendant acquiesced in the using
of this place for these purposes. The trench at the place where the accident occurred
was between 3 and 4 feet deep. Nothing remained to be done there except to refill the
trench as soon as the pipes were connected. The refilling was delayed at that place
until the completion of the connection. At the time of the accident the place where the
deceased's duty of refilling the trench required him to be was at the west end. There
is no contention that there was any danger whatever in the refilling of the trench.
The plaintiff insists that the defendant was negligent in failing to shore or brace
the trench at the place where the accident occurred. While, on the other hand, the def
endant urges (1) that it was under no obligation, in so far as the deceased was
concerned, to brace the trench? in the absence of a showing that the soil was of a loose
character or the place itself was dangerous, and (2) that although the relation of
master and servant may not, have ceased, for the
428
time being, to exist, the defendant was under no duty to the deceased except to do
him no intentional injury, and to furnish him with a reasonably safe place to work.
As the complaint fails to show whether the plaintiff's right to recover is based on
the Employers' Liability Act (Act No. 1874) or the Civil Code, it is necessary to
determine just what effect the former has had upon the law of industrial accidents in
this country.
Act No. 1874 is essentially a copy of the Massachusetts Employers' Liability Act
(Rev, Laws. 1902, chap. 106, secs. 71-79), it having been originally enacted in that
jurisdiction in 1887. (Stat. 1887, chap. 270.) The Massachusetts statute was "copied
verbatim, with some variations of detail, from the English statute (43 & 44 Vict, c.
42). Therefore it is proper, if not necessary, to begin by considering how the English
act had been construed before our statute was enacted." (Ryalls vs. Mechanics' Mills,
150 Mass., 190; 5 L. R. A., 667.)
The English statute was enacted effective January 1,1881. The Employers'
Liability Act of Alabama, first enacted in 1885 (Civil Code 1907, chap. 80, sec. 3910),
"is a substantial, if not an exact, copy of the English act of 1880. This court is not
finally concluded by the decision of any other State court or the British court, in their
construction of a similar statute, but the opinion of learned courts upon similar
questions are entitled to great weight, and this is especially true when the statute,
from which ours was copied, had been construed prior to its enactment by our
legislature." (Birmingham Ry. & Electric Co. vs. Allen, 99 Ala., 359, 371; 20 L. R. A.,
457.)
The employers' Liability Act of Colorado (Laws 1893, chap. 77; Mill's Annotated
Statutes, Supp. 1891-1896, see. 1511a) was copied from the Massachusetts Act of
1887 and the Colorado legislature "presumably adopted the act with the construction
that had been given it by the courts of that state." (Colorado Milling & Elevator
Co. vs. Mitchell [1899], 26 Colo., 284). Generally speaking, when a statute has been
adopted f rom another state or country and such
429
VOL. 33, FEBRUARY 4, 1916. 429
statute has previously been construed by the courts of such state or country, the
statute is deemed to have been adopted with the construction so given it (2 Lewis
Southerland on Stat. Const., sec. 783). The law being so clearly traced to its source,
it is advisable, if not necessary, to ascertain what the law stands for in those
jurisdictions where it has been in force for a long time past.
To adequately comprehend the significance of the Act in England and in those
States of the United States where it has been adopted, it is necessary to set forth
briefly the liability of an employer for personal injuries suffered by his workmen prior
to its enactment. At common law masters impliedly agreed to use reasonable care to
provide reasonably safe premises and places in and about which the servant was
required to work, to furnish reasonably saf e and suitable machinery, and a sufficient
supply of proper materials, tools, and appliances for the work to be done, and at all
times during the continuance of the work to repair and to keep in the same safe and
suitable condition the places, machinery, and appliances; to provide competent
workmen; and so far as the servant could not be assumed to know the perils of the
work itself, or of the particular portion of it in which he was engaged, to instruct him
and to warn him of any secret danger of which the master was aware. As to these
matters, the master was bound to exercise that measure of care which reasonably
prudent men take under similar circumstances. But the master was not an insurer
and was not required to provide the safest possible plant or to adopt the latest
improvements or to warrant against latent defects which a reasonable inspection did
not disclose. It was only necessary that the danger in the work be not enhanced
through his fault.
The right of the master to shift responsibility for the perf ormance of all or at least
most of these personal duties to the shoulders of a subordinate and thereby escape
liability for the injuries suffered by his workmen through his nonperformance of these
duties, was, in England, definitely settled by the House of Lords in the case
of Wilson vs. Merry
430
(L. R. 1 H. L. Sc. App. Cas., 326; 19 Eng. Rul. Cas., 132). This was just two years
before the enactment of the Employers' Liability Act of 1880, and no doubt the full
significance of such a doctrine was one of the impelling causes which expedited the
passage of the Act, and chiefly accounts for the presence in it of subsection 1 of section
1.
While there were some authorities in the United States prior to 1880 decidedly in
favor of the doctrine of Wilson vs.Merry, by far the greater weight of authority was
that such duties were personal to the master and that he could not by delegating such
duties to subordinates escape liability for their negligent performance.
The servant, on his part, by entering the employment, was held to impliedly agree
to take upon himself the perils arising from the carelessness and recklessness of those
who were in the same employment, without regard to their grade or rank or authority
in the service, provided that the act causing the injury was not in the performance of
any per-sonal duty of the master intrusted to the negligent servant. In Street's edition
of Shearman & Redfield on Negligence (vol. 1, sec. 180),, the following statement and
history of the rule is given:
"Under the principles before stated, it must be conceded to be settled at common
law that a master is not liable for injuries personally suffered by his servant through
the ordinary risks of the business, including the negligence of a fellow servant, acting
as such, while engaged in the same common employment, unless the master is
chargeable with negligence in the selection of the servant in fault, or in retaining him
after actual or constructive notice of his incompetency. This 'bad exception to a bad
rule,' as Lord Esher called it, in his testimony before a parliamentary committee, was
first suggested in 1837, in an English court, in Priestly vs. Fowler (3 M. & W., 1),
where the precise point did not arise. That case, however, is always spoken of as the
foundation of the rule. The first real decision of the question was made in South
Carolina in 1841 (Murray vs. South Carolina R. Co., 1 McMull. Law, 385.) This was
cited
431
VOL. 33, FEBRUARY 4, 1916. 431
and approved by Chief Justice Shaw, of Massachusetts, 1842, in the Farwell case
(Farwell vs. Boston, etc., R. Co., 4 Met., 49), which is the leading case on the question,
and contains all the reasoning in favor of the rule which is worth mentioning. His
opinion was followed in New York in 1847 (Coon vs. Syracuse, etc., R. Co., 6 Barb.,
231, affirmed 1851, 5 N. Y., 492). * * * Since then the rule has been forced upon
Scotland, by the votes of English judges, overruling the Scotch courts; and it has been
accepted by all American courts, both Federal and State, with only some
qualifications in Kentucky and some western and southern States; which, however,
turn rather upon the interpretation of the rule than upon the rule itself."
As the inadequacy of the doctrine to keep pace with the marvelous industrial
development of the last century became apparent, it was sought, in most jurisdictions,
to soften its rigors by introducing the fiction of vice-principalship which undertook to
increase the number of responsibilities which the master could not escape by
delegating them to subordinates. The whole doctrine was, in brief, a denial as to the
employee, of the principle of respondeat superior. Under the latter, a stranger invited
upon the master's premises, either expressly or impliedly, could recover for injuries
received through the negligence of the master's employees. It was this right which
was denied to the employee.
Another def ense to which the master was entitled under the common law was that
known as contractual assumption of risks. Practically the same thing is referred to
in very many cases as the defense of volenti non fit injuria. (That to which a person
assents is not deemed in law an injury,) While these two defenses are theoretically
distinct, it has been said by one learned writer that it is impossible to treat the two
separately in reviewing American decisions (5 Labatt's Master and Servant, sec.
1647a). The distinction is usually important only when the master's breach of a
statutory duty is concerned. In those jurisdictions holding that the continuance in the
service of an employee after he has knowledge of the violation of a statutory duty by
the master
432
is not a defense, the holding is usually justified on the ground of an implied contract
of the servant to assume the risks of the business; and that, consequently, it would
be against public policy to permit the master to contract against the effects of a
violation of the statute. It is in those jurisdictions that recognize the same state of
facts as a def ense available to the master where the maxim volenti non fit injuria is
relied upon, such courts holding that no contract, express or implied, is involved, and
that, conse-quently, the public policy in question is not involved. Under either name,
the defense in question leaves the workman without remedy when his injury results
from a risk known or imputable to him before entering the employment or because of
his continuance at work after such knowledge came to him, whether such a risk was
due to a def ect in the ways, works or machinery, or to negligence of the master or
other persons in the common employment.
A third defense which a master could interpose in an action against him by an
employee for personal injuries received in the course of the employment was that of
contributory negligence. It has been frequently remarked that this defense is often
confused with that of assumption of risk or volenti non fit injuria. The Supreme Court
of the United States explained the distinction between the two defenses in the
following language in the recent case of ' Seaboard Air Line Railway vs. Horton (233
U. S., 492, 503) : "The distinction, although simple, is sometimes overlooked.
Contributory negligence involves the notion of some fault or breach of duty on the
part of the employee; and since it is ordinarily his duty to take some precaution for
his own safety when engaged in a hazardous occupation, contributory negligence is
sometimes defined as a failure to use such care for his safety as ordinarily prudent
employees in similar circumstances would use. On the other hand, the assumption of
risk, even though the risk be obvious, may be f ree f rom any suggestion of f ault or
negligence on the part of the employee. The risks may be present, notwithstanding
the exercise of all reasonable care on his
433
VOL. 33, FEBRUARY 4, 1916. 433
part. Some employments are necessarily fraught with danger to the workman—
danger that must be and is conf ronted in the line of his duty. Such dangers as are
normally and necessarily incident to the occupation are presumably taken into the
account in fixing the rate of wages. And a workman of mature years is taken to
assume risks of this sort, whether he is actually aware of them or not. But risks of
another sort, not naturally incident to the occupation, may arise out of the failure of
the employer to exercise due care with respect to providing a safe place of work and
suitable and safe appliances for the work. These the employee is not treated as
assuming until he becomes aware of the defect or disrepair and of the risk arising f
rom it, unless defect and risk alike are so. obvious that an ordinarily prudent person
under the circumstances would have observed and appreciated them."
See also Dowd vs. New York, O. & W. Ry. Co. (170 N. Y., 459). In Halsbury's Laws
of England (vol. 20, p. 138), it is said:
"The defense of contributory negligence is always available in actions for
compensation for negligence. It is a common law def ense available to a master sued
by a workman in respect of personal negligence, and, if proved, defeats the action."
Cooley on Torts (2d ed., page 667), says:
"Where the .master is sued by his servant for an injury which it is claimed has
been occasioned by his negligence, it is very properly and justly held that the plaintiff
is not to recover if his own negligence contributed with that of the defendant in
producing the injury."
Summing up the defenses available to the master under the common law of
England and the United States, it may be said that he could def end against an action
by his servant by proving his own freedom from negligence, the plaintiff's
contributory negligence, that the injury was caused by the negligence of a fellow
servant, or that it happened through one of the ordinary risks of the employment.
Any one of these defenses was a sufficient answer to the plaintiff's claim.
434
The first two are defenses which he might urge against the claim of a stranger, but
the last two are peculiar to the relationship of master and servant, and are said to
arise from the implied contract of service between them.
Let us now see what effect the Employers' Liability Act had upon the common law.
In England, as we have stated above, the employer was not liable under the common
law for injuries to his employees caused by the negligence of a fellow servant who had
been intrusted by the master with the duty of furnishing the employees safe places,
machinery, etc., for their work. Under the first subsection of section 1 of the
Employers' Liability Act, it is clear that an employer may no longer claim exemption
from liability upon this ground. But, as above stated, it was already the majority rule
of the common law in the United States that masters could not delegate their
responsibilities to provide safe premises and machinery for their employees or
subordinates. Hence, we find the Massachusetts court saying
in McCafferty vs. Lewando's F. D. & C. Co. (194 Mass., 412; 120 Am. St. Rep., 562):
"So far as defects in the ways, works, and machinery are concerned, there is no
difference between the liability under the Employers' Liability Act (Rev. Laws, c. 106,
sec. 71, cl. 1) and at common law, except in the amount which can be recovered."
In Alabama it was said in Wilson vs. Louisville, etc., R. Co., (85 Ala., 269):
"Under the statute, negligence in causing, or failing to discover or remedy a defect,
is essential to liability. It does not undertake to define what shall constitute a defect,
or negligence in regard to the condition of the ways, .works, machinery or plant. To
determine these matters, reference must be made to the principles of the common
law. Therefore, whether the plaintiff's right to recover is based on the statutory or
common law liability of an employer, the measure of defendant's duty to plaintiff is
essentially the
435
VOL. 33, FEBRUARY 4, 1916. 435
In Colorado Milling & Elevator Co. vs. Mitchell (26 Colo., 284), it was said:
"Clauses 1 and 2, which are the only provisions that can be said to have any
bearing upon the case in hand, are, so f ar as they go, but a legislative recognition of
the principles laid down in the former decisions of this court."
It is, however, observed in Toomey vs. Donovan (158 Mass., 232), that section 4 of
their Act (sec. 6 of our own) enlarges "the liability of the employer; otherwise, it is
meaningless. The inference from the section plainly is that the employer should be
liable when a contractor does part of his work and an employee of the contractor is
injured by reason of a defect in the condition of the ways, works, machinery, or plant
furnished by the employer to the contractor, which has not been discovered or
remedied through the negligence of the employer, or of some person intrusted by him
with the duty of seeing that they were in proper condition."
In England, the view is entertained that the liability imposed by the Act in
extension or derogation of the employer's common law liability arises almost entirely
from the partial abrogation of the doctrine of common employment which the Act
effects (Weblin vs. Ballard, 17 Q. B. D., 122).
The Employers' Liability Act was passed to obviate the injustice to workmen that
employers should escape liability where persons having superintendence and control
in the employment were guilty of negligence causing injury to workmen. The object
of the Act was to get rid of the inference arising from the fact of common employment
with respect to injuries caused by any persons who are intrusted with the duty of
seeing that the ways, works, or machinery are in proper condition, who have duties
of superintendence and control. And, in the case of railroads, who have charge or
control of engines, switches, signals, or trains. (Griffiths vs. Earl of Dudley, 9 Q. B.
D., 357, 362.)
In Massachusetts, prior to the enactment in question, it had always been the rule
that the common employer was not
436
liable to an employee for injuries sustained through the neg-ligence of a
superintendent or superior workman (Zeigler vs. Day, 123 Mass.,
152; Kalleck vs. Deering, 161 Mass., 469; 42 Am. St. Rep., 421).
In Quinlan vs.Lackawanna Steel Co. (107 App. Div., 176; 94 N. Y. S., 942), it was said
that the act was undoubtedly intended to make the employer liable for the acts of a
superintendent while engaged in acts of superintendence. In 1 Dresser on Employers'
Liability it is said:
"The effect of the Act is to except from the class of fellow servants, the risk of whose
negligence the servant was held to have assumed, such persons as are intrusted by
the master with duties of superintendents while in the exercise of them."
In Alabama it has been said that the statute does not make the master liable for
the negligence of an employee who is a mere fellow servant and nothing more of the
injured employee (Walton vs. Tennessee Coal, Iron & R. R. Co., 166 Ala., 538).
In 5 Labatt's Master & Servant, p. 5192, it is said that, generally speaking,
conditions precedent to recovery are (1) that the servant was a "superintendent"
within the meaning of the acts; (2) that the act which was the immediate cause of the
injury was negligent; and (3) that the act was done in the exercise of the controlling
functions of the superintendent. It has been suggested that, in" effect, subsection 2 of
section 1 extends to workmen the benefit of the principle of respondeat superior so far
as negligent acts of "superintendents" are concerned.
The third subsection of section 1 carries the abrogation of the fellow-servant
doctrine even farther as respects employees of what is generally known as the
operating department of railroads. In this industry an employer is liable not only for
negligent acts of those who may be properly said to be within subsection 2, but also,
according to subsection 3, to all persons "in charge or control of any signal, switch,
locomotive engine or train." Railroad companies
437
VOL. 33, FEBRUARY 4, 1916. 437
have thus special liabilities and railroad employees have special benefits under the
Act.
The effect of the Act on the fellow-servant doctrine was not to entirely abolish it
but to reduce its scope. As was said in Henahan vs. Lyons (1909) (201 Mass., 269),
"There can be no recovery for the negligence of an employee where there is no
evidence that superintendence was his sole or principal duty."
Now, what effect has the Act had upon the common law def ense of assumption of
risk, or as it is considered in some jurisdictions, volenti non fit injuria? In a recent
case decided by the Supreme Court of the United States, in which the Federal
Employers' Liability Act of April 22, 1908 (c. 149, 35 Stat., 65) was discussed, it was
said:
"Upon the merits, we of course sustain the contention that by the Employers'
Liability Act the def ense of assumption of risk remains as at common law, saving in
cases mentioned in section 4, that is to say: 'any case where the violation by such
common carrier of any statute enacted for the safety of employees contributed to the
injury or death of such employee/ " (Southern Ry. Co. vs.Crockett, 234 U. S., 725.)
In England, it was said in the case of Thomas vs.Quartermaine (18 Q. B. D., 685)
that the Act had not varied the effect of the maxim volenti non fit injuria so far as it
involves the ordinary risks inherent in his particular employment. To the same effect
is O'Maley vs. South Boston Gas Light Co. (158 Mas., 135); Birmingham Ry. &
Electric Co. vs. Allen (99 Ala., 359); Whitcomb vs. Standard Oil Co. (153 Ind., 513).
But while the Act made no change in the doctrine of assumed risks, there is,
nevertheless, a noticeable diff erence in the application of the doctrine in favor of the
workman since the enactment of these Acts. The doctrine is based upon the implied
consent of the servant to accept or continue in the employment after becoming aware
of the risk which resulted in his injury. It was formerly held that mere acceptance of
the employment or continuance in
438
it with knowledge of the risk was conclusive of the workman's consent to accept the
risk, and the usual practice was, when evidence of this nature was satisfactory, to
direct a verdict or nonsuit in favor of the defendant. The trend of modern public
sentiment in favor of compensation for industrial accidents, however, has had the
influence of making the" assumption of risks almost entirely a question of fact instead
of, as under the former practice, practically inferring his consent from the fact of his
knowledge of the risk coupled with his continuance in the service. The unwillingness
of, the employee to sacrifice his employment has been recognized as an inducement
for him to run the risk, however unwilling he may be, in fact, to do so. This new theory
of the assumption of risk, however, does not abrogate the doctrine at all. It merely
requires more con-vincing evidence of the employee's consent to assume the risk. It
is still true that the employee assumes the ordinary risks inherent in the industry in
which he is employed. But as to those abnormal risks arising from unusual
conditions, the new view of the doctrine requires the question of his consent to
undergo such risks to be considered purely as a question of fact and to require cogent
and convincing evidence of such consent. Cases in which the whole matter is
discussed at length are Thomas vs. Quartermaine (18 Q, B. D., 685)
; Yarmouth vs. France (19 Q. B. D., 647; 17 Eng. Rul. Cas., 217) ; Smith vs. Baker (60
L. J., Q. B. D., N. S., 683) ; Fitzgerald vs. Connecticut River Paper Co. (155 Mass.,
155; 31 Am. St. Rep., 537); Mahoney vs. Dore (155 Mass., 513) ; Davis vs. Forbes, 171
Mass., 548) ; Simoneau vs. Rice & Hutchins (202 Mass., 82) ; and see 3 Labatt's
Master and Servant, p. 3627, et seq.; 2 Dresser on Employers' Liability, p. 326.
"The defense of contributory negligence is always available in actions for
compensation for negligence. It is a common law defense available to a master sued
by a workman in respect of personal negligence, and, if proved, defeats the action.
The act has not deprived the employer of this defense." (20 Halsbury's Laws of
England, p. 138.)
439
VOL. 33, FEBRUARY 4, 1916. 439
In Massachusetts it was said that assuming the negligence of a superintendent, the
servant could not recover if he were guilty of contributory negligence.
(Regan vs. Lombard, 192 Mass., 319). This doctrine, however, like that of. the
assumption of risk, has been more recently partially abrogated by statutes. Under
the Federal Employers' Liability Act of April 22, 1908 (35 Stat., 65; U. S. Comp. Stat
Supp., 1911, p. 1322), the defense of contributory negligence "is abrogated in all
instances where the employer's violation of a statute enacted for the safety of his
employees contributes to the injury." And in several States the doctrine of
comparative negligence, as to some industries, has been established by statute. The
effect of these statutes is to diminish the damages recoverable in proportion to the
negligence of the injured person. (Arkansas, Laws of 1907, p. 162; Colorado, Act of
May 27, 1911; Morrison & De Soto Stat. Ann., secs. 2060 and 2063; Florida, Gen. Stat.
1906, secs. 3148 et seq.; Georgia, Code 1911, Acts 1909, p. 160).
Viewing the act as a whole, it was said in Thomas vs.Quartermaine (18 Q. B. D.,
685), per Bawen, L. J.: "The true view in my opinion is that the Act, with certain
exceptions, has placed the workman in a position as advantageous as but no better
than that of the rest of the world who use the master's premises at his invitation on
business. If it has created any further or other duty to be fulfilled by the master I do
not know what it is, how it is to be defined, or who is to define it."
In Mobile etc., Ry. Co. vs. Holborn (84 Ala., 133), it was said:
"The purpose of the statute is to protect the employee against the special defenses
growing out of, and incidental to, the relation of employer and employee; and the
result is to take from the employer such special defenses, but to leave him all the def
enses which he has by the common law against one of the public, not a trespasser,
nor a bare licensee."
In 1 Dresser on Employers' Liability, sec. 2, it is observed that it is apparent that
the Act has not attempted to define
440
generally the rights and duties of masters and servants, and is not a codification of
the law. Constant reference must be made to the common law to define who are
masters and who are servants, what is the scope of the employment and whether the
inquiry was the proximate result of the negligence; and negligence itself is
determined by the common law, and not by the Act. The Act, moreover, is silent
concerning certain terms of the contract of service. It does not impose any obligation
on the master to employ com-petent servants, nor to instruct or warn his servants
about their work or the dangers of it. These obligations were too well settled and
important to be taken away by implication merely, and the courts have held that the
Act was remedial, and a concurrent, instead of an exclusive, remedy.
It is manifest, therefore, that the purpose of the Employers' Liability Act was, at
most, to abolish certain defenses in certain specified cases, but in no manner to
prejudice common law rights of employees or to interfere with the enforcement of any
right that the Act itself did not create. Such have been the holdings of the courts in
England and the United States from the very beginning.
We now come to the consideration of Act No. 1874 for the purpose of determining
what effect this Act has had upon the law of damages in personal injury cases in this
country, bearing in mind that the Act is, as we have indicated, essentially a copy of
the Massachusetts Employers' Liability A ct which has "prevailed in the State of
Massachusetts some years and upon which interpretations have been made by the
Massachusetts courts, defining the exact meaning of the provisions of the law."
(Special report of the joint committee of the Philippine Legislature on the Employers'
Liability Act, Commission Journal 1908, p. 296.) We agree with the Supreme Court
of Massachusetts that the Act should be liberally construed in favor of employees.
The main purpose of the Act, as its title indicates, was to extend the liability of
employers and to render them liable in damages for certain classes of personal
injuries for which
441
VOL. 33, FEBRUARY 4, 1916. 441
it was thought they were not liable under the law prior to the passage of the Act.
We do not doubt that it was, prior to the passage of Act No. 1874 and still is, the
duty of the employer in this jurisdiction to perform those duties, in reference to
providing reasonably safe places, and safe and suitable ways, works, and machinary,
etc., in and about which his employees are required to work, which, under the
common law of England and America, are termed personal duties, and which in the
United States are held to be such that the employer cannot delegate his responsibility
and liability to his subordinates.
"This (rule of) contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely corresponding to the English
and American law." (Rakes vs.Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359, 366.)
So, to this extent, the first subsection of section 1 of the Act is simply declaratory
of the law as it stood previous to the enactment. It may be that the employer would
not be liable, under the Civil Code, for personal injuries caused to his employees as a
result of the negligence of the employer's superintendent or acting superintendent,
or that of a person in charge or control of a signal, etc., provided that the employer
"employed all the diligence of a good father of a family to avoid the damage." (Art.
1903 of the Civil Code, and Chaves and Garcia vs. Manila Electric Railroad and Light
Co., 31 Phil. Rep., 47.) Under the Act the employer would be liable in damages for
such negligence of the employees named. If this view be correct, a question which we
are not now called upon to definitely determine, then the liability of employers was,
in fact, extended and new rights of action were created by the Act. It is these new
rights to which the Act refers, wherein it provides that "the employee, or his legal
representatives, shall, subject to the provisions of this Act, have the same rights to
compensation and of action against the employer as if he
442
had not been an employee, nor in the service, nor engaged in the work, of the
employer."
Standing in this form, it is quite clear that it was not intended that all rights to
compensation and of action against employers by injured employees or their
representatives must be brought under and be governed by the Act. The strongest
proof of all, showing that the Legislature never intended by the Act to curtail the
rights of employees, is 'that of the defense of contributory negligence which defeats
the action under the Act, while under the Civil Code, such complete defense does not
exist at all in this country. (Rakes vs. Atlantic, Gulf & Pacific
Co., supra; Eades vs. Atlantic, Gulf & Pacific Co., 19 Phil. Rep., 561.) That the
defense of contributory negligence, as it is understood in the United States, is
recognized in the Act with all its force and effect is clear, because the first section
requires as an essential requisite that the employee be "in the exercise of due care"
at the time of the injury in order to hold the employer liable for damages. The plaintiff
in the case of Rakes vs. Atlantic, Gulf & Pacific Co. (supra)could not have recovered
under the Act because he was not in the exercise of due care at the time of the injury.
Taking into consideration what we have said above in reference to the origin and
history of the Act, its plain purport, and realizing that the legislature was content
with the expounded meaning of the words which it adopted, we find no difficulty in
reaching the conclusion that in those cases either within or without the words of the
Act in which the law, as it stood prior to the passage of the Act, gives an employee a
remedy, he still has a right to sue under the same conditions and to recover damages
to the same extent as if the Act had not- been passed. We are also of the opinion that
so far as section 1 of the Act is concerned, the provisions giving the employees the
same rights to compensation and to action as if they had not been employees, the
requirement of notice as a condition to maintaining the action, that relating to the
time within which the action
443
VOL. 33, FEBRUARY 4, 1916. 443
must be brought, and that requiring the employee to give notice to his employer
within a reasonable time after he becomes aware of the defect or negligence, only
apply to those extremes lying outside of the Civil and allied Codes, but embraced by
the Act, unless a case shall arise in which the plaintiff, although he has a remedy
under the Civil Code, insists upon relying upon the Act alone- (Ryalls vs.Mechanics'
Mills, 150 Mass., 190, and cases cited therein.) Act No. 2473 has not in the least
changed these principles.
The net result is that we are required, under the pleadings and record in the case
at bar, to determine whether the plaintiff can recover for the death of her son under
either Act No. 1874 or the Civil Code.
Assuming that the excavation f or the gas pipe is within the category of "ways,
works, or machinery connected with or used in the business of the defendant," we are
of the opinion that recovery cannot be had under the Act f or the reason that, as we
have indicated, the deceased was at a place where he had no right to be at the time
he met his death. His work did not call him there, nor is it shown that he was
permitted there tacitly or otherwise. Under the Anglo-American law the rule
applicable to such a set of facts is that the master is not responsible, under the
Employers' Liability Act, for accidents to his employees when they are outside the
scope of their employment for purposes of their own.
"The obligations of the master * * * continue in force, not only during all the time
in which his servants are actually engaged in his service, but also during the time
reasonably occupied by them on his premises in going to and returning from their
work and in intervals of rest between. * * * But he is under no obligation to keep in
safe condition for their use any part of the premises to which their duties do not call
them and to which he has not given them permission to go." ( (Street's edition of
Shearman & Redfield on Negligence [vol. 1], sec. 188.)
444
To the same effect is 4 Labatt's Master and Servant, p. 4697.
"A master's duty in respect to furnishing his servants a safe place in which to work
extends to such parts of his premises only as he has prepared for their occupancy
while doing his work, and to such other parts as he knows or ought to know they are
accustomed to use while doing it. The application of this principle has frequently
prevented recovery in cases where the injury proximately resulted from the fact that
the injured servant was occupying the dangerous. position merely for his own
convenience and accomodation. Under such circumstances his legal rights are no
greater than those of a licensee."
Besides the many cases cited by this author supporting his text, we
note Connell vs. New York C. & H. R. R. Co.(129 N. Y., Sup. 666); Louisville & N. R.
R. Co. vs. Hocker(111 Ky., 707) ; Gawlack vs. Michigan C. R. Co. (11 Ohio C. C.,
59); Pfeiffer vs. Ringler (12 Daly, 437)—in all of which cases the injured persons were
attending a call of nature in dangerous circumstances at places not authorized by the
employer to be used for that purpose; Wilson vs.Chesapeake & O. Ry. Co. (130 Ky.,
182), where plaintiff left a roundhouse in which he was working at night and started
in the dark through the yards for a restaurant to get something to eat; Pioneer Mining
& Mfg. Co. vs. Talley (12 L. R. A., N. S., 861), where plaintiff, a miner, left his work
and went into another portion of the mine to get his own tools which he had loaned
to other workmen; McCann vs. Atlantic Mills (20 R. I., 566), where plaintiff went
into a dark place to get a drink of water and was injured by falling into a reservoir;
and Adams vs. Iron Cliffs Co. (78 Mich., 271; 18 Am. St. Rep., 441), where plaintiff
left his work during working hours and started to cross some railroad tracks for the
purpose of attending to his private business. In all these cases it was held that the
injured person was outside the scope of his employment at the time and, hence, had
no right of action against his employer.
445
VOL. 33, FEBRUARY 4, 1916. 445
Article 1105 of the Civil Code provides that:
"No one shall be liable for events which could not be foreseen, or which having
been foreseen were inevitable, with the exception of the cases expressly mentioned in
the law or those in which the obligation so declares."
The case under consideration does not fall within the exceptions mentioned in the
above quoted article. (Manresa, vol. 8, p. 91.) After providing a reasonably safe place
in and about which the deceased was required to work, the defendant's liability was
then limited to those events which could have been foreseen. Article 1902 provides
that a person who, by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done. Article 1903, after
providing for the liability of principals for the acts of their employees, agents, or those
for whom they are otherwise responsible, provides that such liability shall cease when
the persons mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage, We have then, on the one hand, nonliability
of an employer for events which could not be foreseen (article 1105), and where he
has exercised the care of a good father of a family (article 1903), and, on the other
hand, his liability where fault or negligence may be attributable to him (article 1902).
Gideon, city engineer of Manila and a witness for the plaintiff, testified concerning
his experience with trenches in this city. He stated that if the trenches are very
dangerous his department uses sheathing piles and braces them firmly. If the
trenches are of considerable depth and the ground is not considered safe, they put
planks on both sides, supported by braces. If the trenches are not very deep or if the
ground is considered safe, they simply make the excavations. The conditions vary and
the precautions used depend upon the opinion of an experienced engineer. Seaver,
chief of police of the city of Manila and also a witness for the plaintiff, testified that
the slide which caused
446
the death of the deceased came principally from the side of the trench farthest from
the street-car tracks. Captain Ordax of the police department, another witness for
the plaintiff, testified that the earth which covered the deceased's body came from the
side opposite the street-car tracks. Another witness testified that the distance f rom
the street-car tracks to the trench was only a few feet, but that the trench had been
open for a week. From the testimony of the witnesses it does not appear that there
was any water in the bottom of the trench, although some of the witnesses said that
it was damp. The trench was only three and one-half to four and one-half feet deep.
The cause of Ocumen's death was not the weight of the earth which fell upon him,
but was due to suffocation. He was sitting or squatting when the slide gave way. Had
he been -even half-erect, it is highly probable that he would have escaped suffocation
or even serious injury. Hence, the accident was of a most unusual character.
Experience and common sense demonstrate that ordinarily no danger to employees
is to be anticipated from such a trench as that in question. The fact that the walls
had maintained themselves for a week, without indication of their giving way,
strongly indicates that the necessity for bracing or shoring the trench was remote. To
require the company to guard against such an accident as the one in question would
virtually compel it to shore up every foot of the miles of trenches dug by it in the city
of Manila for the gas mains. Upon a full consideration of the evidence, we are clearly
of the opinion that ordinary care did not require the shoring of the trench walls at the
place where the deceased met his death. The event properly comes within the class
of those which could not be foreseen; and, therefore, the defendant is not liable under
the Civil Code.
Having reached the conclusions above set forth, it is unnecessary to inquire into
the right of the plaintiff to bring and maintain this action.
For the foregoing reasons the judgment appealed from
447
VOL. 33, FEBRUARY 5, 1916. 447
United States vs. Dacaimat.
is reversed and the complaint dismissed, without costs. So ordered.
Arellano, C. J., Torres, Johnson, and Araullo, JJ.,concur.
Carson, J., dissents.
Judgment reversed.
_________________
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

VOL. 291, JUNE 22, 1998 111
Co vs. Court of Appeals
G.R. No. 124922. June 22, 1998. *
JIMMY CO, doing business under the name & style DRAGON METAL
MANUFACTURING, petitioner, vs.COURT OF APPEALS and BROADWAY
MOTOR SALES CORPORATION, respondents.
Remedial Law; Appeals; Pre-trial; The rule that the determination of issues at a pre-trial
conference bars the consideration of other issues on appeal, except those that may involve
privilege or impeaching matter, is inapplicable to this case.—Contrary to the CA’s
pronouncement, the rule that the determination of issues at a pre-trial conference bars the
consideration of other issues on appeal, except those that may involve privilege or impeaching
matter, is inapplicable to this case. The question of delay, though not specifically mentioned
as an issue at the pre-trial may be tackled by the court considering that it is necessarily
intertwined and intimately connected with the principal issue agreed upon by the
parties, i.e., who will bear the loss and whether there was negligence. Petitioner’s imputation
of negligence to private respondent is premised on delay which is the very basis of the
former’s complaint. Thus, it was unavoidable for the court to resolve the case, particularly
the question of negligence without considering whether private respondent was guilty of
delay in the performance of its obligation.
Civil Law; Damages; Negligence; Carnapping per se cannot be considered as a fortuitous
event.—It is not a defense for a repair shop of motor vehicles to escape liability simply because
the damage or loss of a thing lawfully placed in its possession was due to carnapping.
Carnapping per se cannot be considered as a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another’s rightful possession, as in cases of carnapping,
does not automatically give rise to a fortuitous event. To be considered as such, carnapping
entails more than the mere forceful taking of another’s property. It must be proved and
established that the event was an act of God or was done solely by third parties and that
neither the claimant nor the person alleged to be negligent has any participation.
________________
*SECOND DIVISION.
112
112 SUPREME COURT REPORTS
ANNOTATED
Same; Same; Same; The burden of proving that the loss was due to a fortuitous event
rests on him who invokes it.—In accordance with the Rules of evidence, the burden of proving
that the loss was due to a fortuitous event rests on him who invokes it—which in this case is
the private respondent. However, other than the police report of the alleged carnapping
incident, no other evidence was presented by private respondent to the effect that the incident
was not due to its fault. A police report of an alleged crime, to which only private respondent
is privy, does not suffice to establish the carnapping.
Same; Same; Same; Pursuant to Articles 1174 and 1262 of the New Civil Code, liability
attaches even if the loss was due to a fortuitous event if “the nature of the obligation requires
the assumption of risk.”—It must likewise be emphasized that pursuant to Articles 1174 and
1262 of the New Civil Code, liability attaches even if the loss was due to a fortuitous event if
“the nature of the obligation requires the assumption of risk.” Carnapping is a normal
business risk for those engaged in the repair of motor vehicles. For just as the owner is
exposed to that risk so is the repair shop since the car was entrusted to it. That is why, repair
shops are required to first register with the Department of Trade and Industry (DTI) and to
secure an insurance policy for the “shop covering the property entrusted by its customer for
repair, service or maintenance” as a pre-requisite for such registration/accreditation.
Violation of this statutory duty constitutes negligence per se.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.

Lorenzo G. Parungao for petitioner.
Samson S. Alcantara for private respondent.
MARTINEZ, J.:
On July 18, 1990, petitioner entrusted his Nissan pick-up car 1988 model to private 1
respondent—which is engaged in
________________
1Registered in the name of petitioner with Plate No. PJK-666.

113
VOL. 291, JUNE 22, 1998 113
the sale, distribution and repair of motor vehicles—for the following job repair
services and supply of parts:
—Bleed injection pump and all nozzles;
—Adjust valve tappet;
—Change oil and filter;
—Open up and service four wheel brakes, clean
and adjust;
—Lubricate accelerator linkages;
—Replace aircon belt; and
—Replace battery 2
Private respondent undertook to return the vehicle on July 21, 1990 fully serviced
and supplied in accordance with the job contract. After petitioner paid in full the
repair bill in the amount of P1,397.00, private respondent issued to him a gate pass
3
for the release of the vehicle on said date. But came July 21, 1990, the latter could
not release the vehicle as its battery was weak and was not yet replaced. Left with no
option, petitioner himself bought a new battery nearby and delivered it to private
respondent for installation on the same day. However, the battery was not installed
and the delivery of the car was rescheduled to July 24, 1990 or three (3) days later.
When petitioner sought to reclaim his car in the afternoon of July 24, 1990, he was
told that it was carnapped earlier that morning while being road-tested by private
respondent’s employee along Pedro Gil and Perez Streets in Paco, Manila. Private
respondent said that the incident was reported to the police.
Having failed to recover his car and its accessories or the value thereof, petitioner
filed a suit for damages against private respondent anchoring his claim on the latter’s
alleged negligence. For its part, private respondent contended that it has no liability
because the car was lost as a result of a fortuitous event—the carnapping. During
pre-trial, the parties agreed that:
________________
2Rollo, p. 81.
3Covered by CBC Receipt No. 691148; Rollo, p. 10.
114
114 SUPREME COURT REPORTS ANNOTATED
“(T)he cost of the Nissan Pick-up four (4) door when the plaintiff purchased it from the
defendant is P332,500.00 excluding accessories which were installed in the vehicle by the
plaintiff consisting of four (4) brand new tires, magwheels, stereo speaker, amplifier which
amount all in all to P20,000.00. It is agreed that the vehicle was lost on July 24, 1990
‘approximately two (2) years and five (5) months from the date of the purchase.’ It was agreed
that the plaintiff paid the defendant the cost of service and repairs as early as July 21, 1990
in the amount of P1,397.00 which amount was received and duly receipted by the defendant
company. It was also agreed that the present value of a brand new vehicle of the same type
at this time is P425,000.00 without accessories. 4
They likewise agreed that the sole issue for trial was who between the parties shall
bear the loss of the vehicle which necessitates the resolution of whether private
respondent was indeed negligent. After trial, the court a quo found private
5
respondent guilty of delay in the performance of its obligation and held it liable to
petitioner for the value of the lost vehicle and its accessories plus interest and
attorney’s fees. On ap-
6
________________
4 Rollo, pp. 28-29.

5 Rollo, p. 29.
6 The dispositive portion of the trial court’s decision reads:
“Accordingly, this Court finds the defendant liable to the plaintiff for the value of the vehicle in question.
Defendant is ordered to pay plaintiff the value of the vehicle in the amount of Three Hundred Thirty Two
Thousand Five Hundred Pesos representing the acquisition cost of the vehicle plus the amount of Twenty
Thousand Pesos representing the cost of the four brand new tires, magwheels, pioneer stereo speakers, air-
conditioner, which were installed by the plaintiff in his vehicle after the plaintiff bought the vehicle from
the defendant. While it is true that plaintiff purchased from the defendant the vehicle about two years and
five months before the same was lost, and therefore the vehicle had already depreciated from its original
value at the time it was lost, it is also true as agreed upon by the parties in the pre-trial, that the present
value of a brand new vehicle of the same type has at this time increased to Four Hundred Thousand Pesos
without accessories, so whatever is awarded by this Court to the plaintiff in this decision would not even be
sufficient to purchase a brand new vehicle at the present prices. This Court
115
VOL. 291, JUNE 22, 1998 115
peal, the Court of Appeals (CA) reversed the ruling of the lower court and ordered the
dismissal of petitioner’s damage suit. The CA ruled that: (1) the trial court was
7
limited to resolving the issue of negligence as agreed during pre-trial; hence it cannot
pass on the issue of delay; and (2) the vehicle was lost due to a fortuitous event.
In a petition for review to this Court, the principal query raised is whether a repair
shop can be held liable for the loss of a customer’s vehicle while the same is in its
custody for repair or other job services?
The Court resolves the query in favor of the customer. First, on the technical aspect
involved. Contrary to the CA’s pronouncement, the rule that the determination of
issues at a pre-trial conference bars the consideration of other issues on appeal,
except those that may involve privilege or impeaching matter, is inapplicable to this
8
case. The question of delay,

________________
believes that the amount awarded to the plaintiff above-stated represents a fair compromise, considering
the depreciation of the vehicle from the time it was purchased and to the time it was lost and which is off-
seted by the increase cost of a brand new vehicle at the present time. Defendant is likewise ordered to pay
plaintiff legal interest in the amount above-stated from the date of the finality of this decision until full
payment of the obligation. Further, defendant is ordered to pay plaintiff Ten Thousand Pesos by attorney’s
fees.” (sic was not included so as not to clutter the narration); Rollo, pp. 78, 94.
7 CA Decision promulgated August 31, 1995 penned by Justice Austria-Martinez with Justices Lantin
and Salas, concurring; Rollo, pp. 26-32.

8 Caltex v. CA, 212 SCRA 448; Bergado v. CA, 173 SCRA 497 citing Permanent Concrete Products, Inc.
v. Teodoro, 26 SCRA 332. In the Bergado case (p. 501), the court reiterated the rule that the specific
exceptions to the general rule to be observed in pre-trials emphasized in Gicano v. Gegato, 157 SCRA 140 is
“that trial courts have authority and discretion to dismiss an action on the ground of prescription when the
parties’ pleadings or other facts on record show it to be indeed time-barred; and it may do so on the basis of
a motion to dismiss, or an answer which sets up such ground as an affirmative defense; or even if the ground
is alleged after judgment
116
though not specifically mentioned as an issue at the pre-trial may be tackled by the
court considering that it is necessarily intertwined and intimately connected with the
principal issue agreed upon by the parties, i.e., who will bear the loss and whether
there was negligence. Petitioner’s imputation of negligence to private respondent is
premised on delay which is the very basis of the former’s complaint. Thus, it was
unavoidable for the court to resolve the case, particularly the question of negligence
without considering whether private respondent was guilty of delay in the
performance of its obligation.
On the merits. It is not a defense for a repair shop of motor vehicles to escape
liability simply because the damage or loss of a thing lawfully placed in its possession
was due to carnapping. Carnapping per se cannot be considered as a fortuitous event.
The fact that a thing was unlawfully and forcefully taken from another’s rightful
possession, as in cases of carnapping, does not automatically give rise to a fortuitous
event. To be considered as such, carnapping entails more than the mere forceful
taking of another’s property. It must be proved and established that the event was an
act of God or was done solely by third parties and that neither the claimant nor the
person alleged to be negligent has any participation. In accordance with the Rules of
9
evidence, the burden of proving that the loss was due to a fortuitous event rests on
him who invokes it —which in this case is the private respondent.
10
________________
on the merits, as in a motion for reconsideration; or even if the defense has not been asserted at all, as
where no statement thereof is found in the pleadings, or where a defendant had been declared in default.
What is essential only, to repeat, is that the facts demonstrating the lapse of the prescriptive period, be
otherwise sufficiently and satisfactorily apparent on the record; either in the averments of the plaintiffs, or
otherwise established by the evidence.”
9 Lasam v. Smith, 45 Phil. 657; General Enterprises, Inc. v. Llianga Bay Logging Co., Inc., 120 Phil.
702; Tugade v. CA, 85 SCRA 226.

10 Section 1, Rule 131, 1989 Revised Rules on Evidence provides: “Burden of proof.—Burden of proof is the
duty of a party to
117
VOL. 291, JUNE 22, 1998 117
However, other than the police report of the alleged carnapping incident, no other
evidence was presented by private respondent to the effect that the incident was not
due to its fault. A police report of an alleged crime, to which only private respondent
is privy, does not suffice to establish the carnapping. Neither does it prove that there
was no fault on the part of private respondent notwithstanding the parties’
agreement at the pre-trial that the car was carnapped. Carnapping does not foreclose
the possibility of fault or negligence on the part of private respondent.
Even assuming arguendo that carnapping was duly established as a fortuitous
event, still private respondent cannot escape liability. Article 1165 of the New Civil 11
Code makes an obligor who is guilty of delay responsible even for a fortuitous event
until he has effected the delivery. In this case, private respondent was already in
delay as it was supposed to deliver petitioner’s car three (3) days before it was lost.
Petitioner’s agreement to the rescheduled delivery does not defeat his claim as
private respondent had already breached its obligation. Moreover, such accession
cannot be construed as waiver of petitioner’s right to hold private respondent liable
because the car was unusable and thus, petitioner had no option but to leave it.
Assuming further that there was no delay, still working against private
respondent is the legal presumption under Article 1265 that its possession of the
thing at the time it was lost was due to its fault. This presumption is reasonable
12
________________
present evidence on the facts in issue necessary to establish his claim or defense by the amount of
evidence required by law.” (Italics supplied).
11 Article 1165. x x x x x x x x x If the obligor delays, or has promised to deliver the same thing to two or
more persons who do not have the same interest, he shall be responsible for fortuitous event until he has
effected the delivery. (Italics supplied).
12 Article 1265. Whenever the thing is lost in the possession of the debtor, it shall be presumed that the
loss was due to his fault, unless there is proof to the contrary, and without prejudice to the
118
since he who has the custody and care of the thing can easily explain the
circumstances of the loss. The vehicle owner has no duty to show that the repair shop
was at fault. All that petitioner needs to prove, as claimant, is the simple fact that
private respondent was in possession of the vehicle at the time it was lost. In this
case, private respondent’s possession at the time of the loss is undisputed.
Consequently, the burden shifts to the possessor who needs to present controverting
evidence sufficient enough to overcome that presumption. Moreover, the exempting
circumstances—earthquake, flood, storm or other natural calamity—when the
presumption of fault is not applicable do not concur in this case. Accordingly, having
13
failed to rebut the presumption and since the case does not fall under the exceptions,
private respondent is answerable for the loss.
It must likewise be emphasized that pursuant to Articles 1174 and 1262 of the
New Civil Code, liability attaches even if the loss was due to a fortuitous event if “the
nature of the obligation requires the assumption of risk.” Carnapping is a normal
14
business risk for those engaged in the repair of motor vehicles. For just as the owner
is exposed to that risk so is the repair shop since the car was entrusted to it. That is
why, repair shops are required to first register with the Depart-
________________
provisions of Article 1165. This presumption does not apply in case of earthquake, flood, storm, or other
natural calamity. (Italics supplied).
13 New Civil Code, Article 1265.
14 Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.”
Article 1262. x x x xxx xxx
When by law or stipulation, the obligor is liable even for fortuitous event, the loss of the thing does not
extinguish the obligation, and he shall be responsible for damages. The same rule applies when the nature
of the obligation requires the assumption of risk. (Italics supplied).
119
VOL. 291, JUNE 22, 1998 119
ment of Trade and Industry (DTI) and to secure an insurance policy for the “shop
15
covering the property entrusted by its customer for repair, service or maintenance”
as a prerequisite for such registration/accreditation. Violation of this
16
________________
15 P.D. 1572 (EMPOWERING THE SECRETARY OF TRADE TO REGULATE AND CONTROL THE
OPERATION OF SERVICE AND REPAIR ENTERPRISES FOR MOTOR VEHICLES, HEAVY

EQUIPMENT AND ENGINES AND ENGINEERING WORKS; ELECTRONICS, ELECTRICAL, AIR-
CONDITIONING AND REFRIGERATION; OFFICE EQUIPMENT; MEDICAL AND DENTAL
EQUIPMENT; AND OTHER CONSUMER MECHANICAL AND INDUSTRIAL EQUIPMENT;
APPLIANCES OR DEVICES, INCLUDING THE TECHNICAL PERSONNEL EMPLOYED THEREIN).
Section 1. Accreditation.—All enterprises and technical personnel employed therein engaged in the
service and repair of motor vehicles, heavy equipment, engines and engineering works; electronics,
electrical, air-conditioning and refrigeration; office equipment; medical and dental equipment; and other
consumer industrial electro-mechanical, chemical and gaseous equipment, machinery, appliances or devices
should Apply for accreditation with the Department of Trade within ninety (90) days from the promulgation
of this decree and should apply for renewal on or before the 31st day of January of every year thereafter.
No such service or repair enterprises and technical personnel shall be licensed or permitted to operate in
the Philippines for the first time without first being accredited by the Department of Trade.
16 DTI Ministry Order No. 32, Rule III
“Section 1. REQUIREMENTS FOR ACCREDITATION: (1) Enterprise applying for original

accreditation shall submit the following:
1. 1.1List of machineries/equipment/tools in useful condition;

2. 1.2List of certified engineers/accredited technicians, mechanics with their personal data;
3. 1.3Copy of Insurance Policy of the shop covering the property entrusted by its customer for repair,
service or maintenance together with a copy of the official receipt covering the full payment of
premium;
120
statutory duty constitutes negligence per se. Having taken custody of the vehicle,
17
private respondent is obliged not only to repair the vehicle but must also provide the
customer with some form of security for his property over which he loses immediate
control. An owner who cannot exercise the seven (7) juses or attributes of ownership—
the right to possess, to use and enjoy, to abuse or consume, to accessories, to dispose
or alienate, to recover or vindicate and to the fruits —is a crippled owner. Failure of
18
the repair shop to provide security to a motor vehicle owner would leave the latter at
the mercy of the former. Moreover, on the assumption that private respondent’s
repair business is duly registered, it presupposes that its shop is covered by insurance
from which it may recover the loss. If private respondent can recover from its in-
________________
1. 1.4Copy of Bond referred to under Section 7, Rule III of this Rules and Regulations;
2. 1.5Written service warranty in the form prescribed by the Bureau;
3. 1.6Certificate issued by the Securities and Exchange Commission and Articles of Incorporation or
Partnership in case of corporation or partnership;
4. 1.7Such other additional documents which the director may require from time to time.
Section 8. INSURANCE POLICY The insurance policy for the following risks like theft, pilferage, fire,
flood and loss should cover exclusively the machines, motor vehicles, heavy equipment, engines, electronics,
electrical, airconditioners, refrigerators, office machines, and data processing equipment, medical and
dental equipment, other consumer mechanical and industrial equipment stored for repair and/or in the
premises of the applicant.” (Italics supplied).
17 Cipriano v. CA, 263 SCRA 711 citing F.F. Cruz and Co., Inc. v. CA, 164 SCRA 731 and Teague v.
Fernandez, 51 SCRA 181.

18 Paras, Civil Code of the Philippines, Annotated, 1989 ed., vol. II, p. 70; De Leon, Comments and Cases
on Property, 1993 ed., p. 77; See also Article 428 of the New Civil Code which states that “The owner has
the right to enjoy and dispose of a thing, without other limitations than those established by law.
“The owner has also a right of action against the holder and possessor of the thing in order to recover
it.”
121
VOL. 291, JUNE 22, 1998 121
surer, then it would be unjustly enriched if it will not compensate petitioner to whom
no fault can be attributed. Otherwise, if the shop is not registered, then the
presumption of negligence applies.
One last thing. With respect to the value of the lost vehicle and its accessories for
which the repair shop is liable, it should be based on the fair market value that the
property would command at the time it was entrusted to it or such other value as
agreed upon by the parties subsequent to the loss. Such recoverable value is fair and
reasonable considering that the value of the vehicle depreciates. This value may be
recovered without prejudice to such other damages that a claimant is entitled under
applicable laws.
WHEREFORE, premises considered, the decision of the Court of Appeals is
REVERSED and SET ASIDE and the decision of the court aquo is REINSTATED.
SO ORDERED.
Regalado (Chairman), Puno and Mendoza, JJ.,concur.
Melo, J., On leave.
Judgment reversed and set aside, that of the court a quo reinstated.
Note.—Section 1 of Presidential Decree No. 1572 requires service and repair
enterprises for motor vehicles to register with the Department of Trade and Industry.
(Cipriano vs. Court of Appeals, 263 SCRA 711 [1996])
——o0o——
122
G.R. No. 166640. July 31, 2009.*
HERMINIO MARIANO, JR., petitioner, vs. ILDEFONSO C. CALLEJAS and EDGAR
DE BORJA, respondents.
Civil Law; Damages; Common Carriers; Negligence; The death of the wife of the petitioner
in the course of transporting her to her destination gave rise to the presumption of negligence
of the carrier; To overcome the presumption, respondents have to show that they observed
extraordinary diligence in the discharge of their duty or that the accident was caused by a
fortuitous event.—In accord with the above provisions, Celyrosa Express, a common carrier,
through its driver, respondent De Borja, and its registered owner, respondent Callejas, has
the express obligation “to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances,” and to observe extraordinary diligence in the discharge of its duty. The death
of the wife of the petitioner in the course of transporting her to her destination gave rise to
the presumption of negligence of the carrier. To overcome the presumption, respondents have
to show that they observed extraordinary diligence in the discharge of their duty, or that the
accident was caused by a fortuitous event.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
_______________
* FIRST DIVISION.
570
Mariano, Jr. vs. Callejas
Alfredo M. Cargo for petitioner.
Omar M. Mayo for respondents.
PUNO, C.J.:
On appeal are the Decision1 and Resolution2 of the Court of Appeals in CA-G.R. CV
No. 66891, dated May 21, 2004 and January 7, 2005 respectively, which reversed the
Decision3 of the Regional Trial Court (RTC) of Quezon City, dated September 13,
1999, which found respondents jointly and severally liable to pay petitioner damages
for the death of his wife.
First, the facts:
Petitioner Herminio Mariano, Jr. is the surviving spouse of Dr. Frelinda Mariano
who was a passenger of a Celyrosa Express bus bound for Tagaytay when she met
her death. Respondent Ildefonso C. Callejas is the registered owner of Celyrosa
Express, while respondent Edgar de Borja was the driver of the bus on which the
deceased was a passenger.
At around 6:30 p.m. on November 12, 1991, along Aguinaldo Highway, San
Agustin, Dasmariñas, Cavite, the Celyrosa Express bus, carrying Dr. Mariano as its
passenger, collided with an Isuzu truck with trailer bearing plate numbers PJH 906
and TRH 531. The passenger bus was bound for Tagaytay while the trailer truck
came from the opposite direction, bound for Manila. The trailer truck bumped the
passenger bus on its left middle portion. Due to the impact, the passenger bus fell on
its right side on the right shoulder of the highway and caused the death of Dr.
Mariano and physical injuries to four other passengers. Dr.
_______________
1 Rollo, pp. 20-31.

2 Id., at pp. 41-42.
3 Id., at pp. 58-64.
571
VOL. 594, JULY 31, 2009 571
Mariano was 36 years old at the time of her death. She left behind three minor
children, aged four, three and two years.
Petitioner filed a complaint for breach of contract of carriage and damages against
respondents for their failure to transport his wife and mother of his three minor
children safely to her destination. Respondents denied liability for the death of Dr.
Mariano. They claimed that the proximate cause of the accident was the recklessness
of the driver of the trailer truck which bumped their bus while allegedly at a halt on
the shoulder of the road in its rightful lane. Thus, respondent Callejas filed a third-
party complaint against Liong Chio Chang, doing business under the name and style
of La Perla Sugar Supply, the owner of the trailer truck, for indemnity in the event
that he would be held liable for damages to petitioner.
Other cases were filed. Callejas filed a complaint,4docketed as Civil Case No. NC-
397 before the RTC of Naic, Cavite, against La Perla Sugar Supply and Arcadio
Arcilla, the truck driver, for damages he incurred due to the vehicular accident. On
September 24, 1992, the said court dismissed the complaint against La Perla Sugar
Supply for lack of evidence. It, however, found Arcilla liable to pay Callejas the cost
of the repairs of his passenger bus, his lost earnings, exemplary damages and
attorney’s fees.5
A criminal case, Criminal Case No. 2223-92, was also filed against truck driver
Arcilla in the RTC of Imus, Cavite. On May 3, 1994, the said court convicted truck
driver Arcadio Arcilla of the crime of reckless imprudence resulting to homicide,
multiple slight physical injuries and damage to property.6
In the case at bar, the trial court, in its Decision dated September 13, 1999, found
respondents Ildefonso Callejas and
_______________
4 RTC Records, Exhibit “1,” pp. 84-89.

5 RTC Records, Exhibit “3,” pp. 90-93.
6 RTC Records, Exhibit “6,” p. 165.
572
Edgar de Borja, together with Liong Chio Chang, jointly and severally liable to pay
petitioner damages and costs of suit. The dispositive portion of the Decision reads:
“ACCORDINGLY, the defendants are ordered to pay as follows:
1. The sum of P50,000.00 as civil indemnity for the loss of life;
2. The sum of P40,000.00 as actual and compensatory damages;
3. The sum of P1,829,200.00 as foregone income;
4. The sum of P30,000.00 as moral damages;
5. The sum of P20,000.00 as exemplary damages;
6. The costs of suit.
SO ORDERED.”7
Respondents Callejas and De Borja appealed to the Court of Appeals, contending
that the trial court erred in holding them guilty of breach of contract of carriage.
On May 21, 2004, the Court of Appeals reversed the decision of the trial court. It
reasoned:
“. . . the presumption of fault or negligence against the carrier is only a disputable
presumption. It gives in where contrary facts are established proving either that the carrier
had exercised the degree of diligence required by law or the injury suffered by the passenger
was due to a fortuitous event. Where, as in the instant case, the injury sustained by the
petitioner was in no way due to any defect in the means of transport or in the method of
transporting or to the negligent or wilful acts of private respondent's employees, and
therefore involving no issue of negligence in its duty to provide safe and suitable cars as well
as competent employees, with the injury arising wholly from causes created by strangers over
which the carrier had no control or even knowledge or could not have prevented, the
presumption is rebutted and the carrier is not and ought not to be held liable. To rule
otherwise would make the
_______________
7 Rollo, p. 64.
573
VOL. 594, JULY 31, 2009 573
common carrier the insurer of the absolute safety of its passengers which is not the intention
of the lawmakers.”8
The dispositive portion of the Decision reads:
“WHEREFORE, the decision appealed from, insofar as it found defendants-appellants
Ildefonso Callejas and Edgar de Borja liable for damages to plaintiff-appellee Herminio E.
Mariano, Jr., is REVERSED and SET ASIDE and another one entered absolving them from
any liability for the death of Dr. Frelinda Cargo Mariano.”9
The appellate court also denied the motion for reconsideration filed by petitioner.
Hence, this appeal, relying on the following ground:
THE DECISION OF THE HONORABLE COURT OF APPEALS, SPECIAL FOURTEENTH
DIVISION IS NOT IN ACCORD WITH THE FACTUAL BASIS OF THE CASE.10
The following are the provisions of the Civil Code pertinent to the case at bar:
“ART. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them, according to all the circumstances
of each case.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons, with a
due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed
to have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755.”
_______________
8 Id., at p. 28.
9 Id., at p. 31.
10 Id., at p. 12.
574
In accord with the above provisions, Celyrosa Express, a common carrier, through
its driver, respondent De Borja, and its registered owner, respondent Callejas, has
the express obligation “to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances,”11 and to observe extraordinary diligence in the
discharge of its duty. The death of the wife of the petitioner in the course of
transporting her to her destination gave rise to the presumption of negligence of the
carrier. To overcome the presumption, respondents have to show that they observed
extraordinary diligence in the discharge of their duty, or that the accident was caused
by a fortuitous event.
This Court interpreted the above quoted provisions in Pilapil v. Court of
Appeals.12 We elucidated:
“While the law requires the highest degree of diligence from common carriers in the safe
transport of their passengers and creates a presumption of negligence against them, it does
not, however, make the carrier an insurer of the absolute safety of its passengers.
Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and
precaution in the carriage of passengers by common carriers to only such as human care and
foresight can provide. What constitutes compliance with said duty is adjudged with due
regard to all the circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part
of the common carrier when its passenger is injured, merely relieves the latter, for the time
being, from introducing evidence to fasten the negligence on the former, because the
presumption stands in the place of evidence. Being a mere presumption, however, the
same is rebuttable by proof that the common carrier had exercised extraordinary
diligence as required by law in the performance of its contractual obliga-
_______________
11 Art. 1755, Civil Code.

12 G.R. No. 52159, December 22, 1989, 180 SCRA 546, 551-552.
575
VOL. 594, JULY 31, 2009 575
tion, or that the injury suffered by the passenger was solely due to a fortuitous
event.
In fine, we can only infer from the law the intention of the Code Commission and Congress
to curb the recklessness of drivers and operators of common carriers in the conduct of their
business.
Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger’s safety, but that its
liability for personal injuries sustained by its passenger rests upon its negligence, its failure
to exercise the degree of diligence that the law requires.”
In the case at bar, petitioner cannot succeed in his contention that respondents
failed to overcome the presumption of negligence against them. The totality of
evidence shows that the death of petitioner’s spouse was caused by the reckless
negligence of the driver of the Isuzu trailer truck which lost its brakes and bumped
the Celyrosa Express bus, owned and operated by respondents.
First, we advert to the sketch prepared by PO3 Magno S. de Villa, who investigated
the accident. The sketch13 shows the passenger bus facing the direction of Tagaytay
City and lying on its right side on the shoulder of the road, about five meters away
from the point of impact. On the other hand, the trailer truck was on the opposite
direction, about 500 meters away from the point of impact. PO3 De Villa stated that
he interviewed De Borja, respondent driver of the passenger bus, who said that he
was about to unload some passengers when his bus was bumped by the driver of the
trailer truck that lost its brakes. PO3 De Villa checked out the trailer truck and
found that its brakes really failed. He testified before the trial court, as follows:
ATTY. ESTELYDIZ:
q You pointed to the Isuzu truck beyond the point of impact. Did you investigate why did (sic) the Isuzu
truck is beyond the point of impact?
13 RTC Records, pp. 26, 34.
576
a Because the truck has no brakes.
COURT:
q What is the distance between that circle which is marked as Exh. “1-c” to the place where you found
the same?
a More or less 500 meters.
q Why did you say that the truck has no brakes?
a I tested it.
q And you found no brakes?
a Yes, sir.
xxx
q When you went to the scene of accident, what was the position of Celyrosa bus?
a It was lying on its side.
COURT:
q Right side or left side?
a Right side.
ATTY. ESTELYDIZ:
q On what part of the road was it lying?
a On the shoulder of the road.
COURT:
q How many meters from the point of impact?
a Near, about 5 meters.14
His police report bolsters his testimony and states:
“Said vehicle 1 [passenger bus] was running from Manila toward south direction when, in
the course of its travel, it was hit and bumped by vehicle 2 [truck with trailer] then running
fast from opposite direction, causing said vehicle 1 to fall on its side on the road shoulder,
causing the death of one and injuries of some passengers thereof, and its damage, after
collission (sic), vehicle 2 continiously (sic) ran and stopped at approximately 500 meters away
from the piont (sic) of impact.”15
_______________
14 TSN, November 4, 1994, pp. 6, 8.
15 RTC Records, p. 33.
577
VOL. 594, JULY 31, 2009 577
In fine, the evidence shows that before the collision, the passenger bus was
cruising on its rightful lane along the Aguinaldo Highway when the trailer truck
coming from the opposite direction, on full speed, suddenly swerved and encroached
on its lane, and bumped the passenger bus on its left middle portion. Respondent
driver De Borja had every right to expect that the trailer truck coming from the
opposite direction would stay on its proper lane. He was not expected to know that
the trailer truck had lost its brakes. The swerving of the trailer truck was abrupt and
it was running on a fast speed as it was found 500 meters away from the point of
collision. Secondly, any doubt as to the culpability of the driver of the trailer truck
ought to vanish when he pleaded guilty to the charge of reckless imprudence resulting
to multiple slight physical injuries and damage to property in Criminal Case No.
2223-92, involving the same incident.
IN VIEW WHEREOF, the petition is DENIED. The Decision dated May 21, 2004
and the Resolution dated January 7, 2005 of the Court of Appeals in CA-G.R. CV No.
66891 are AFFIRMED.
SO ORDERED.
Carpio, Corona, Leonardo-De Castro and Bersamin, JJ., concur.
Petition denied, judgment and resolution affirmed.
Note.—Intent is immaterial in negligence cases because where negligence exists
and is proven, it automatically gives the injured a right to reparation for the damages
caused. (Cantre vs. Go, 522 SCRA 547 [2007])
——o0o——
VOL. 538, NOVEMBER 22, 2007 27
College Assurance Plan vs. Belfranlt Development, Inc.
G.R. No. 155604. November 22, 2007. *
COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN and

ANNUITY PLAN and PENSION CORPORATION, petitioners, vs. BELFRANLT
DEVELOPMENT, INC., respondent.
Lease; Fortuitous Events; Presumptions; Article 1667 of the Civil Code creates the
presumption that the lessee is liable for the deterioration or loss of a thing leased, and to
overcome such legal presumption, the lessee must prove that the deterioration or loss was due
to a fortuitous event which took place without his fault or negligence.—Article 1667 of the
Civil Code, which provides: The lessee is responsible for the deterioration or loss of the thing
leased, unless he proves that it took place without his fault. This burden of proof on the lessee
does not apply when the destruction is due to earthquake, flood, storm or other natural
calamity—creates the presumption that the lessee is liable for the deterioration or loss of a
thing leased. To overcome such legal presumption, the lessee must prove that the
deterioration or loss was due to a fortuitous event which took place without his fault or
negligence.
Same; Same; Words and Phrases; Requisites; If the negligence or fault of the obligor
coincided with the occurrence of the fortuitous event, and caused the loss or damage or the
aggravation thereof, the fortuitous event cannot shield the obligor from liability for his
negligence.—Article 1174 of the Civil Code defines a fortuitous event as that which could not
be foreseen, or which, though foreseen, was inevitable. Whether an act of god or an act of
man, to constitute a fortuitous event, it must be shown that: a) the cause of the unforeseen
and unexpected occurrence or of the failure of the obligor to comply with its obligations was
independent of human will; b) it was impossible to foresee the event or, if it could have been
foreseen, to avoid it; c) the occurrence rendered it impossible for the obligor to fulfill its
obligations in a normal manner; and d) said obligor was free from any participation in the
aggravation of the injury or loss. If the negligence or fault of the obligor coincided with the
occurrence of the fortuitous event, and caused the loss or damage or the aggrava-
_______________
*THIRD DIVISION.
28
tion thereof, the fortuitous event cannot shield the obligor from liability for his
negligence.
Same; Appeals; Review by certiorari under Rule 45 be limited to errors of law only;
Exceptions; The finding that the negligence of the lessee was the proximate cause of the fire
that destroyed portions of the leased units is a purely factual matter which the Supreme Court
cannot pass upon.—The finding that the negligence of petitioners was the proximate cause
of the fire that destroyed portions of the leased units is a purely factual matter which we
cannot pass upon, lest we overstep the restriction that review by certiorari under Rule 45 be
limited to errors of law only. Moreover, the established rule is that the factual findings of the
CA affirming those of the RTC are conclusive and binding on us. We are not wont to review
them, save under exceptional circumstances as: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3) when the
findings are grounded entirely on speculations, surmises or conjectures; (4) when the
judgment of the CA is based on misapprehension of facts; (5) when the CA, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of
both appellant and appellee; (6) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (7) when the CA manifestly overlooked certain
relevant facts not disputed by the parties and which, if properly considered, would justify a
different conclusion; and (8) when the findings of fact of the CA are premised on the absence
of evidence and are contradicted by the evidence on record.
Witnesses; Res Ipsa Loquitor; Requisites; Under the doctrine of res ipsa loquitur expert
testimony may be dispensed with to sustain an allegation of negligence if the following
requisites obtain: a) the accident is of a kind which does not ordinarily occur unless someone
is negligent; b) the cause of the injury was under the exclusive control of the person in charge
and c) the injury suffered must not have been due to any voluntary action or contribution on
the part of the person injured.—Even without the testimony of Fireman Sitchon and the
documents he prepared, the finding of the RTC and CA on the negligence of petitioners cannot
be overturned by petitioners’ bare denial. The CA correctly applied the doctrine of res ipsa
loquitur under which expert testimony may be dispensed with to sustain an allegation of
negligence if the following requisites obtain: a) the accident is
29
VOL. 538, NOVEMBER 22, 2007 29
of a kind which does not ordinarily occur unless someone is negligent; b) the cause of the
injury was under the exclusive control of the person in charge and c) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured.
The fire that damaged Belfranlt Building was not a spontaneous natural occurrence but the
outcome of a human act or omission. It originated in the store room which petitioners had
possession and control of. Respondent had no hand in the incident. Hence, the convergence
of these facts and circumstances speaks for itself: petitioners alone having knowledge of the
cause of the fire or the best opportunity to ascertain it, and respondent having no means to
find out for itself, it is sufficient for the latter to merely allege that the cause of the fire was
the negligence of the former and to rely on the occurrence of the fire as proof of such
negligence. It was all up to petitioners to dispel such inference of negligence, but their bare
denial only left the matter unanswered.
Damages; Temperate or moderate damages may be availed when some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty—
the amount thereof is usually left to the discretion of the courts but the same should be
reasonable, bearing in mind that temperate damages should be more than nominal but less
than compensatory.—The CA deleted the award of actual damages of P2.2 million which the
RTC had granted respondent to cover costs of building repairs. In lieu of actual damages,
temperate damages in the amount of P500,000.00 were awarded by the CA. We find this in
order. Temperate or moderate damages may be availed when some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with certainty. The
amount thereof is usually left to the discretion of the courts but the same should be
reasonable, bearing in mind that temperate damages should be more than nominal but less
than compensatory. Without a doubt, respondent suffered some form of pecuniary loss for the
impairment of the structural integrity of its building as a result of the fire. However, as
correctly pointed out by the CA, because of respondent’s inability to present proof of the exact
amount of such pecuniary loss, it may only be entitled to temperate damages in the amount
of P500,000.00, which we find reasonable and just.
30

Jiminez, Gonzales, Liwanag, Bello, Valdez, Caluya and Fernandez (JGLaw) for
petitioners.
Yulo, Aliling, Pascua & Zuñigo for respondent.
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorariunder Rule 45 of the Rules of
Court, assailing the February 28, 2002 Decision of the Court of Appeals (CA) in CA-
1
G.R. CV No. 63283, which modified the April 14, 1999 Decision of the Regional Trial
2
Court (Branch 221), Quezon City (RTC) in Civil Case No. Q-95-23118.
The antecedent facts are as summarized by the RTC. Belfranlt Development, Inc.
(respondent) is the owner of Belfranlt Building in Angeles City, Pampanga. It leased
to petitioners College Assurance Plan Phil., Inc. (CAP) and Comprehensive Annuity
Plans and Pension Corporation (CAPP) several units on the second and third floors
of the building. 3
On October 8, 1994, fire destroyed portions of the building, including the third floor
units being occupied by petitioners. An October 20, 1994 field investigation report by
an unnamed arson investigator assigned to the case disclosed:
1. 0.5Origin of Fire: Store room occupied by CAP, located at the 3rd floor of the
bldg.
_______________
1 Penned by Associate Justice Edgardo P. Cruz, and concurred in by Associate Justices Hilarion L.
Aquino and Amelita G. Tolentino, Rollo, p. 42.

2 Rollo, p. 52.
3 RTC Decision, Rollo, p. 52.
31
VOL. 538, NOVEMBER 22, 2007 31
1. 0.6Cause of Fire: Accidental (overheated coffee percolator). 4
These findings are reiterated in the October 21, 1994 certification which the BFP City
Fire Marshal, Insp. Teodoro D. del Rosario issued to petitioners as supporting
document for the latter’s insurance claim. 5
Citing the foregoing findings, respondent sent petitioners on November 3, 1994 a
notice to vacate the leased premises to make way for repairs, and to pay reparation
estimated at P1.5 million.
On November 11, 1994, petitioners vacated the leased premises, including the
units on the second floor, but they did not act on the demand for reparation.
6
Respondent wrote petitioners another letter, reiterating its claim for reparation,
this time estimated by professionals to be no less than P2 million. It also clarified
7
that, as the leased units on the second floor were not affected by the fire, petitioners
had no reason to vacate the same; hence, their lease on said units is deemed still
subsisting, along with their obligation to pay for the rent. 8
In reply, petitioners explained that they could no longer re-occupy the units on the
second floor of the building for they had already moved to a new location and entered
into a binding contract with a new lessor. Petitioners also disclaimed liability for
reparation, pointing out that the fire was a fortuitous event for which they could not
be held responsible. 9
After its third demand went unheeded, respondent filed with the RTC a complaint
10
against petitioners for damages.

_______________
4 Exh. “P-2,” id., at p. 89.

5 Exh. “P-3,” id., at p. 91.
6 Id., at p. 71.
7 Id., at p. 81.
8 Rollo, p. 81.
9 Id., at p. 84.
10 Id., at p. 86.
32
The RTC rendered a Decision dated April 14, 1999, the dispositive portion of which
reads:
“WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff
[respondent] and against the herein defendants [petitioners]. Defendants are ordered to pay
the plaintiff joint[sic] and severally the following amounts:
1. 1)P2.2 Million Pesos cost of rehabilitation (repairs, replacements and renovations) of

the Belfranlt building by way of Actual and Compensatory damages;
2. 2)P14,000.00 per month of unpaid rentals on the third floor of the Belfranlt building
for the period from October 1994 until the end of the two year lease contract on May
10, 1996 by way of Actual and Compensatory damages;
3. 3)P18,000.00 per month of unpaid rentals on the second floor of the Belfanlt building
for the period from October 1994 until the end of the two year lease contract on May
10, 1996 by way of Actual or Compensatory damages;
4. 4)P8,400.00 per month as reimbursement of unpaid rentals on the other leased areas
occupied by other tenants for the period from October 1994 until the time the vacated
leased areas were occupied by new tenants;
5. 5)P200,000.00 as moral damages;
6. 6)P200,000.00 as exemplary damages;
7. 7)P50,000.00 plus 20% of Actual damages awarded as reasonable Attorney’s fees; and
8. 8)Costs of suit.
SO ORDERED.” 11
Petitioners appealed to the CA which, in its February 28, 2002 Decision, modified the
RTC Decision, thus:
“WHEREFORE, the appealed decision is MODIFIED in that the award of (i) actual and
compensatory damages in the amounts of P2.2 Million as cost of rehabilitation of Belfranlt
Building and P8,400.00 per month as reimbursement of unpaid rentals on the
_______________
Id., at p. 68.
11
33
VOL. 538, NOVEMBER 22, 2007 33
areas leased by other tenants, (ii) moral damages, (iii) exemplary damages and (iv) attorney’s
fees is DELETED, while defendants-appellants are ordered to pay to plaintiff-appellee,
jointly and severally, the amount of P500,000.00 as temperate damages. The appealed
judgment is AFFIRMED in all other respects.
SO ORDERED.” 12
Respondent did not appeal from the CA decision. 13
Petitioners filed the present petition, questioning the CA decision on the following
grounds:
I
The honorable Court of Appeals erred in not holding that the fire that partially burned
respondent’s building was a fortuitous event.
II
The honorable Court of Appeals erred in holding that petitioner failed to observe the due
diligence of a good father of a family.
III
The honorable Court of Appeals erred in holding petitioners liable for certain actual
damages despite plaintiffs’ failure to prove the damage as alleged.
IV
The honorable Court of Appeals erred in holding petitioners liable for temperate
damages. 14
The petition lacks merit.

Article 1667 of the Civil Code, which provides:
“The lessee is responsible for the deterioration or loss of the thing leased, unless he proves
that it took place without his fault. This burden of proof on the lessee does not apply when
the destruction is due to earthquake, flood, storm or other natural calamity.”
_______________
12 Rollo, p. 49.
13 Id., at pp. 232-234.
14 Id., at p. 17.
34
creates the presumption that the lessee is liable for the deterioration or loss of a thing
leased. To overcome such legal presumption, the lessee must prove that the
deterioration or loss was due to a fortuitous event which took place without his fault
or negligence. 15
Article 1174 of the Civil Code defines a fortuitous event as that which could not be
foreseen, or which, though foreseen, was inevitable. Whether an act of god or an act 16
of man, to constitute a fortuitous event, it must be shown that: a) the cause of the
17
unforeseen and unexpected occurrence or of the failure of the obligor to comply with
its obligations was independent of human will; b) it was impossible to foresee the
event or, if it could have been foreseen, to avoid it; c) the occurrence rendered it
impossible for the obligor to fulfill its obligations in a normal manner; and d) said
obligor was free from any participation in the aggravation of the injury or loss. If the 18
negligence or fault of the obligor coincided with the occurrence of the fortuitous event,
and caused the loss or damage or the aggravation thereof, the fortuitous event cannot
shield the obligor from liability for his negligence. 19
In the present case, it was fire that caused the damage to the units being occupied
by petitioners. The legal presumption therefore is that petitioners were responsible
for the damage. Petitioners insist, however, that they are exempt
_______________
Mindex v. Morillo, 428 Phil. 934, 943; 379 SCRA 144, 153 (2002).
15
Guevent Industrial Development Corporation v. Philippine Lexus Amusement Corporation, G.R. No.
16
159279, July 11, 2006, 494 SCRA 555, 558.

17 Philippine Communications Satellite Corp. v. Globe Telecom, Inc., G.R. No. 147324, May 25, 2004, 429
SCRA 153, 160.

18 Real v. Belo, G.R. No. 146224, January 26, 2007, 513 SCRA 111, 124.
19 Sicam v. Jorge, G.R. No. 159617, August 8, 2007, 529 SCRA 443; MIAA v. Ala Industries
Corporation, 467 Phil. 229, 247; 422 SCRA 603, 615 (2004).
35
VOL. 538, NOVEMBER 22, 2007 35
from liability for the fire was a fortuitous event that took place without their fault or
negligence. 20
The RTC saw differently, holding that the proximate cause of the fire was the fault
and negligence of petitioners in using a coffee percolator in the office stockroom on
the third floor of the building and in allowing the electrical device to overheat:
“Plaintiff has presented credible and preponderant evidence that the fire was not due to a
fortuitous event but rather was due to an overheated coffee percolator found in the leased
premises occupied by the defendants. The certification issued by the Bureau of Fire
Protection Region 3 dated October 21, 1994 clearly indicated that the cause of the fire was
an overheated coffee percolator. This documentary evidence is credible because it was issued
by a government office which conducted an investigation of the cause and circumstances
surrounding the fire of October 8, 1994. Under Section 4, Rule 131 of the Revised Rules of
Court, there is a legal presumption that official duty has been regularly performed. The
defendants have failed to present countervailing evidence to rebut or dispute this
presumption. The defendants did not present any credible evidence to impute any
wrongdoing or false motives on the part of Fire Department Officials and Arson investigators
in the preparation and finalization of this certification. This Court is convinced that the
Certification is genuine, authentic, valid and issued in the proper exercise and regular
performance of the issuing authority’s official duties. The written certification cannot be
considered self-serving to the plaintiff because as clearly indicated on its face the same was
issued not to the plaintiff but to the defendant’s representative Mr. Jesus V. Roig for purposes
of filing their insurance claim. This certification was issued by a government office upon the
request of the defendant’s authorized representative. The plaintiff also presented
preponderant evidence that the fire was caused by an overheated coffee percolator when
plaintiff submitted in evidence not only photographs of the remnants of a coffee percolator
found in the burned premises but the object evidence itself. Defendants did not dispute the
authenticity or veracity of these evidence. Defendants merely presented negative evidence in
the form of denials that defendants maintained a coffee percolator in the premises testified
to by em-
_______________
RTC Decision, Rollo, p. 54.

20
36
ployees of defendants who cannot be considered totally disinterested.” (Citations omitted)
21
The CA concurred with the RTC and noted additional evidence of the negligence of
petitioners:
‘The records disclose that the metal base of a heating device which the lower court found to
be the base of a coffee percolator, was retrieved from the stockroom where the fire originated.
The metal base contains the inscription “CAUTION DO NOT OPERATE WHEN EMPTY,”
which is a warning against the use of such electrical device when empty and an indication
that it is a water-heating appliance. Its being an instrument for preparing coffee is
demonstrated by its retrieval from the stockroom, particularly beside broken drinking
glasses, Nescafe bottle, metal dish rack and utensils.
Appellants assert that it had an airpot—not a coffee percolator—near the Administration
Office on the third floor. For unexplained reasons, however, they did not present the airpot
to disprove the existence of the coffee percolator. The fire did not raze the entire third floor
and the objects therein. Even the stack of highly combustible paper on the third floor was not
totally gutted by the fire. Consequently, it is not farfetched that the burnt airpot, if any, could
have been recovered by appellants from the area where it was supposedly being kept.
xxxx
The defense that the fire was a fortuitous event is untenable. It is undisputed that the fire
originated from appellants’ stockroom located on the third floor leased premises. Said
stockroom was under the control of appellants which, on that fateful day (a Saturday),
conducted a seminar in the training room which was adjoining the stockroom. Absent an
explanation from appellants on the cause of the fire, the doctrine of res ipsa loquitur applies.’ 22
Petitioners impugn both findings. They claim that the BFP field investigation report
(Exh. “P-2”) and the BFP certification (Exh. “P-3”) are hearsay evidence because these
were
_______________
Id., at pp. 333-334.

21
CA Decision, Rollo, pp. 46-47.

22
37
VOL. 538, NOVEMBER 22, 2007 37
presented during the testimony of Fireman Gerardo Sitchon (Fireman Sitchon) of the
Bureau of Fire Protection (BFP), Angeles City, who admitted to having no
participation in the investigation of the fire incident or personal knowledge about
said incident, making him incompetent to testify thereon. Petitioners argue that,
23
with Exh. “P-2” and Exh. “P-3” and the testimony of Fireman Sitchon that are flawed,
there is virtually no evidence left that the cause of the fire was an overheated coffee
percolator. Petitioners insist that they own no such percolator. 24
We find no cogent reason to disturb the finding of the RTC and CA.
The finding that the negligence of petitioners was the proximate cause of the fire
that destroyed portions of the leased units is a purely factual matter which we cannot
pass upon, lest we overstep the restriction that review by certio-rari under Rule 45
25
be limited to errors of law only. 26
Moreover, the established rule is that the factual findings of the CA affirming
those of the RTC are conclusive and binding on us. We are not wont to review them,
27
save under exceptional circumstances as: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3) when
the findings are grounded entirely on speculations, surmises or conjectures; (4) when
the judgment of the CA is based on misapprehension of facts; (5) when the CA, in
making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee; (6) when the findings of fact are con-
_______________
23Petition, Rollo, p. 26.

24Id., at pp. 18-19.
25 Philippine National Railways v. Brunty, G.R. No. 169891, November 2, 2006, 506 SCRA 685, 697.
26 Pilipinas Shell Petroleum Corporation v. John Bordman Ltd. of Iloilo, Inc., G.R. No. 159831, October
14, 2005, 473 SCRA 151, 161.

27 Quezon City Government v. Dacara, G.R. No. 150304, June 15, 2005, 460 SCRA 243, 253.
38
clusions without citation of specific evidence on which they are based; (7) when the
CA manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion; and (8) when the
findings of fact of the CA are premised on the absence of evidence and are
contradicted by the evidence on record. 28
The exceptions do not obtain in the present case. In fact, the findings of the RTC
and CA are fully supported by the evidence.
Contrary to petitioners’ claim, Fireman Sitchon is competent to identify and testify
on Exh. “P-2” and Exh. “P-3” because, although he did not sign said documents, he
personally prepared the same. What Fireman Sitchon did not prepare were the
29
documents which his investigation witnesses pre-sented. However, Fireman Sitchon

30
emphasized that he interviewed said investigation witnesses namely, Ronald

Estanislao, the security guard on duty at the time of fire; and Dr. Zenaida Arcilla,
manager of CAPP, before he prepared Exh. “P-2” and Exh. “P-3.” Hence, while 31
Fireman Sitchon may have had no personal knowledge of the fire incident, Exh. “P-
2” and Exh. “P-3,” which he prepared based on the statements of his investigation
witnesses, especially that of Ronald Estanislao whose official duty it was to report on
the incident, are exceptions to the hearsay rule because these are entries in
_______________
28 Estacion v. Bernardo, G.R. No. 144724, February 27, 2006, 483 SCRA 222, 231-232.
29 TSN, March 19, 1996, p. 9, Rollo, p. 157.
30 TSN, March 19, 1996, pp. 10-11, Rollo, pp. 158-159.
31 Id., at pp. 160-161.
39
VOL. 538, NOVEMBER 22, 2007 39
official records. Consequently, his testimony on said documents are competent
32
evidence of the contents thereof. 33
Furthermore, the petitioners are estopped from contesting the veracity of Exh. “P-
3” because, as the CA correctly pointed out, “the aforesaid certification was used by
appellants [petitioners] in claiming insurance for their office equipment which were
destroyed by the fire.” 34
Even without the testimony of Fireman Sitchon and the documents he prepared,
the finding of the RTC and CA on the negligence of petitioners cannot be overturned
by petitioners’ bare denial. The CA correctly applied the doctrine of res ipsa
loquitur under which expert testimony may be dispensed with to sustain an 35
allegation of negligence if the following requisites obtain: a) the accident is of a kind

which does not ordinarily occur unless someone is negligent; b) the cause of the injury
was under the exclusive control of the person in charge and c) the injury suffered
must not have been due to any voluntary action or contribution on the part of the
person injured. The fire that damaged Belfranlt Building was not a spontaneous
36
natural occurrence but the outcome of a human act or omission. It originated in the
store room which petitioners had possession and control of. Respondent had no hand
in the incident. Hence, the convergence of these facts and circumstances speaks for
itself: petitioners alone having knowledge of the cause of the fire or the best
opportunity to
_______________
DBP Pool of Accredited Insurance Companies v. Radio Min-danao Network, Inc., G.R. No. 147039,
32
January 27, 2006, 480 SCRA 314, 326.

33Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-Purpose Cooperative,
Inc., 425 Phil. 511, 521; 374 SCRA 653 (2002).
34 CA Decision, Rollo, pp. 46-47.
35 Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 96; 341 SCRA 760, 771 (2000).
36 DM Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001, 357 SCRA 249, 259.
40
ascertain it, and respondent having no means to find out for itself, it is sufficient for
the latter to merely allege that the cause of the fire was the negligence of the former
and to rely on the occurrence of the fire as proof of such negligence. It was all up to
37
petitioners to dispel such inference of negligence, but their bare denial only left the
matter unanswered.
The CA therefore correctly affirmed the RTC in holding petitioners liable to
respondent for actual damages consisting of unpaid rentals for the units they leased.
The CA deleted the award of actual damages of P2.2 million which the RTC had
granted respondent to cover costs of building repairs. In lieu of actual damages,
temperate damages in the amount of P500,000.00 were awarded by the CA. We find
this in order. 38
Temperate or moderate damages may be availed when some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with
certainty. The amount thereof is usually left to the discretion of the courts but the
39
same should be reasonable, bearing in mind that temperate damages should be more
than nominal but less than compensatory. Without a doubt, respondent suffered
40
some form of pecuniary loss for the impairment of the structural integrity of its
building as a result of the fire. However, as correctly pointed out by the CA, because
of respondent’s inability to present proof of the exact amount of such pecuni-
_______________
37 Perla Compania de Seguros v. Sarangaya III, G.R. No. 147746, October 25, 2005, 474 SCRA 191, 199.
38 Victory Liner v. Gammad, G.R. No. 159636, November 25, 2004, 444 SCRA 355, 370.
39 Republic v. Tuvera, G.R. No. 148246, February 16, 2007, 516 SCRA 113, 152.
40 Hernandez v. Dolor, G.R. No. 160286, July 30, 2004, 435 SCRA 668, 677-678.
41
VOL. 538, NOVEMBER 22, 2007 41
ary loss, it may only be entitled to temperate damages in the amount of
P500,000.00, which we find reasonable and just.
41
WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.
Ynares-Santiago (Chairperson), Chico-Nazario, Nachura and Reyes, JJ.,
concur.
Petition denied.
Notes.—Rescission of lease contracts under Article 1659 of the Civil Code is not
one that requires an independent action, unlike resolution of reciprocal obligations
under Article 1191 of said Code. (Dio vs. Concepcion, 296 SCRA 579 [1998])
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but as
a rule to be cautiously applied, depending upon the circumstances of each case—the
doctrine of res ipsa loquitur can have no application in a suit against a physician or
a surgeon which involves the merits of a diagnosis or of a scientific treatment. The
physician or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment did not produce
the desired result. (Reyes vs. Sisters of Mercy Hospital, 341 SCRA 760[2000])
——o0o——
_______________
CA Decision, Rollo, pp. 47-48.

41
42
G.R. No. 199282. March 14, 2016.*
TRAVEL & TOURS ADVISERS, INCORPORATED, petitioner, vs. ALBERTO

CRUZ, SR., EDGAR HERNANDEZ and VIRGINIA MUÑOZ, respondents.
Remedial Law; Civil Procedure; Appeals; Supreme Court; The Supreme Court (SC) is not
duty-bound to analyze and weigh all over again the evidence already considered in the
proceedings below. This rule, however, is not without exceptions.—Jurisprudence teaches us
that “(a)s a rule, the jurisdiction of this Court in cases brought to it from the Court of Appeals
x x x is limited to the review and revision of errors of law allegedly committed by the appellate
court, as its findings of fact are deemed conclusive. As such, this Court is not duty bound to
analyze and weigh all over again the evidence already considered in the proceedings below.
This rule, however, is not without exceptions.” The findings of fact of the Court of Appeals,
which are, as a general rule, deemed conclusive, may admit of review by this Court: (1) when
the factual findings of the Court of Appeals and the trial court are contradictory; (2) when
the findings are grounded entirely on speculation, surmises, or conjectures; (3) when the
infer-
_______________
* THIRD DIVISION.
298
Travel & Tours Advisers, Incorporated vs. Cruz, Sr.
ence made by the Court of Appeals from its findings of fact is manifestly mistaken,
absurd, or impossible; (4) when there is grave abuse of discretion in the appreciation of facts;
(5) when the appellate court, in making its findings, goes beyond the issues of the case, and
such findings are contrary to the admissions of both appellant and appellee; (6) when the
judgment of the Court of Appeals is premised on a misapprehension of facts; (7) when the
Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify
a different conclusion; (8) when the findings of fact are themselves conflicting; (9) when the
findings of fact are conclusions without citation of the specific evidence on which they are
based; and (10) when the findings of fact of the Court of Appeals are premised on the absence
of evidence but such findings are contradicted by the evidence on record.
Same; Same; Same; Petition for Review on Certiorari; Well-entrenched is the prevailing
jurisprudence that only errors of law and not of facts are reviewable by the Supreme Court
(SC) in a petition for review on certiorari under Rule 45 of the Revised Rules of Court, which
applies with greater force to the Petition under consideration because the factual findings by
the Court of Appeals (CA) are in full agreement with what the trial court found.—The issues
presented are all factual in nature and do not fall under any of the exceptions upon which
this Court may review. Moreover, well-entrenched is the prevailing jurisprudence that only
errors of law and not of facts are reviewable by this Court in a petition for review
on certiorari under Rule 45 of the Revised Rules of Court, which applies with greater force to
the Petition under consideration because the factual findings by the Court of Appeals are in
full agreement with what the trial court found.
Common Carriers; Transportation Law; A public utility vehicle can and may veer away
from its usual route as long as it does not go beyond its allowed route in its franchise.—
Petitioner now claims that the bus was not out of line when the vehicular accident happened
because the PUB (public utility bus) franchise that the petitioner holds is for provincial
operation from Manila-Ilocos Norte/Cagayan-Manila, thus, the bus is allowed to traverse any
point between Manila-Ilocos Norte/Cagayan-Manila. Such assertion is correct. “Veering away
from the usual route” is different from being “out of line.” A public utility vehicle can and
may veer away from its usual route as
299
VOL. 787, MARCH 14, 2016 299
long as it does not go beyond its allowed route in its franchise, in this case, ManilaIlocos
Norte/Cagayan-Manila. Therefore, the bus cannot be considered to have violated the contents
of its franchise. On the other hand, it is indisputable that the jeepney was traversing a road
out of its allowed route. Necessarily, this case is not that of “in pari delicto” because only one
party has violated a traffic regulation. As such, it would seem that Article 2185 of the New
Civil Code is applicable where it provides that: Art. 2185. Unless there is proof to the
contrary, it is presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap, he was violating any traffic regulation.
Same; Vicarious Liability; Quasi-Delicts; When an injury is caused by the negligence of
an employee there instantly arises a presumption of the law that there was negligence on the
part of the employer either in the selection of his employee or in the supervision over him after
such selection.—Article 2180, in relation to Article 2176, of the Civil Code provides that the
employer of a negligent employee is liable for the damages caused by the latter. When an
injury is caused by the negligence of an employee there instantly arises a presumption of the
law that there was negligence on the part of the employer either in the selection of his
employee or in the supervision over him after such selection. The presumption, however, may
be rebutted by a clear showing on the part of the employer that it had exercised the care and
diligence of a good father of a family in the selection and supervision of his employee. Hence,
to escape solidary liability for quasi-delict committed by an employee, the employer must
adduce sufficient proof that it exercised such degree of care. In this case, the petitioner failed
to do so.
Same; Same; Same; In the selection of prospective employees, employers are required to
examine them as to their qualifications, experience, and service records. On the other hand,
due diligence in the supervision of employees includes the formulation of suitable rules and
regulations for the guidance of employees, the issuance of proper instructions intended for the
protection of the public and persons with whom the employer has relations through his or its
employees and the imposition of necessary disciplinary measures upon employees in case of
breach or as may be warranted to ensure the performance of acts indispensable to the business
of and beneficial to their employer.—In the selection of prospective employees,
300
employers are required to examine them as to their qualifications, experience, and
service records. On the other hand, due diligence in the supervision of employees includes
the formulation of suitable rules and regulations for the guidance of employees, the issuance
of proper instructions intended for the protection of the public and persons with whom the
employer has relations through his or its employees and the imposition of necessary
disciplinary measures upon employees in case of breach or as may be warranted to ensure
the performance of acts indispensable to the business of and beneficial to their employer. To
this, we add that actual implementation and monitoring of consistent compliance with said
rules should be the constant concern of the employer, acting through dependable supervisors
who should regularly report on their supervisory functions. In this case, as shown by the
above findings of the RTC, petitioner was not able to prove that it exercised the required
diligence needed in the selection and supervision of its employee.
Same; Same; Same; Contributory Negligence; The proximate cause of the death of Alberto
Cruz, Jr. is the negligence of petitioner’s bus driver, with the contributory negligence of
respondent Edgar Hernandez, the driver and owner of the jeepney, hence, the heirs of Alberto
Cruz, Jr. shall recover damages of only fifty percent (50%) of the award from petitioner and
its driver.—The petitioner and its driver, therefore, are not solely liable for the damages
caused to the victims. The petitioner must thus be held liable only for the damages actually
caused by his negligence. It is, therefore, proper to mitigate the liability of the petitioner and
its driver. The determination of the mitigation of the defendant’s liability varies depending
on the circumstances of each case. The Court had sustained a mitigation of 50% in Rakes v.
AG & P, 7 Phil. 359 (1907); 20% in Phoenix Construction, Inc. v. Intermediate Appellate Court,
148 SCRA 353 (1987), and LBC Air Cargo, Inc. v. Court of Appeals, 241 SCRA 619
(1995); and 40% in Bank of the Philippine Islands v. Court of Appeals, 216 SCRA 51
(1992), and Philippine Bank of Commerce v. Court of Appeals, 269 SCRA 695 (1997). In the
present case, it has been established that the proximate cause of the death of Alberto Cruz,
Jr. is the negligence of petitioner’s bus driver, with the contributory negligence of respondent
Edgar Hernandez, the driver and owner of the jeepney, hence, the heirs of Alberto Cruz, Jr.
shall recover damages of only 50% of the award from petitioner and its driver. Necessarily,
50% shall be bourne by respondent Edgar Hernandez. This is pursu-
301
VOL. 787, MARCH 14, 2016 301
ant to Rakes v. AG & P and after considering the circumstances of this case.
Attorney’s Fees; As to the award of attorney’s fees, it is settled that the award of attorney’s
fees is the exception rather than the general rule; counsel’s fees are not awarded every time a
party prevails in a suit because of the policy that no premium should be placed on the right to
litigate.—As to the award of attorney’s fees, it is settled that the award of attorney’s fees is
the exception rather than the general rule; counsel’s fees are not awarded every time a party
prevails in a suit because of the policy that no premium should be placed on the right to
litigate. Attorney’s fees, as part of damages, are not necessarily equated to the amount paid
by a litigant to a lawyer. In the ordinary sense, attorney’s fees represent the reasonable
compensation paid to a lawyer by his client for the legal services he has rendered to the latter;
while in its extraordinary concept, they may be awarded by the court as indemnity for
damages to be paid by the losing party to the prevailing party. Attorney’s fees as part of
damages are awarded only in the instances specified in Article 2208 of the Civil Code. As
such, it is necessary for the court to make findings of fact and law that would bring the case
within the ambit of these enumerated instances to justify the grant of such award, and in all
cases it must be reasonable. In this case, the RTC, in awarding attorney’s fees, reasoned out
that [w]hile there is no document submitted to prove that the plaintiffs spent attorney’s fees, it
is clear that they paid their lawyer in the prosecution of this case for which they are entitled
to the same. Such reason is conjectural and does not justify the grant of the award, thus, the
attorney’s fees should be deleted. However, petitioner shall still have to settle half of the cost
of the suit.
Appeals.
M.M. Lazaro & Associates for petitioner.
Westremundo Y. De Guzman for respondents.
302
PERALTA, J.:
For resolution of this Court is the Petition for Review on Certiorari under Rule 45
of the Revised Rules of Court dated December 28, 2011, of petitioner Travel & Tours
Advisers, Inc. assailing the Decision1 dated May 16, 2011 and Resolution2 dated
November 10, 2011 of the Court of Appeals (CA), affirming with modifications the
Decision3dated January 30, 2008 of the Regional Trial Court (RTC), Branch 61,
Angeles City finding petitioner jointly and solidarily liable for damages incurred in a
vehicular accident.
The facts follow.
Respondent Edgar Hernandez was driving an Isuzu Passenger Jitney (jeepney)
that he owns with plate number DSG 944 along AngelesMagalang
Road, Barangay San Francisco, Magalang, Pampanga, on January 9, 1998, around
7:50 p.m. Meanwhile, a Daewoo passenger bus (RCJ Bus Lines) with plate number
NXM 116, owned by petitioner Travel and Tours Advisers, Inc. and driven by Edgar
Calaycay travelled in the same direction as that of respondent Edgar Hernandez’
vehicle. Thereafter, the bus bumped the rear portion of the jeepney causing it to ram
into an acacia tree which resulted in the death of Alberto Cruz, Jr. and the serious
physical injuries of Virginia Muñoz.
Thus, respondents Edgar Hernandez, Virginia Muñoz and Alberto Cruz, Sr., father
of the deceased Alberto Cruz, Jr., filed a complaint for damages, docketed as Civil
Case No. 9006 before the RTC claiming that the collision was due to the reckless,
negligent and imprudent manner by which Edgar Calaycay was driving the bus, in
complete disregard to
_______________
1 Penned by Associate Justice Ramon M. Bato, Jr., with Associate Justices Juan Q. Enriquez, Jr. and
Florito S. Macalino, concurring; Rollo,pp. 39-57.
2 Id., at p. 58.
3 Penned by Judge Bernardita Gabitan Erum, id., at pp. 79-98.
303
VOL. 787, MARCH 14, 2016 303
existing traffic laws, rules and regulations, and praying that judgment be rendered
ordering Edgar Calaycay and petitioner Travel & Tours Advisers, Inc. to pay the
following:
1. For plaintiff Alberto Cruz, Sr.

a. The sum of P140,000.00 for the reimbursement of the expenses
incurred for coffin, funeral expenses, for vigil, food, drinks for the
internment (sic) of Alberto Cruz, Jr. as part of actual damages;
b. The sum of P300,000.00, Philippine Currency, as moral,
compensatory and consequential damages;
c. The sum of P6,000.00 a month as lost of (sic) income from January
9, 1998 up to the time the Honorable Court may fixed (sic);
2. For plaintiff Virginia Muñoz:
a. The sum of P40,000.00, Philippine Currency, for the
reimbursement of expenses for hospitalization, medicine, treatment and
doctor’s fee as part of actual damages;
b. The sum of P150,000.00 as moral, compensatory and consequential
damages;
3. For plaintiff Edgar Hernandez:
a. The sum of P42,400.00 for the damage sustained by plaintiff’s Isuzu
Passenger Jitney as part of actual damages, plus P500.00 a day as
unrealized net income for four (4) months;
b. The sum of P150,000.00, Philippine Currency, as moral
compensatory and consequential damages;
4. The sum of P50,000.00, Philippine Currency, as attorney’s fees, plus
P1,000.00 per appearance fee in court;
5. Litigation expenses in the sum of P30,000.00; and
6. To pay the cost of their suit.
304
Other reliefs just and equitable are likewise prayed for.4
For its defense, the petitioner claimed that it exercised the diligence of a good
father of a family in the selection and supervision of its employee Edgar Calaycay
and further argued that it was Edgar Hernandez who was driving his passenger
jeepney in reckless and imprudent manner by suddenly entering the lane of the
petitioner’s bus without seeing to it that the road was clear for him to enter said lane.
In addition, petitioner alleged that at the time of the incident, Edgar Hernandez
violated his franchise by travelling along an unauthorized line/route and that the
jeepney was overloaded with passengers, and the deceased Alberto Cruz, Jr. was
clinging at the back thereof.
On January 30, 2008, after trial on the merits, the RTC rendered judgment in
favor of the respondents, the dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering

the defendants Edgar Calaycay Ranese and Travel & Tours Advisers, Inc. to
jointly and solidarily pay the following:
I. 1. To plaintiff Alberto Cruz, Sr. and his family —
a) the sum of P50,000.00 as actual and compensatory damages;
b) the sum of P250,000.00 for loss of earning capacity of the decedent
Alberto Cruz, Jr.; and
c) the sum of P50,000.00 as moral damages.
2. To plaintiff Virginia Muñoz —
a) the sum of P16,744.00 as actual and compensatory damages; and
_______________
4 Complaint dated April 22, 1998, id., at p. 70.
305
VOL. 787, MARCH 14, 2016 305
b) the sum of P150,000.00 as moral damages.
3. To Edgar Hernandez —
a) the sum of P50,000.00 as actual and compensatory damages.
II. The sum of P50,000.00 as attorney’s fees, and
III. The sum of P4,470.00 as cost of litigation.
SO ORDERED.
Angeles City, Philippines, January 30, 2008.5
Petitioner filed its appeal with the CA, and on May 16, 2011, the appellate court
rendered its decision, the decretal portion of which reads as follows:
WHEREFORE, the instant appeal is PARTLY GRANTED. The assailed

Decision of the RTC, Branch 61, Angeles City, dated January 30, 2008, is
AFFIRMED with MODIFICATIONS. The defendants are ordered to pay, jointly
and severally, the following:
1. To plaintiff Alberto Cruz, Sr. and family —
a) the sum of P25,000.00 as actual damages;
b) the sum of P250,000.00 for the loss of earning capacity of the
decedent Alberto Cruz, Jr.;
c) the sum of P50,000.00 as civil indemnity for the death of Alberto
Cruz, Jr.;
d) the sum of P50,000.00 as moral damages;
2. To plaintiff Virginia Muñoz —
a. the sum of P16,744.00 as actual damages; and
b) the sum of P30,000.00 as moral damages.
3. To plaintiff Edgar Hernandez —
a) The sum of P40,200.00 as actual damages.
_______________
5 Rollo, p. 98.
306
4. The award of attorney’s fees (P50,000.00) and cost of litigation
(P4,470.00) remains.
SO ORDERED.6
Hence, the present petition wherein the petitioner assigned the following errors:
I.
THE PETITIONER’S BUS WAS NOT “OUT OF LINE”;
II.
THE FACT THAT THE JEEPNEY WAS BUMPED ON ITS LEFT REAR
PORTION DOES NOT PREPONDERANTLY PROVE THAT THE DRIVER OF
THE BUS WAS THE NEGLIGENT PARTY;
III.
THE DECEASED ALBERTO CRUZ, JR. WAS POSITIONED AT THE
RUNNING BOARD OF THE JEEPNEY;
IV.
THE BUS DRIVER WAS NOT SPEEDING OR NEGLIGENT WHEN HE
FAILED TO STEER THE BUS TO A COMPLETE STOP;
V.
THE PETITIONER EXERCISED EXTRAORDINARY DILIGENCE OF A
GOOD FATHER OF A FAMILY IN ITS SELECTION AND SUPERVISION OF
DRIVER CALAYCAY; AND
VI.
THERE IS NO FACTUAL AND LEGAL BASIS FOR THE VARIOUS
AWARDS OF MONETARY DAMAGES.7
_______________
6 Id., at p. 56.
7 Id., at pp. 14-15.
307
VOL. 787, MARCH 14, 2016 307
According to petitioner, contrary to the declaration of the RTC, the petitioner’s
passenger bus was not “out-of-line” and that petitioner is actually the holder of a PUB
(public utility bus) franchise for provincial operation from Manila-Ilocos
Norte/Cagayan-Manila, meaning the petitioner’s passenger bus is allowed to traverse
any point between ManilaIlocos Norte/Cagayan-Manila. Petitioner further
asseverates that the fact that the driver of the passenger bus took the Magalang Road
instead of the Bamban Bridge is of no moment because the bridge was under
construction due to the effects of the lahar; hence closed to traffic and the Magalang
Road is still in between the points of petitioner’s provincial operation. Furthermore,
petitioner claims that the jeepney was traversing a road way out of its allowed route,
thus, the presumption that respondent Edgar Hernandez was the negligent party.
Petitioner further argues that respondent Edgar Hernandez failed to observe that
degree of care, precaution and vigilance that his role as a public utility called for when
he allowed the deceased Alberto Cruz, Jr., to hang on to the rear portion of the
jeepney.
After due consideration of the issues and arguments presented by petitioner, this
Court finds no merit to grant the petition.
Jurisprudence teaches us that “(a)s a rule, the jurisdiction of this Court in cases
brought to it from the Court of Appeals x x x is limited to the review and revision of
errors of law allegedly committed by the appellate court, as its findings of fact are
deemed conclusive. As such, this Court is not duty bound to analyze and weigh all
over again the evidence already considered in the proceedings below. 8 This rule,
however, is not without exceptions.”9 The findings of fact of the
_______________
8 Fuentes v. Court of Appeals, 335 Phil. 1163, 1168; 268 SCRA 703, 708 (1997).
9 Gaw v. Intermediate Appellate Court, G.R. No. 70451, March 24, 1993, 220 SCRA 405, 413;
citing Morales v. Court of Appeals, 274
308
Court of Appeals, which are, as a general rule, deemed conclusive, may admit of
review by this Court:10
(1) when the factual findings of the Court of Appeals and the trial court are
contradictory;
(2) when the findings are grounded entirely on speculation, surmises, or
conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact
is manifestly mistaken, absurd, or impossible;
(4) when there is grave abuse of discretion in the appreciation of facts;
(5) when the appellate court, in making its findings, goes beyond the issues
of the case, and such findings are contrary to the admissions of both appellant
and appellee;
(6) when the judgment of the Court of Appeals is premised on a
misapprehension of facts;
(7) when the Court of Appeals fails to notice certain relevant facts which, if
properly considered, will justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
_______________
Phil. 674; 197 SCRA 391 (1991); and Navarra v. Court of Appeals, G.R. No. 86237, December 17, 1991,
204 SCRA 850.
10 Reyes v. Court of Appeals, 328 Phil. 171; 264 SCRA 35 (1996); Vda. de Alcantara v. Court of Appeals,
322 Phil. 490; 252 SCRA 457 (1996); Quebral v. Court of Appeals, G.R. No. 101941, January 25, 1996, 252
SCRA 353, 368 (citing Calde v. Court of Appeals, G.R. No. 93980, June 27, 1994, 233 SCRA 376). See
also Cayabyab v. Intermediate Appellate Court, G.R. No. 75120, April 28, 1994, 232 SCRA 1; Engineering &
Machinery Corporation v. Court of Appeals, 322 Phil. 161; 252 SCRA 156 (1996); Chua Tiong Tay v. Court
of Appeals, 312 Phil. 1128; 243 SCRA 183 (1995); Dee v. Court of Appeals, G.R. No. 111153, November 21,
1994, 238 SCRA 254, 263; and Asia Brewery, Inc. v. Court of Appeals, G.R. No. 103543, July 5, 1993, 224
SCRA 437, 443; Fuentes v. Court of Appeals,supra note 8.
309
VOL. 787, MARCH 14, 2016 309
(9) when the findings of fact are conclusions without citation of the specific
evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are premised on the
absence of evidence but such findings are contradicted by the evidence on record.
The issues presented are all factual in nature and do not fall under any of the
exceptions upon which this Court may review. Moreover, well-entrenched is the
prevailing jurisprudence that only errors of law and not of facts are reviewable by
this Court in a petition for review on certiorari under Rule 45 of the Revised Rules of
Court, which applies with greater force to the Petition under consideration because
the factual findings by the Court of Appeals are in full agreement with what the trial
court found.11
Nevertheless, a review of the issues presented in this petition would still lead to
the finding that petitioner is still liable for the damages awarded to the respondents
but with certain modifications.
The RTC and the CA are one in finding that both vehicles were not in their
authorized routes at the time of the incident. The conductor of petitioner’s bus
admitted on cross-examination that the driver of the bus veered off from its usual
route to avoid heavy traffic. The CA thus observed:
First. As pointed out in the assailed Decision, both vehicles were not in their
authorized routes at the time of the mishap. FRANCISCO TEJADA, the
conductor of defendant-appellant’s bus, admitted on crossexamination that the
driver of the bus passed through Magalang Road instead of Sta. Ines, which was
the usual route, thus:
xxx
_______________
11 Boneng v. People, 363 Phil. 594, 605; 304 SCRA 252 (1999).
310
Q: What route did you take from Manila to Laoag, Ilocos Sur?
A: Instead of Sta. Ines, we took Magalang Road, sir.
Q: So that is not your usual route that you are taking?
A: No, sir, it so happened that there was heavy traffic at Bamban,
Tarlac, that is why we took the Magalang Road.
xxx
The foregoing testimony of defendant-appellant’s own witness clearly
belies the contention that its driver took the Magalang Road instead of the
Bamban Bridge because said bridge was closed and under construction due to
the effects of lahar. Regardless of the reason, however, the irrefutable fact
remains that defendant-appellant’s bus likewise veered from its usual route.12
Petitioner now claims that the bus was not out of line when the vehicular accident
happened because the PUB (public utility bus) franchise that the petitioner holds is
for provincial operation from Manila-Ilocos Norte/Cagayan-Manila, thus, the bus is
allowed to traverse any point between Manila-Ilocos Norte/Cagayan-Manila. Such
assertion is correct. “Veering away from the usual route” is different from being “out
of line.” A public utility vehicle can and may veer away from its usual route as long
as it does not go beyond its allowed route in its franchise, in this case, ManilaIlocos
Norte/Cagayan-Manila. Therefore, the bus cannot be considered to have violated the
contents of its franchise. On the other hand, it is indisputable that the jeepney was
traversing a road out of its allowed route. Necessarily, this case is not that of “in pari
delicto” because only one party has violated a traffic regulation. As such, it would
seem that Article 2185 of the New Civil Code is applicable where it provides that:
_______________
12 Rollo, p. 44. (Emphasis ours)
311
VOL. 787, MARCH 14, 2016 311
Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the mishap,
he was violating any traffic regulation.
The above provision, however, is merely a presumption. From the factual findings
of both the RTC and the CA based on the evidence presented, the proximate cause of
the collision is the negligence of the driver of petitioner’s bus. The jeepney was
bumped at the left rear portion. Thus, this Court’s past ruling,13 that drivers of
vehicles who bump the rear of another vehicle are presumed to be the cause of the
accident, unless contradicted by other evidence, can be applied. The rationale behind
the presumption is that the driver of the rear vehicle has full control of the situation
as he is in a position to observe the vehicle in front of him.14 Thus, as found by the CA:
Second. The evidence on record preponderantly shows that it was the negligence
of defendant-appellant’s driver, EDGAR CALAYCAY, that was the proximate cause
of the collision.
Even without considering the photographs (Exhibit “N,” “N-1,” and “N-2”) showing
the damage to the jeepney, it cannot be denied that the said vehicle was
bumped in its left rear portion by defendantappellant’s bus. The same was
established by the unrebutted testimonies of plaintiffs-appellees EDGAR
HERNANDEZ and VIRGINIA MUÑOZ, as follows:
EDGAR HERNANDEZ
xxx
Q: Now, according to you, you were not able to reach the town proper of
Magalang because your vehicle was bumped. In what portion of your vehicle
was it bumped, Mr. Witness?
_______________
13 Raynera v. Hiceta, 365 Phil. 546; 306 SCRA 102 (1999).

14 Id.
312
A: At the left side edge portion of the vehicle, sir.
Q: When it was bumped on the rear left side portion, what happened to
your vehicle?
A: It was bumped strongly, sir, and then, “sinulpit ya,” sir.
Q: When your vehicle was “sinulpit” and hit an acacia tree, what
happened to the acacia tree?
A: The jeepney stopped and Alberto Cruz died and some of my
passengers were injured, sir.
xxx
VIRGINIA MUÑOZ
xxx
Q: What portion of the vehicle wherein you were boarded that was hit
by the Travel Tours Bus?
A: The rear portion of the jeep, sir.
Q: It was hit by the Travel Tours Bus?
A: Yes, sir.
Q: What happened to you when the vehicle was bumped?
A: I was thrown off the vehicle, sir.
xxx
It has been held that drivers of vehicles “who bump the rear of another
vehicle” are presumed to be “the cause of the accident, unless contradicted by
other evidence.” The rationale behind the presumption is that the driver of the
rear vehicle has full control of the situation as he is in a position to observe the
vehicle in front of him.
In the case at bar, defendant-appellant failed to overturn the foregoing
presumption. FRANCISCO TEJADA, the conductor of the bus who was
admittedly “seated in front, beside the driver’s seat,” and thus had an
unimpeded view of the road, declared on direct examination that the jeepney
was about 10 to 15 meters away from the bus when he first saw said vehicle on
the road. Clearly, the bus driver, EDGAR CALAYCAY, would
313
VOL. 787, MARCH 14, 2016 313
have also been aware of the presence of the jeepney and, thus, was expected
to anticipate its movements.
However, on cross-examination, TEJADA claimed that the jeepney “suddenly
appeared” before the bus, passing it diagonally, and causing it to be hit in its
left rear side. Such uncorroborated testimony cannot be accorded credence by
this Court because it is inconsistent with the physical evidence of the actual
damage to the jeepney. On this score, We quote with approval the following
disquisition of the trial court:
x x x (F)rom the evidence presented, it was established that it was the
driver of the RCJ Line Bus which was negligent and recklessly driving the
bus of the defendant corporation.
Francisco Tejada, who claimed to be the conductor of the bus, testified
that it was the passenger jeepney coming from the pavement which
suddenly entered diagonally the lane of the bus causing the bus to hit the
rear left portion of the passenger jeepney. But such testimony is belied by
the photographs of the jeepney (Exhs. N and N-1). As shown by Exh. N-1,
the jeepney was hit at the rear left portion and not when the jeepney was
in a diagonal position to the bus otherwise, it should have been the left
side of the passenger jeepney near the rear portion that could have been
bumped by the bus. It is clear from Exh. N-1 and it was even admitted that
the rear left portion of the passenger jeepney was bumped by the bus.
Further, if the jeepney was in diagonal position when it was hit by the bus,
it should have been the left side of the body of the jeepney that could have
sustained markings of such bumping. In this case, it is clear that it is the
left rear portion of the jeepney that shows the impact of the markings of
the bumping. The jeepney showed that it had great damage on the cen-
314
ter of the front portion (Exh. N-2). It was the center of the front portion
that hit the acacia tree (Exh. N). As admitted by the parties, both vehicles
were running along the same direction from west to east. As testified to by
Francisco Tejada, the jeepney was about ten (10) to fifteen (15) meters
away from the bus when he noticed the jeepney entering diagonally the
lane of the bus. If this was so, the middle left side portion of the jeepney
could have been hit, not the rear portion. The evidence is clear that the
bus was in fast run-
ning condition, otherwise, it could have stopped to evade hitting the
jeepney. The hitting of the acacia tree by the jeepney, and the damages
caused on the jeepney in its front (Exh. N-2) and on its rear left side show
that the bus was running very fast.
xxxx
Assuming ex gratia argumenti that the jeepney was in a “stop position,” as
claimed by defendant-appellant, on the pavement of the road 10 to 15 meters
ahead of the bus before swerving to the left to merge into traffic, a cautious
public utility driver should have stepped on his brakes and slowed down. The
distance of 10 to 15 meters would have allowed the bus with slacked speed to
give way to the jeepney until the latter could fully enter the lane. Obviously, as
correctly found by the court a quo, the bus was running very fast because even
if the driver stepped on the brakes, it still made contact with the jeepney with
such force that sent the latter vehicle crashing head-on against an acacia tree.
In fact, FRANCISCO TEJADA effectively admitted that the bus was very fast
when he declared that the driver “could not suddenly apply the break (sic) in
full stop because our bus might turn turtle x x x.” Incidentally, the allegation in
the appeal brief that the driver could not apply the brakes with force because of
the possibility that the bus might turn turtle “as they were approaching the end
of the gradient or the decline of the sloping terrain or topography of the road-
315
VOL. 787, MARCH 14, 2016 315
way” was only raised for the first time in this appeal and, thus, may not be
considered. Besides, there is nothing on record to substantiate the same.
Rate of speed, in connection with other circumstances, is one of the principal
considerations in determining whether a motorist has been reckless in driving
a vehicle, and evidence of the extent of the damage caused may show the force
of the impact from which the rate of speed of the vehicle may be modestly
inferred. From the evidence presented in this case, it cannot be denied that the
bus was running very fast. As held by the Supreme Court, the very fact of
speeding is indicative of imprudent behavior, as a motorist must exercise
ordinary care and drive at a reasonable rate of speed commensurate with the
conditions encountered, which will enable him to keep the vehicle under control
and avoid injury to others using the highway.15
From the above findings, it is apparent that the proximate cause of the accident is
the petitioner’s bus and that the petitioner was not able to present evidence that
would show otherwise. Petitioner also raised the issue that the deceased passenger,
Alberto Cruz, Jr. was situated at the running board of the jeepney which is a violation
of a traffic regulation and an indication that the jeepney was overloaded with
passengers. The CA correctly ruled that no evidence was presented to show the same,
thus:
That the deceased passenger, ALBERTO CRUZ, JR., was clinging at the back
of the jeepney at the time of the mishap cannot be gleaned from the testimony
of plaintifff-appellee VIRGINIA MUÑOZ that it was she who was sitting on the
left rearmost of the jeepney.
VIRGINIA MUÑOZ herself testified that there were only about 16
passengers onboard the jeepney when the subject incident happened.
Considering the testimony of plaintiff-appellee EDGAR HERNANDEZ that the
seat-
_______________
15 Rollo, pp. 44-48. (Citations omitted; emphasis ours)
316
ing capacity of his jeepney is 20 people, VIRGINIA’s declaration effectively
overturned defendant-appellant’s defense that plaintiff-appellee overloaded his
jeepney and allowed the deceased passenger to cling to the outside railings. Yet,
curiously, the defense declined to cross-examine VIRGINIA, the best witness
from whom defendant-appellant could have extracted the truth about the exact
location of ALBERTO CRUZ, JR. in or out of the jeepney. Such failure is fatal
to defendant-appellant’s case. The only other evidence left to support its claim
is the testimony of the conductor, FRANCISCO TEJADA, that there were
3 passengers who were clinging to the back of the jeepney, and it was
the passenger clinging to the left side that was bumped by the bus.
However, in answer to the clarificatory question from the court a
quo, TEJADA admitted that he did not really see what happened, thus:
Q: What happened to the passenger clinging to the left side
portion?
A: He was bumped, your Honor.
Q: Why, the passenger fell?
A: I did not really see what happened, Mam [sic], what I know
he was bumped.
This, despite his earlier declaration that he was seated in front of the bus beside
the driver’s seat and knew what happened to the passengers who were clinging
to the back of the jeepney. Indubitably, therefore, TEJADA was not a credible
witness, and his testimony is not worthy of belief.16
Consequently, the petitioner, being the owner of the bus and the employer of the
driver, Edgar Calaycay, cannot escape liability. Article 2176 of the Civil Code
provides:
Whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay
_______________
16 Id., at pp. 48-49. (Citations omitted; emphasis ours)
317
VOL. 787, MARCH 14, 2016 317
for the damage done. Such fault or negligence, if there is no preexisting
contractual relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
Complementing Article 2176 is Article 2180 which states the following:
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 x x x.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry x x x.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father of
a family to prevent damage.
Article 2180, in relation to Article 2176, of the Civil Code provides that the
employer of a negligent employee is liable for the damages caused by the latter. When
an injury is caused by the negligence of an employee there instantly arises a
presumption of the law that there was negligence on the part of the employer either
in the selection of his employee or in the supervision over him after such selection.
The presumption, however, may be rebutted by a clear showing on the part of the
employer that it had exercised the care and diligence of a good father of a family in
the selection and supervision of his employee. Hence, to escape solidary liability for
quasi-delict committed by an employee, the employer must adduce sufficient proof
that it exercised such degree of care.17
_______________
17 Baliwag Transit, Inc. v. Court of Appeals, 330 Phil. 785, 789-790; 262 SCRA 230, 234 (1996),
citing China Air Lines, Ltd. v. Court of Appeals, 264 Phil. 15, 26; 185 SCRA 449, 459 (1990).
318
In this case, the petitioner failed to do so. The RTC and the CA exhaustively and
correctly ruled as to the matter, thus:
Thus, whenever an employee’s (defendant EDGAR CALAYCAY) negligence

causes damage or injury to another, there instantly arises a presumption that
the employer (defendant-appellant) failed to exercise the due diligence of a good
father of the family in the selection or supervision of its employees. To avoid
liability for a quasi-delict committed by its employee, an employer must
overcome the presumption by presenting convincing proof that it exercised the
care and diligence of a good father of a family in the selection and supervision
of its employee. The failure of the defendant-appellant to overturn this
presumption was meticulously explained by the court a quo as follows:
The position of the defendant company that it cannot be held jointly and
severally liable for such damages because it exercised the diligence of a
good father of a family, that (sic) does not merit great credence.
As admitted, Edgar Calaycay was duly authorized by the defendant
company to drive the bus at the time of the incident. Its claim that it has
issued policies, rules and regulations to be followed, conduct seminars and
see to it that their drivers and employees imbibe such policies, rules and
regulations, have their drivers and conductors medically checked-up and
undergo drug-testing, did not show that all these rudiments were applied
to Edgar Calaycay. No iota of evidence was presented that Edgar Calaycay
had undergone all these activities to ensure that he is a safe and capable
drivers [sic]. In fact, the defendant company did not put up a defense on
the said driver. The defendant company did not even secure a counsel to
defend the driver. It did not present any evidence to show it ever counseled
such driver to be careful in his
319
VOL. 787, MARCH 14, 2016 319
driving. As appearing from the evidence of the defendant corporation, the
driver at the time of the incident was Calaycay, Francisco (Exh. 9) and the
conductor was Tejada. This shows that the defendant corporation does not
exercise the diligence of a good father of a family in the selection and
supervision of the employees. It does not even know the correct and true
name of its drivers. The testimony of Rolando Abadilla, Jr. that they do
not have the records of Edgar Calaycay because they ceased operation due
to the death of his father is not credible. Why only the records of Edgar
Calaycay? It has the inspection and dispatcher reports for January 9, 1998
and yet it could not find the records of Edgar Calaycay. As pointed out by
the Supreme Court in a line of cases, the evidence must not only be credible
but must come from a credible witness. No proof was submitted that Edgar
Calaycay attended such alleged seminars and examinations. Thus, under
Art. 2180 of the Civil Code, Employers shall be liable for the damage
caused by their employees and household helper acting within the scope of
their assigned tasks, even though the former are not engaged in any
business or industry. The liability of the employer for the tortuous acts or
negligence of its employer [sic] is primary and solidary, direct and
immediate, and not conditional upon the insolvency of prior recourse
against the negligent employee. The cash voucher for the alleged lecture
on traffic rules and regulations (Exh. 12) presented by the defendant
corporation is for seminar allegedly conducted on May 20 and 21, 1995
when Edgar Calaycay was not yet in the employ of the defendant
corporation. As testified to by Rolando Abadilla, Jr., Edgar Calaycay
stated his employment with the company only in 1996. Rolando Abadilla,
Jr. testified that
320
copies of the manual (Exh. 8) are given to the drivers and conductors
for them to memorize and know the same, but no proof was presented
that indeed Edgar Calaycay was among the recipients. Nobody
testified categorically that indeed Edgar Calaycay underwent any of
the training before being employed by the defendant company. All
the testimonies are generalizations as to the alleged policies, rules
and regulations but no concrete evidence was presented that indeed
Edgar Calaycay underwent such familiarization, trainings and
seminars before he got employed and during that time that he was
performing his duties as a bus driver of the defendant corporation.
Moreover, the driver’s license of the driver was not even presented.
These omissions did not overcome the liability of the defendant
corporation under Article 2180 of the Civil Code. x x x
The observation of the court a quo that defendant-appellant failed to
show proof that EDGAR CALAYCAY did in fact undergo the seminars
conducted by it assumes greater significance when viewed in the light of
the following admission made by ROLANDO ABADILLA, JR., General
Manager of the defendant-appellant corporation, that suggest compulsory
attendance of said seminars only among drivers and conductors in Manila,
thus:
xxxx
Q: How many times does (sic) the seminars being conducted by your
company a year?
A: Normally, it is a minimum of two (2) seminars per year, sir.
Q: In these seminars that you conduct, are all drivers and conductors
obliged to attend?
A: Yes, sir, if they are presently in Manila.
Q: It is only in Manila that you conduct seminars?
A: Yes, sir.
xxx
321
VOL. 787, MARCH 14, 2016 321
Moreover, with respect to the selection process, ROLANDO ABADILLA, JR.
categorically admitted in open court that EDGAR CALAYCAY was not able to
produce the clearances required by defendant-appellant upon employment,
thus:
xxx
Q: By the way, Mr. Witness, do you know this Edgar Calaycay who was
once employed by your company as a driver?
A: Yes, sir.
Q: Have you seen the application of Edgar Calaycay?
A: Yes, sir.
Q: From what I have seen, what documents did he submit in applying
as a driver in your business?
Atty. De Guzman: Very leading, your Honor.
Q: Before a driver could be accepted, what document is he required to
submit?
A: The company application form; NBI clearance; police
clearance; barangay clearance; mayor’s clearance and other clearances,
sir.
Q: Was he able to reproduce these clearances by Mr. Calaycay?
A: No, sir.
x x x 18
In the selection of prospective employees, employers are required to examine them

as to their qualifications, experience, and service records.19 On the other hand, due
diligence in the supervision of employees includes the formulation of suitable rules
and regulations for the guidance of employees, the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has
rela-
_______________
18 Rollo, pp. 49-52. (Citations omitted)

19 Metro Manila Transit Corporation v. Court of Appeals, 359 Phil. 18, 32; 298 SCRA 495, 504 (1998).
322
tions through his or its employees and the imposition of necessary disciplinary
measures upon employees in case of breach or as may be warranted to ensure the
performance of acts indispensable to the business of and beneficial to their employer.
To this, we add that actual implementation and monitoring of consistent compliance
with said rules should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory
functions.20 In this case, as shown by the above findings of the RTC, petitioner was
not able to prove that it exercised the required diligence needed in the selection and
supervision of its employee.
Be that as it may, this doesn’t erase the fact that at the time of the vehicular
accident, the jeepney was in violation of its allowed route as found by the RTC and
the CA, hence, the owner and driver of the jeepney likewise, are guilty of negligence
as defined under Article 2179 of the Civil Code, which reads as follows:
When the plaintiff’s negligence was the immediate and proximate cause of
his injury, he cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.
The petitioner and its driver, therefore, are not solely liable for the damages
caused to the victims. The petitioner must thus be held liable only for the damages
actually caused by his negligence.21 It is, therefore, proper to mitigate the liability of
the petitioner and its driver. The determination of the
20 Metro Manila Transit Corporation v. Court of Appeals, G.R. No. 104408, June
21, 1993, 223 SCRA 521, 540-541.
21 See Syki v. Begasa, 460 Phil. 381, 391; 414 SCRA 237, 244 (2003).
323
VOL. 787, MARCH 14, 2016 323
mitigation of the defendant’s liability varies depending on the circumstances of
each case.22 The Court had sustained a mitigation of 50% in Rakes v. Atlantic, Gulf
and Pacific Co.;23 20% in Phoenix Construction, Inc. v. Intermediate Appellate
Court24 and LBC Air Cargo, Inc. v.Court of Appeals;25 and 40% in Bank of the
Philippine Islands v. Court of Appeals26 and Philippine Bank of Commerce v. Court of
Appeals.27
In the present case, it has been established that the proximate cause of the death
of Alberto Cruz, Jr. is the negligence of petitioner’s bus driver, with the contributory
negligence of respondent Edgar Hernandez, the driver and owner of the jeepney,
hence, the heirs of Alberto Cruz, Jr. shall recover damages of only 50% of the award
from petitioner and its driver. Necessarily, 50% shall be bourne by respondent Edgar
Hernandez. This is pursuant to Rakes v. Atlantic, Gulf and Pacific Co. and after
considering the circumstances of this case.
In awarding damages for the death of Alberto Cruz, Jr., the CA ruled as follows:
For the death of ALBERTO CRUZ, JR. the court a quo awarded his heirs
P50,000.00 as actual and compensatory damages; P250,000.00 for loss of
earning capacity; and another P50,000.00 as moral damages. However, as
pointed out in the assailed Decision dated January 30, 2008, only the amount
paid (P25,000.00) for funeral services rendered by Magaleña Memorial Home
was duly receipted (Exhibit “E-1”). It is settled that actual damages must be
substantiated by documentary evidence, such as receipts, in order to prove
expenses incurred as a result of the death of the victim. As such, the award for
_______________
22 Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 396; 452 SCRA 285, 293 (2005).
23 7 Phil. 359 (1907).
24 232 Phil. 327; 148 SCRA 353 (1987).
25 311 Phil. 715; 241 SCRA 619 (1995).
26 G.R. No. 102383, November 26, 1992, 216 SCRA 51.
27 336 Phil. 667; 269 SCRA 695 (1997).
324
actual damages in the amount of P50,000.00 must be modified accordingly.
Under Article 2206 of the Civil Code, the damages for death caused by
a quasi-delict shall, in addition to the indemnity for the death itself which is
fixed by current jurisprudence at P50,000.00 and which the court a quo failed
to award in this case, include loss of the earning capacity of the deceased and
moral damages for mental anguish by reason of such death. The formula for the
computation of loss of earning capacity is as follows:
Net earning capacity = Life expectancy x [Gross Annual Income Living
Expenses (50% of gross annual income)], where life expectancy = 2/3 (80 the age
of the deceased)
Evidence on record shows that the deceased was earning P6,000.00 a month
as smoke house operator at Pampanga’s Best, Inc., as per Certification (Exhibit
“K”) issued by the company’s Production, Manager, Enrico Ma. O. Hizon, on
March 18, 1998, his gross income therefore amounted to P72,000.00 [P6,000.00
x 12]. Deducting 50% therefrom (P36,000.00) representing the living expenses,
his net annual income amounted to P36,000.00. Multiplying this by his life
expectancy of 40.67 years [2/3(80-19)] having died at the young age of 19, the
award for loss of earning capacity should have been P1,464,000.00. Considering,
however, that his heirs represented by his father, ALBERTO CRUZ, SR., no
longer appealed from the assailed Decision dated January 30, 2008, and no
discussion thereon was even attempted in plaintiffs-appellees’ appeal brief, the
award for loss of earning capacity in the amount of P250,000.00 stands.
Moral damages in the amount of P50,000.00 is adequate and reasonable,
bearing in mind that the purpose for making such award is not to enrich the
heirs of the victim but to compensate them however inexact for injuries to their
feelings.
x x x28
_______________
28 Rollo, pp. 52-54. (Citations omitted)
325
VOL. 787, MARCH 14, 2016 325
In summary, the following were awarded to the heirs of Alberto Cruz, Jr.:
1) P25,000.00 as actual damages;
2) P250,000.00 for the loss of earning;
3) P50,000.00 as civil indemnity for the death of Alberto Cruz, Jr.; and
4) P50,00.00 as moral damages.
Petitioner contends that the CA erred in awarding an amount for the loss of
earning capacity of Alberto Cruz, Jr. It claims that the certification from the employer
of the deceased stating that when he was still alive, he earned P6,000.00 per month
was not presented and identified in open court. In that aspect, petitioner is correct.
The records are bereft that such certification was presented and identified during the
trial. It bears stressing that compensation for lost income is in the nature of damages
and as such requires due proof of the damages suffered; there must be unbiased proof
of the deceased’s average income.29
Therefore, applying the above disquisitions, the heirs of Alberto Cruz, Jr. shall
now be awarded the following:
1) P12,500.00 as actual damages;
2) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and
3) P25,000.00 as moral damages.
In the same manner, petitioner is also partly responsible for the injuries sustained
by respondent Virginia Muñoz hence, of the P16,744.00 actual damages and
P30,000.00 moral damages awarded by the CA, petitioner is liable for half of those
amounts. Anent respondent Edgar Hernandez, due to his contributory negligence, he
is only entitled to re-
_______________
29 People v. Ereño, 383 Phil. 30, 46; 326 SCRA 157, 170 (2000).
326
ceive half the amount (P40,200.00) awarded by the CA as actual damages which is
P20,100.00.
As to the award of attorney’s fees, it is settled that the award of attorney’s fees is
the exception rather than the general rule; counsel’s fees are not awarded every time
a party prevails in a suit because of the policy that no premium should be placed on
the right to litigate. Attorney’s fees, as part of damages, are not necessarily equated
to the amount paid by a litigant to a lawyer. In the ordinary sense, attorney’s fees
represent the reasonable compensation paid to a lawyer by his client for the legal
services he has rendered to the latter; while in its extraordinary concept, they may
be awarded by the court as indemnity for damages to be paid by the losing party to
the prevailing party. Attorney’s fees as part of damages are awarded only in the
instances specified in Article 220830 of the Civil Code. As such, it is necessary for
_______________
30 Art. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly
valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen’s compensation and employees liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
327
VOL. 787, MARCH 14, 2016 327
the court to make findings of fact and law that would bring the case within the
ambit of these enumerated instances to justify the grant of such award, and in all
cases it must be reasonable.31 In this case, the RTC, in awarding attorney’s fees,
reasoned out that [w]hile there is no document submitted to prove that the plaintiffs
spent attorney’s fees, it is clear that they paid their lawyer in the prosecution of this
case for which they are entitled to the same.32 Such reason is conjectural and does not
justify the grant of the award, thus, the attorney’s fees should be deleted. However,
petitioner shall still have to settle half of the cost of the suit.
WHEREFORE, the Petition for Review on Certiorari under Rule 45, dated
December 28, 2011, of petitioner Travel & Tours Advisers, Inc. is DENIED. However,
the Decision dated May 16, 2011 of the Court of Appeals is MODIFIED as follows:
The petitioner and Edgar Calaycay are ORDERED to jointly and
severally PAY the following:
1. To respondent Alberto Cruz, Sr. and family:
a) P12,500.00 as actual damages;
b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr.; and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muñoz:
_______________
(11) In any other case where the court deems it just and equitable that attorney’s fees and
expenses of litigation should be recovered.
In all cases, the attorney’s fees and expenses of litigation must be reasonable. (Emphasis supplied)
31 Benedicto v. Villaflores, 646 Phil. 733, 742; 632 SCRA 446, 455 (2010).
32 Rollo, p. 98
328
b) P15,000.00 as moral damages.
3. To respondent Edgar Hernandez:
a) P20,100.00 as actual damages; and
4. The sum of P2,235.00 as cost of litigation.
Respondent Edgar Hernandez is also ORDERED to PAY the following:
1. To respondent Alberto Cruz, Sr. and family:

b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr.; and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muñoz:
b) P15,000.00 as moral damages;, and
3. The sum of P2,235.00 as cost of litigation.
SO ORDERED.
Velasco, Jr. (Chairperson), Perez, Reyes and Jardeleza, JJ., concur.
Petition denied, judgment modified.
Notes.—The liability of the employer for the negligent conduct of its subordinate
is direct and primary, subject only to the defense of due diligence in the selection and
supervision of the employee. (R Transport Corporation vs. Yu, 750 SCRA 696 [2015])
329
VOL. 787, MARCH 14, 2016 329
Article 1756 of the Civil Code provides that “[i]n case of death of or injuries to
passengers, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence as
prescribed in Articles 1733 and 1755.” (G.V. Florida Transport, Inc. vs. Heirs of
Romeo L. Battung, Jr.,772 SCRA 579 [2015])
——o0o——
G.R. No. 193659. June 15, 2015.*
SPS. FERNANDO VERGARA and HERMINIA VERGARA,

petitioners, vs. ERLINDA TORRECAMPO SONKIN, respondent.
Civil Law; Quasi-delicts; Negligence; Contributory Negligence; Words and Phrases;
Contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to
conform for his own protection.—Contributory negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection. In the case at bar, it is
undisputed that the Sonkin property is lower in elevation than the Vergara property, and
thus, it is legally obliged to receive the waters that flow from the latter, pursuant to Article
637 of the Civil Code. This provision refers to the legal easement pertaining to the natural
_______________
* FIRST DIVISION.
443
VOL. 757, JUNE 15, 2015 443
Vergara vs. Sonkin
drainage of lands, which obliges lower estates to receive from the higher estates water
which naturally and without the intervention of man descends from the latter, i.e., not those
collected artificially in reservoirs, etc., and the stones and earth carried by the waters, viz.:
Art. 637. Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as well as the
stones or earth which they carry with them. The owner of the lower estate cannot
construct works which will impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (Emphasis and underscoring supplied) In this
light, Sps. Sonkin should have been aware of such circumstance and, accordingly, made the
necessary adjustments to their property so as to minimize the burden created by such legal
easement. Instead of doing so, they disregarded the easement and constructed their house
directly against the perimeter wall which adjoins the Vergara property, thereby violating the
National Building Code in the process, specifically Section 708(a) thereof which reads:
Section 708. Minimum Requirements for Group A Dwellings.—(a) Dwelling Location and Lot
Occupancy. The dwelling shall occupy not more than ninety percent of a corner lot and eighty
percent of an inside lot, and subject to the provisions on Easement on Light and View of the
Civil Code of the Philippines, shall be at least 2 meters from the property line.
Same; Damages; Moral Damages; While moral damages may be awarded whenever the
defendant’s wrongful act or omission is the proximate cause of the plaintiff’s physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code, they are only given to ease the defendant’s grief and
suffering and should, therefore, reasonably approximate the extent of hurt caused and the
gravity of the wrong done.—In view of Sps. Sonkin’s contributory negligence, the Court deems
it appropriate to delete the award of moral damages in their favor. While moral damages may
be awarded whenever the defendant’s wrongful act or omission is the proximate cause of the
plaintiff’s physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury in the cases specified or
analogous to those provided in Article 2219 of the Civil Code,
444
VOL. 757, JUNE 15, 2015 444
Vergara vs. Sonkin
they are only given to ease the defendant’s grief and suffering and should, therefore,
reasonably approximate the extent of hurt caused and the gravity of the wrong done.
Same; Same; Attorney’s Fees; Even when a claimant is compelled to litigate with third
persons or to incur expenses to protect his rights, still attorney’s fees may not be awarded where
no sufficient showing of bad faith could be reflected in a party’s persistence in a case other
than an erroneous conviction of the righteousness of his cause.—Anent the issue on attorney’s
fees, the general rule is that the same cannot be recovered as part of damages because of the
policy that no premium should be placed on the right to litigate. They are not to be awarded
every time a party wins a suit. The power of the court to award attorney’s fees under Article
2208 of the Civil Code demands factual, legal, and equitable justification. Even when a
claimant is compelled to litigate with third persons or to incur expenses to protect his rights,
still attorney’s fees may not be awarded where no sufficient showing of bad faith could be
reflected in a party’s persistence in a case other than an erroneous conviction of the
righteousness of his cause. In this case, the Court observes that neither Sps. Sonkin nor Sps.
Vergara (thru their compulsory counterclaim) were shown to have acted in bad faith in
pursuing their respective claims against each other. The existence of bad faith is negated by
the fact that both parties have valid contentions against each other. Thus, absent cogent
reason to hold otherwise, the Court deems it inappropriate to award attorney’s fees in favor
of either party.
Same; Quasi-delicts; Negligence; Contributory Negligence; The underlying precept on
contributory negligence is that a plaintiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear the consequences of his own
negligence.—In view of Sps. Sonkin’s undisputed failure to observe the two (2)-meter setback
rule under the National Building Code, and in light of the order of the courts a quo directing
Sps. Vergara to provide an adequate drainage system within their property, the Court
likewise deems it proper, equitable, and necessary to order Erlinda, who is solely impleaded
as respondent before the Court, to comply with the aforesaid rule by the removal of the
portion of her house directly abutting the partition wall. The underlying precept on
contributory negligence is that a plaintiff who is partly responsible
445
VOL. 757, JUNE 15, 2015 445
Vergara vs. Sonkin
for his own injury should not be entitled to recover damages in full but must bear the
consequences of his own negligence. The defendant must therefore be held liable only for the
damages actually caused by his negligence.
Appeals.
Alfredo V. Tan & Associates Law Office for petitioners.
Nye N. Orquillas for respondent.
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated February
24, 2010 and the Resolution3dated September 2, 2010 of the Court of Appeals (CA) in
C.A.-G.R. CV No. 89357, which reversed and set aside the Decision4 dated January 4,
2007 of the Regional Trial Court of Malolos City, Bulacan, Branch 19 (RTC) in Civil
Case. No. 900-M-2002 and entered a new one in its stead.
The Facts
Petitioners-spouses Fernando Vergara and Herminia Vergara (Sps. Vergara) and

Spouses Ronald Mark Sonkin and Erlinda Torrecampo Sonkin (Sps. Sonkin) are
adjoining land-
_______________
1 Rollo, pp. 11-18. Petitioners also filed an amended petition on December 12, 2011 (id., at pp. 160-169)
which was noted by the Court in a Resolution dated January 30, 2012 (id., at pp. 280-281).
2 Id., at pp. 21-34. Penned by Associate Justice Ricardo R. Rosario, with Associate Justices Jose C.
Reyes, Jr. and Amy C. Lazaro-Javier, concurring.
3 Id., at pp. 117-118.
4 Id., at pp. 60-72. Penned by Presiding Judge Renato C. Francisco.
446
Vergara vs. Sonkin
owners in Poblacion, Norzagaray, Bulacan. In view of the geographical
configuration of the adjoining properties, the property owned by Sps. Sonkin (Sonkin
Property) is slightly lower in elevation than that owned by Sps. Vergara (Vergara
Property).5
When Sps. Sonkin bought the Sonkin Property sometime in 1999, they raised the
height of the partition wall and caused the construction of their house thereon. The
house itself was attached to the partition wall such that a portion thereof became
part of the wall of the master’s bedroom and bathroom.6
Sometime in 2001, Sps. Vergara levelled the uneven portion of the Vergara
Property by filling it with gravel, earth, and soil. As a result, the level of the Vergara
Property became even higher than that of the Sonkin Property by a third of a meter.
Eventually, Sps. Sonkin began to complain that water coming from the Vergara
Property was leaking into their bedroom through the partition wall, causing cracks,
as well as damage, to the paint and the wooden parquet floor. Sps. Sonkin repeatedly
demanded that Sps. Vergara build a retaining wall on their property in order to
contain the landfill that they had dumped thereon, but the same went
unheeded.7 Hence, Sps. Sonkin filed the instant complaint for damages and
injunction with prayer for preliminary mandatory injunction and issuance of a
temporary restraining order against Sps. Vergara, as well as Sps. Rowena Santiago
and Harold Santiago, Dolores Vergara-Orbistondo, and Rosario Vergara-Payumo, the
other possessors of the Vergara Property.8
_______________
5 Id., at p. 22.
6 Id.
7 Id., at pp. 22-23.
8 See Complaint dated December 9, 2002; id., at pp. 35-41.
447
VOL. 757, JUNE 15, 2015 447
Vergara vs. Sonkin
In defense, Sps. Vergara, in their Answer with Compulsory Counterclaim,9 claimed
that Sps. Sonkin’s act of raising the partition wall made the same susceptible to
breakage, which therefore cannot be attributed to them (Sps. Vergara). They likewise
claimed that when they levelled their own property by filling it with gravel and soil,
they left a distance of one (1) meter from the partition wall such that the edge of the
landfill did not breach it, asserting further that there was no valid and legal reason
why they should be enjoined from exercising their proprietary rights.10
During the trial, Sps. Sonkin presented the testimony of Engineer Ma. Victoria
Mendoza, considered an expert witness, who categorically declared that in view of the
sloping terrain and the Sonkin Property being lower in elevation than that of the
Vergara Property, the Sps. Vergara were then duty bound to provide a retaining wall
because they were the ones who caused the landfill, citing Section 120211 of
Presidential Decree No. 1096,12 otherwise known as the “National Building Code of
the Philippines” (National Building Code). Likewise,
_______________
9 See Answer with Compulsory Counterclaim dated January 10, 2003; id., at pp. 48-52.
10 Id., at pp. 23 and 50.
11 The pertinent portion of Section 1202 of the National Building Code reads:
Section 1202. Excavation, Foundation and Retaining Walls.
xxxx
(c) Footings, Foundations, and Retaining Walls
xxxx
(2) Whenever or wherever there exists in the site of the construction an abrupt change in the ground
levels or level of the foundation such that instability of the soil could result, retaining walls shall be provided
and such shall be of adequate design and type of construction as prescribed by the Secretary.
12 Entitled “Adopting a National Building Code of the Philippines Thereby Revising Republic Act
Numbered Sixty-Five Hundred Forty-One” (February 19, 1977).
448
Vergara vs. Sonkin
citing Sections 3.2.1, 3.2.3, and 3.2.4 of Section 3.2, Rule XV of the original
Implementing Rules and Regulations13 of the National Building Code, she explained
that it was Sps. Vergara’s duty to provide safety requirements for the landfill they
made on their property to prevent any danger to life or property. Moreover, Sps.
Vergara failed to provide a sewerage line to divert the flow of the water into the
adjoining property, in violation of Section 90114 of the National Building Code.15
Finally, the Provincial Engineer of Bulacan, Romeo S. Castro, who was appointed
as Commissioner by the RTC to conduct his own investigation, likewise found, inter
alia, that the introduction of filling materials on the Vergara Property has “affected”
the house of Sps. Sonkin.16
The RTC’s Ruling

In a Decision17 dated January 4, 2007, the RTC found Sps. Vergara civilly liable to
Sps. Sonkin for damages and directed them: (a) to scrape the earth and other filling
materials dumped in the adjacent perimeter wall of the Sonkin Property
_______________
13 The original IRR have been revised in October 29, 2004.

14 Section 901 of the National Building Code provides:
Section 901. General.
Subject to the provisions of Book II of the Civil Code of the Philippines on Property, Ownership, and its
Modification, all buildings hereafter erected, altered, remodeled, relocated or repaired for human habitation
shall be provided with adequate and potable water supply, plumbing installation, and suitable wastewater
treatment or disposal system, storm water drainage, pest and vermin control, noise abatement device, and
such other measures required for the protection and promotion of health of persons occupying the premises
and others living nearby.
15 See Rollo, pp. 66-68.
16 Id., at pp. 63-64.
17 Id., at pp. 60-72.
449
VOL. 757, JUNE 15, 2015 449
Vergara vs. Sonkin
and erect a retaining wall in accordance with the standards of the National
Building Code; (b) to install and provide an adequate drainage system in accordance
with the same Code; and (c) to jointly and severally pay Sps. Sonkin P300,000.00 as
actual damages, P50,000.00 as moral damages, P50,000.00 as exemplary damages,
P100,000.00 as attorney’s fees, and costs of suit. It dismissed all other claims of the
Sps. Sonkin, as well as the counterclaims of Sps. Vergara, for lack of merit.18
The RTC found that the earth dumped on the Vergara Property pushed back the
perimeter wall, causing cracks on Sps. Sonkin’s bedroom wall and water to seep
through the floor of the house. Moreover, the water seepage could only have come
from the Vergara Property which was higher in elevation, as Sps. Vergara have failed
to provide any drainage to divert the flow of water. Given the foregoing, the RTC
concluded that Sps. Vergara’s act of dumping earth, soil, and other materials in their
property directly caused the damage to the house of Sps. Sonkin and, thus, they
should be held liable for damages in favor of the latter. Needless to state, Sps.
Vergara’s codefendants were exculpated from liability since they were not shown to
have participated in the former’s act.19
Aggrieved, Sps. Vergara appealed20 the entire RTC Decision to the CA. They
reiterated that they were merely exercising their proprietary rights over their
property, i.e., the Vergara Property, when they filled the area with soil and gravel,
and that it was Sps. Sonkin who transgressed the National Building Code when they
failed to leave a setback of two (2) meters between their house and the property line.21
_______________
18 Id., at pp. 71-72.

19 Id., at pp. 68-71.
20 See Notice of Appeal dated February 7, 2007; id., at pp. 73-74.
21 Id., at p. 25.
450
Vergara vs. Sonkin
On the other hand, Sps. Sonkin filed only a partial appeal,22 assailing the amount
of actual, moral, and exemplary damages.
The CA’s Ruling
In a Decision23 dated February 24, 2010, the CA reversed and set aside the assailed
RTC Decision and entered a new one: (a) ordering the Sps. Vergara to install and
provide an adequate drainage system on their property to prevent the flow of water
into the Sonkin Property, and to pay Sps. Sonkin the amounts of P50,000.00 as moral
damages and P100,000.00 as attorney’s fees; (b) setting aside the directive to Sps.
Vergara to remove the landfill and build a retaining wall on their property; (c)
deleting the award of actual damages, as well as exemplary damages; and (d)
dismissing the separate appeal of the Sps. Sonkin for lack of merit.24
While the CA concurred with the finding of the RTC that the cause of the water
seepage into the Sonkin Property was the act of Sps. Vergara in elevating their own
property by filling it with gravel and soil, it ascribed error upon the RTC in not finding
that Sps. Sonkin were likewise guilty of contributory negligence in building their
house directly abutting the perimeter wall.25 The CA explained that despite the fact
that under Article 637 of the Civil Code, the Sonkin Property is legally obliged to
receive any water from higher estates such as the Vergara Property, it being the lower
estate, the Sps. Sonkin still built their house with parts thereof directly abutting the
perimeter wall and, in the process, violated the two (2)-meter setback rule under
Section 70826 of the National
_______________
22 See Notice of Partial Appeal dated February 15, 2007; id., at pp. 75-76.
23 Id., at pp. 21-34.
24 Id., at pp. 32-33.
25 Id., at pp. 26-27.
26 Section 708(a) of the National Building Code provides:
451
VOL. 757, JUNE 15, 2015 451
Vergara vs. Sonkin
Building Code.27 Thus, the CA deduced that had Sps. Sonkin followed such rule,
then their house would not have sustained any damage from water coming from the
Vergara property.28 Proceeding from such ratiocination, the CA deleted the award of
actual damages in the absence of evidence, i.e., actual receipts, showing the amount
actually spent by Sps. Sonkin in the repairs or renovation of their property. Similarly,
it deleted the award of exemplary damages, as Sps. Vergara was not proven to have
acted with gross negligence in levelling their property with the landfill and in
mitigation of their liability in light of Sps. Sonkin’s contributory negligence. The
award of moral damages and attorney’s fees, however, were affirmed.29
Finally, the CA found the order directing Sps. Vergara to remove the landfill on
their property to be unreasonable and an interference on their proprietary rights. It
considered the order to provide an adequate drainage system on their property to be
sufficient under the circumstances. Neither did it find the need to build a retaining
wall on the Vergara Property for the purpose of containing the landfill thereon,
opining that if it was Sps. Vergara’s obligation to prevent damage to Sps. Sonkin’s
house by erecting a retaining wall, then it was the latter’s concomitant obligation to
detach their house from
_______________
Section 708. Minimum Requirements for Group A Dwellings.

(a) Dwelling Location and Lot Occupancy.
The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent of an inside
lot, and subject to the provisions on Easement on Light and View of the Civil Code of the Philippines, shall
be at least 2 meters from the property line.
xxxx
27 Id., at pp. 27-28.
28 Id., at p. 27.
29 Id., at pp. 30-33.
452
Vergara vs. Sonkin
the perimeter wall in order to prevent any future damage or injury.30
Only Sps. Vergara sought reconsideration31 from the CA Decision, which was
denied in a Resolution32 dated September 2, 2010. Hence, this petition impleading
only respondent Erlinda Torrecampo Sonkin (Erlinda), essentially arguing that Sps.
Sonkin: (a) are not entitled to damages; and (b) should be ordered to demolish the
parts of their house directly abutting the perimeter wall in compliance with Section
708(a) of the National Building Code.33 Records are bereft of showing that Sps. Sonkin
made a further appeal to the Court.
The Issue Before the Court
The issues for the Court’s resolution are (a) whether or not the CA erred in
upholding the award of moral damages and attorney’s fees; and (b) whether or not it
should have ordered the demolition of the portion of the Sps. Sonkin’s house that
adjoins the partition wall.
The Court’s Ruling
The petition is meritorious.

Article 2179 of the Civil Code reads:
Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause
of his injury, he cannot recover damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the defendant’s lack of due care, the
plaintiff
_______________
30 Id., at pp. 31-32.

31 See motion for reconsideration dated March 18, 2010; id., at pp. 110-114.
32 Id., at pp. 117-118.
33 Id., at pp. 15-17. See also amended petition dated December 6, 2011; id., at pp. 166-168.
453
VOL. 757, JUNE 15, 2015 453
Vergara vs. Sonkin
may recover damages, but the courts shall mitigate the damages to be awarded.
Verily, contributory negligence is conduct on the part of the injured party,

contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection.34
In the case at bar, it is undisputed that the Sonkin property is lower in elevation
than the Vergara property, and thus, it is legally obliged to receive the waters that
flow from the latter, pursuant to Article 637 of the Civil Code. This provision refers
to the legal easement pertaining to the natural drainage of lands, which obliges lower
estates to receive from the higher estates water which naturally and without the
intervention of man descends from the latter, i.e., not those collected artificially in
reservoirs, etc., and the stones and earth carried by the waters,35 viz.:
Art. 637. Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as well as the
stones or earth which they carry with them.
The owner of the lower estate cannot construct works which will impede this easement;
neither can the owner of the higher estate make works which will increase the
burden.36 (Emphasis and underscoring supplied)
_______________
34 Allied Banking Corporation v. Bank of the Philippine Islands, G.R. No. 188363, February 27, 2013,
692 SCRA 186, 201, citing Philippine National Bank v. Cheah Chee Chong, G.R. Nos. 170865 & 170892,
April 25, 2012, 671 SCRA 49, 64.
35 See Paras, Edgardo L., Civil Code of the Philippines Annotated, Vol. II, pp. 686-687, Sixteenth edition
(2008).
36 See also Article 50 of Presidential Decree No. 1067, entitled “A Decree Instituting a Water Code,
Thereby Revising and Consolidating the Laws Governing the Ownership, Appropriation,
454
Vergara vs. Sonkin
In this light, Sps. Sonkin should have been aware of such circumstance and,
accordingly, made the necessary adjustments to their property so as to minimize the
burden created by such legal easement. Instead of doing so, they disregarded the
easement and constructed their house directly against the perimeter wall which
adjoins the Vergara property, thereby violating the National Building Code in the
process, specifically Section 708(a) thereof which reads:
Section 708. Minimum Requirements for Group A Dwellings.—
(a) Dwelling Location and Lot Occupancy.
The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent
of an inside lot, and subject to the provisions on Easement on Light and View of the Civil
Code of the Philippines, shall be at least 2 meters from the property line.
x x x x (Emphasis and underscoring supplied)
Hence, the CA correctly held that while the proximate cause of the damage
sustained by the house of Sps. Sonkin was the act of Sps. Vergara in dumping gravel
and soil onto their property, thus, pushing the perimeter wall back and causing
cracks thereon, as well as water seepage, the former is nevertheless guilty of
contributory negligence for not only
_______________
Utilization, Exploitation, Development, Conservation and Protection of Water Resources” (December 31,
1976), which provides:
Art. 50. Lower estates are obliged to receive the waters which naturally and without the intervention
of man flow from the higher estates, as well as the stone or earth which they carry with them.
The owner of the lower estate can not construct works which will impede this natural flow, unless he
provides an alternative method of drainage; neither can the owner of the higher estate make works which
will increase this natural flow.
455
VOL. 757, JUNE 15, 2015 455
Vergara vs. Sonkin
failing to observe the two (2)-meter setback rule under the National Building Code,
but also for disregarding the legal easement constituted over their property. As such,
Sps. Sonkin must necessarily and equally bear their own loss.
In view of Sps. Sonkin’s contributory negligence, the Court deems it appropriate
to delete the award of moral damages in their favor. While moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of
the plaintiff’s physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and similar injury in
the cases specified or analogous to those provided in Article 221937 of the Civil
Code,38 they are only given to ease the defendant’s grief and suffering and should,
therefore, reasonably ap-
_______________
37 Article 2219 of the Civil Code reads:

Art. 2219. Moral damages may be recovered in the following and analogous instances:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may
also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9
of this article, in the order named.
38 California Clothing, Inc. v. Quiñones, G.R. No. 175822, October 23, 2013, 708 SCRA 420, 431,
citing Carpio v. Valmonte, 481 Phil. 352, 364; 438 SCRA 38, 49 (2004).
456
Vergara vs. Sonkin
proximate the extent of hurt caused and the gravity of the wrong done.39
Anent the issue on attorney’s fees, the general rule is that the same cannot be
recovered as part of damages because of the policy that no premium should be placed
on the right to litigate. They are not to be awarded every time a party wins a suit.
The power of the court to award attorney’s fees under Article 220840 of the Civil Code
demands factual, legal, and
_______________
39 Id., citing Villanueva v. Rosqueta, 624 Phil. 330, 337; 610 SCRA 334, 341 (2010).
40 Article 2208 of the Civil Code reads:
Article 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:
(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly
valid, just and demandable claim;
(8) In actions for indemnity under workmen’s compensation and employer’s liability laws;
(11) In any other case where the court deems it just and equitable that attorney’s fees and expenses
of litigation should be recovered.
In all cases, the attorney’s fees and expenses of litigation must be reasonable.
457
VOL. 757, JUNE 15, 2015 457
Vergara vs. Sonkin
equitable justification. Even when a claimant is compelled to litigate with third
persons or to incur expenses to protect his rights, still attorney’s fees may not be
awarded where no sufficient showing of bad faith could be reflected in a party’s
persistence in a case other than an erroneous conviction of the righteousness of his
cause.41 In this case, the Court observes that neither Sps. Sonkin nor Sps. Vergara
(thru their compulsory counterclaim) were shown to have acted in bad faith in
pursuing their respective claims against each other. The existence of bad faith is
negated by the fact that both parties have valid contentions against each other. Thus,
absent cogent reason to hold otherwise, the Court deems it inappropriate to award
attorney’s fees in favor of either party.42
Finally, in view of Sps. Sonkin’s undisputed failure to observe the two (2)-meter
setback rule under the National Building Code, and in light of the order of the
courts a quo directing Sps. Vergara to provide an adequate drainage system within
their property, the Court likewise deems it proper, equitable, and necessary to order
Erlinda, who is solely impleaded as respondent before the Court, to comply with the
aforesaid rule by the removal of the portion of her house directly abutting the
partition wall. The underlying precept on contributory negligence is that a plaintiff
who is partly responsible for his own injury should not be entitled to recover damages
in full but must bear the consequences of his own negligence. The defendant must
therefore be held liable only for the damages actually caused by his negligence.43
_______________
41 See The President of the Church of Jesus Christ of Latter Day Saints v. BTL Construction
Corporation, G.R. No. 176439, January 15, 2014, 713 SCRA 455, citing Development Bank of the Philippines
v. Traverse Development Corporation, 674 Phil. 405, 415; 658 SCRA 614, 624 (2011).
42 Id.
43 Bank of America NT & SA v. Philippine Racing Club, 611 Phil. 687, 702; 594 SCRA 301, 315 (2009),
citing Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 391-392; 452 SCRA 285, 293 (2005).
458
Vergara vs. Sonkin
WHEREFORE, the petition is GRANTED. The Decision dated February 24,
2010 and the Resolution dated September 2, 2010 of the Court of Appeals (CA) in
C.A.-G.R. CV No. 89357 are hereby AFFIRMED with MODIFICATIONS. The
awards of moral damages and attorney’s fees are DELETED and respondent Erlinda
Torrecampo Sonkin is DIRECTED to strictly comply with Section 708(a) of the
National Building Code by removing or demolishing the portion of her house that
occupies the two-meter easement from the property line. The rest of the CA Decision
stands.
SO ORDERED.
Sereno (CJ., Chairperson), Leonardo-De Castro, Bersamin and Perez, JJ., concur.
Petition granted, judgment and resolution affirmed with modifications.
Notes.—The underlying precept on contributory negligence is that a plaintiff who
is partly responsible for his own injury should not be entitled to recover damages in
full, but must proportionately bear the consequences of his own negligence. (Cadiente
vs. Macas, 571 SCRA 105 [2008])
If the master is injured by the negligence of a third person and by the concurring
contributory negligence of his own servant or agent, the latter’s negligence is imputed
to his superior and will defeat the superior’s action against the third person,
assuming of course that the contributory negligence was the proximate cause of the
injury of which complaint is made; The act of crossing an avenue which is prohibited
by law constitutes negligence. (Ramos vs. C.O.L. Realty Corporation, 597 SCRA 526
[2009])
——o0o——
G.R. No. 172778. November 26, 2012.*
SABINIANO DUMAYAG, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
Remedial Law; Civil Procedure; Appeals; Well-settled is the rule that findings of fact of
the trial court, especially when affirmed by the Court of Appeals, are binding and conclusive
upon the Supreme Court; Exceptions.―Well-settled is the rule that findings of fact of the trial
court, especially when affirmed by the CA, are binding and conclusive upon this Court. The
Court, however, recognizes several exceptions to this rule, to wit: (1) when the inference made
is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3)
when the findings are grounded entirely on speculations, surmises or conjectures; (4) when
the judgment of the CA is based on misapprehension of facts; (5) when the findings of fact
are conflicting; (6) when the CA, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and appellee; (7) when the
findings of fact are conclusions without citation of specific evidence on which they are based;
(8) when the CA manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion; and (9) when the findings
of fact of the CA are premised on the absence of evidence and are contradicted by the evidence
on record. Several exceptions obtain in this case; hence, a departure from the general rule is
warranted.
Criminal Law; Reckless Imprudence; Words and Phrases; Reckless imprudence, as
defined by our penal law, consists in voluntarily, but without malice, doing or failing to do an
act from which material damage results by reason of inexcusable lack of precaution on the
part of the person performing or failing to perform such act, taking into consideration his
employment or occupation, degree of intelligence, physical condition and other circumstances
regarding persons, time and place.―Reckless imprudence, as defined by our penal law,
consists in voluntarily, but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable
_______________
* THIRD DIVISION.
348
Dumayag vs. People
lack of precaution on the part of the person performing or failing to perform such act,
taking into consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place. In order to establish a
motorist’s liability for the negligent operation of a vehicle, it must be shown that there was a
direct causal connection between such negligence and the injuries or damages complained of.
Thus, to constitute the offense of reckless driving, the act must be something more than a
mere negligence in the operation of a motor vehicle, and a willful and wanton disregard of
the consequences is required.
Proximate Cause; Words and Phrases; Proximate cause is defined as that cause, which,
in natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.―Proximate cause is defined as
that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom.
Land Transportation and Traffic Code of the Philippines (R.A. No. 4136); Motor Vehicles;
Section 37 of R.A. No. 4136, as amended, mandates all motorists to drive and operate vehicles
on the right side of the road or highway. When overtaking another, it should be made only if
the highway is clearly visible and is free from oncoming vehicle. Overtaking while approaching
a curve in the highway, where the driver’s view is obstructed, is not allowed.―Section 37 of
R.A. No. 4136, as amended, mandates all motorists to drive and operate vehicles on the right
side of the road or highway. When overtaking another, it should be made only if the highway
is clearly visible and is free from oncoming vehicle. Overtaking while approaching a curve in
the highway, where the driver’s view is obstructed, is not allowed.
349
VOL. 686, NOVEMBER 26, 2012 349
Dumayag vs. People
Corollarily, drivers of automobiles, when overtaking another vehicle, are charged with
a high degree of care and diligence to avoid collision. The obligation rests upon him to see to
it that vehicles coming from the opposite direction are not taken unaware by his presence on
the side of the road upon which they have the right to pass.
Civil Law; Quasi-Delicts; Contributory Negligence; Considering that the proximate cause
was the negligence of the tricycle driver and that negligence on the part of petitioner was only
contributory, there is a need to mitigate the amounts of the civil liability imposed on the latter.
The determination of the mitigation of the civil liability varies depending on the circumstances
of each case.―Considering that the proximate cause was the negligence of the tricycle driver
and that negligence on the part of petitioner was only contributory, there is a need to mitigate
the amounts of the civil liability imposed on the latter. The determination of the mitigation
of the civil liability varies depending on the circumstances of each case. The Court allowed
the reduction of 50% in Rakes v. Atlantic Gulf & Pacific Co., 7 Phil. 359 (1907), 20%
in Phoenix Construction, Inc. v. IAC, 148 SCRA 353 (1987) and LBC Air Cargo, Inc. v. CA,
241 SCRA 619 (1995) and 40% in Bank of the Philippine Islands v. CA, 216 SCRA 51 (1992)
and Philippine Bank of Commerce v. CA, 269 SCRA 695 (1997).
Appeals.
The Law Firm of Cahig, Canares & Carin for petitioner.
Bonachita Law Office collaborating counsel for petitioner.
Daryll Roque A. Amante, Jr. for private complainant.
MENDOZA, J.:
Before the Court is a petition for review under Rule 45 of the Rules of Court
seeking the reversal of the November 26,
350
Dumayag vs. People
2004 Decision1 and the May 10, 2006 Resolution2 of the Court of Appeals (CA), in CA-
G.R. CR No. 26513, which affirmed the June 24, 2002 Decision3 of the Regional Trial
Court, Branch 21, Cebu City (RTC). The RTC decision upheld with modification the
Decision4 of the Municipal Trial Court of San Fernando, Cebu City (MTC), finding
accused Sabiniano Dumayag (petitioner) guilty of the complex crime of reckless
imprudence resulting in multiple homicide and reckless imprudence resulting in
physical injuries.
The Facts:
On July 6, 1995, at around 11:30 o’clock in the morning, along the national
highway in Magtalisay, Sangat, San Fernando, Cebu, a passenger bus of Petrus Bus
Liner (passenger bus), driven by petitioner, collided with a tricycle driven by Elsie
Genayas (Genayas), resulting in the death of four (4) persons and causing physical
injuries to five (5) others, who were all passengers of the tricycle.5 The passenger bus
was bound for Dalaguete, Cebu, while the tricycle came from the opposite direction,
going towards Cebu City. At the time of the mishap, the tricycle was overtaking a
Mitsubishi pick-up when it collided with a passenger bus coming from the opposite
direction.6
Petitioner was charged before the MTC with reckless imprudence resulting in
multiple homicide for the deaths of Genayas, Orlando Alfanta (Alfanta), Grace Israel
(Israel), and Julius Amante (Amante); and with reckless imprudence re-
_______________
1 Rollo, pp. 71-80. Penned by Associate Justice Arsenio J. Magpale and concurred in by Associate Justice
Mariflor P. Punzalan Castillo and Associate Justice Ramon M. Bato, Jr.
2 Id., at pp. 88-89.
3 Records, pp. 315-337.
4 Id., at pp. 257-270.
5 Id., at p. 8.
6 Rollo, pp. 71-74.
351
VOL. 686, NOVEMBER 26, 2012 351
Dumayag vs. People
sulting in serious physical injuries sustained by Crispin Cañeda, Jannette Bacalso,
Carmela Lariosa, Fediliza Basco (Basco), and Nelfe Agad (Agad) and damage to
property.7
During the trial, one of the witnesses presented by the prosecution was Rogelio
Cagakit (Cagakit), a driver of Badian Island Resort. He testified that on July 6, 1995,
at around 11:30 o’clock in the morning, he was driving a Mitsubishi Pajero with
tourist passengers bound for Cebu City; that along the national highway somewhere
in Barangay Magtalisay, Balud, San Fernando, Cebu, he was trailing a tricycle
bearing a total of 8 passengers; that upon reaching the first blind curve of the road,
he noticed the tricycle following a Mitsubishi pick-up; that when the Mitsubishi pick-
up slowed down upon reaching the second blind curve, the tricycle tried to overtake
the pick-up and, while overtaking, a fast moving vehicle from the opposite direction
hit the tricycle which was thrown towards his direction; and that two passengers of
the tricycle died on the spot.8
Senior Police Officer 3 Gregorio Patalinghug (SPO3 Patalinghug) was also
presented as a witness and he narrated that on the said date and time he and Senior
Police Officer 2 Felipe Yap (SPO2 Yap) responded to a report about a traffic accident
somewhere in Magtalisay, Balud, San Fernando, Cebu. When they arrived at the
place, SPO2 Yap immediately boarded the injured victims in a vehicle and brought
them to the hospital. He noticed two lifeless bodies lying on the road, later identified
as those of Alfanta and Genayas. He then inspected the place of the incident;
measured the relative positions of the tricycle, the Mitsubishi Pajero and passenger
bus; and drew a sketch. From the sketch, he identified the point of impact, which was
one (1) foot away from the centerline of the road, crossing the lane occupied by the
passenger bus. He also pointed to the skid mark, about sixty (60) feet in
_______________
7 Records, p. 3.
8 TSN, July 11, 1997, pp. 3-27.
352
Dumayag vs. People
length, produced by the bus when its driver stepped on the brake pedal. Based on his
observation from the point of impact and on the information he gathered from several
persons present at the time of the accident, he was of the opinion that the driver of
the tricycle was at fault.9
The prosecution also presented Cañeda, Agad and Basco, who related the collision
they witnessed. The parents of the victims and the owner of the tricycle, meanwhile,
both testified on their respective claims for damages; while Dr. Rolando Anzano,
reported his findings on the injuries sustained by the victims.
In his defense, petitioner testified that he was a professional driver for 26 years
and worked for five (5) different employers, the fifth of which was the Petrus Bus
Liner; that his everyday route was from Dalaguete, Cebu to Cebu City and back, with
two (2) round trips a day; that he was familiar with the road since he had been
traversing it for around 20 years; that the road where the accident happened had two
(2) blind curves and upon approaching the first blind curve, he slowed down by
stepping on the brakes; that while negotiating the second blind curve, he noticed that
his lane was clear and so he stepped on the accelerator in order to gain momentum;
that it was at this moment that the tricycle while in the process of overtaking a
vehicle ahead of it, suddenly occupied his lane; that he tried to avoid hitting the
tricycle but to no avail; that he could not swerve the bus to the left because there was
another vehicle occupying the same; and he could not also swerve the bus to the road
shoulder on the right side of the lane because it was sloping down and there was a
canal. He posited that the accident would not have taken place at all if the tricycle
driver had not attempted to overtake another vehicle and occupied his lane.10
_______________
9 TSN, August 7, 1997, pp. 3-25.
10 TSN, April 3, 1998 & June 26, 1998, pp. 3-36 & 2-13.
353
VOL. 686, NOVEMBER 26, 2012 353
Dumayag vs. People
On March 18, 1999, the MTC found petitioner guilty beyond reasonable doubt of
the crime of reckless imprudence resulting in multiple homicide.11 It explained:
Taking into account the circumstances and condition of the road there being two (2) blind
curves involved, the length of the skidmark produced at sixty (60) feet in length clearly
speaks for itself that the accused drove and operated the passenger bus negligently without
taking the necessary precautions and without due regard to the road condition.
Simpl[y] stated, if in the exercise of reasonable care as contended by the accused, the speed
of the passenger bus at that time was commensurate and corresponds with the demands of
the circumstances and conditions of the road where as is obtaining, the conditions are such
as to increase the danger of accident, no matter how sudden the tricycle appeared at the bus’
front, indisputably, the skid mark produced would not have reached that much or the
accident may have been avoided and if not, the damage or injuries caused could only be slight
and manageable.12
The dispositive portion reads:
WHEREFORE, finding the accused, Sabiniano Dumayag, guilty beyond
reasonable doubt of the crime of reckless imprudence resulting in multiple homicide,
he is sentenced to suffer the penalty of imprisonment of two (2) years and one (1) day
minimum to three (3) years, six (6) months and twenty (20) days maximum and to
pay the following civil liabilities:
1. To the surviving heirs of deceased Orlando Alfanta:
a. P50,000.00 death Indemnity;
b. P50,000.00 for wake, funeral, burial and other related miscellaneous
expenses; and
c. P20,000.00 moral damages for the agony, mental anguish and sorrow
suffered by the surviving heirs;
_______________
11 Records, pp. 257-270.
12 Id., at p. 266.
353
VOL. 686, NOVEMBER 26, 2012 353
Dumayag vs. People
2. To the surviving heirs of deceased Julius Amante;
expenses; and
3. To the surviving heirs of deceased Grace Israel:
expenses; and
plus P50,000.00 by way of attorney’s fees and P20,000.00 exemplary damages.
With costs against the accused.
SO ORDERED.13
On appeal, the RTC affirmed with modification the decision of the MTC.14 The
modified judgment reads:
WHEREFORE, in view of the foregoing premises, the appealed decision is hereby
AFFIRMED but modified as follows:
1. For the complex crime of reckless imprudence resulting in multiple homicide of
Alfante, Israel and Amante, accused is sentenced to suffer the indeterminate penalty
of TWO (2) YEARS and FOUR (4) MONTHS (of arresto mayorin its maximum period
to prision correccional in its minimum period), as minimum, to SIX (6) YEARS
(of prision correccional in its medium and maximum periods), as the maximum thereof,
with all the accessory penalties thereto.
2. For reckless imprudence resulting in slight physical injuries accused is
sentenced to PUBLIC CENSURE for the injuries sustained by each of the private
complainants, to wit,
_______________
13 Id., at pp. 269-270.
14 Id., at pp. 315-337.
355
VOL. 686, NOVEMBER 26, 2012 355
Dumayag vs. People
Canieda, Bacalso, Lariosa, Bascon and Agad. In other words, accused is sentenced to
said penalty for as many private complainants as were injured.
3. For his civil liabilities, accused is directed―
3.1 To pay the surviving heirs of each of the deceased tricycle passengers, namely,
Alfante, Amante and Israel the following:
3.1.1 Fifty Thousand Pesos (P50,000.00) for the death each of the defendant;
3.1.2 Thirty Thousand Pesos (P30,000.00) for the wake, funeral, burial and
other related expenses in connection with the said death;
3.1.3 Twenty Thousand (P20,000.00) pesos for moral damages;
3.1.4 Ten Thousand Pesos (P10,000.00) for exemplary damages;
3.1.5 Twenty Thousand (P20,000.00) pesos as attorney’s fees.
3.2 To pay Beethoven Bernabe, the owner of the damaged tricycle, EIGHTY
THOUSANDS (sic) PESOS (P80,000.00) as compensatory damage representing the
value of the said property after deducting therefrom its salvage value and allowance
for depreciation; and
3.3 The costs.
SO ORDERED.15
The CA affirmed in toto the decision of the RTC. It found the petitioner and the
tricycle driver equally guilty of negligence, the former for failing to observe the
precautionary measure when approaching a blind curve and the latter for
unsuccessfully overtaking a vehicle. The CA stated that the petitioner should have
been more careful considering that the area had blind curves and there could be
oncoming vehicles
_______________
15 Id., at pp. 336-337.
356
Dumayag vs. People
from the other side. The fact that petitioner was driving on the right side of the road
did not relieve him of the obligation of exercising due and ordinary care to prevent
collision and avoid injury to persons or property, including others who may be on the
wrong side of the road.16
Petitioner filed a motion for reconsideration, but it was denied in a Resolution,
dated May 10, 2006.
Hence, this petition raising the following issues:
WHETHER OR NOT NEGLIGENCE, IMPRUDENCE AND RECKLESSNESS WAS
CORRECTLY ATTRIBUTED TO PETITIONER BY THE COURTS BELOW WHEN
THE VEHICULAR MISHAP COMPLAINED OF IN THIS PROCEEDING
OCCURRED LAST 6 JULY 1995;
IF INDEED PETITIONER WAS NEGLIGENT, RECKLESS AND IMPRUDENT
WHEN THE MISHAP LITIGATED IN THIS PROCEEDING OCCURRED LAST 6
JULY 1995, WHETHER OR NOT SAID NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE, WAS THE PROXIMATE CAUSE OF THE SAME;
WHETHER OR NOT PETITIONER’S CONVICTION, AS SUSTAINED BY THE
COURT OF APPEALS, IS VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS OF LAW AND TO BE PRESUMED INNOCENT OF THE CRIME
CHARGED AT BAR.17
Petitioner argues that his guilt was not proven beyond reasonable doubt, claiming
that the vehicular mishap was purely an accident. He insists that he was not
negligent, reckless and imprudent in the operation of the motor vehicle at the time of
the accident and that he was driving the bus on the lane properly belonging to him
at a moderate speed.
He asserts that the proximate cause of the accident was the negligent, reckless
and imprudent act of the tricycle driver,
_______________
16 Rollo, pp. 71-80.
17 Id., at p. 16.
357
VOL. 686, NOVEMBER 26, 2012 357
Dumayag vs. People
who suddenly overtook another vehicle while approaching a blind curve. He stresses
that had the tricycle driver not attempted to suddenly overtake another vehicle while
approaching a blind curve, the accident would not have taken place.
Petitioner further avers that, at the time of the accident, the tricycle was
overloaded with eight passengers, in addition to the driver; that the driver of the
tricycle was operating along the national highway, a route specifically prohibited
under the franchise; and that the tricycle driver also violated Section 41 (a) and (b)
of Republic Act (R.A.)No. 4136,18 as amended, otherwise known as the Land
Transportation and Traffic Code of the Philippines when he tried to overtake another
vehicle while approaching a blind curve of the highway. Therefore, due to serious
violations committed by the tricycle driver, the resulting deaths and injuries arising
from the vehicular accident should be his sole responsibility.19
The Court finds merit in the petition.
Well-settled is the rule that findings of fact of the trial court, especially when
affirmed by the CA, are binding and
_______________
18 Section 41. Restrictions on overtaking and passing.
(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking
or passing another vehicle proceeding in the same direction, unless such left side is clearly visible, and is
free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in
safety.
(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction,
when approaching the crest of a grade, not upon a curve in the highway, where the driver’s view along the
highway is obstructed within a distance of five hundred feet ahead, except on a highway having two or more
lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another
vehicle: Provided, That on a highway within a business or residential district, having two or more lanes for
movement of traffic in one direction, the driver of a vehicle may overtake or pass another vehicle on the
right.
19 Rollo, pp. 9-30.
358
Dumayag vs. People
conclusive upon this Court.20 The Court, however, recognizes several exceptions to
this rule, to wit: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings are
grounded entirely on speculations, surmises or conjectures; (4) when the judgment of
the CA is based on misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the CA, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee; (7)
when the findings of fact are conclusions without citation of specific evidence on which
they are based; (8) when the CA manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify a different
conclusion; and (9) when the findings of fact of the CA are premised on the absence
of evidence and are contradicted by the evidence on record.21 Several exceptions obtain
in this case; hence, a departure from the general rule is warranted.
The MTC, the RTC and the CA found petitioner guilty beyond reasonable doubt of
reckless imprudence resulting in homicide and physical injuries and damage to
property. They all concluded that petitioner was guilty because he was driving fast
at the time of the collision. Consequently, he was sentenced to suffer the penalty of
imprisonment and ordered to pay the victims civil indemnity.
Reckless imprudence, as defined by our penal law, consists in voluntarily, but
without malice, doing or failing to do an act from which material damage results by
reason of inexcusable lack of precaution on the part of the person performing or failing
to perform such act, taking into consideration his employment or occupation, degree
of intelligence, physical condi-
_______________
20 Lambert v. Heirs of Ray Castillon, 492 Phil. 384, 389; 452 SCRA 285, 290 (2005).
21 Estacion v. Bernardo, 518 Phil. 388, 398-399; 483 SCRA 222, 231-232 (2006).
359
VOL. 686, NOVEMBER 26, 2012 359
Dumayag vs. People
tion and other circumstances regarding persons, time and place.22 In order to
establish a motorist’s liability for the negligent operation of a vehicle, it must be
shown that there was a direct causal connection between such negligence and the
injuries or damages complained of.23Thus, to constitute the offense of reckless driving,
the act must be something more than a mere negligence in the operation of a motor
vehicle, and a willful and wanton disregard of the consequences is required.24
After going over the records of this case, the Court is unable to sustain the findings
of fact and conclusion reached by the courts below. The totality of the evidence shows
that the proximate cause of the collision was the reckless negligence of the tricycle
driver, who hastily overtook another vehicle while approaching a blind curve, in
violation of traffic laws.
Proximate cause is defined as that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the
result would not have occurred. And more comprehensively, the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other events in motion,
all constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom.25
_______________
22 Art. 365, Revised Penal Code.
23 Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 498-499.
24 Caminos, Jr. v. People, G.R. No. 147437, May 8, 2009, 587 SCRA 348, 357.
25 Vallacar Transit v. Catubig, G.R. No. 175512, May 30, 2011, 649 SCRA 281, 295-296.
360
Dumayag vs. People
The evidence indubitably shows that before the collision, the passenger bus was
cruising along its rightful lane when the tricycle coming from the opposite direction
suddenly swerved and encroached on its lane. The accident would not have happened
had Genayas, the tricycle driver, stayed on his lane and did not recklessly try to
overtake another vehicle while approaching a blind curve. Section 37 of R.A. No. 4136,
as amended, mandates all motorists to drive and operate vehicles on the right side of
the road or highway. When overtaking another, it should be made only if the highway
is clearly visible and is free from oncoming vehicle. Overtaking while approaching a
curve in the highway, where the driver’s view is obstructed, is not
allowed.26 Corollarily, drivers of automobiles, when overtaking another vehicle, are
charged with a high degree of care and diligence to avoid collision. The obligation
rests upon him to see to it that vehicles coming from the opposite direction are not
taken unaware by his presence on the side of the road upon which they have the right
to pass.27
The MTC opined that the accident could have been avoided or damage or injuries
could only be slight and manageable, if the speed of the passenger bus was
commensurate with the demands of the circumstances and the condition of the road.
The Court, however, cannot subscribe to the conclusion that petitioner was driving
fast and without regard to the condition of the road at the time of the collision.
The testimony of Cagakit that the passenger bus was running fast at the time of
the collision lacks probative value. The actual speed of the bus was not established
because he merely stated that when the tricycle was trying to overtake the Mitsubishi
pick-up, a fast moving vehicle hit it. Also, it was not indubitably shown that petitioner
was driving at a
_______________
26 Section 41 (a) (b) of Republic Act No. 4136.
27 United States v. Crame, Separate Opinion, 30 Phil. 2, 21-22 (1915).
361
VOL. 686, NOVEMBER 26, 2012 361
Dumayag vs. People
speed beyond the rate allowed by law.28 In a similar case, Vallacar Transit, Inc. v.
Catubig,29 the Court, in adopting the conclusion of the RTC, wrote:
_______________
28 Republic Act No. 4136, Section 35. Restriction as to speed.―
(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent
speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the
highway, and of any other condition then and there existing; and no person shall drive any motor vehicle
upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed
greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
(b) Subject to the provisions of the preceding paragraph, the rate of speed of any motor vehicle shall
not exceed the following:
MAXIMUM ALLOW- Passengers Motor
ABLE SPEEDS Cars trucks
and and
Motorcycle buses
1. On open country roads, with no 80 km. per 50 km.
“blinds corners” not closely bordered by hour per
habitations. hour
2. On “through streets” or boulevards, 40 km. per 30 km.
clear of traffic, with no “blind corners,” hour per
when so designated. hour
3. On city and municipal streets, with 30 km. per 30 km.
light traffic, when not designated hour per
“through streets.” hour
4. Through crowded streets, 20 km. per 20 km.
approaching intersections at “blind hour per
corners,” passing school zones, passing hour
other vehicles which are stationery, or for
similar dangerous circumstances.
29Supra note 25, at p. 296.
362
Dumayag vs. People
Based on the evidence on record, it is crystal clear that the immediate and proximate
cause of the collision is the reckless and negligent act of Quintin Catubig, Jr. and not because
the Ceres Bus was running very fast. Even if Ceres Bus is running very fast on its lane, it
could not have caused the collision if not for the fact that Quintin Catubig, Jr. tried to
overtake a cargo truck and encroached on the lane traversed by the Ceres Bus while
approaching a curve. As the driver of the motorcycle, Quintin Catubig, Jr. has not observed
reasonable care and caution in driving his motorcycle which an ordinary prudent driver
would have done under the circumstances. Recklessness on the part of Quintin Catubig, Jr.
is evident when he tried to overtake a cargo truck while approaching a curve in Barangay
Donggo-an, Bolisong, Manjuyod, Negros Oriental. x x x.
Furthermore, it was undisputed that the tricycle was overloaded, with a total of
eight (8) passengers (excluding the driver), which is a clear violation of traffic rules
and regulation. It was likewise admitted by the owner of the tricycle, Beethoven
Bernabe (Bernabe), that his driver violated the conditions specified in the tricycle
franchise which prohibited all tricycles to travel along the national highway. In fact,
he admitted that Genayas was only the alternate driver of his son and that he did not
interview him anymore when he applied as a company driver because he was a
neighbor and a nephew of his wife. For said reason, the award of damages to Bernabe
by the courts below has no justifiable basis.
The immediate and proximate cause being the reckless and imprudent act of the
tricycle driver, petitioner should be acquitted. Nevertheless, he is civilly liable. The
rule is that an “acquittal of the accused, even if based on a finding that he is not
guilty, does not carry with it the extinction of the civil liability based on quasi delict.”30
Under the proven circumstances, there was contributory negligence on the part of
petitioner. It is to be noted that there were two blind curves along the national
highway. Hav-
_______________
30 Heirs of Late Guaring, Jr. v. Court of Appeals, 336 Phil. 274, 279; 269 SCRA 283, 288 (1997).
363
VOL. 686, NOVEMBER 26, 2012 363
Dumayag vs. People
ing travelled along it for the past 20 years, he was aware of the blind curves and
should have taken precaution in operating the passenger bus as it approached them.
In the situation at hand, he did not exercise the necessary precaution. After
negotiating the first curve, he claimed to have stepped on the accelerator pedal
because his lane was clear. According to SPO2 Patalinghug, he found skid marks
produced by the passenger bus. It could only mean that petitioner had slammed on
the brake brought about by the sudden emergence of the tricycle in front of him.
Notwithstanding, it was still short of reckless or criminal negligence as he was
driving along his rightful lane.
Considering that the proximate cause was the negligence of the tricycle driver and
that negligence on the part of petitioner was only contributory, there is a need to
mitigate the amounts of the civil liability imposed on the latter. The determination
of the mitigation of the civil liability varies depending on the circumstances of each
case.31 The Court allowed the reduction of 50% in Rakes v. Atlantic Gulf & Pacific
Co.,32 20% in Phoenix Construction, Inc. v. IAC33 and LBC Air Cargo, Inc. v. CA,34 and
40% in Bank of the Philippine Islands v. CA35 and Philippine Bank of Commerce v.
CA.36
In this case, a reduction of 50% of the actual damages is deemed equitable
considering that the negligence of the tricycle driver was the proximate cause of the
accident and that of petitioner was merely contributory. Moreover, under the
circumstances, petitioner cannot be made liable for moral and exemplary damages
for lack of basis. The award of attorney’s fees is not warranted either.
_______________
31 Lambert v. Heirs of Ray Castillon, supra note 17, at p. 392;
p. 293.
32 7 Phil. 359 (1907).
33 232 Phil. 327; 148 SCRA 353 (1987).
34 311 Phil. 715; 241 SCRA 619 (1995).
35 G.R. No. 102383, November 26, 1992, 216 SCRA 51.
36 336 Phil. 667; 269 SCRA 695 (1997).
364
Dumayag vs. People
WHEREFORE, the petition is PARTLY GRANTED. Petitioner Sabiniano
Dumayag is hereby ACQUITTED of the crime of reckless imprudence resulting in
homicide and damage to property. He is, however, civilly liable and, accordingly,
ORDERED to pay each of the surviving heirs of Orlando Alfanta, Grace Israel and
Julius Amante the following:
1] P25,000.00 as civil indemnity; and
2] P15,000.00 for funeral expenses.
The award of damages to Beethoven Bernabe, the owner of the tricycle, is
DELETED.
SO ORDERED.
Leonardo-De Castro,** Peralta*** (Acting Chairperson), Abad and Leonen, JJ.,
concur.
Petition partly granted, petitioner Sabiniano Dumayag acquitted.
Notes.―Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of an inexcusable lack
of precaution on the part of the person performing or failing to perform such act.
(Jarcia, Jr. vs. People, 666 SCRA 336 [2012])
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but the
confiscation of the driver’s license of the latter. (Luz vs. People, 667 SCRA 421 [2012])
――o0o――
_______________
** Designated acting member, per Special Order No. 1361 dated November 19, 2012.
*** Per Special Order No. 1360 dated November 19, 2012.
G.R. No. 173259. July 25, 2011.*
PHILIPPINE NATIONAL BANK, petitioner, vs. F.F. CRUZ and CO., INC.,
respondent.
Evidence; Witnesses; Oral testimony is not as reliable as documentary evidence.—First,
oral testimony is not as reliable as documentary evidence. Second, PNB’s own witness, San
Diego, testified that in the verification process, the principal duty to determine the
genuineness of the signature devolved upon the account analyst. However, PNB did not
present the account analyst to explain his or her failure to sign the box for signature and
balance verification of the subject applications for manager’s check, thus, casting doubt as to
whether he or she did indeed verify the signatures thereon. Third, we cannot fault the
appellate court for not giving weight to the testimonies of Gallego and San Diego considering
that the latter are naturally interested in exculpating themselves from any liability arising
from the failure to detect the forgeries in the subject transactions. Fourth, Gallego admitted
that PNB’s employees received training on detecting forgeries from the National Bureau of
Investigation. However, Emmanuel Guzman, then NBI senior document examiner, testified,
as an expert witness, that the forged signatures in the subject applications for manager’s
check contained noticeable and significant differences from the genuine signatures of
FFCCI’s authorized signatories and that the forgeries should have been detected or observed
by a trained signature verifier of any bank.
Banks and Banking: Negligence; Where the bank’s negligence is the proximate cause of
the loss and the depositor is guilty of contributory negligence, we allocated the damages
between the bank and the depositor on a 60-40 ratio.—Given the foregoing, we find no
reversible error in the findings of the appellate court that PNB was negligent in the handling
of FFCCI’s combo account, specifically, with respect to PNB’s failure to detect the forgeries
in the subject applications for manager’s check which could have prevented the loss. As we
have often ruled, the banking business is impressed with public trust. A higher degree of
diligence is imposed on banks relative to the handling of their affairs than that of an ordinary
business enter-
_______________
* FIRST DIVISION.
334
Philippine National Bank vs. F.F. Cruz and Co., Inc.
prise. Thus, the degree of responsibility, care and trustworthiness expected of their
officials and employees is far greater than those of ordinary officers and employees in other
enterprises. In the case at bar, PNB failed to meet the high standard of diligence required by
the circumstances to prevent the fraud. In Philippine Bank of Commerce v. Court of Appeals,
269 SCRA 695 (1997), and The Consolidated Bank & Trust Corporation v. Court of Appeals,
410 SCRA 562 (2003), where the bank’s negligence is the proximate cause of the loss and the
depositor is guilty of contributory negligence, we allocated the damages between the bank
and the depositor on a 60-40 ratio. We apply the same ruling in this case considering that, as
shown above, PNB’s negligence is the proximate cause of the loss while the issue as to
FFCCI’s contributory negligence has been settled with finality in G.R. No. 173278. Thus, the
appellate court properly adjudged PNB to bear the greater part of the loss consistent with
these rulings.
Appeals.
Dasal, Laurel, Llasos & Associates for petitioner.
Poblador, Bautista & Reyes for respondent.
DEL CASTILLO, J.:
As between a bank and its depositor, where the bank’s negligence is the proximate
cause of the loss and the depositor is guilty of contributory negligence, the greater
proportion of the loss shall be borne by the bank.
This Petition for Review on Certiorari seeks to reverse and set aside the Court of
Appeal’s January 31, 2006 Decision1 in CA-G.R. CV No. 81349, which modified the
January 30, 2004
_______________
1 Rollo (G.R. No. 173259), pp. 46-54; penned by Associate Justice Roberto A. Barrios and concurred in
by Associate Justices Mario L. Guariña III and Santiago Javier Ranada.
335
VOL. 654, JULY 25, 2011 335
Decision2 of the Regional Trial Court of Manila City, Branch 46 in Civil Case No. 97-
84010, and the June 26, 2006 Resolution3 denying petitioner’s motion for
reconsideration.
Factual Antecedents
The antecedents are aptly summarized by the appellate court:
“In its complaint, it is alleged that [respondent F.F. Cruz & Co., Inc.] (hereinafter FFCCI)
opened savings/current or so-called combo account No. 0219-830-146 and dollar savings
account No. 0219-0502-458-6 with [petitioner Philippine National Bank] (hereinafter PNB)
at its Timog Avenue Branch. Its President Felipe Cruz (or Felipe) and Secretary-Treasurer
Angelita A. Cruz (or Angelita) were the named signatories for the said accounts.
The said signatories on separate but coeval dates left for and returned from the Unites
States of America, Felipe on March 18, 1995 until June 10, 1995 while Angelita followed him
on March 29, 1995 and returned ahead on May 9, 1995.
While they were thus out of the country, applications for cashier’s and manager’s [checks]
bearing Felipe’s [signature] were presented to and both approved by the PNB. The first was
on March 27, 1995 for P9,950,000.00 payable to a certain Gene B. Sangalang and the other
one was on April 24, 1995 for P3,260,500.31 payable to one Paul Bautista. The amounts of
these checks were then debited by the PNB against the combo account of [FFCCI].
When Angelita returned to the country, she had occasion to examine the PNB statements
of account of [FFCCI] for the months of February to August 1995 and she noticed the
deductions of P9,950,000.00 and P3,260,500.31. Claiming that these were unauthorized and
fraudulently made, [FFCCI] requested PNB to credit back and restore to its account the value
of the checks. PNB refused, and thus constrained [FFCCI] filed the instant suit for damages
against the PNB and its own accountant Aurea Caparas (or Caparas).
_______________
2 Id., at pp. 57-70; penned by Judge Artemio S. Tipon.

3 Id., at pp. 55-56.
336
In its traverse, PNB averred lack of cause of action. It alleged that it exercised due
diligence in handling the account of [FFCCI]. The applications for manager’s check have
passed through the standard bank procedures and it was only after finding no infirmity that
these were given due course. In fact, it was no less than Caparas, the accountant of [FFCCI],
who confirmed the regularity of the transaction. The delay of [FFCCI] in picking up and going
over the bank statements was the proximate cause of its self-proclaimed injury. Had [FFCCI]
been conscientious in this regard, the alleged chicanery would have been detected early on
and Caparas effectively prevented from absconding with its millions. It prayed for the
dismissal of the complaint.”4
Regional Trial Court’s Ruling
The trial court ruled that F.F. Cruz and Company, Inc. (FFCCI) was guilty of
negligence in clothing Aurea Caparas (Caparas) with authority to make decisions on
and dispositions of its account which paved the way for the fraudulent transactions
perpetrated by Caparas; that, in practice, FFCCI waived the two-signature
requirement in transactions involving the subject combo account so much so that
Philippine National Bank (PNB) could not be faulted for honoring the applications
for manager’s check even if only the signature of Felipe Cruz appeared thereon; and
that FFCCI was negligent in not immediately informing PNB of the fraud.
On the other hand, the trial court found that PNB was, likewise, negligent in not
calling or personally verifying from the authorized signatories the legitimacy of the
subject withdrawals considering that they were in huge amounts. For this reason,
PNB had the last clear chance to prevent the unauthorized debits from FFCCI’s
combo account. Thus, PNB should bear the whole loss—
_______________
4 Id., at pp. 46-48.

337
VOL. 654, JULY 25, 2011 337
“WHEREFORE, judgment is hereby rendered ordering defendant [PNB] to pay plaintiff

[FFCCI] P13,210,500.31 representing the amounts debited against plaintiff’s account, with
interest at the legal rate computed from the filing of the complaint plus costs of suit.
IT IS SO ORDERED.”5
Court of Appeal’s Ruling
On January 31, 2006, the CA rendered the assailed Decision affirming with
modification the Decision of the trial court, viz.:
“WHEREFORE, the appealed Decision is AFFIRMED with the MODIFICATION that
[PNB] shall pay [FFCCI] only 60% of the actual damages awarded by the trial court while
the remaining 40% shall be borne by [FFCCI].
SO ORDERED.”6
The appellate court ruled that PNB was negligent in not properly verifying the
genuineness of the signatures appearing on the two applications for manager’s check
as evidenced by the lack of the signature of the bank verifier thereon. Had this
procedure been followed, the forgery would have been detected.
Nonetheless, the appellate court found FFCCI guilty of contributory negligence
because it clothed its accountant/bookkeeper Caparas with apparent authority to
transact business with PNB. In addition, FFCCI failed to timely examine its monthly
statement of account and report the discrepancy to PNB within a reasonable period
of time to prevent or recover the loss. FFCCI’s contributory negligence, thus,
mitigated the bank’s liability. Pursuant to the rulings in Philippine Bank of
Commerce v. Court of Appeals7 and The Consolidated Bank &
_______________
5 Id., at p. 69.
6 Id., at p. 53.
7 336 Phil. 667; 269 SCRA 695 (1997).
338
Trust Corporation v. Court of Appeals,8 the appellate court allocated the damages on
a 60-40 ratio with the bigger share to be borne by PNB.
From this decision, both FFCCI and PNB sought review before this Court.
On August 17, 2006, FFCCI filed its petition for review on certiorari which was
docketed as G.R. No. 173278.9 On March 7, 2007, the Court issued a
Resolution10 denying said petition. On June 13, 2007, the Court issued another
Resolution11 denying FFCCI’s motion for reconsideration. In denying the aforesaid
petition, the Court ruled that FFCCI essentially raises questions of fact which are, as
a rule, not reviewable under a Rule 45 petition; that FFCCI failed to show that its
case fell within the established exceptions to this rule; and that FFCCI was guilty of
contributory negligence. Thus, the appellate court correctly mitigated PNB’s liability.
On July 13, 2006, PNB filed its petition for review on certiorari which is the subject
matter of this case.
Issue
Whether the Court of Appeals seriously erred when it found PNB guilty of
negligence.12
Our Ruling
We affirm the ruling of the CA.
_______________
8 457 Phil. 688; 410 SCRA 562 (2003).

9 Rollo (G.R. No. 173278), pp. 9-46.
10 Id., at pp. 119-123.
11 Id., at p. 154.
12 Rollo (G.R. No. 173259) p. 164.
339
VOL. 654, JULY 25, 2011 339
PNB is guilty of negligence.

Preliminarily, in G.R. No. 173278, we resolved with finality13 that FFCCI is guilty
of contributory negligence, thus, making it partly liable for the loss (i.e., as to 40%
thereof) arising from the unauthorized withdrawal of P13,210,500.31 from its combo
account. The case before us is, thus, limited to PNB’s alleged negligence in the subject
transactions which the appellate court found to be the proximate cause of the loss,
thus, making it liable for the greater part of the loss (i.e., as to 60% thereof) pursuant
to our rulings in Philippine Bank of Commerce v. Court of Appeals14 and The
Consolidated Bank & Trust Corporation v. Court of Appeals.15
PNB contends that it was not negligent in verifying the genuineness of the
signatures appearing on the subject applications for manager’s check. It claims that
it followed the standard operating procedure in the verification process and that four
bank officers examined the signatures and found the same to be similar with those
found in the signature cards of FFCCI’s authorized signatories on file with the bank.
PNB raises factual issues which are generally not proper for review under a Rule
45 petition. While there are exceptions to this rule, we find none applicable to the
present case. As correctly found by the appellate court, PNB failed to make the proper
verification because the applications for the manager’s check do not bear the
signature of the bank verifier. PNB concedes the absence16of the subject signature but
argues that the same was the result of inadvertence. It posits that the testimonies of
Geronimo Gallego (Gallego), then the
_______________
13 The March 7, 2007 Resolution became final and executory on August 29, 2007 as per entry of
judgment [id., at p. 158 (G.R. No. 173278)].
14 Supra note 7.
15 Supra note 8.
16 TSN, November 27, 2001, p. 40.
340
branch manager of PNB Timog Branch, and Stella San Diego (San Diego), then
branch cashier, suffice to establish that the signature verification process was duly
followed.
We are not persuaded.
First, oral testimony is not as reliable as documentary evidence.17 Second, PNB’s
own witness, San Diego, testified that in the verification process, the principal duty
to determine the genuineness of the signature devolved upon the account
analyst.18 However, PNB did not present the account analyst to explain his or her
failure to sign the box for signature and balance verification of the subject
applications for manager’s check, thus, casting doubt as to whether he or she did
indeed verify the signatures thereon. Third, we cannot fault the appellate court for
not giving weight to the testimonies of Gallego and San Diego considering that the
latter are naturally interested in exculpating themselves from any liability arising
from the failure to detect the forgeries in the subject transactions. Fourth, Gallego
admitted that PNB’s employees received training on detecting forgeries from the
National Bureau of Investigation.19 However, Emmanuel Guzman, then NBI senior
document examiner, testified, as an expert witness, that the forged signatures in the
subject applications for manager’s check contained noticeable and significant
differences from the genuine signatures of FFCCI’s authorized signatories and that
the forgeries should have been detected or observed by a trained signature verifier of
any bank.20
Given the foregoing, we find no reversible error in the findings of the appellate
court that PNB was negligent in the handling of FFCCI’s combo account, specifically,
with respect to PNB’s failure to detect the forgeries in the subject applica-
_______________
17 Abella v. Court of Appeals, 327 Phil. 270, 276; 257 SCRA 482, 487 (1996).
18 TSN, June 20, 2002, pp. 14-15, 18-19.
19 TSN, November 27, 2001, p. 62.
20 TSN, November 19, 1999, p. 5.
341
VOL. 654, JULY 25, 2011 341
tions for manager’s check which could have prevented the loss. As we have often
ruled, the banking business is impressed with public trust.21 A higher degree of
diligence is imposed on banks relative to the handling of their affairs than that of an
ordinary business enterprise.22 Thus, the degree of responsibility, care and
trustworthiness expected of their officials and employees is far greater than those of
ordinary officers and employees in other enterprises.23 In the case at bar, PNB failed
to meet the high standard of diligence required by the circumstances to prevent the
fraud. In Philippine Bank of Commerce v. Court of Appeals24 and The Consolidated
Bank & Trust Corporation v. Court of Appeals,25 where the bank’s negligence is the
proximate cause of the loss and the depositor is guilty of contributory negligence, we
allocated the damages between the bank and the depositor on a 60-40 ratio. We apply
the same ruling in this case considering that, as shown above, PNB’s negligence is
the proximate cause of the loss while the issue as to FFCCI’s contributory negligence
has been settled with finality in G.R. No. 173278. Thus, the appellate court properly
adjudged PNB to bear the greater part of the loss consistent with these rulings.
WHEREFORE, the petition is DENIED. The January 31, 2006 Decision and June
26, 2006 Resolution of the Court of Appeals in CA-G.R. CV No. 81349 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin and Villarama, Jr.,
JJ., concur.
_______________
21 United Coconut Planters Bank v. Basco, 480 Phil. 803, 819; 437 SCRA 325, 336 (2004).
22 Id.
23 Id.
24 Supra note 7 at p. 683.
25 Supra note 8 at pp. 712-713.
342
Petition denied, judgment and resolution affirmed.

Note.—The age old rule of evidence is that oral testimony as to a certain fact,
depending as it does on human memory that is most often than not, momentary and
fleeting, is not as reliable as written or documentary evidence. (Coronel vs. Capati,
459 SCRA 205 [2005])
——o0o——
G.R. No. 165279. June 7, 2011.*
DR. RUBI LI, petitioner, vs. SPOUSES REYNALDO and LINA SOLIMAN, as
parents/heirs of deceased Angelica
Soliman, respondents.
Medical Malpractice; Medical malpractice, or more appropriately, medical negligence, is
that type of claim which a victim has available to him or her to redress a wrong committed by
a medical professional which has caused bodily harm.—The type of lawsuit which has been
called medical malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a medical
professional
_______________
* EN BANC.
33
VOL. 651, JUNE 7, 2011 33
Li vs. Soliman
which has caused bodily harm. In order to successfully pursue such a claim, a patient
must prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or that he or
she did something that a reasonably prudent provider would not have done; and that that
failure or action caused injury to the patient.
Same; Court has recognized that medical negligence cases are best proved by opinions of
expert witnesses belonging in the same general neighborhood and in the same general line of
practice as defendant physician or surgeon.—This Court has recognized that medical
negligence cases are best proved by opinions of expert witnesses belonging in the same
general neighborhood and in the same general line of practice as defendant physician or
surgeon. The deference of courts to the expert opinion of qualified physicians stems from the
former’s realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of expert
testimonies.
Same; Doctrine of Informed Consent; Informed consent evolved into a general principle
of law that a physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of treatment, so that
a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing
the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the probable risks against the probable benefits.—The
doctrine of informed consentwithin the context of physician-patient relationships goes far
back into English common law. As early as 1767, doctors were charged with the tort of
“battery” (i.e., an unauthorized physical contact with a patient) if they had not gained the
consent of their patients prior to performing a surgery or procedure. In the United States,
the seminal case was Schoendorff v. Society of New York Hospitalwhich involved unwanted
treatment performed by a doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the
basic right of a patient to give consent to any medical procedure or treatment: “Every human
being of adult years and sound mind has a right to determine what shall be done with his
own body; and a surgeon who performs an operation without his patient’s consent, commits
an assault, for which he is
34
Li vs. Soliman
liable in damages.” From a purely ethical norm, informed consent evolved into a general
principle of law that a physician has a duty to disclose what a reasonably prudent physician
in the medical community in the exercise of reasonable care would disclose to his patient as
to whatever grave risks of injury might be incurred from a proposed course of treatment, so
that a patient, exercising ordinary care for his own welfare, and faced with a choice of
undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently
exercise his judgment by reasonably balancing the probable risks against the probable
benefits.
Same; Same; Proficiency in diagnosis and therapy is not the full measure of a physician’s
responsibility; The physician is not expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation, which means generally
informing the patient in nontechnical terms as to what is at stake, the therapy alternatives
open to him, the goals expectably to be achieved, and the risks that may ensure from particular
treatment or no treatment.—The scope of disclosure is premised on the fact that patients
ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and
therapy is not the full measure of a physician’s responsibility. It is also his duty to warn of
the dangers lurking in the proposed treatment and to impart information which the patient
has every right to expect. Indeed, the patient’s reliance upon the physician is a trust of the
kind which traditionally has exacted obligations beyond those associated with armslength
transactions. The physician is not expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation, which means generally
informing the patient in nontechnical terms as to what is at stake; the therapy alternatives
open to him, the goals expectably to be achieved, and the risks that may ensue from particular
treatment or no treatment. As to the issue of demonstrating what risks are considered
material necessitating disclosure, it was held that experts are unnecessary to a showing of
the materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable
effect of risk disclosure on the decision. Such unrevealed risk that should have been made
known must further materialize, for otherwise the omission, however unpardonable, is
without legal consequence. And, as in malpractice actions generally, there must be a causal
relationship between the physician’s failure to divulge and damage to the patient.35
VOL. 651, JUNE 7, 2011 35
Li vs. Soliman
Same; Same; Four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent.—There are four essential elements a plaintiff must
prove in a malpractice action based upon the doctrine of informed consent: “(1) the physician
had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and (4) plaintiff was injured by the
proposed treatment.” The gravamen in an informed consent case requires the plaintiff to
“point to significant undisclosed information relating to the treatment which would have
altered her decision to undergo it.
CARPIO, J., Dissenting Opinion:
Medical Malpractice; Doctrine of Informed Consent; The doctrine of informed consent
requires doctors, before administering treatment to their patients, to disclose adequately the
material risks and side effects of the proposed treatment; it is distinct from the doctor’s duty
to skillfully diagnose and treat the patient.—The doctrine of informed consent requires
doctors, before administering treatment to their patients, to disclose adequately the material
risks and side effects of the proposed treatment. The duty to obtain the patient’s informed
consent is distinct from the doctor’s duty to skillfully diagnose and treat the patient.
Same; Same; Two standards by which courts determine what constitutes adequate
disclosure of associated risks and side effects of a proposed treatment: the physician standard,
and the patient standard of materiality.—There are two standards by which courts determine
what constitutes adequate disclosure of associated risks and side effects of a proposed
treatment: the physician standard, and the patient standard of materiality. Under the
physician standard, a doctor is obligated to disclose that information which a reasonable
doctor in the same field of expertise would have disclosed to his or her patient. x x x Under
the patient standard of materiality, a doctor is obligated to disclose that information which a
reasonable patient would deem material in deciding whether to proceed with a proposed
treatment.
Same; Same; In order to determine what the associated risks and side effects of proposed
treatment are, testimony by an expert
36
Li vs. Soliman
witness is necessary because these are beyond the common knowledge of ordinary
people.—In order to determine what the associated risks and side effects of a proposed
treatment are, testimony by an expert witness is necessary because these are beyond the
common knowledge of ordinary people. In Canterbury, the Court held that, “There are
obviously important roles for medical testimony in [nondisclosure] cases, and some roles
which only medical evidence can fill. Experts are ordinarily indispensable to identify and
elucidate for the fact-finder the risks of therapy.” The Court also held that, “medical facts are
for medical experts.”
Same; Same; Under the patient standard of materiality, a doctor obligated to disclose
that information which a reasonable patient would deem material in deciding whether to
proceed with a proposed treatment.—Again, under the patient standard of materiality, a
doctor is obligated to disclose that information which a reasonable patient would deem
material in deciding whether to proceed with a proposed treatment. Stated differently, what
should be disclosed depends on what a reasonable person, in the same or similar situation as
the patient, would deem material in deciding whether to proceed with the proposed
treatment.
Same; Same; Dr. Li impliedly admits that she failed to disclose to Reynaldo and Lina
many of the other associated risks and side effects of chemotherapy, including the most
material—infection, sepsis and death.—Dr. Li impliedly admits that she failed to
disclose to Reynaldo and Lina many of the other associated risks and side effects
of chemotherapy, including the most material—infection, sepsis and death. She
impliedly admits that she failed to disclose as risks and side effects (1) rashes; (2) difficulty
in breathing; (3) fever; (4) excretion of blood in the mouth; (5) excretion of blood in the anus;
(6) development of ulcers in the mouth; (7) sloughing off of skin; (8) systemic lupus
erythematosus; (9) carpo-pedal spasm; (10) loose bowel movement; (11) infection; (12) gum
bleeding; (13) hypovolemic shock; (14) sepsis; and (15) death in 13 days.
Same; Same; Infection, sepsis and death are material risks and side effects of
chemotherapy.—Clearly, infection, sepsis and death are material risks and side effects of
chemotherapy. To any reasonable person, the risk of death is one of the most important, if
not the most
37
VOL. 651, JUNE 7, 2011 37
Li vs. Soliman
important, consideration in deciding whether to undergo a proposed treatment. Thus,
Dr. Li should have disclosed to Reynaldo and Lina that there was a chance that their 11-year
old daughter could die as a result of chemotherapy as, in fact, she did after only 13 days of
treatment.
BRION, J., Separate Opinion:
Medical Malpractice; Philippine jurisprudence tells us that expert testimony is crucial, if
not determinative of a physician’s liability in a medical negligence case; Expert testimony is,
therefore, essential since the factual issue of whether a physician or surgeon exercised the
requisite degree of skill and care in the treatment of his patient is generally a matter of expert
opinion.—Philippine jurisprudence tells us that expert testimony is crucial, if not
determinative of a physician’s liability in a medical negligence case. In litigations involving
medical negligence as in any civil action, we have consistently ruled that the burden to prove
by preponderance of evidence the essential elements—i.e., duty, breach, injury and proximate
causation—rests with the plaintiff. Expert testimony is, therefore, essential since the factual
issue of whether a physician or surgeon exercised the requisite degree of skill and care in the
treatment of his patient is generally a matter of expert opinion.
Same; In the present case, expert testimony is required in determining the risks and or
side effects of chemotherapy that the attending physician should have considered and
disclosed as these are clearly beyond the knowledge of a layperson to testify on.—In the present
case, expert testimony is required in determining the risks and or side effects of chemotherapy
that the attending physician should have considered and disclosed as these are clearly beyond
the knowledge of a layperson to testify on. In other words, to prevail in their claim of lack of
informed consent, the respondents must present expert supporting testimony to establish the
scope of what should be disclosed and the significant risks attendant to chemotherapy that
the petitioner should have considered and disclosed; the determination of the scope of
disclosure, and the risks and their probability are matters a medical expert must determine
and testify on since these are beyond the knowledge of laypersons.
Same; Dr. Balmaceda’s testimony failed to establish the existence of the risks or side-
effects the petitioner should have disclosed to
38
Li vs. Soliman
them in the use of chemotherapy in the treatment of osteosarcoma.—Unfortunately for
the respondents, Dr. Balmaceda’s testimony failed to establish the existence of the
risks or side-effects the petitioner should have disclosed to them in the use of
chemotherapy in the treatment of osteosarcoma; the witness, although a medical doctor,
could not have testified as an expert on these points for the simple reason that she is not an
oncologist nor a qualified expert on the diagnosis and treatment of cancers. Neither is she a
pharmacologist who can properly advance an opinion on the toxic side effects of
chemotherapy, particularly the effects of Cisplatin, Doxorubicin and Cosmegen—the drugs
administered to Angelica. As a doctor whose specialty encompasses hospital management
and administration, she is no different from a layperson for purposes of testifying on the risks
and probabilities that arise from chemotherapy.
Same; Sufficiency of disclosure can be made only after determination and assessment of
risks have been made.—The ponencia concludes that “there was adequate disclosure of
material risks of the [chemotherapy administered] with the consent of Angelica’s parents” in
view of the fact that the petitioner informed the respondents of the side effects of
chemotherapy, such as low white and red blood cell and platelet count, kidney or heart
damage and skin darkening. I cannot agree with this conclusion because it was made without
the requisite premises. As heretofore discussed, sufficiency of disclosure can be made only
after a determination and assessment of risks have been made. As discussed above, no
evidence exists showing that these premises have been properly laid and proven. Hence, for
lack of basis, no conclusion can be made on whether sufficient disclosure followed. In other
words, the disclosure cannot be said to be sufficient in the absence of evidence of what, in the
first place, should be disclosed.
Same; Specific disclosures such as life expectancy probabilities are not legally necessary
or required to be disclosed in informed consent situations.—A third consideration is that
specific disclosures such as life expectancy probabilities are not legally necessary or “required
to be disclosed in informed consent situations,” thus the respondent Lina Soliman’s testimony
on this point cannot be given any probative value. Thus, in the landmark case of Arato v.
Avedon, —where family members of a patient who died of pancreatic cancer
39
VOL. 651, JUNE 7, 2011 39
Li vs. Soliman
brought an informed consent action against defendant physicians who failed to provide
the patient material information (statistical life expectancy) necessary for his informed
consent to undergo chemotherapy and radiation treatment—the Supreme Court of California
“rejected the mandatory disclosure of life expectancy probabilities” on account “of the
variations among doctor-patient interactions and the intimacy of the relationship itself.”
ABAD, J., Concurring Opinion:
Medical Malpractice; Doctrine of Informed Consent; The claim that Dr. Li gave assurance
that Angelica had 95% chance of recovery after chemotherapy cannot be believed—it would be
most unlikely for someone of Dr. Li’s expertise to make such a grossly reckless claim to a patient
who actually had only a 20% chance of surviving the first year. She would literally be inviting
a malpractice suit.—The claim that Dr. Li gave assurance that Angelica had a 95% chance of
recovery after chemotherapy cannot be believed. The Solimans knew that their daughter had
bone cancer. Having consulted with other doctors from four medical institutions, the Ago
Medical and Educational Center in Bicol, the UERM Medical Center in Manila, the National
Children’s Hospital in Quezon City, and finally the St. Luke’s hospital, all of whom gave the
same dire opinion, it would be quite unlikely for the Solimans to accept Dr. Li’s supposed
assurance that their daughter had 95% chance of returning to normal health after
chemotherapy. In fact, it would be most unlikely for someone of Dr. Li’s expertise to make
such a grossly reckless claim to a patient who actually had only a 20% chance of surviving
the first year. She would literary be inviting a malpractice suit.
Same; Same; Respondents are arguing from hindsight. The fact is that they were willing
to assume huge risks on the chance that their daughter could cheat death.—The Solimans are
arguing from hindsight. The fact is that they were willing to assume huge risks on the chance
that their daughter could cheat death. They did not mind that their young daughter’s left leg
would be amputated from above the knee for a 50% chance of preventing the spread of the
cancer. There is probably no person on this planet whose family members, relatives, or close
friends have not been touched by cancer. Every one knows of the travails and agonies of
chemotherapy, yet it is rare indeed for a cancer patient or his relatives not to take a chance
with
40
Li vs. Soliman
this treatment, which had proved successful in extending the lives of some.
Unfortunately for the Solimans, their daughter did not number among the successful cases.
Same; Same; Respondents accepted the risks that chemotherapy offered with full
knowledge of its effects on their daughter.—The Solimans accepted the risks that
chemotherapy offered with full knowledge of its effects on their daughter. It is not fair that
they should blame Dr. Li for Angelica’s suffering and death brought about by a decease that
she did not wish upon her. Indeed, it was not Dr. Li, according to Reynaldo, who convinced
him to agree to submit his daughter to chemotherapy but Dr. Tamayo. The latter explained
to him the need for her daughter to undergo chemotherapy to increase the chance of
containing her cancer. This consultation took place even before the Solimans met Dr. Li.
Appeals.
Santos, Santos & Santos Law Offices for petitioner.
Musico Law Office for respondents.
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision1 dated June 15,
2004 as well as the Resolution2dated September 1, 2004 of the Court of Appeals (CA)
in CA-G.R. CV No. 58013 which modified the Decision3 dated September 5, 1997 of
the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
_______________
1 Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this Court)
and concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De Leon.
2 Id., at p. 65.
3 Id., at pp. 119-162. Penned by Judge Salvador D. Silerio.
41
VOL. 651, JUNE 7, 2011 41
Li vs. Soliman
On July 7, 1993, respondents’ 11-year old daughter, Angelica Soliman, underwent
a biopsy of the mass located in her lower extremity at the St. Luke’s Medical Center
(SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic
type,4 a high-grade (highly malignant) cancer of the bone which usually afflicts
teenage children. Following this diagnosis and as primary intervention, Angelica’s
right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As
adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the
chances of recurrence and prevent the disease from spreading to other parts of the
patient’s body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo
referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical
oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous) administration of the
first cycle of the chemotherapy regimen. Because SLMC refused to release a death
certificate without full payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at
Camp Crame for post-mortem examination. The Medico-Legal Report issued by said
institution indicated the cause of death as “Hypovolemic shock secondary to multiple
organ hemorrhages and Disseminated Intravascular Coagulation.”5
On the other hand, the Certificate of Death6 issued by SLMC stated the cause of
death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
_______________
4 Records, p. 174.
5 Id., at p. 175.
6 Id., at p. 254.
42
Li vs. Soliman
On February 21, 1994, respondents filed a damage suit7against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelica’s safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the
essential precautions in detecting early the symptoms of fatal blood platelet decrease
and stopping early on the chemotherapy, which bleeding led to hypovolemic shock
that caused Angelica’s untimely demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would recover in view of 95% chance
of healing with chemotherapy (“Magiging normal na ang anak nyo basta ma-chemo.
95% ang healing”) and when asked regarding the side effects, petitioner mentioned
only slight vomiting, hair loss and weakness (“Magsusuka ng kaunti. Malulugas ang
buhok. Manghihina”). Respondents thus claimed that they would not have given their
consent to chemotherapy had petitioner not falsely assured them of its side effects.
In her answer,8 petitioner denied having been negligent in administering the
chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patient’s normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the
capacity to compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events
(sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.
_______________
7 Rollo, pp. 80-89.

8 Id., at pp. 95-108.
43
VOL. 651, JUNE 7, 2011 43
Li vs. Soliman
Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelica’s
surgery and discussed with them Angelica’s condition. Petitioner told respondents
that Angelica should be given two to three weeks to recover from the operation before
starting chemotherapy. Respondents were apprehensive due to financial constraints
as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and
watch repairing business.9 Petitioner, however, assured them not to worry about her
professional fee and told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is
removed, there are still small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the
chance of the cancer to recur. She did not give the respondents any assurance that
chemotherapy will cure Angelica’s cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelica’s ovary; (6) damage to the heart and kidneys;
and (7) darkening of the skin especially when exposed to sunlight. She actually talked
with respondents four times, once at the hospital after the surgery, twice at her clinic
and the fourth time when Angelica’s mother called her through long distance.10 This
was disputed by respondents
_______________
9 TSN, January 26, 1995, p. 3.

10 TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5.
44
Li vs. Soliman
who countered that petitioner gave them assurance that there is 95% chance of
healing for Angelica if she undergoes chemotherapy and that the only side effects
were nausea, vomiting and hair loss.11 Those were the only side-effects of
chemotherapy treatment mentioned by petitioner.12
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that
she be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy,
bringing with them the results of the laboratory tests requested by petitioner:
Angelica’s chest x-ray, ultrasound of the liver, creatinine and complete liver function
tests.13 Petitioner proceeded with the chemotherapy by first administering hydration
fluids to Angelica.14
The following day, August 19, petitioner began administering three chemotherapy
drugs—Cisplatin,15Doxorubicin16 and Cosmegen17—intravenously. Petitioner was
supposedly assisted by her trainees Dr. Leo Marbella18and Dr. Grace Ar-
_______________
11 Rollo, p. 35.
12 Id., at pp. 35 and 81.
13 TSN, October 6, 1995, pp. 39-40; Rollo, p. 123.
14 Id., at p. 40.
15 Cisplatin is in a class of drugs known as platinum-containing compounds. It slows or stops the growth
of cancer cells inside the body. Source: http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684036.html.
(Site visited on August 21, 2010.)
16 Doxorubicin is an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug. It is classified as an
“anthracycline antibiotic.” Source: http://www.chemocare.com/bio/doxorubicin.asp (Site visited on August
21, 2010.)
17 Cosmegen is the trade name for Dactinomycin, an anti-cancer (antineoplastic or cytotoxic)
chemotherapy drug classified as an “alkylating agent.”
Source: http://www.chemocare.com/bio/cosmegen.asp (Site visited on August 21, 2010.)
18 TSN, January 27, 1997, p. 9.
45
VOL. 651, JUNE 7, 2011 45
Li vs. Soliman
riete.19 In his testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.20
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelica’s face.21 They asked petitioner about it, but she merely
quipped, “Wala yan. Epekto ng gamot.”22 Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis
on the matter.23
On the third day of chemotherapy, August 21, Angelica had difficulty breathing
and was thus provided with oxygen inhalation apparatus. This time, the reddish
discoloration on Angelica’s face had extended to her neck, but petitioner dismissed it
again as merely the effect of medicines.24Petitioner testified that she did not see any
discoloration on Angelica’s face, nor did she notice any difficulty in the child’s
breathing. She claimed that Angelica merely complained of nausea and was given ice
chips.25On August 22, 1993, at around ten o’clock in the morning, upon seeing that
their child could not anymore bear the pain, respondents pleaded with petitioner to
stop the chemotherapy. Petitioner supposedly replied: “Dapat 15 Cosmegen pa iyan.
Okay, let’s observe. If pwede na, bigyan uli ng chemo.” At this point, respondents
asked petitioner’s permission to bring their child home. Later in the evening, Angelica
passed black stool and reddish urine.26 Petitioner countered that there was
_______________
19 Rollo, p. 124.
20 TSN, April 22, 1996, pp. 11-12.
21 Rollo, p. 35.
22 Id., at p. 120.
23 TSN, October 6, 1995, pp. 27-28.
24 TSN, September 19, 1994, p. 18.
25 Par. 11 of Answer, Rollo, p. 100.
26 TSN, September 19, 1994, p. 19; paragraph 16 of Complaint, Rollo,p. 82.
46
Li vs. Soliman
no record of blackening of stools but only an episode of loose bowel movement (LBM).
Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not
convulsion or epileptic attack, as respondents call it (petitioner described it in the
vernacular as “naninigas ang kamay at paa”). She then requested for a serum calcium
determination and stopped the chemotherapy. When Angelica was given calcium
gluconate, the spasm and numbness subsided.27
The following day, August 23, petitioner yielded to respondents’ request to take
Angelica home. But prior to discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents that the chemotherapy
will be temporarily stopped while she observes Angelica’s muscle twitching and
serum calcium level. Take-home medicines were also prescribed for Angelica, with
instructions to respondents that the serum calcium test will have to be repeated after
seven days. Petitioner told respondents that she will see Angelica again after two
weeks, but respondents can see her anytime if any immediate problem arises.28
However, Angelica remained in confinement because while still in the premises of
SLMC, her “convulsions” returned and she also had LBM. Angelica was given oxygen
and administration of calcium continued.29
The next day, August 24, respondents claimed that Angelica still suffered from
convulsions. They also noticed that she had a fever and had difficulty
breathing.30Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified
that at around 4:50 that afternoon, Angelica developed difficulty in breathing and
had fever. She then requested for an electrocardiogram analysis, and infused calcium
gluconate on the
_______________
27 TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14 of Answer, Rollo, pp. 100-101.
28 Rollo, p. 101.
29 TSN, September 19, 1994, p. 22.
30 Rollo, p. 36.
47
VOL. 651, JUNE 7, 2011 47
Li vs. Soliman
patient at a “stat dose.” She further ordered that Angelica be given Bactrim, 31 a
synthetic antibacterial combination drug,32 to combat any infection on the child’s
body.33
By August 26, Angelica was bleeding through the mouth. Respondents also saw
blood on her anus and urine. When Lina asked petitioner what was happening to her
daughter, petitioner replied, “Bagsak ang platelets ng anak mo.” Four units of platelet
concentrates were then transfused to Angelica. Petitioner prescribed Solucortef.
Considering that Angelica’s fever was high and her white blood cell count was low,
petitioner prescribed Leucomax. About four to eight bags of blood, consisting of
packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to
Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner
claimed it was lesser in amount and in frequency. Petitioner also denied that there
were gadgets attached to Angelica at that time.34
On August 29, Angelica developed ulcers in her mouth, which petitioner said were
blood clots that should not be removed. Respondents claimed that Angelica passed
about half a liter of blood through her anus at around seven o’clock that evening,
which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was
given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal tube
because
_______________
31 Id., at pp. 125-126.

32 http://www.rxlist.com/bactrim-drug.htm (Site visited September 2, 2010.)
33 Paragraph 14 of Answer, Rollo, pp. 101-102.
34 Paragraphs 19-20 of Complaint, Rollo, p. 83; paragraphs 15-17 of Answer, pp. 102-103.
48
Li vs. Soliman
this may induce further bleeding.35 She was also transferred to the intensive care unit
to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood
and her body turned black. Part of Angelica’s skin was also noted to be shredding by
just rubbing cotton on it. Angelica was so restless she removed those gadgets attached
to her, saying “Ayaw ko na”; there were tears in her eyes and she kept turning her
head. Observing her daughter to be at the point of death, Lina asked for a doctor but
the latter could not answer her anymore.36 At this time, the attending physician was
Dr. Marbella who was shaking his head saying that Angelica’s platelets were down
and respondents should pray for their daughter. Reynaldo claimed that he was
introduced to a pediatrician who took over his daughter’s case, Dr. Abesamis who also
told him to pray for his daughter. Angelica continued to have difficulty in her
breathing and blood was being suctioned from her stomach. A nurse was posted inside
Angelica’s room to assist her breathing and at one point they had to revive Angelica
by pumping her chest. Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel consisted of blood-like fluid.
Angelica requested for an electric fan as she was in pain. Hospital staff attempted to
take blood samples from Angelica but were unsuccessful because they could not even
locate her vein. Angelica asked for a fruit but when it was given to her, she only
smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr.
Marbella. That night, Angelica became hysterical and started removing those gadgets
attached to her. At three o’clock in the morning of September 1, a priest came and
they prayed before Angelica expired. Petitioner finally came back and supposedly told
_______________
35 Paragraph 17 of Answer, Rollo, p. 103.

36 Paragraph 23 of Complaint, Rollo, p. 83; TSN, September 19, 1994, pp. 24-25.
49
VOL. 651, JUNE 7, 2011 49
Li vs. Soliman
respondents that there was “malfunction” or bogged-down machine.37
By petitioner’s own account, Angelica was merely irritable that day (August 31).
Petitioner noted though that Angelica’s skin was indeed sloughing off.38 She stressed
that at 9:30 in the evening, Angelica pulled out her endotracheal tube.39 On
September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.40 The cause of death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelica’s other organs to fail.41 Petitioner
attributed this to the patient’s poor defense mechanism brought about by the cancer
itself.42
While he was seeking the release of Angelica’s cadaver from SLMC, Reynaldo
claimed that petitioner acted arrogantly and called him names. He was asked to sign
a promissory note as he did not have cash to pay the hospital bill.43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-
Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelica’s
cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed
at the Department of Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4)
_______________
37 TSN, December 15, 1994, pp. 13-21.

38 Paragraph 17 of Answer, Rollo, p. 103.
39 Id.
40 Rollo, p. 37.
41 TSN, October 6, 1995, p. 33.
42 Id.
43 TSN, December 15, 1994, p. 22.
50
Li vs. Soliman
lungs were heavy with bleeding at the back and lower portion, due to accumulation
of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of
facial shock on account of hemorrhages; and (6) reddishness on external surface of
the spleen. All these were the end result of “hypovolemic shock secondary to multiple
organ hemorrhages and disseminated intravascular coagulation.” Dr. Vergara opined
that this can be attributed to the chemical agents in the drugs given to the victim,
which caused platelet reduction resulting to bleeding sufficient to cause the victim’s
death. The time lapse for the production of DIC in the case of Angelica (from the time
of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years.
The witness conceded that the victim will also die of osteosarcoma even with
amputation or chemotherapy, but in this case Angelica’s death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements
were based on the opinion of an oncologist whom she had interviewed. This oncologist
supposedly said that if the victim already had DIC prior to the chemotherapy, the
hospital staff could have detected it.44
On her part, Dr. Balmaceda declared that it is the physician’s duty to inform and
explain to the patient or his relatives every known side effect of the procedure or
therapeutic agents to be administered, before securing the consent of the patient or
his relatives to such procedure or therapy. The physician thus bases his assurance to
the patient on his personal assessment of the patient’s condition and his knowledge
of the general effects of the agents or procedure that will be allowed on the patient.
Dr. Balmaceda stressed that the patient or relatives must be informed of all known
side effects based on studies and observations, even if such will aggravate the
patient’s condition.45
_______________
44 TSN, December 14, 1994, pp. 15-38.

45 TSN, April 28, 1995, pp. 23-25.
51
VOL. 651, JUNE 7, 2011 51
Li vs. Soliman
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s lower
extremity, testified for the defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or removal of the amputated part will
completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still remains
at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other
vital organs like the liver, causing systemic complications. The modes of therapy
available are the removal of the primary source of the cancerous growth and then the
residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo
further explained that patients with osteosarcoma have poor defense mechanism due
to the cancer cells in the blood stream. In the case of Angelica, he had previously
explained to her parents that after the surgical procedure, chemotherapy is
imperative so that metastasis of these cancer cells will hopefully be addressed. He
referred the patient to petitioner because he felt that petitioner is a competent
oncologist. Considering that this type of cancer is very aggressive and will
metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her
death). Cancer cells in the blood cannot be seen by the naked eye nor detected
through bone scan. On cross-examination, Dr. Tamayo stated that of the more than
50 child patients who had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation because he did not see
them anymore after follow-up; it is either they died or had seen another doctor.46
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest skill
and knowledge in the administration of chemotherapy drugs on Angel-
_______________
46 TSN, May 26, 1996, pp. 5, 8-13, 23.

52
Li vs. Soliman
ica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who
testified that he considered petitioner one of the most proficient in the treatment of
cancer and that the patient in this case was afflicted with a very aggressive type of
cancer necessitating chemotherapy as adjuvant treatment. Using the standard of
negligence laid down in Picart v. Smith,47 the trial court declared that petitioner has
taken the necessary precaution against the adverse effect of chemotherapy on the
patient, adding that a wrong decision is not by itself negligence. Respondents were
ordered to pay their unpaid hospital bill in the amount of P139,064.43.48
Respondents appealed to the CA which, while concurring with the trial court’s
finding that there was no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica, found that petitioner as her
attending physician failed to fully explain to the respondents all the known side
effects of chemotherapy. The appellate court stressed that since the respondents have
been told of only three side effects of chemotherapy, they readily consented thereto.
Had petitioner made known to respondents those other side effects which gravely
affected their child—such as carpo-pedal spasm, sepsis, decrease in the blood platelet
count, bleeding, infections and eventual death—respondents could have decided
differently or adopted a different course of action which could have delayed or
prevented the early death of their child.
The CA thus declared:
“Plaintiffs-appellants’ child was suffering from a malignant disease. The attending
physician recommended that she undergo chemotherapy treatment after surgery in order to
increase her chances of survival. Appellants consented to the chemotherapy treatment
because they believed in Dr. Rubi Li’s representation that the deceased would have a strong
chance of survival after chemo-
_______________
47 37 Phil. 809 (1918).

48 Rollo, pp. 160-162.
53
VOL. 651, JUNE 7, 2011 53
Li vs. Soliman
therapy and also because of the representation of appellee Dr. Rubi Li that there were only
three possible side-effects of the treatment. However, all sorts of painful side-effects resulted
from the treatment including the premature death of Angelica. The appellants were
clearly and totally unaware of these other side-effects which manifested only
during the chemotherapy treatment. This was shown by the fact that every time a
problem would take place regarding Angelica’s condition (like an unexpected side-
effect manifesting itself), they would immediately seek explanation from Dr. Rubi
Li.Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the
appellants so much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would
entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed
decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to
pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for
funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorney’s fee of P30,000.00.
SO ORDERED.”49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court
denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to
the respondents all the possible side effects of the chemotherapy on their child, and
in holding her liable for actual, moral and exemplary damages and attor-
_______________
49 Id., at pp. 58-59, 62-63.

54
Li vs. Soliman
ney’s fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy,
including death, petitioner argues that it was foolhardy to imagine her to be all-
knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent doctor,
petitioner cannot possibly predict how a particular patient’s genetic make-up, state
of mind, general health and body constitution would respond to the treatment. These
are obviously dependent on too many known, unknown and immeasurable variables,
thus requiring that Angelica be, as she was, constantly and closely monitored during
the treatment. Petitioner asserts that she did everything within her professional
competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her
current position as co-director for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends that in the absence of any clear
showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment procedures
done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads
to bleeding and death. She explains that the response rate to chemotherapy of
patients with osteosarcoma is high, so much so that survival rate is favorable to the
patient. Petitioner then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy, other medicines and
supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been
55
VOL. 651, JUNE 7, 2011 55
Li vs. Soliman
hooked to a respirator, or into her kidneys that she would have to undergo dialysis.
Indeed, respondents could have spent as much because of these complications. The
patient would have been deprived of the chance to survive the ailment, of any hope
for life and her “quality of life” surely compromised. Since she had not been shown to
be at fault, petitioner maintains that the CA erred in holding her liable for the
damages suffered by the respondents.50
The issue to be resolved is whether the petitioner can be held liable for failure to
fully disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must prove
that a health care provider, in most cases a physician, either failed to do something
which a reasonably prudent health care provider would have done, or that he or she
did something that a reasonably prudent provider would not have done; and that that
failure or action caused injury to the patient.51
This Court has recognized that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in the
same general line of practice as defendant physician or surgeon. The deference of
courts to the expert opinion of qualified physicians stems from the former’s
realization that the latter possess unusual technical skills which laymen in most
instances are incapable
_______________
50 Id., at pp. 18-23.

51 Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769, 778.
56
Li vs. Soliman
of intelligently evaluating, hence the indispensability of expert testimonies.52
In this case, both the trial and appellate courts concurred in finding that the
alleged negligence of petitioner in the administration of chemotherapy drugs to
respondents’ child was not proven considering that Drs. Vergara and Balmaceda, not
being oncologists or cancer specialists, were not qualified to give expert opinion as to
whether petitioner’s lack of skill, knowledge and professional competence in failing
to observe the standard of care in her line of practice was the proximate cause of the
patient’s death. Furthermore, respondents’ case was not at all helped by the non-
production of medical records by the hospital (only the biopsy result and medical bills
were submitted to the court). Nevertheless, the CA found petitioner liable for her
failure to inform the respondents on all possible side effects of chemotherapy before
securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767, doctors were
charged with the tort of “battery” (i.e., an unauthorized physical contact with a
patient) if they had not gained the consent of their patients prior to performing a
surgery or procedure. In the United States, the seminal case was Schoendorff v.
Society of New York Hospital53 which involved unwanted treatment performed by a
doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the basic right of a
patient to give consent to any medical procedure or treatment: “Every human being
of adult years and sound mind has a right to determine what shall be done with his
own body; and a surgeon who performs an operation without his patient’s consent,
commits an as-
_______________
52 Lucas v. Tuaño, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v. Court of
Appeals, 346 Phil. 872, 884-885; 282 SCRA 188, 201 (1997).
53 105 N.E. 92, 93 (N.Y. 1914).
57
VOL. 651, JUNE 7, 2011 57
Li vs. Soliman
sault, for which he is liable in damages.”54 From a purely ethical norm, informed
consent evolved into a general principle of law that a physician has a duty to disclose
what a reasonably prudent physician in the medical community in the exercise of
reasonable care would disclose to his patient as to whatever grave risks of injury
might be incurred from a proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the probable risks against the probable benefits.55
Subsequently, in Canterbury v. Spence56 the court observed that the duty to
disclose should not be limited to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the patient’s right of self-
determination on particular therapy demands a standard set by law for physicians
rather than one which physicians may or may not impose upon themselves.57 The
scope of disclosure is premised on the fact that patients ordinarily are persons
unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full
measure of a physician’s responsibility. It is also his duty to warn of the dangers
lurking in the proposed treatment and to impart information which the patient has
every right to expect. Indeed, the patient’s reliance upon the physician is a trust of
the kind which traditionally has exacted obligations beyond those associated with
armslength transactions.58 The physician is not expected to give the patient a short
medical education, the disclosure rule only requires of him a reasonable explanation,
which means
_______________
54 Id.
55 Black’s Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81
Wash.2d 12, 499 P.2d 1, 8.
56 464 F.2d 772 C.A.D.C., 1972.
57 Id., at p. 784.
58 Id., at pp. 780-782.
58
Li vs. Soliman
generally informing the patient in nontechnical terms as to what is at stake; the
therapy alternatives open to him, the goals expectably to be achieved, and the risks
that may ensue from particular treatment or no treatment.59 As to the issue of
demonstrating what risks are considered material necessitating disclosure, it was
held that experts are unnecessary to a showing of the materiality of a risk to a
patient’s decision on treatment, or to the reasonably, expectable effect of risk
disclosure on the decision. Such unrevealed risk that should have been made known
must further materialize, for otherwise the omission, however unpardonable, is
without legal consequence. And, as in malpractice actions generally, there must be a
causal relationship between the physician’s failure to divulge and damage to the
patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral
part of physician’s overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge
that such risks inherent in procedure of very low incidence. Cited as exceptions to the
rule that the patient should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he cannot evaluate
data, and where the patient is a child or incompetent.62 The court thus concluded that
the patient’s right of self-decision can only be effectively exercised if the patient
possesses adequate information to enable him in making an intelligent choice. The
scope of the physician’s communications to the patient, then must be measured by
the patient’s need, and that need is whatever information is material to the decision.
The test
_______________
59 Id., at p. 782.
60 Id., at pp. 790, 791-792.
61 8 Cal.3d 229, 502 P.2d 1 Cal. 1972.
62 Id.
59
VOL. 651, JUNE 7, 2011 59
Li vs. Soliman
therefore for determining whether a potential peril must be divulged is its materiality
to the patient’s decision.63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that
for liability of the physician for failure to inform patient, there must be causal
relationship between physician’s failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent: “(1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a
direct and proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and (4) plaintiff was injured
by the proposed treatment.” The gravamen in an informed consent case requires the
plaintiff to “point to significant undisclosed information relating to the treatment
which would have altered her decision to undergo it.64
Examining the evidence on record, we hold that there was adequate disclosure of
material risks inherent in the chemotherapy procedure performed with the consent
of Angelica’s parents. Respondents could not have been unaware in the course of
initial treatment and amputation of Angelica’s lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When
petitioner informed the respondents beforehand of the side effects of chemotherapy
which includes lowered counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin darkening, there is reasonable
expec-
_______________
63 Id.
64 Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d
543, 210 Ill.Dec. 855, 653 N.E.2d 1317 (1995).
60
Li vs. Soliman
tation on the part of the doctor that the respondents understood very well that the
severity of these side effects will not be the same for all patients undergoing the
procedure. In other words, by the nature of the disease itself, each patient’s reaction
to the chemical agents even with pre-treatment laboratory tests cannot be precisely
determined by the physician. That death can possibly result from complications of
the treatment or the underlying cancer itself, immediately or sometime after the
administration of chemotherapy drugs, is a risk that cannot be ruled out, as with
most other major medical procedures, but such conclusion can be reasonably drawn
from the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have
considered the variables in the recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents’ claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of chemotherapy’s success
rate. Besides, informed consent laws in other countries generally require only a
reasonable explanation of potential harms, so specific disclosures such as statistical
data, may not be legally necessary.65
The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed consent,
“the plaintiff must prove both the duty and the breach of that duty through expert
testimony.66 Such expert testimony must
_______________
65 Arato v. Avedon, 858 P.2d 598 (Cal. 1993).

66 Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326 (1991).
61
VOL. 651, JUNE 7, 2011 61
Li vs. Soliman
show the customary standard of care of physicians in the same practice as that of the
defendant doctor.67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOH’s Operational and Management Services charged with
receiving complaints against hospitals, does not qualify as expert testimony to
establish the standard of care in obtaining consent for chemotherapy treatment. In
the absence of expert testimony in this regard, the Court feels hesitant in defining
the scope of mandatory disclosure in cases of malpractice based on lack of informed
consent, much less set a standard of disclosure that, even in foreign jurisdictions, has
been noted to be an evolving one.
“As society has grappled with the juxtaposition between personal autonomy and the
medical profession’s intrinsic impetus to cure, the law defining “adequate” disclosure has
undergone a dynamic evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the patient’s position regards
as significant. This change in perspective is especially important as medical breakthroughs
move practitioners to the cutting edge of technology, ever encountering new and heretofore
unimagined treatments for currently incurable diseases or ailments. An adaptable standard
is needed to account for this constant progression. Reasonableness analyses permeate our
legal system for the very reason that they are determined by social norms, expanding and
contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the legal standard
of disclosure is not subject to construction as a categorical imperative. Whatever
formulae or processes we adopt are only useful as a foundational starting point; the
particular quality or quantity of disclosure will remain inextricably bound by the
facts of each case.Nevertheless, juries that ultimately determine whether a physician
properly informed a patient are inevitably guided by what they perceive as the
_______________
67 Id., at p. 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d 829 (1987).
62
Li vs. Soliman
common expectation of the medical consumer—“a reasonable person in the patient’s position
when deciding to accept or reject a recommended medical procedure.”68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision
dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City,
Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
Corona (C.J.) and Perez, J., concur.
Carpio, J., See Dissenting Opinion.
Carpio-Morales and Velasco, Jr., JJ., Join the dissent of J. Carpio.
Nachura, J., I join J. Brion’s Separate Opinion.
Leonardo-De Castro, J., I join the Separate Opinion of Justice Brion.
Brion, J., In the result: See Separate Opinion.
Peralta, J., I join the Dissenting Opinion of Jus. Carpio.
Bersamin, J., Concur in the result, and I join the Separate Opinion of J. Brion.
Del Castillo, J. No Part.
Abad, J., Please see my Concurring Opinion.
_______________
68 “Informed Consent: From the Ambivalence of Arato to the Thunder of Thor” Issues in Law &
Medicine, Winter, 1994 by Armand Arabian. Sourced at Internet
- http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?tag=content;col1
63
VOL. 651, JUNE 7, 2011 63
Li vs. Soliman
Mendoza, J., I join J. Brion in his concurrence.
Sereno, J., I dissent. Evidence was provided by the doctor-petitioner herself. I
join J. Antonio Carpio.
DISSENTING OPINION
CARPIO, J.:
Dr. Rubi Li (Dr. Li), as oncologist, should have obtained the informed consent of
Reynaldo Soliman (Reynaldo) and Lina Soliman (Lina) before administering
chemotherapy to their 11-year old daughter Angelica Soliman (Angelica).
Unfortunately, Dr. Li failed to do so. For her failure to obtain the informed consent
of Reynaldo and Lina, Dr. Li is liable for damages.
The doctrine of informed consent requires doctors, before administering treatment
to their patients, to disclose adequately the material risks and side effects of the
proposed treatment. The duty to obtain the patient’s informed consent is distinct from
the doctor’s duty to skillfully diagnose and treat the patient. In Wilkinson v.
Vesey,1 the Supreme Court of Rhode Island held that:
“One-half century ago, Justice Cardozo, in the oft-cited case of Schloendorff v. Society of
New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), made the following observation:
“Every human being of adult years and sound mind has a right to determine what shall
be done with his own body; and a surgeon who performs an operation without his patient’s
consent, commits an assault, for which he is liable in damages. This is true except in cases of
emergency where the patient is unconscious and where it is necessary to operate before
consent can be obtained.” Id., at 129-130, 105 N.E. at 93.
xxxx
_______________
1 110 R.I. 606, 295 A. 2d 676, 69 A.L.R. 3d 1202.

64
Li vs. Soliman
Shortly after the Schloendorff case, there began to appear on the judicial scene a doctrine
wherein courts with increasing frequency began to rule that a patient’s consent to a
proposed course of treatment was valid only to the extent he had been informed
by the physician as to what was to be done, the risk involved and the alternatives
to the contemplated treatment. This theory, which today is known as the doctrine
of informed consent, imposes a duty upon a doctor which is completely separate
and distinct from his responsibility to skillfully diagnose and treat the patient’s
ills.” (Emphasis supplied)
Four requisites must be proven in cases involving the doctrine of informed consent.
The plaintiff must show that (1) the doctor had a duty to disclose the associated risks
and side effects of a proposed treatment; (2) the doctor failed to disclose or
inadequately disclosed the associated risks and side effects of the proposed treatment;
(3) the plaintiff consented to the proposed treatment because of the doctor’s failure to
disclose or because of the inadequate disclosure of the associated risks and side effects
of the proposed treatment; and (4) the plaintiff was injured as a result of the
treatment. In Coryell v. Smith,2 the Court of Appeals of Illinois held that:
To succeed in a malpractice action based on the doctrine of informed consent the plaintiff
must plead and ultimately prove four essential elements: (1) the physician had a duty to
disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as
direct and proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was injured by proposed treatment.
There are two standards by which courts determine what constitutes adequate
disclosure of associated risks and side effects of a proposed treatment: the physician
standard, and the patient standard of materiality. Under the physician standard, a
doctor is obligated to disclose that information which a reasonable doctor in the same
field of expertise would
_______________
2 274 Ill. App. 3d 543, 653 N.E. 2d 1317.
65
VOL. 651, JUNE 7, 2011 65
Li vs. Soliman
have disclosed to his or her patient. In Shabinaw v. Brown,3 the Supreme Court of
Idaho held that:
“A valid consent must be preceded by the physician disclosing those pertinent facts to the
patient so that he or she is sufficiently aware of the need for, and the significant risks
ordinarily involved in the treatment to be provided in order that the giving or withholding of
consent be a reasonably informed decision. Therequisite pertinent facts to be disclosed
to the patient are those which would be given by a like physician of good standing
in the same community.” (Emphasis supplied)
Under the patient standard of materiality, a doctor is obligated to disclose that
information which a reasonable patient would deem material in deciding whether to
proceed with a proposed treatment. In Johnson by Adler v. Kokemoor,4 the Supreme
Court of Wisconsin held that:
“x x x The concept of informed consent is based on the tenet that in order to make a
rational and informed decision about undertaking a particular treatment or undergoing a
particular surgical procedure, a patient has the right to know about significant potential risks
involved in the proposed treatment or surgery. In order to insure that a patient can give an
informed consent, a “physician or surgeon is under the duty to provide the patient with such
information as may be necessary under the circumstances then existing’ to assess the
significant potential risks which the patient confronts.
The information that must be disclosed is that information which would be
“material” to a patient’s decision.” (Emphasis supplied)
Historically, courts used the physician standard. However, the modern and
prevailing trend among courts is to use the patient standard of materiality.
In Canterbury v. Spence,5 the Court of Appeals of District of Columbia held that:
_______________
3 125 Idaho 705, 874 P. 2d 516.

4 199 Wis. 2d 615, 545 N.W. 2d 495.
5 464 F. 2d 772, 150 U.S. App. D.C. 263.
66
Li vs. Soliman
“x x x Some have measured the disclosure by “good medical practice,” others by
what a reasonable practitioner would have bared under the circumstances, and
still others by what medical custom in the community would demand. We have
explored this rather considerable body of law but are unprepared to follow it. The
duty to disclose, we have reasoned, arises from phenomena apart from medical custom and
practice. The latter, we think, should no more establish the scope of the duty than its
existence. Any definition of scope in terms purely of a professional standard is at odds with
the patient’s prerogative to decide on projected therapy himself. That prerogative, we have
said, is at the very foundation of the duty to disclose, and both the patient’s right to know
and the physician’s correlative obligation to tell him are diluted to the extent that its compass
is dictated by the medical profession.
In our view, the patient’s right to self-decision shapes the boundaries of the duty
to reveal. That right can be effectively exercised only if the patient possesses enough
information to enable an intelligent choice. The scope of the physician’s
communications to the patient, then, must be measured by the patient’s need, and
that need is the information material to the decision. Thus the test for determining
whether a particular peril must be divulged is its materiality to the patient’s
decision: all risks potentially affecting the decision must be unmasked.” (Emphasis
supplied)
In Johnson by Adler, the Court held that:
“What constitutes informed consent in a given case emanates from what a
reasonable person in the patient’s position would want to know. This standard
regarding what a physician must disclose is described as the prudent patient
standard; it has been embraced by a growing number of jurisdictions since
the Canterbury decision.
The Scaria [v. St. Paul Fire & Marine Insurance Co.] court emphasized that those
“disclosures which would be made by doctors of good standing, under the same or similar
circumstances, are certainly relevant and material” in assessing what constitutes adequate
disclosure, adding that physician disclosures conforming to such a standard “would be
adequate to fulfill the doctor’s duty of disclosure
67
VOL. 651, JUNE 7, 2011 67
Li vs. Soliman
in most instances.” But the evidentiary value of what physicians of good standing
consider adequate disclosure is not dispositive, for ultimately “the extent of the
physician’s disclosures is driven… by what a reasonable person under the
circumstances then existing would want to know.”(Emphasis supplied)
In order to determine what the associated risks and side effects of a proposed
treatment are, testimony by an expert witness is necessary because these are beyond
the common knowledge of ordinary people. In Canterbury, the Court held that, “There
are obviously important roles for medical testimony in [nondisclosure] cases, and
some roles which only medical evidence can fill. Experts are ordinarily indispensable
to identify and elucidate for the fact-finder the risks of therapy.” The Court also held
that, “medical facts are for medical experts.”
On the other hand, in order to determine what risks and side effects of a proposed
treatment are material and, thus, should be disclosed to the patient, testimony by an
expert witness is unnecessary. In Canterbury, the Court held that:
“x x x It is evident that many of the issues typically involved in nondisclosure cases do not
reside peculiarly within the medical domain. Lay witness testimony can competently
establish a physician’s failure to disclose particular risk information, the patient’s lack of
knowledge of the risk, and the adverse consequences following the treatment. Experts are
unnecessary to a showing of the materiality of a risk to a patient’s decision on
treatment, or to the reasonably, expectable effect of risk disclosure on the
decision.” (Emphasis supplied)
In Betterton v. Leichtling,6 the Court of Appeals of California held that, “Whether
to disclose a significant risk is not a matter reserved for expert opinion.”
_______________
6 101 Cal. App. 4Th 749.
68
Li vs. Soliman
Again, under the patient standard of materiality, a doctor is obligated to disclose
that information which a reasonable patient would deem material in deciding
whether to proceed with a proposed treatment. Stated differently, what should be
disclosed depends on what a reasonable person, in the same or similar situation as
the patient, would deem material in deciding whether to proceed with the proposed
treatment.
The testimony of an expert witness is necessary to determine the associated risks
and side effects of the treatment. This is the only purpose. In the present case, an
expert witness identified the associated risks and side effects of chemotherapy—Dr.
Li is an expert in oncology. In its 5 September 1997 Decision, the Regional Trial Court
(RTC), Judicial Region 5, Branch 8, Legazpi City, stated that:
“Dr. Rubi Li is a Doctor of Medicine and a Medical Oncologist. She obtained her degree in
Medicine in 1981 at the University of the East. She went on Junior Internship for one year
in Rizal Medical Center wherein she was exposed to different diseases and specifications.
After the post-graduate internship she underwent six (6) months rural service internship and
then took and passed the board examination. She likewise underwent a 3-year residency
training in internal medicine wherein she was exposed to different patients, particularly
patients with bone diseases and cancer patients, including their treatment. After the
residency training in internal medicine, one becomes an internist. She likewise underwent
sub-specialty training in medical oncology wherein she dealt with cancer patients, including
bone and breast cancers, and learned how to deal with the patient as a whole and the
treatment. Before she was admitted to the Society of Medical Oncologists, she first took the
test for and registered with the Philippine College of Physicians. She was likewise invited to
join the Society of Clinical Oncologists. She has written and has been co-authoring papers on
cancer and now she is into the training program of younger doctors and help them with their
papers.
Every year Dr. Li goes to conventions, usually in May, known as the American Society of
Clinical Oncologist Convention, wherein all the sub-specialties in cancer treatment and
management meet and the latest in cancer treatment and management is [sic] pre-
69
VOL. 651, JUNE 7, 2011 69
Li vs. Soliman
sented. In December of each year the Philippine Society of Medical Oncologists have their
convention wherein the latest with regards [sic] to what is going on in the Philippines is
presented. They also have an upgrading or what they call continuous medical education with
[sic] cancer, which is usually every now and then, especially when there are foreign guests
from abroad.
Dr. Li has been dealing with bone cancer treatment for almost thirteen (13) years now
and has seen more than 5,000 patients.”
As an expert, Dr. Li identified the associated risks and side effects of
chemotherapy: (1) falling hair; (2) nausea; (3) vomiting; (4) loss of appetite; (5)
lowering of white blood cell count; (6) lowering of red blood cell count; (7) lowering of
platelet count; (8) sterility; (9) damage to the kidneys; (10) damage to the heart; (11)
skin darkening; (12) rashes; (13) difficulty in breathing; (14) fever; (15) excretion of
blood in the mouth; (16) excretion of blood in the anus; (17) development of ulcers in
the mouth; (18) sloughing off of skin; (19) systemic lupus erythematosus; (20) carpo-
pedal spasm; (21) loose bowel movement; (22) infection; (23) gum bleeding; (24)
hypovolemic shock; (25) sepsis; and (26) death in 13 days.
Dr. Li admitted that she assured Reynaldo and Lina that there was an 80% chance
that Angelica’s cancer would be controlled and that she disclosed to them only some
of the associated risks and side effects of chemotherapy. In its 5 September 1997
Decision, the RTC stated that:
“By way of affirmative and special defenses, Dr. Rubi Li alleged that she saw the deceased
patient, Angelica Soliman, and her parents on July 25, 1993, and discussed the patient’s
condition and the possibility of adjuvant chemotherapy x x x. The giving of chemotherapy is
merely in aid, or an adjuvant, of surgery, hoping to prevent or control the recurrence of the
malignant disease (cancer). The plaintiffs were likewise told that there is 80% chance that
the cancer could be controlled and that no assurance of cure was given, considering that the
deceased was suffering from cancer which up to this moment, cure is not yet discovered and
not even the exact cause of cancer is known up to the present.70
Li vs. Soliman
Plaintiffs were likewise informed that chemotherapy will be given through dextrose and
will, therefore, affect not only the cancer cells, but also the patient’s normal parts of the body,
more particularly the fast growing parts, and as a result, the patient was expected to
experience, as she has in fact experienced, side effects consisting of: 1) Falling hair; 2) Nausea
and vomiting; 3) Loss of appetite considering that there will be changes in the taste buds of
the tongue and lead to body weakening; 4) Low count of white blood cells (WBC count), red
blood cells (RBC count), and platelets as these would be lowered by the chemotherapy; 5) The
deceased patient’s ovaries may be affected resulting to sterility; 6) The kidneys and the heart
might be affected; and 7) There will be darkening of the skin especially when the skin is
exposed to sunlight.”
Thus, Dr. Li impliedly admits that she failed to disclose to Reynaldo and
Lina many of the other associated risks and side effects of chemotherapy,
including the most material—infection, sepsis and death. She impliedly
admits that she failed to disclose as risks and side effects (1) rashes; (2) difficulty in
breathing; (3) fever; (4) excretion of blood in the mouth; (5) excretion of blood in the
anus; (6) development of ulcers in the mouth; (7) sloughing off of skin; (8) systemic
lupus erythematosus; (9) carpo-pedal spasm; (10) loose bowel movement; (11)
infection; (12) gum bleeding; (13) hypovolemic shock; (14) sepsis; and (15) death in 13
days.
Clearly, infection, sepsis and death are material risks and side effects of
chemotherapy. To any reasonable person, the risk of death is one of the most
important, if not the most important, consideration in deciding whether to undergo a
proposed treatment. Thus, Dr. Li should have disclosed to Reynaldo and Lina that
there was a chance that their 11-year old daughter could die as a result of
chemotherapy as, in fact, she did after only 13 days of treatment.
In Canterbury and in Wilkinson, the Court of Appeals of District of Columbia and
Supreme Court of Rhode Island, respectively, held that, “A very small chance of death
x x x may well be significant.” In the present case, had Reynaldo
71
VOL. 651, JUNE 7, 2011 71
Li vs. Soliman
and Lina fully known the severity of the risks and side effects of chemotherapy, they
may have opted not to go through with the treatment of their daughter. In fact, after
some of the side effects of chemotherapy manifested, they asked Dr. Li to stop the
treatment.
The facts, as stated by the RTC and the Court of Appeals, clearly show that,
because of the chemotherapy, Angelica suffered lowering of white blood cell count,
lowering of red blood cell count, lowering of platelet count, skin darkening, rashes,
difficulty in breathing, fever, excretion of blood in the mouth, excretion of blood in the
anus, development of ulcers in the mouth, sloughing off of skin, systemic lupus
erythematosus, carpo-pedal spasm, loose bowel movement, infection, gum bleeding,
hypovolemic shock, sepsis, and death after 13 days.
After the administration of chemotherapy, Angelica suffered infection, which
progressed to sepsis. Thereafter, Angelica died. In its 5 September 1997 Decision, the
RTC stated that:
“Angelica Soliman was admitted at the St. Luke’s Medical Center on August 18, 1993.
Preparatory to the chemotherapy, she was hydrated to make sure that her kidneys will
function well and her output was monitored. Blood test, blood count, kidney function test and
complete liver function test were likewise done. Chemotherapy started on August 19, 1993
with the administration of the three drugs, namely, Cisplatine, Doxorubicin and Cosmegen.
In the evening Angelica started vomiting which, according to Dr. Rubi Li, was just an effect
of the drugs administered.
Chemotherapy was likewise administered on August 20, 1993. Vomiting continued. On
August 21, 1993 Angelica Soliman developed redness or rashes all over her face, particularly
on the nose and cheek area, which on subsequent day became darker and has spread to the
neck and chest. Dr. Li told plaintiffs that was just a reaction or effect of the medicines and it
was normal. Vomiting likewise continued. Dr. Li then consulted Dr. Abesamis, a pediatric
oncologist, because she was entertaining the possibility that the patient might also have
systemic lupus erythematosus.72
Li vs. Soliman
Angelica Soliman developed fever and difficulty of breathing on the fourth day and she
became weak already. She was placed on oxygen and antibiotics. Her blood count was
checked. Dr. Li began to entertain the possibility of infection, the lungs being considered the
focus of such infection. An auscultation of the lungs showed just harsh breathing sounds. She
was given Bactrim. The following day the antibiotic was changed into something stronger by
giving the patient Fortum intravenously. Dr. Li started to consider the possibility of
beginning sepsis, meaning that the germs or bacteria were already in the blood system.
Fortum did not, however, take effect. White cells were down and it was not enough to control
the infection because there was nothing in her body to fight and help Fortum fight the
infection. Another medicine, Leucomax, was added that would increase the patient’s white
cell count, but even this did not help.
Plaintiffs then requested Dr. Li to stop the chemotherapy. Dr. Li complied, although
according to her the chemotherapy should not be stopped. So chemotherapy was not given on
August 22, 1993. Plaintiffs then asked if they could already bring their daughter home. They
were permitted by Dr. Li.
On August 23, 1993, preparatory to the discharge, Dr. Li prescribed take home medicines,
but while still in the premises of SLMC, Angelica Soliman had a convulsive attack so she was
placed back to her room.
This convulsive attack mentioned by the plaintiffs was actually what is referred to as
“carpopedal spasm” in medical parlance, which Dr. Li described as “naninigas ang kamay at
paa.” It is a twitching of a group of muscles of the hands and legs. The patient’s calcium was
checked and it was noted to be low, so she was given supplemental calcium which calmed her
down. ECG was likewise conducted. Angelica Soliman started to bleed through the mouth.
This, according to Dr. Li, was only a spitting of blood because at that time the patient had
gum bleeding. Dr. Li told plaintiffs the bleeding was due to platelet reduction. Angelica
Soliman was then transferred to a private room wherein the plaintiffs themselves were
required to wear a mask to avoid any infection as their daughter was already sensitive and
they might have colds or flu and might contaminate the patient who was noted to have low
defense mechanism to infection. Plaintiffs were asked to sign a consent form for blood
transfusion. Patient was transfused with more than three (3) bags of blood and platelets. The
bleeding was lessened, but she became weak.73
VOL. 651, JUNE 7, 2011 73
Li vs. Soliman
The bleeding and blood transfusion continued until August 31, 1993. Angelica Soliman
became hysterical and uneasy with the oxygen and nasogastric tube attached to her. Parts of
her skin were shredding or peeling off, and according to plaintiffs, she already passed black
stool.
On September 1, 1993, at around 3:00 p.m., Angelica Soliman died, but prior to
her demise, she pulled out her endotracheal tube at 9:30 p.m. of August 31, 1993.”
As admitted by Dr. Li, infection, sepsis and death are associated risks and side
effects of chemotherapy. These risks and side effects are material to Reynaldo and
Lina, and to any other reasonable person, in deciding whether to undergo
chemotherapy. Had Dr. Li adequately disclosed to Reynaldo and Lina that there was
a chance that their 11-year old daughter could die of infection as a result of
chemotherapy, they may have decided against it and sought for an alternative
treatment.
Accordingly, I vote to DENY the petition.
SEPARATE OPINION
BRION, J.:
I. The Concurrence and Supporting Reasons
I concur in the result with the ponencia and its conclusion that the respondents
failed to prove by preponderance of evidence the essential elements of a cause of
action based on the doctrine of informed consent. This case presents to us for the first
time the application of the common-law doctrine of informed consent in a medical
negligence case, based on Article 2176 of the Civil Code. I do not question the
applicability of this novel doctrine in this jurisdiction.
However, I do not agree with the ponencia’s conclusion that “there was adequate
disclosure of material risks of the [chemotherapy administered] with the consent of
Angelica’s par-
74
Li vs. Soliman
ents”1 in view of a complete absence of competent expert testimony establishing a
medical disclosure standard in the present case. As I shall discuss below, the
respondents failed to sufficiently establish the information that should have been
disclosed to enable them to arrive at a decision on how proceed with the treatment.
As in any ordinary medical negligence action based on Article 2176 of the Civil
Code, the burden to prove the necessary elements—i.e., duty, breach, injury and
proximate causation – rests with the plaintiff.2 In a lack of informed consent
litigation, the plaintiff must prove by preponderance of evidence the following
requisites:3
(1) the physician had a duty to disclose material risks;
(2) he failed to disclose or inadequately disclosed those risks;
(3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and
(4) plaintiff was injured by the proposed treatment.
Of crucial significance in establishing the elements involved in medical negligence
cases is expert medical testimony since the facts and issues to be resolved by the
Court in these cases are matters peculiarly within the knowledge of experts in the
medical field.4
I base my conclusion on the ground that the respondents failed to prove by
competent expert testimony the first and fourth elements of a prima facie case for
lack of informed consent, specifically:
_______________
1 Decision, p. 18.
2 Flores v. Pineda, G.R. No. 158996, November 14, 2008, 571 SCRA 83, 91.
3 Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill. App. 1 Dist. 2010, citing Coryell v. Smith, 274 Ill. App. 3d
543, 210 Ill. Dec. 855, 653 N.E.2d 1317 (1995).
4 Supra note 2.
75
VOL. 651, JUNE 7, 2011 75
Li vs. Soliman
(1) the scope of the duty to disclose and the violation of this duty, i.e.,
the failure to define what should be disclosed and to disclose the
required material risks or side effects of the chemotherapy that allow
the patient (and/or her parents) to properly decide whether to undergo
chemotherapy; and
(2) that the chemotherapy administered by the petitioner proximately
caused the death of Angelica Soliman.
II. Background
On July 7, 1993, the respondents Spouses Reynaldo and Lina Soliman’s

(respondents) 11-year old daughter, Angelica Soliman (Angelica), was diagnosed
with osteosarcoma, osteoblastic type (cancer of the bone) after a biopsy of the mass in
her lower extremity showed a malignancy. Following this diagnosis, Dr. Jaime
Tamayo (Dr. Tamayo) of the St. Luke’s Medical Center (SLMC) amputated Angelica’s
right leg to remove the tumor. Dr. Tamayo also recommended adjuvant chemotherapy
to eliminate any remaining cancer cells and prevent its spread to the other parts of
the body, and referred Angelica to the petitioner Dr. Rubi Li (petitioner), an
oncologist.5
On July 23, 1993, the petitioner saw the respondents and discussed with them
Angelica’s condition.6 The petitioner claims that she did not then give the respondents
any assurance that chemotherapy would cure Angelica’s cancer considering that “a
cure for cancer has not been discovered” and “its exact cause is not known up to the
present”; she merely told them that there is 80% chance that the cancer [of
Angelica] could be controlled [by chemotherapy].7 In her Answer, the petitioner
alleges that she informed the respondents
_______________
5 Rollo, p. 34.
6 TSN, January 26, 1995, p. 3.
7 Petitioner’s Answer dated March 28, 1994; Rollo, p. 96.
76
Li vs. Soliman
that chemotherapy will be administered intravenously; the chemotherapy will flow
throughout Angelica’s body and will affect not only the cancer cells but also the fast
growing “normal” parts of her body. She also then disclosed and explained to the
respondents the following side effects of chemotherapy:
(1) Falling hair;
(2) Nausea and vomiting;
(3) Loss of appetite considering that there will be changes in the taste buds of the
tongue and lead to body weakness and this defendant therefore, in anticipation
of the changes in the taste buds, instructed the plaintiffs to teach and encourage
the deceased patient to eat even though she has no normal taste;
(4) Low count of white blood cells (WBC count), red blood cells (RBC count), and
platelets as these would be lowered by the chemotherapy and therefore this
defendant had to check these counts before starting the chemotherapy (it is
important to note at this point that white blood cells [WBC] are the cells that
defend the body against infection);
(5) The deceased patient’s ovaries may be affected resulting to sterility;
(6) The kidneys and the heart might be affected so that this defendant had to
check the status of these organs before starting chemotherapy;
(7) There will be darkening of the skin especially when the skin is exposed to
sunlight.8
The respondents, however, disputed this claim and countered that the
petitioner gave them an assurance that there was a 95% chance of healing
if Angelica would undergo chemotherapy—“Magiging normal na ang anak
nyo basta ma-chemo. 95 % ang healing.—and that the side effects were only
hair loss, vomiting and
_______________
8 Id., at p. 97.
77
VOL. 651, JUNE 7, 2011 77
Li vs. Soliman
weakness—“Magsusuka ng kaunti. Malulugas ang buhok. Manghihina.”9
On August 18, 1993, Angelica was readmitted to the SLMC for chemotherapy.
Upon admission, Angelica’s mother, respondent Lina Soliman, signed the Consent for
Hospital Care, which pertinently stated:10
“Permission is hereby given to the medical, nursing and laboratory staff of St. Luke’s
Medical Center to perform such diagnostic procedures and administer such medications and
treatments as may be deemed necessary or advisable by the Physicians of this hospital [for
my daughter] during this confinement. It is understood that such procedures may include
blood transfusions, intravenous or other injections and infusions[,] administrations of
serums, antitoxins and toxoids for treatment or prophylaxis, local of (sic) general anesthesia,
spinal puncture, bone marrow puncture, venessection, thoracentesis, paracenthesis,
physiotherapy and laboratory test.”
The following day, the petitioner intravenously administered three chemotherapy
drugs, namely: Cisplatin, Doxorubicin and Cosmegen. On September 1, 1993, or
thirteen days after the induction of the first cycle of chemotherapy, Angelica
died.11 The autopsy conducted by the Philippine National Police (PNP) Crime
Laboratory indicated the cause of death as “Hypovolemic shock secondary to
multiple organ hemorrhages and Disseminated Intravascular
Coagulation.”12
On February 21, 1994, the respondents filed a case for damages against the
petitioner, Dr. Leo Marbella, a certain Dr. Arriete and SLMC. The respondents raised
two causes of action; the first cause of action was based on the petitioner’s
negligence in the administration of the chemotherapy,
_______________
9 Respondents’ Complaint dated February 21, 1994, Id., at p. 81.

10 Id., at p. 174.
11 Id., at p. 35.
12 Id., at p. 89.
78
Li vs. Soliman
and the second cause of action was based on the petitioner’s negligence in failing
to disclose the risks or side effects of chemotherapy so that they could give a valid
informed consent.13 In her Answer, the petitioner countered that she was not
negligent and that the massive bleeding that caused Angelica’s death was brought
about by her underlying condition and the sepsis that resulted from her weakened
immune system.14
a. The RTC Ruling
The trial court dismissed the complaint and held that the petitioner was not
negligent since she observed the best known procedures and employed her highest
skill and knowledge in the administration of the chemotherapy to Angelica. It cited
Dr. Tamayo’s testimony that he knew the petitioner as one of the most proficient in
the treatment of cancer and that Angelica was afflicted with a very aggressive type
of cancer that necessitated adjuvant chemotherapy.15
b. The CA Ruling
On appeal, the Court of Appeals (CA)—while concurring with the trial court’s
finding that the petitioner was not negligent in the administration of the
chemotherapy to Angelica—found the petitioner negligent in failing to explain fully
to the respondents all the known side effects of the chemotherapy. The CA gave
credence to the respondents’ testimony that the petitioner merely told them of only
three side effects of chemotherapy, which prompted them to readily give their
consent. The CA stressed that had the petitioner made known to the respondents the
other side effects (carpo-pedal spasm, sepsis, decrease in platelet counts, bleeding,
infection and death), which gravely affected Angelica, they could have de-
_______________

15 Id., at pp. 119-162.
79
VOL. 651, JUNE 7, 2011 79
Li vs. Soliman
cided differently or took a different course of action, which could have delayed or
prevented the early death of their child.16
c. The Respondents’ Supporting Testimonies
Angelica’s medical records were not submitted in evidence; instead, the Regional
Trial Court (RTC) and the CA solely relied on the testimonial evidence of the petitioner
and the respondents.
In support of her Complaint, the respondent Lina Soliman testified on direct
examination that on August 18, 1993, Angelica was admitted to the SLMC for
chemotherapy. She declared that the petitioner examined Angelica on that same day
and administered dextrose on her. The petitioner assured them that if Angelica is
subjected to chemotherapy, there will be a “95% chance”that “she will be normal”
and that the “possible side effects of chemotherapy” are “falling of the hair, vomiting
and weakness (manghihina).”17 On cross examination, the respondent Lina Soliman
clarified that “when she insisted on some other possible side effect,” the petitioner said
that those three she mentioned “were the only [side] effects.”18During rebuttal, the
respondent Lina Soliman testified that the petitioner gave them a “90% guarantee
that if [her] daughter will be subjected to chemotherapy, [her] child will recover
completely.”19 Finally, she declared that she was only aware of the three side effects
and had she known all the side effects of chemotherapy that the petitioner should
have mentioned, she would not have subjected Angelica to the chemotherapy.20
_______________
16 Id., at pp. 33-63.

17 TSN, December 14, 1994, pp. 12-14.
18 Id., at p. 58.
19 TSN, January 27, 1997, p. 3.
20 Id., at p. 5.
80
Li vs. Soliman
The respondent Reynaldo Soliman was also presented to corroborate the testimony
of his wife Lina Soliman. He declared that he asked the petitioner about the side
effects of chemotherapy and that the petitioner mentioned of only “falling hair,
weakness and vomiting” to him.21
During the trial, the respondents also presented two expert witnesses: Dr. Jesusa
Vergara, a Medico-Legal Officer of the PNP Crime Laboratory, and Dr. Melinda
Balmaceda, a Medical Specialist employed at the Department of Health (DOH).22
Dr. Vergara declared that she has been a physician since 1989; she did not undergo
medical resident physician training and only practiced as a general practitioner at
Andamon General Hospital in Lucena City for six months. She testified further that
she has been employed as a Medico-Legal Officer at the PNP Crime Laboratory since
January 1990. In this capacity, she declared that she performs autopsy to determine
the cause of death of victims; conducts examinations of rape victims, victims of other
sex crimes and physical injuries; examines and identifies skeletal remains; attends
court hearings on cases she has examined; and gives lectures to students and medico-
legal opinion on cases referred to her.23
Dr. Vergara testified that she conducted the autopsy on Angelica’s body on
September 2, 1993. She explained that the extensive multiple organ
hemorrhages and disseminated intravascular coagulation that caused Angelica’s
demise can be attributed to the chemical agents given to her; these agents caused
platelet reduction resulting in massive bleeding and, eventually, in her death. She
further noted that Angelica would have also died of osteosarcoma even with
amputation and chemotherapy; in this case, her death was not caused
by osteosarcoma as it has a survival period of three years.24 Dr.
_______________
21 TSN, December 15, 1994, p. 5-6.

22 Rollo, p. 52.
23 TSN, December 14, 1994, pp. 7-8.
24 Id., at pp. 24-25.
81
VOL. 651, JUNE 7, 2011 81
Li vs. Soliman
Vergara admitted that she is not a pathologist;25 also, her statements were
based on the opinion of an oncologist she had previously interviewed.26
Dr. Balmaceda, for her part, declared that she is a Medical Specialist working at
the DOH Operations and Management Service; her work encompasses the
administration and management of medical hospitals; her office receives complaints
against hospitals for mismanagement of admissions and medical health. Dr.
Balmaceda also stated that she obtained a Masters of Hospital Administration from
the Ateneo de Manila University, and took special courses on medical and pediatric
training at the Philippine General Hospital and Children’s Medical Center in 1979.27
Dr. Balmaceda testified that it is a physician’s duty to inform and explain to the
patient or his family every known side effect of the therapeutic agents to be
administered, before securing their consent. She stressed that the patient or his
family must be informed of all known side effects based on studies and observations,
even if this disclosure will have the effect of aggravating the patient’s condition.28 On
cross-examination, Dr. Balmaceda admitted that she is not an oncologist.29
Despite their counsel’s representation during the trial, the respondents
failed to present expert testimony from an oncologist or a physician who
specializes in the diagnosis and treatment of cancers.30
_______________
25 Id., at p. 39.
26 Id., at p. 40.
27 TSN, April 28, 1995, pp. 9-11.
28 Id., at pp. 22-24.
29 Id., at p. 27.
30 Id., at pp. 15 and 27.
82
Li vs. Soliman
d. The Petitioner’s Supporting Expert Testimonies
The petitioner testified that she is a licensed physician and a board certified
medical oncologist; she underwent sub-specialty training in medical oncology where
she dealt with different types of cancers, including bone cancers. She also declared
that she is a member of the Philippine Society of Medical Oncologists; has written
and co-authored various medical papers on cancer; and has attended yearly
conventions of the American Society of Clinical Oncology and the Philippine Society
of Medical Oncologists where she was updated with the latest advances in cancer
treatment and management. The petitioner also declared that she has been engaged
in the treatment and management of bone cancers for almost thirteen years, and has
seen more than 5,000 patients.31
On direct examination, the petitioner testified that she met and discussed the side
effects of chemotherapy with the respondents three times; she mentioned that the
side effects of chemotherapy may consist of hair loss, nausea, vomiting,
sterility, and low white and red blood cells and platelet count. She declared
that the respondents consented to the chemotherapy when they signed the hospital’s
consent form.32
The petitioner also declared that Angelica died not because of the chemotherapy
but because of sepsis—an overwhelming infection that caused her organs to fail. She
testified that the cancer brought on the sepsis because of her poor defense
mechanism.33 On cross-examination, the petitioner clarified that the sepsis also
triggered the platelet reduction; the bleeding was, in fact, controlled by the blood
transfusion but the infection was so prevalent it was hard to control. The peti-
_______________
31 TSN, October 6, 1995, pp. 5-15.

32 Id., at pp. 22-27.
33 Id., at pp. 33-34.
83
VOL. 651, JUNE 7, 2011 83
Li vs. Soliman
tioner also added that the three drugs administered to Angelica could theoretically
cause platelet reduction, but a decrease in platelets is usually seen only after three
cycles of chemotherapy and not in the initial administration.34
Dr. Tamayo, the orthopedic surgeon who amputated Angelica’s right leg, testified
for the petitioner. He explained that the modes of therapy for Angelica’s cancer are
the surgical removal of the primary source of the cancerous growth and,
subsequently, the treatment of the residual cancer (metastatic) cells with
chemotherapy.35 He further explained that patients with osteosarcoma have a poor
defense mechanism due to the cancer cells in the bloodstream. In Angelica’s case, he
explained to the parents that chemotherapy was imperative to address metastasis of
cancerous cells since osteosarcoma is a very aggressive type of cancer requiring
equally aggressive treatment. He declared that the mortality rate
for osteosarcoma remains at 80% to 90% despite the advent of modern chemotherapy.
Finally, Dr. Tamayo testified that he refers most of his cancer patients to the
petitioner since he personally knows her to be a very competent oncologist.36
III. The Ponencia
The ponencia cites two grounds for granting the petition. First, there was
adequate disclosure of the side effects of chemotherapy on the part of the
petitioner. Second, the respondents failed to present expert testimony to establish the
standard of care in obtaining consent prior to chemotherapy.
a. Adequate Disclosure of Material Risks
The ponencia finds “that there was adequate disclosure of material risks inherent
in the chemotherapy [administered] with the consent of Angelica’s parents.”
The ponencia empha-
_______________
34 Id., at p. 39.
35 TSN, May 20, 1996, pp. 8-9.
36 Id., at p. 12.
84
Li vs. Soliman
sizes that when the petitioner informed the respondents of the side effects of
chemotherapy (i.e. low white and red blood cell and platelet count, kidney or heart
damage and skin darkening), it was reasonable for the former to expect that the latter
understood very well the side effects are not be the same for all patients undergoing
the procedure. Given this scenario, the ponencia notes that the “respondents could
not have been unaware in the course of initial treatment… that [Angelica’s] immune
system was already weak on account of the malignant tumor in her knee.”
The ponencia also implies that death as a result of complications of the chemotherapy
or the underlying cancer is a risk that can be reasonably inferred by the respondents
from the general side effects disclosed by the petitioner. Finally,
the ponencia disregarded the respondents’ claim that the petitioner assured them of
95% chance of recovery for Angelica as it is unlikely for doctors (like the petitioner)
who are dealing with grave illnesses to falsely assure patients of the chemotherapy’s
success rate; at any rate, specific disclosures such as statistical data are not legally
necessary.37
b. Failure to Present Expert Testimony
The ponencia holds that in a medical malpractice action based on lack of informed
consent, the plaintiff must prove both the duty to disclose material risks and the
breach of that duty through expert testimony. The expert testimony must show the
customary standard of care of physicians in the same practice as that of the defendant
doctor. In the present case, the ponencia notes that Dr. Balmaceda’s expert testimony
is not competent to establish the standard of care in obtaining consent for
chemotherapy treatment.38
_______________
37 Decision, pp. 18-19.

38 Id., at pp. 19-20.
85
VOL. 651, JUNE 7, 2011 85
Li vs. Soliman
IV. The Doctrine of Informed Consent
The present case is one of first impression in this jurisdiction in the
application of the doctrine of informed consent in a medical negligence case. For a
deeper appreciation of the application of this novel doctrine, a brief look at the
historical context, the different approaches underlying informed consent, and the
standards of disclosure would be very helpful.
a. Battery v. Negligence Approaches
The doctrine of informed consent first appeared in American jurisprudence in
cases involving unconsented surgeries which fit the analytical framework of
traditional battery.39 Most commentators begin their discussions of the legal doctrine
of informed consent with the “famous 1914 opinion of Associate Justice Benjamin
Cardozo in Schloendorff v. Society of New York Hospitals”40 where he wrote:
“Every human being of adult years and sound mind has a right to determine what shall
be done with his own body; and a surgeon who performs an operation without the patient’s
consent commits an assault, for which he is liable in damages. This is true, except in cases of
medical emergency, where the patient is unconscious, and where it is necessary to operate
before consent can be obtained.”41
_______________
39 Bryan J. Warren, Pennsylvania Medical Informed Consent Law: A Call To Protect Patient Autonomy
Rights By Abandoning The Battery Approach, 38 Duq. L. Rev. 917, 927 (2000). In American perspective,
battery is “[a] harmful or offensive contact with a person, resulting from an act intended to cause the
plaintiff or a third person to suffer such a contact.” Infra note 35, at 890, citing W. Keeton, D. Dobbs R.
Keeton, R. Keeton & D. Owen, Prosser & Keeton on The Law of Torts, § 9, at 39 (5th ed. 1984).
40 105 N.E. 92, 93 (N.Y. 1914).
41 Supra note 39.
86
Li vs. Soliman
Scholendorff is significant because it “characterized the wrong [committed by the
physician] as a trespass, and not [as] a negligent act.” It illustrated the concept of
medical battery “[where] a patient is subjected to an examination or treatment
without express or implied consent.” Thus, “[this] battery approach to informed
consent seeks to protect the patient’s physical integrity and personal dignity from
harmful and unwanted contact.”42
“[A]s the century progressed and the practice of medicine became more
sophisticated, courts began to consider whether the patient had been given sufficient
information to give true consent.”43 One commentator notes that in the mid-1950s, the
courts had shifted their focus from the issue of whether the patient gave consent, to
whether adequate information was given for the patient to have made an informed
consent. Thus, the quantity of information provided to the patient in making decisions
regarding medical treatment was given greater scrutiny and the physician’s duty to
disclose assumed a primary role.44
The 1957 case of Salgo v. Leland Stanford Jr. University of Board of Trustees45 first
“established the modern view of the doctrine of informed consent,” declaring “that the
physician violates his duty to his patient if he fails to provide information necessary
for the patient to form intelligent consent to the proposed
treatment.” Although Salgo held that the physician was under a duty to disclose,
46
this duty remained unclear; it did not answer the critical question of “what consti-
_______________
42 Id., at p. 928.
43 Id., at p. 929.
44 Richard E. Shugrue & Kathryn Linstromberg, The Practitioner’s Guide To Informed Consent, 24
Creighton L. Rev. 881, 893 (1991).
45 154 Cal. App. 2d 560, 317 P.2d 170.
46 Supra note 39, at p. 930.
87
VOL. 651, JUNE 7, 2011 87
Li vs. Soliman
tuted ‘full disclosure’ sufficient for the patient to make an informed consent.”47
In the 1960s, “[c]ourts and commentators began to understand [and realize] that
actions for battery—an intentional tort—made little sense when couched in
negligence terminology.”48 Thus, in 1960, the Kansas Supreme Court explicitly
rejected the battery approach in Natanson v. Kline49 where it held that the “failure to
disclose to the patient sufficient information to allow informed consent to the
procedure was an action based in negligence and not on an unconsented x x x
touching [or] battery.”50 The courts in Natanson v. Kline51 and Mitchell v.
Robinson52 clarified as well the scope of the physician’s duty to disclose and held that
the “central information needed in making an informed consent was a disclosure of
the material risks involved in a medical procedure.”53Natanson went on to require the
physician to provide “in addition to risk information, disclosure of the ailment, the
nature of the proposed treatment, the probability of success, and possible alternative
treatments.”54
Finally, in 1972, the California Supreme Court in Cobbs v. Grant55 articulated “the
rationale behind abandoning the battery approach to informed consent in favor of [a]
negligence approach.” It held that “it was inappropriate to use intentional tort of
battery when the actual wrong was an omission, and the physician acted without
intent to injure the patient.”56
_______________

48 Id., at p. 883.
49 186 Kan. 393, 350 P.2d 1093 (1960).
51 Supra note 49.
52 334 S.W.2d 11 (Mo. 1960).
54 Ibid.
55 8 Cal.3d 229, 502 P.2d 1, 104 Cal. Rptr. 505.
88
Li vs. Soliman
b. Standards of Disclosure: Professional Disclosure
Standard v. Reasonable Patient Standard
A significant development in the evolution of the doctrine of informed consent in
the United States is the standard by which the adequacy of disclosure is
judged.57In Natanson,58 the Court examined the adequacy of the physician’s disclosure
by looking at accepted medical practices and held that a charge of failure to disclose
should be judged by the standards of the reasonable medical practitioner. This came
to be known as the “professional disclosure standard.”59 The question under the
standard is: did the doctor disclose the information that, by established
medical practice, is required to be disclosed? Under this standard, “a patient
claiming a breach of the duty was required to produce expert medical testimony as to
what the standard practice would be in [the medical community in a particular case]
and how the physician deviated from the practice.”60 This requirement, however,
came under harsh criticism as one commentator noted:
“The fulfillment of this requirement often precluded a finding of liability not only because
of the difficulty in obtaining expert testimony, and breaking through the medical
community’s so-called “conspiracy of silence,” but also because there was no real community
standard of disclosure. Establishing community custom through expert testimony is perfectly
acceptable where such custom exists. However, because a physician supposedly considers his
patient’s emotional, mental, and physical condition in deciding whether to disclose, and
because each patient is mentally and emotionally unique, there can be no single established
custom concerning disclosure; if there is one, it is so general that it is of little value. Requir-
_______________
57 Id., at p. 923.
58 Supra note 49.
60 Id., at pp. 900-901.
89
VOL. 651, JUNE 7, 2011 89
Li vs. Soliman
ing the plaintiff to present expert testimony that a standard does exist and was breached
may well impose an insuperable burden.”61
In the early 1970s, the courts and legislature in the United States realized that
“the professional community standard of disclosure was inconsistent with patients’
rights to make their own health care decisions.”62 In 1972, a new standard was
established in the landmark case of Canterbury v. Spence.63 This standard later
became known as the “reasonable patient standard.” It required the doctor “to
disclose all material risks incident to the proposed therapy in order to secure an
informed consent,”64and gave rise to a new disclosure test: “the test for
determining whether a particular peril must be divulged is its materiality to
the patient’s decision: all risks potentially affecting the decision must be
unmasked.”65 Under this standard, adequate disclosure “required the physician to
discuss the nature of the proposed treatment, whether it was necessary or merely
elective, the risks, and the available alternatives and their risks and benefits.” 66
The Canterbury court, however, warned that the standard does not mean “full
disclosure” of all known risks. One commentator emphasized:67
“Thus, the reasonable patient standard included more information than a professional
community standard, but did not require the doctor to tell the patient all information
about risks, benefits, alternatives, diagnosis, and the nature of the treatment. To do
so would require the patient first to undergo complete medical training himself. “The
patient’s interest in information does not extend to
_______________
61 Id., at p. 901.
62 Id., at p. 902.
63 464 F.2d 772, 150 U.S. App. D.C. 263 (1972).
64 Supra note 62.
66 Ibid.
67 Id., at pp. 903-904.
90
Li vs. Soliman
a lengthy polysyllabic discourse on all possible complications. A mini-course in medical
science is not required....” [emphasis supplied]
In Sard v. Hardy,68 the Maryland Court of Appeals succinctly explained the
rationale in adopting the reasonable patient standard first established in Canterbury
v. Spence,69 as follows:
“In recent years, however, an ever-expanding number of courts have declined to apply a
professional standard of care in informed consent cases, employing instead a general or lay
standard of reasonableness set by law and independent of medical custom. These decisions
recognize that protection of the patient’s fundamental right of physical self-determination
the very cornerstone of the informed consent doctrine mandates that the scope of a
physician’s duty to disclose therapeutic risks and alternatives be governed by the patient’s
informational needs. Thus, the appropriate test is not what the physician in the exercise of
his medical judgment thinks a patient should know before acquiescing in a proposed course
of treatment; rather, the focus is on what data the patient requires in order to make an
intelligent decision.” [Citations omitted]
Since then, this line of ruling has prevailed, as shown by the rulings discussed
below on the need for expert evidence in the application of the preferred reasonable
patient standard.
c. Expert Testimony in Ordinary Medical Negligence Cases
Philippine jurisprudence tells us that expert testimony is crucial, if not
determinative of a physician’s liability in a medical negligence case. 70 In litigations
involving medical negligence as in any civil action, we have consistently ruled
_______________
68 281 Md. 432, 379 A.2d 1014 Md. 1977.

69 Supra note 63.
70 See Cruz v. Court of Appeals, G.R. No. 122445, November 18, 1997, 282 SCRA 188; Flores v.
Pineda, supra note 2; Cayao-Lasam v. Ramolete, G.R. No. 159132, December 18, 2008, 574 SCRA 439.
91
VOL. 651, JUNE 7, 2011 91
Li vs. Soliman
that the burden to prove by preponderance of evidence the essential elements—i.e.,
duty, breach, injury and proximate causation—rests with the plaintiff. Expert
testimony is, therefore, essential since the factual issue of whether a physician or
surgeon exercised the requisite degree of skill and care in the treatment of his patient
is generally a matter of expert opinion.71
Cruz v. Court of Appeals,72 a 1997 case, provided the first instance for the Court to
elaborate on the crucial significance of expert testimony to show that a physician fell
below the requisite standard of care. In acquitting the petitioner of the crime of
reckless imprudence resulting in homicide because of a complete absence of any
expert testimony of the matter of the standard of careemployed by other
physicians of good standing in the conduct of similar operations, the Court
emphasized:
“In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et al., this Court stated
that in accepting a case, a doctor in effect represents that, having the needed training and
skill possessed by physicians and surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances. It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the standard of care of the
profession but also that the physician’s conduct in the treatment and care falls
below such standard. Further, inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.
x x x The deference of courts to the expert opinion of qualified physicians stems
from its realization that the latter
_______________
71 Flores v. Pineda, supra note 2.

72 Supra note 70, at pp. 189-190.
92
Li vs. Soliman
possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating. Expert testimony should have been offered to prove that
the circumstances cited by the courts below are constitutive of conduct falling
below the standard of care employed by other physicians in good standing when
performing the same operation. It must be remembered that when the qualifications of
a physician are admitted, as in the instant case, there is an inevitable presumption that in
proper cases he takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently established. This
presumption is rebuttable by expert opinion which is so sadly lacking in the case
at bench.” [Emphasis supplied]
Ramos v. Court of Appeals73 meanwhile illustrates that in cases where the doctrine
of res ipsa loquitur74 is applicable, the requirement for expert testimony may be
dispensed with. Thus, in finding that the respondent was negligent in the
administration of anesthesia on the basis of the testimony of a dean of a nursing
school and not of an anesthesiologist, the Court held:
“We do not agree with the above reasoning of the appellate court. Although witness Cruz
is not an anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any one. This is precisely
allowed under the doctrine of res ipsa loquiturwhere the testimony of expert witnesses is not
required. It is the accepted rule that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an ordinary
_______________
73 G.R. No. 124354, December 29, 1999, 321 SCRA 584.

74 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
plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. Id., at p. 598.
93
VOL. 651, JUNE 7, 2011 93
Li vs. Soliman
person may be expected to have knowledge, or where the lack of skill or want of care is so
obvious as to render expert testimony unnecessary. We take judicial notice of the fact that
anesthesia procedures have become so common, that even an ordinary person can tell if it
was administered properly. As such, it would not be too difficult to tell if the tube was
properly inserted. This kind of observation, we believe, does not require a medical degree to
be acceptable.”75
d. The Limited but Critical Role of Expert
Testimony in Informed Consent Litigation
One of the major and fiercely contested issues in the growing number of informed
consent cases in the United States is “whether it is necessary for the plaintiff to
produce expert medical testimony to establish the existence and scope of a physician’s
duty to disclose risks of a proposed treatment.”76 A majority of legal commentators on
the subject agree that “most courts will continue to require expert testimony to
establish the existence and extent of a physician’s duty to disclose risks of a proposed
treatment, in view of the rule that expert testimony usually is necessary in medical
malpractice cases generally.”77
In informed consent cases (unlike in ordinary medical negligence cases), however,
many issues do not necessarily involve medical science. In the landmark case
of Canterbury v. Spence,78 the United States Court of Appeals for the District
Columbia Circuit defined the limited role of expert testimony in informed consent
cases and provided examples of situations appropriate for non-expert testimony:
“There are obviously important roles for medical testimony in such cases, and some roles
which only medical evidence can fill. Experts are ordinarily indispensible to identify and
elucidate for the
_______________
75 Id., at pp. 609-610.

76 52 ALR 3d 1084.
77 Ibid.
78 Supra note 63.
94
Li vs. Soliman
fact finder the risks of therapy and the consequences of leaving existing maladies untreated.
They are normally needed on issues as to the cause of any injury or disability suffered by the
patient and, where privileges are asserted, as to the existence of any emergency claimed and
the nature and seriousness of any impact upon the patient from risk-disclosure. Save for
relative infrequent instances where questions of this type are resolvable wholly within the
realm of ordinary human knowledge and experience, the need for the expert is clear.
The guiding consideration our decisions distill, however, is that medical facts are for
medical experts and other facts are for any witnesses-expert or not-having
sufficient knowledge and capacity to testify to them. It is evident that many of the
issues typically involved in nondisclosure cases do not reside peculiarly within the medical
domain. Lay witness testimony can competently establish a physician’s failure to disclose
particular risk information, the patient’s lack of knowledge of the risk, and the adverse
consequences following the treatment. Experts are unnecessary to a showing of the
materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable
effect of risk disclosure on the decision. These conspicuous examples of permissible uses of
nonexpert testimony illustrate the relative freedom of broad areas of the legal problem of risk
nondisclosure from the demands for expert testimony that shackle plaintiffs’ other types of
medical malpractice litigation.” [Citations omitted; emphasis supplied]
This ruling underwent refinements in subsequent applications. The 1983 case
of Smith v. Shannon,79—where the Supreme Court of Washington held that an expert
testimony is required to establish initially the existence of the risk of the proposed
treatment—is particularly instructive in its two-step discussion in the use of expert
testimony in the application of the reasonable patient test. To quote from this case:
“The determination of materiality is a 2-step process. Initially, the scientific nature of
the risk must be ascertained, i.e., the nature of the harm which may result and the
probability of its occurrence. The trier of fact must then decide whether that
_______________
79 100 Wash.2d 26, 666 P.2d 351.

95
VOL. 651, JUNE 7, 2011 95
Li vs. Soliman
probability of that type of harm is a risk which a reasonable patient would consider in
deciding on treatment.
While the second step of this determination of materiality clearly does not
require expert testimony, the first step almost as clearly does. Only a physician (or
other qualified expert) is capable of judging what risks exist and their likelihood
of occurrence. The central reason for requiring physicians to disclose risks to their patients
is that patients are unable to recognize the risks by themselves. Just as patients require
disclosure of risks by their physicians to give an informed consent, a trier of fact requires
description of risks by an expert to make an informed decision.
Some expert testimony is thus necessary to prove materiality. Specifically, expert
testimony is necessary to prove the existence of a risk, its likelihood of occurrence,
and the type of harm in question. Once those facts are shown, expert testimony is
unnecessary.” [Citations omitted, emphasis supplied]
In Jambazian v. Borden,80 a 1994 case, the California Court of Appeals held that
in proving his informed consent claim, the plaintiff was required “to present properly
qualified medical opinion evidence that his alleged diabetic condition created surgical
risks other than those related by defendant prior to the procedure.” The Court held
further:
“In every case the court must be guided by the general rules governing the use of expert
testimony. If the fact sought to be proved is one within the general knowledge of laymen,
expert testimony is not required; otherwise the fact can be proved only by the opinions of
experts.” The diagnosis of diabetes, its magnitude, scientific characteristics, and the inherent
risks associated with the condition are not matters of such common knowledge that opinion
testimony is unnecessary in informed consent litigation to establish defendant should have
disclosed the risks of surgery on a diabetic to plaintiff when there is no medical evidence that
the illness exists.”[Citations omitted.]
_______________
80 25 Cal. App. 4th 836.

96
Li vs. Soliman
Betterton v. Leichtling,81 another California Court of Appeals ruling, distinguished
“between the use of expert testimony to prove the duty to disclose a known risk and
the use of expert testimony to prove the existence of the risk itself”82 and held that
the effect of Betterton’s aspirin use on the risk of surgical complications is subject to
proof only by expert witnesses, viz.:
“Whether to disclose a significant risk is not a matter reserved for expert opinion. Whether
a particular risk exists, however, may be a matter beyond the knowledge of lay
witnesses, and therefore appropriate for determination based on the testimony of
experts. Here, the effect of Betterton’s aspirin use on the risk of surgical complications was
a subject beyond the general knowledge of lay people. Therefore, the jury should have relied
only on expert testimony when it determined whether the use of aspirin causes significant
risks in surgery.” [Citations omitted, emphasis supplied]
In Morhaim v. Scripps Clinic Medical Group, Inc.83 that followed, the Court
dismissed Morhaim’s informed consent claim based on his failure to present expert
testimony that diabetes is a risk of the Kenalog injections. The California Court of
Appeals held:
“Betterton and Jambazian make clear that while no expert testimony is required to
establish a doctor’s duty to disclose a “known risk of death or serious bodily harm,” expert
testimony is required to establish whether a risk exists in the first instance where the matter
is beyond the knowledge of a lay person.
In this case, whether diabetes is a risk of the Kenalog injections Morhaim received is
clearly a matter beyond the knowledge of a layperson. Therefore, Morhaim would have to
present expert testimony regarding the existence of that risk in order to prevail on his
informed consent claim. Once Morhaim’s counsel conceded in his
_______________
81 101 Cal. App. 4th 749 (2002).

82 Infra note 83.
83 2005 WL 237772 (Cal.App.4 Dist.).
97
VOL. 651, JUNE 7, 2011 97
Li vs. Soliman
opening statement that Morhaim could not present such testimony, the trial court properly
granted Scripps’s motion for nonsuit.”
All these, Canterbury v. Spence84 best summed up when it observed that “medical
facts are for medical experts and other facts are for any witness—expert or not—having
sufficient knowledge and capacity to testify to them.”85
V. Application to the Present Case
The issue in the present case is: Did the respondents prove by preponderance
of evidence all the elements of a cause of action for medical negligence under
the doctrine of informed consent?
As stated above, the plaintiff—as in any ordinary medical negligence action—
bears the burden of proving the necessary elements of his or her cause of
action. Canterbury v. Spence86 tells us that informed consent plaintiffs also share this
burden, viz.:
“In the context of trial of a suit claiming inadequate disclosure of risk information by a
physician, the patient has the burden of going forward with evidence tending to
establish prima facie the essential elements of the cause of action, and ultimately the burden
of proof—the risk of nonpersuasion—on those elements. These are normal impositions upon
moving litigants, and no reason why they should not attach in nondisclosure cases is
apparent.” [Citations omitted.]
In the present case, I find that the plaintiffs (the present respondents) utterly
failed to establish their cause of action. They failed to establish their claim of
lack of informed consent, particularly on the first and fourth elements.
_______________
84 Supra note 63.

85 Ibid.
86 Supra note 63.
98
Li vs. Soliman
a. First Element: Duty to Disclose Material Risks
As discussed, two competing standards are available to determine the scope and
adequacy of a physician’s disclosure—the professional disclosure standard or the
reasonable patient standard.
While I concur with the results of the ponencia, I find its approach and reasoning
in its use of the standards to be confused. The ponencia claims that “expert testimony
must show the customary standard of care of physicians in the same practice as that
of the defendant doctor,”87 thereby indicating its partiality to the use of the
professional disclosure standard. At the same time, the ponencia felt “hesitant in
defining the scope of mandatory disclosure in cases based on lack of informed consent,
much less set a standard of disclosure,”88 citing lack of expert testimony in this regard.
In plainer terms, it effectively said that the respondents failed to prove what must be
disclosed. Yet, it also concluded that “there was adequate disclosure of material risks
inherent in the chemotherapy procedure performed with the consent of Angelica’s
parents.”89
After considering the American experience in informed consent cases, I opt to use
the reasonable patient standard which focuses “on the informational needs of an
average reasonable patient, rather than on professionally-established norms.”90 In
the doctor-patient relationship, it is the patient who is subjected to medical
intervention and who gets well or suffers as a result of this intervention. It is thus for
the patient to decide what type of medical intervention he would accept or reject; it is
his or her health and life that are on the line. To arrive at a reasonable decision, the
patient must have sufficient advice and information; this is the reason he or she
consults a doctor,
_______________
87 Decision, p. 20.
88 Id.
89 Supra note 1.
99
VOL. 651, JUNE 7, 2011 99
Li vs. Soliman
while the role of the doctor is to provide the medical advice and services the patient
asks for or chooses after informed consideration.91
In this kind of relationship, the doctor carries the obligation to determine and
disclose all the risks and probabilities that will assist the patient in arriving at a
decision on whether to accept the doctor’s advice or recommended
intervention.92 While the disclosure need not be an encyclopedic statement bearing on
the patient’s illness or condition, the doctor must disclose enough information to
reasonably allow the patient to decide.
In an informed consent litigation, American experiences documented through the
decided cases, as well as our own common empirical knowledge and limited line of
cases on medical negligence, tell us that at least the testimony on the determination
of the attendant risks and the probabilities of the proposed treatment or procedure is
a matter for a medical expert, not for a layperson, to provide. This is generally the
first of the two-step process that Smith v. Shannon, cited above, speaks of93 in
describing the reasonable patient standard and its application.
The second step relates to testimony on the determination of the adequacy of the
disclosure based on the materiality of the disclosed information to the patient’s
decision-making. In
_______________
91 See Miller v. Kennedy, 11Wash.App. 272, 522 P.2d 852 (1974) where the Washington Court of Appeals
emphasized that it is for the patient to evaluate the risks of treatment and that the only role to be played
by the physician is to provide the patient with information as to what those risks are. Supra note 72.
92 See Cobbs v. Grant, supra note 53 where the Supreme Court of California held: “[T]he patient, being
unlearned in medical sciences, has an abject independence upon and trust in his physician for the
information upon which he relies during the decisional pro-cess, thus raising an obligation in the physician
that transcends arms-length transactions.”
93 Supra note 79.
100
Li vs. Soliman
this regard, Canterbury v. Spence94 again offers some help when it states:
“Once the circumstances give rise to a duty on the physician’s part to inform his patient,
the next inquiry is the scope of the disclosure the physician is legally obliged to make. The
courts have frequently confronted this problem but no uniform standard defining the
adequacy of the divulgence emerges from the decisions. Some have said “full” disclosure,
a norm we are unwilling to adopt literally. It seems obviously prohibitive and
unrealistic to expect physicians to discuss with their patients every risk of
proposed treatment—no matter how small or remote—and generally unnecessary
from the patient’s viewpoint as well. Indeed, the cases speaking in terms of “full”
disclosure appear to envision something less than total disclosure, leaving unanswered the
question of just how much.”95
To my mind, the scope that this ruling describes, while not given with
mathematical precision, is still a good rule to keep in mind in balancing the interests
of the physician and the patient; the disclosure is not total by reason of practicality,
but must be adequate to be a reasonable basis for an informed decision. For this
aspect of the process, non-expert testimony may be used on non-technical detail so
that the testimony may dwell on “a physician’s failure to disclose risk information,
the patient’s lack of knowledge of the risk, and adverse consequences following the
treatment.”96
In the present case, expert testimony is required in determining the risks and or
side effects of chemotherapy that the attending physician should have considered and
disclosed as these are clearly beyond the knowledge of a layperson to testify on. In
other words, to prevail in their claim of lack of informed consent, the respondents
must present expert supporting testimony to establish the scope of what should be
_______________
94 Supra note 63.

95 Id., at p. 786.
96 Supra note 63.
101
VOL. 651, JUNE 7, 2011 101
Li vs. Soliman
disclosed and the significant risks attendant to chemotherapy that the petitioner
should have considered and disclosed; the determination of the scope of disclosure,
and the risks and their probability are matters a medical expert must determine and
testify on since these are beyond the knowledge of laypersons.97
As expert witness, the respondents presented Dr. Balmaceda who testified on the
physician’s general duty to explain to the patient or to his relatives all the known side
effects of the medical procedure or treatment. Specifically, Dr. Balmaceda gave the
following expert opinion:
ATTY. NEPOMUCENO
Q: Madam Witness, what is the standard operating procedure before a patient can be subjected to
procedures like surgery or administration of chemotheraphic (sic) drugs?
A: Generally, every physician base (sic) her or his assurance on the patient, on the mode of recovery by
her or his personal assessment of the patient’s condition and his knowledge of the general effects of
the agent or procedure that will be allowed to the patient.
Q: What is the duty of the physician in explaining the side effects of medicines to the patient?
A: Every known side effects of the procedure or the therapeutic agents should really be explained to the
relatives of the patient if not the patient.
Q: Right, what could be the extent of the side effect to the patient?
A: I said, all known side effects based on studies and observations.
Q: Should be?
A: Made known to the relatives of the patient or the patient.
_______________
97 Turner v. The Cleveland Clinic Foundation, 2002 WL 31043137 (Ohio App. 8 Dist.), citing Harris v. Ali (May 27, 1999), Cuyahoga App.
No. 73432, citing Ratcliffe v. University Hospitals of Cleveland (March 11, 1993), Cuyahoga App. No. 61791, citing Ware v.
Richey, 14 Ohio App.3d 3, 7, 469 N.E.2d 899.FN1.
102
Li vs. Soliman
Q: Then, after informing the relatives of the patient about [all the] side effects, what should be the next
procedure?
WITNESS
A: The physician should secure consent from the relatives or the patient himself for the procedure for the
administration of the procedure, the therapeutic agents.
ATTY. NEPOMUCENO
Q: Now, should the physician ask the patient’s relatives whether they under[stood] the explanation?
A: Yes, generally, they (sic) should.98
On cross-examination, Dr. Balmaceda only clarified that all known side-effects of
the treatment, including those that may aggravate the patient’s condition, should be
disclosed, viz.:
ATTY. CASTRO
Q: And you mentioned a while ago, Madam Witness that all known side effects of drugs should be made
known to the patient to the extent that even he dies because of making known the side effect, you
will tell him?
A: I said, all known side effect[s] should be made known to the relatives or to the patient so that consent
and the responsibility there lies on the patient and the patient’s relatives.
Q: So, even that information will aggravate his present condition?
A: Making known the side effect?
A: Yes.
A: In my practice, I did not encounter any case that will aggravate it. I make him know of the side effect[s]
and if indeed there is, I think the person that should approve on this matter should be the relatives
and not the patient. It is always the patient that become (sic) aggra-
_______________
98 TSN, April 28, 1995, pp. 22-24.

103
VOL. 651, JUNE 7, 2011 103
Li vs. Soliman
vated of the side effects of the procedure in my experience.99
Unfortunately for the respondents, Dr. Balmaceda’s testimony failed to
establish the existence of the risks or side-effects the petitioner should have
disclosed to them in the use of chemotherapy in the treatment of
osteosarcoma; the witness, although a medical doctor, could not have testified as an
expert on these points for the simple reason that she is not an oncologist nor a
qualified expert on the diagnosis and treatment of cancers.100Neither is she a
pharmacologist who can properly advance an opinion on the toxic side effects of
chemotherapy, particularly the effects of Cisplatin, Doxorubicin and Cosmegen—the
drugs administered to Angelica. As a doctor whose specialty encompasses hospital
management and administration, she is no different from a layperson for purposes of
testifying on the risks and probabilities that arise from chemotherapy.
In the analogous case of Ramos v. Court of Appeals101that dwelt on the medical
expertise of a witness, we held that a pulmonologist cannot be considered an expert
in the field of anesthesiology simply because he is not an anesthesiologist:
“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).
_______________
99 Id., at p. 25.
100 Supra note 30.
101 Supra note 72.
104
Li vs. Soliman
xxxx
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. Jamora’s 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 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.
xxxx
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, 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.”102
At best, Dr. Balmaceda’s testimony only established generally the
petitioner’s duty to disclose all the known risks of the proposed treatment
and nothing more. Even if this testimony is deemed competent, its probative
value—on the risks attendant to chemotherapy and the probabilities that the
attending chemotherapy specialist should have considered and disclosed to the
patient and her parents—cannot but be negligible for lack of the required capability
to speak on the subject of the testimony.
_______________
102 Id., at pp. 614-616.

105
VOL. 651, JUNE 7, 2011 105
Li vs. Soliman
In this regard, Justice Carpio proffers the view that the petitioner “as an expert in
oncology identified [in the present case] the material risks and side effects of
chemotherapy.”103 To support his conclusion, Justice Carpio cites jurisprudence which
allowed the use of the defendant-physician’s expert testimony to prove the medical
disclosure standard in the community.104 I cannot subscribe to this point of view.
Arguably, the medical disclosure standard can be established through the
petitioner’s own expert testimony, as has been done in some courts in the United
States in cases where the defendant physician testified that he did disclose the risks,
but the plaintiff denied it.105 In these cases, the defendant physicians are qualified as
expert witnesses and their testimonies are considered expert medical testimony
insofar
_______________
103 Justice Carpio asserts that the petitioner testified and admitted that the following are the risks and
side effects of chemotherapy: (1) Falling hair; (2) Nausea; (3) Vomiting; (4) Loss of appetite; (5) Lowering of
white blood cell count; (6) Lowering of red blood cell count; (7) Lowering of platelet count; (8) Sterility; (9)
Damage to kidneys; (9) Damage to the heart; (11) Skin darkening; (12) Rashes; (13) Difficulty in breathing;
(14) Fever; (15) Excretion of blood in the mouth; (16) Excretion of blood in the anus; (17) Development of
ulcers in the mouth; (18) Sloughing off of skin; (19) Systemic Lupus Erythematosus; (20) Carpo-pedal spasm;
(21) Loose bowel movement; (22) Infection; (23) Gum bleeding; (24) Hypovolemic shock; (25) Sepsis; (26)
Death after 13 days. Dissenting Opinion, pp. 6-7.
A close scrutiny of the evidence on record reveals otherwise. In her Answer, the petitioner only
mentioned the following side-effects of chemotherapy: (1) falling hair; (2) nausea and vomiting; (3) Loss of
appetite; (4) low count of white blood cells, red blood cells and platelets, (5) possible sterility, (6) damage to
the heart and kidneys, and (7) darkening of skin. Supra note 7. During trial, the petitioner testified that
she mentioned only the following side effects of chemotherapy to the respondents: hair loss, nausea,
vomiting, sterility, and low and white blood cells and platelet count. Supra note 31.
104 Dissenting Opinion, p. 5.
105 88 A.L.R.3d 1008 citing Hood v Phillips (1977, Tex) 554 SW2d 160.
106
Li vs. Soliman
as they disclose the practice of competent and responsible medical practitioners in a
particular medical situation.106
Reliance on this line of cases for purposes of the present case is however, inapt.
First, these cases are appropriate only if we are to adopt the professional disclosure
or the “physician standard”—a standard that Justice Carpio himself admits “is not
the modern and prevailing standard among United States courts.” Citing Cantebury
v. Spence,107 Justice Carpio declares that the “prevailing trend among courts is to use
the patient standard of materiality.” As held in Febud v. Barot:108
“Sufficiency of disclosure under the prudent patient standard requires that disclosure be
viewed through the mind of [the] patient, not [the] physician. Implicit in this shift of
emphasis is recognition that expert testimony is no longer required in order to establish the
medical community’s standard for disclosure and whether the physician failed to meet that
standard.”
Second, this line of cases also cannot apply to the present case since the petitioner’s
testimony, on its own, did not establish the medical standard in obtaining consent for
chemotherapy treatment. Stated differently, the petitioner’s testimony did not
specifically refer to the prevailing medical practice insofar as what risks or side-
effects of chemotherapy should be disclosed to the respondents. In fact, during the
trial, the respondents failed to elicit any expert testimony from the petitioner
regarding the recognized standard of care in the medical community about what risks
of chemotherapy should have been disclosed to them.
_______________
106 Nishi v. Hartwell, 52 Haw. 188, 473 P.2d 116 (1970) citing Vigil v. Herman, 102 Ariz. 31, 424, P.2d
159 (1967); Sheffield v. Runner, 163 Cal.App.2d 48, 328 P.2d 828 (1958); McPhee v. Bay City Samaritan
Hospital,10 Mich.App. 567, 159 N.W.2d 880 (1968); Wilson v. Scott, 412 S.W.2d 299 (Tex.1967).
107 Supra note 63.
108 260 NJ Super 322, 616 A2d 933 (1992).
107
VOL. 651, JUNE 7, 2011 107
Li vs. Soliman
b. Second Element: Adequacy of Disclosure of Risks
The ponencia concludes that “there was adequate disclosure of material risks of
the [chemotherapy administered] with the consent of Angelica’s parents” in view of
the fact that the petitioner informed the respondents of the side effects of
chemotherapy, such as low white and red blood cell and platelet count, kidney or
heart damage and skin darkening.
I cannot agree with this conclusion because it was made without the requisite
premises. As heretofore discussed, sufficiency of disclosure can be made only after a
determination and assessment of risks have been made. As discussed above, no
evidence exists showing that these premises have been properly laid and proven.
Hence, for lack of basis, no conclusion can be made on whether sufficient disclosure
followed. In other words, the disclosure cannot be said to be sufficient in the absence
of evidence of what, in the first place, should be disclosed.
Even assuming that the ponencia used the professional disclosure standard in
considering the material risks to be disclosed, the existing evidence still does not
support the conclusion arrived at. The reason again is the respondent’s failure to
establish a baseline to determine adequacy of disclosure; in the case of the
professional disclosure standard, determination of adequacy requires expert medical
testimony on the standard medical practice that prevails in the community. Thus, it
has been held that “[e]xpert testimony is required in an informed consent case to
establish what the practice is in the general community with respect to disclosure of
risks that the defendant physician allegedly failed to disclose.”109
_______________
109 Supra note 76 citing Giles v. Brookwood Health Services, Inc., 5 So. 3d 533 (Ala. 2008). The case
of Williams v. Menehan (1963) 191 Kan 6, 379 P2d 292 is instructive. In that case, “the parents of a child
who died during a heart catherization alleged that they were not informed of all of the risks of the diagnostic
procedure.” “The court [in] affirming a judgment for the defendant doc-
108
Li vs. Soliman
Lastly, the respondent Lina Soliman’s testimony on this point bears close
examination in light of the totality of the evidence adduced. A first consideration is
the nature of the illness of the deceased—osteosarcoma—that according to the
undisputed expert testimony of Dr. Tamayo is a “very aggressive type of cancer that
requires adjuvant chemotherapy.” In plainer terms, the amputation of Angelica’s
right leg was not sufficient, chemotherapy must follow; despite modern
chemotherapy, the mortality rate of osteosarcoma is 80 to 90%.110 In light of this
expert testimony, the respondent Lina Soliman’s testimony that she was assured of
a 95% chance of healing (should Angelica undergo chemotherapy) by the petitioner
cannot be accepted at face value.
A second consideration is that the claim of a 95% chance of healing cannot also
be given any credence considering the respondent Lina Soliman’s inconsistent
testimony on this point. In fact, the record bears out that the respondent Lina
Soliman testified on direct examination that the petitioner assured her of a 95%
chance of healing. However, she contradicted her earlier testimony, when on rebuttal,
she declared that the petitioner gave her a 90% guarantee of full recovery should
Angelica undergo chemotherapy.
A third consideration is that specific disclosures such as life expectancy
probabilities111 are not legally necessary or “required to be disclosed in informed
consent situations,”112 thus the respondent Lina Soliman’s testimony on this point
_______________
tors, … applied the rule that when a doctor makes an allegedly partial disclosure of risks of a proposed
treatment, the plaintiff must produce expert testimony to establish the inadequacy of the doctor’s disclosure.
The court noted that the plaintiff parents had offered no testimony of what a reasonable physician would
have disclosed under the same or similar circumstances.” Supra note 76.
110 Supra note 36.

111 Arato v. Avedon, 5 Cal. 4th 1172, 858 P.2d 598, 23 Cal.Rptr.
2d 131.
112 Id. See also infra note 114.
109
VOL. 651, JUNE 7, 2011 109
Li vs. Soliman
cannot be given any probative value. Thus, in the landmark case of Arato v.
Avedon113—where family members of a patient who died of pancreatic cancer brought
an informed consent action against defendant physicians who failed to provide the
patient material information (statistical life expectancy) necessary for his informed
consent to undergo chemotherapy and radiation treatment114—the Supreme Court of
California “rejected the mandatory disclosure of life expectancy probabilities”115on
account “of the variations among doctor-patient interactions and the intimacy of the
relationship itself.”116
Likewise, the statement that the side effects were confined to hair loss, vomiting
and weakness can hardly be given full credit, given the petitioner’s own testimony of
what she actually disclosed. Respondent Lina Soliman’s testimony, tailor-fitted as it
is to an informed consent issue, should alert the Court to its unreliability. Even if
given in good faith, it should, at best reflect what the respondents heard (or
chose to hear), not what the petitioner disclosed to them—a common enough
phenomenon in high-stress situations where denial of an unacceptable consequence
is a first natural response. That death may occur is a given in an osteosarcoma case
where the most drastic intervention—amputation—has been made. That death was
not proximately caused by the chemotherapy (as testified to by experts and as
discussed below) demonstrates its particular relevance as a consequence that the
doctor administering the chemotherapy must disclose.
_______________
113 Id.
114 William J. McNichols, Informed Consent Liability In A “Material Information Jurisdiction: What
Does The Future Portend?, 48 Okla. L. Rev. 711,742 (1996).
115 Id., at p. 743.
116 Denise Ann Dickerson, A Doctor’s Duty To Disclose Life Expectancy Information To Terminally Ill
Patients, 43 Clev. St. L. Rev. 319, 343 (1995).
110
Li vs. Soliman
c. Fourth Element: Causation
In addition to the failure to prove the first element, I also submit that the
respondents failed to prove that the chemotherapy administered by the petitioner
proximately caused the death of Angelica Soliman.
Traditionally, plaintiffs alleging lack of informed consent must show two types of
causation: 1) adequate disclosure would have caused the plaintiff to decline the
treatment, and 2) the treatment proximately caused injury to the
plaintiff. The second causation requirement is critical since a medical procedure
performed without informed consent does not, in itself, proximately cause an
actionable injury to a plaintiff; a plaintiff must show that he or she has suffered some
injury as a result of the undisclosed risk to present a complete cause of action.117
In the recent case of Gorney v. Meaney,118 the Arizona Court of Appeals held that
expert testimony is essential to demonstrate that the treatment proximately caused
the injury to the plaintiff, viz.:
“Expert testimony is not required for the first type of causation because it is plainly a matter
to which plaintiffs themselves could testify and is within the knowledge of the average
layperson.
Expert testimony is required, however, to demonstrate that the treatment
proximately caused injury to the plaintiff. Such testimony helps to ensure that the
plaintiff’s alleged injury was not caused by the progression of a pre-existing
condition or was the result of some other cause, such as
_______________
117 Gorney v. Meaney, 214 Ariz. 226, 150 P.3d 799, citing Shetter v. Rochelle, 2 Ariz.App. 358, 367, 409 P.2d
74, 83 (1965); William L. Prosser and W. Page Keeton, The Law of Torts § 32, at 191 5th ed. (1984); see
also Hales, 118 Ariz. at 311, 576 P.2d at 499; McGrady v. Wright, 151 Ariz. 534, 537, 729 P.2d 338, 341
(App.1986); Gurr v. Willcutt, 146 Ariz. 575, 581, 707 P.2d 979, 985 (App.1985).
118 Ibid.
111
VOL. 651, JUNE 7, 2011 111
Li vs. Soliman
natural aging or a subsequent injury x x x. Thus, Gorney’s expert opinion affidavit
should have stated that the surgery proximately caused an injury to Gorney, e.g., the
“worsen[ed]” condition in Gorney’s knee.” [Citations omitted, emphasis supplied]
In the present case, respondent Lina Soliman’s lay testimony at best only satisfied
the first type of causation—that adequate disclosure by the petitioner of all the side
effects of chemotherapy would have caused them to decline treatment. The
respondents in this case must still show by competent expert testimony that the
chemotherapy administered by the petitioner proximately caused Angelica’s death.
In this regard, the respondents presented Dr. Vergara as an expert witness, who
gave the following opinion:
ATTY. NEPOMUCENO
Q: Under the word conclusions are contained the following words: “Cause of death is hypovolemic shock
secondary to multiple organ hemorrhages and disseminated Intravascular Coagulation,” in layman’s
term, what is the meaning of that?
WITNESS
A: The victim died of hemorrhages in different organs and disseminated intravascular coagulation is just
a complication.
ATTY. NEPOMUCENO
Q: Madam Witness, what could have caused this organ hemorrhages and disseminated intravascular
coagulation?
A: The only thing I could think of, sir, was the drugs given to the victim, the chemical agents or this anti-
plastic drugs can cause x x x the reduction in the platelet counts and this could be the only cause of
the bleeding.
Q: And that bleeding could have been sufficient to cause the death of Angelica Soliman? 112
Li vs. Soliman
A: Yes, Sir.119
On cross-examination, Dr. Vergara admitted that the opinions she advanced to the
court were not based on her opinion as an expert witness but on the interview she
had previously conducted with an oncologist, viz.:
ATTY. CASTRO
Q: Now, you mentioned chemotherapy, Madam Witness, that it is not a treatment really, are you
initiating that?
A: Sir, I asked for an opinion from an Oncologist, and she said that only one person really survived the
5-year survival rate. Only one person.
Q: That is, are you referring to malignant osteosarcoma?
A: Yes, sir.120
xxxx
ATTY. AYSON
Q: Madam Witness, you said a while ago that you are not a pathologist?
A: Yes, sir.
Q: And during the cross-examination and the re-direct, you admitted that you have had to refer or
interview an oncologist?
A: Yes, sir.
Q: What is an oncologist Madam?
A: She is a doctor in cancers.
Q: So, whatever opinion you have stated before this Honorable Court [is] based on the statement made
by the oncologist you have interviewed?
A: Only for the disease osteosarcoma.
xxxx
_______________
119 TSN, December 14, 1994, pp. 24-25.

120 Id., at p. 36.
113
VOL. 651, JUNE 7, 2011 113
Li vs. Soliman
COURT
Q: So then, the opinion you gave us that the patient afflicted with cancer of the bone, osteosarcoma that
she will live for 5 years is not of your own opinion but that of the oncologist?
A: Yes, your Honor, but that 5 years survival is only for patients undergoing chemotherapy but actually
it is less than 5 years.
Q: You mean to tell the Court Mrs. Witness that the patient has been diagnosed [with] cancer, may still
have a life span of five (5) years after examination having been found to have cancer?
A: No, sir. Less than five (5) years.
Q: In this particular case, what was the information given you by the Oncologist you consulted?
A: Only one person lived after she was given chemotherapy, five years sir.
Q: In this particular case, the Oncologist you consulted also told you that the patient Soliman did not die
of cancer but died of complication, is that correct?
A: Yes, sir.
Q: So, it was not actually your own observation?
A: Sir, considering my findings at the body or the different organs, of the victim, I have said I found
hemorrhages, so I think that is enough to have caused the death of the victim. 121
Under these terms, Dr. Vergara’s expert testimony was clearly incompetent to
prove that the chemotherapy proximately caused Angelica’s demise for two reasons.
First, Dr. Vergara, who is an autopsy expert, is not qualified to be an expert
witness in an osteosarcoma case involving chemotherapy. Her admission that she
consulted an oncologist prior to her testimony in court confirms this. Dr. Vergara is
also not a pharmacologist who can competently give expert
_______________
121 Id., at pp. 39-40.

114
Li vs. Soliman
opinion on the factual issue of whether the toxic nature of the chemotherapy
proximately caused Angelica’s death. As previously stated, the respondents failed to
present competent experts in the field of oncology despite their representation to do
so during trial.
Second, Dr. Vergara’s testimony is doubly incompetent as it is hearsay; her
opinions were not based on her own knowledge but based on the opinion of another
oncologist she previously interviewed.
Additionally, I cannot help but note that Dr. Vergara could not have adequately
testified regarding the medical condition and the cause of death of Angelica without
referring to her medical records. As the records of the case show, these medical
records were never introduced into evidence by either party to the case. The absence
of these medical records significantly lessened the probative value of Dr. Vergara’s
testimony regarding the causation of Angelica’s death.
Thus, in the absence of competent evidence that the chemotherapy proximately
caused Angelica’s death, what stands in the record in this case is the
petitioner’s uncontroverted and competent expert testimony that Angelica
died of sepsis brought about by the progression of her osteosarcoma—an
aggressive and deadly type of bone cancer. That the petitioner is a competent
expert witness cannot be questioned since she was properly qualified to be an expert
in medical oncology.
In this respect, the petitioner—who is a board certified medical oncologist with
thirteen (13) years of experience in the treatment of osteosarcoma—testified that
Angelica died of sepsis, viz.:
Q: Now, despite all these medications, the patient has been deceased on September 1, 1993, what do you
think can be the cause of x x x death of the patient?115
VOL. 651, JUNE 7, 2011 115
Li vs. Soliman
A: This is probably the cause of death[-]overwhelming infection that has gone through her body that has
also caused her other organs or systems to fail and this is also because of poor defense mechanism
brought about from the cancer per se. 122
On cross-examination, the petitioner rebutted the respondents’ theory that the
chemotherapy caused platelet reduction and the massive bleeding that ultimately
caused Angelica’s death, viz.:
Q: Would you agree with me if I say that the platelet reduction triggered a chain of physiological
pathological mechanism in the body of Angelica Soliman which eventually triggered her death?
A: No, sir.
Q: Why not?
A: Because the platelet decrease was not the main cause of death of Angelica Soliman, it was an
overwhelming infection which also triggered the reduction of platelets.
Q: So, which came ahead, the overwhelming infection or the platelet reduction?
A: The infection, sir.
Q: And you said overwhelming?
A: Because we were talking about the death.
Q: No, no, no. You said that the infection that attacked Angelica Soliman was overwhelming, will you
define what you mean by overwhelming?
A: Overwhelming is a condition wherein the infection has already gone to other parts of the body and
caused the decrease in the function of the organs and systems.
xxxx
Q: And you are saying that the platelet reduction eventually led to the bleeding and the
bleeding led to the death?
A: No, sir.
_______________
122 TSN, October 6, 1995, p. 33.

116
Li vs. Soliman
Q: Why not?
A: Because we were able to control the bleeding of Angelica Soliman because of the
transfusion that we were giving her with platelets. We were able to stall the bleeding but
the infection was there and it was the infection that was hard to control.
xxxx
Q: Now, would I be correct if I say that any or all of these three drugs could cause the platelet reduction
in the body of Angelica Soliman?
A: Theoretically, yes, sir.
Q: Practically, what do you mean?
A: Practically, we see usually a decrease in platelets, usually after three cycles of chemotherapy but not
on the initial chemotherapy. In the initial chemotherapy the usual blood elements which is decreased
is in the white cells of the body.123
Q: Alright, at what point and time did it ever occur to your mind that said infection would develop into
sepsis?
A: I think it changed the following day.
Q: It was the fifth day already?
A: Yes, sir.
Q: And you changed [the] antibiotic?
A: [I] changed it into something stronger, sir.
Q: What transpired?
A: She was given Fortum intravenously.
xxxx
Q: By sepsis, meaning that the germs, the bacteria were already in the blood system, is that correct?
A: Yes, beginning.
xxxx
Q: What about Fortum did it take effect?
A: No, sir.
_______________
123 Id., at pp. 37-39.
117
VOL. 651, JUNE 7, 2011 117
Li vs. Soliman
Q: Why not?
A: The patient has been going down ever since and the white cells were down for it was not enough to
control the infection because there was nothing in her body to fight and help Fortum fight the
infection, that is why, we also add (sic) another medicine that would increase her white cell count
called Leucomax.
Q: And did Leucomax help?
A: No, sir. 124
Q: Of the 500 patients, you said you treated before, how may developed sepsis?
A: I will say 1/5 developed sepsis.
Q: And of the 1/5 that developed sepsis before Angelica Soliman, how many died?
A: Seventy percent (70%).
Q: Died?
A: Yes, sir.125
Justice Carpio is of the view that the facts as stated by the RTC and the Court of
Appeals clearly show that the chemotherapy caused Angelica’s death.126I disagree. As
heretofore discussed, in the absence of competent expert testimony, the Court has no
factual basis to declare that the chemotherapy administered by the petitioner
proximately caused Angelica’s death. Our ruling in Cruz v. Court of Appeals is
instructive:127
But while it may be true that the circumstances pointed out by the courts below
seemed beyond cavil to constitute reckless imprudence on the part of the
surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge
of expert witnesses. For whether a
_______________
124 Id., at pp. 53-55.

125 Id., at pp. 61-62.
126 Dissenting Opinion, pp. 10-11.
127 Supra note 70.
118
Li vs. Soliman
physician or surgeon has exercised the requisite degree of skill and care in the treatment of
his patient is, in the generality of cases, a matter of expert opinion. [Emphasis supplied]
In sum, the respondents failed to prove by appropriate evidence—i.e., by expert
testimony—that Angelica’s death was caused by the chemotherapy the petitioner
administered. This failure in establishing the fourth requisite of the respondents’
cause of action fatally seals the fate of the respondent’s claim of medical negligence
due to lack of informed consent.
On the basis of the foregoing, I vote to grant the petition.
CONCURRING OPINION
ABAD, J.:
I join the opinion of the majority of my colleagues as well as that of Justice Arturo
D. Brion. I write this concurring opinion out of the belief that, ultimately, the issue
in this case rests on a question of fact.
Plaintiffs Reynaldo and Lina Soliman claim damages against defendant Dr. Rubi
Li for her failure to sufficiently inform them before hand of the risks of complications,
pains, and quick death that their sick daughter, Angelica, faced when placed under
chemotherapy.
As the majority points out, the Solimans had the burden of proving the following
to be entitled to damages: 1) that Dr. Li had a duty to disclose the material risks of
placing Angelica under chemotherapy; 2) that the doctor failed to disclose or
inadequately disclosed those risks; 3) that as a direct and proximate result of the
failure to disclose, the Solimans consented to have Angelica undergo such therapy
that they otherwise would not have consented to; and 4) that Angelica suffered injury
on account of the chemotherapy.119
VOL. 651, JUNE 7, 2011 119
Li vs. Soliman
The Key Issue of Fact
The key issue in this controversy, to my mind, is whether or not Dr. Li failed to
disclose or inadequately disclosed to the Solimans the risks of chemotherapy for their
daughter since Dr. Li and the Solimans gave opposing versions of what were
disclosed.
The Plaintiffs’ evidence
Lina Soliman (Lina) testified that in the summer of 1993 she noticed her daughter
Angelica walking with some difficulty. She brought her to a hospital in Bicol where
she was diagnosed with a malignant tumor in her right knee. They then went to the
National Children’s Medical Center in Manila for a second opinion but the doctor who
attended her gave the same view.
On July 7, 1993 Lina brought Angelica to St. Luke’s Medical Center for a biopsy of
tissues taken from her ailing leg. Dr. Tamayo, whom the Solimans consulted, later
told them that their daughter had cancer and her leg had to be severed to prevent the
disease from spreading. Still, the procedure, he said, offered only a 50% chance that
it would contain the spread of the malignant cells. With the Solimans’ consent, the
doctor amputated the affected leg from above the knee on July 23, 1993. Dr. Tamayo
then referred Angelica to Dr. Li for chemotherapy.
Before starting the chemotherapy, Dr. Li told Lina when they met its three
possible side-effects: vomiting, hair loss, and weakening. When Lina asked Dr. Li if
the chemotherapy had any other possible effects, she replied in the negative. The
chemotherapy was originally set for August 12, 1993 but had to be reset because the
Solimans returned to Bicol for a rest. Lina called up Dr. Li about the deferment and
during that call she asked the doctor anew about the effects of the drugs that she
would use on Angelica. Dr. Li repeated the three side effects she earlier
mentioned.120
Li vs. Soliman
When Angelica checked in at St. Luke’s on August 18, Dr. Li came to administer
dextrose to her. On this occasion, Dr. Li told the Solimans that Angelica had a 95%
chance of becoming normal again after the chemotherapy. Lina asked the doctor anew
about the side-effects and the latter said the same thing: falling hair, vomiting, and
weakness.
Dr. Li first administered the drugs for chemotherapy to Angelica on August 19.
That night, Angelica started vomiting. Lina asked the attending nurse about it but
the latter said that it was just an effect of the drugs. The treatment continued on the
second day and so did the vomiting. On the third day of chemotherapy, Lina observed
redness all over Angelica’s face. She asked Dr. Li about this but the doctor told her
that it was only a reaction to the drugs.
On the fourth day, the discoloration on Angelica’s face grew darker and spread to
the neck and chest. Dr. Li assured Lina that this was an effect of the drugs. During
the following days, Angelica complained of chest pains and difficulty in breathing,
prompting Dr. Li to administer oxygen to her. As Lina saw that her daughter could
not bear it anymore, she asked Dr. Li to stop the chemotherapy. Angelica passed black
stool and had reddish urine. Dr. Li explained that this, too, was a reaction to the
drugs. Lina wanted Angelica discharged but she had to be confined because of
convulsion, which Dr. Li treated by giving her calcium.
Afterwards, when Angelica’s nose and mouth secreted blood, Dr. Li attributed this
to the lowering of her platelet count. They decided to move her to the hospital’s
intensive care unit for closer monitoring. After getting blood transfusion, Angelica’s
vomiting lessened but the color of her skin darkened. Later, her skin “shredded by
just rubbing cotton on it.” She vomited blood and her convulsions resumed to the point
that she became hysterical and said “ayaw ko na.” She passed away soon after.
Reynaldo Soliman (Reynaldo), Angelica’s father, testified that they consulted with
a number of doctors from the Ago
121
VOL. 651, JUNE 7, 2011 121
Li vs. Soliman
Medical and Educational Center, the UERM Medical Center, and the National
Children’s Hospital regarding Angelica’s case. After her amputation at St. Luke’s
hospital, they returned to Bicol but, on Dr. Tamayo’s advice, Reynaldo decided to have
Angelica undergo chemotherapy. She was readmitted at St. Luke on August 18, 1993.
When Reynaldo met Dr. Li on August 19, he asked her about the effects of
chemotherapy on his daughter. She replied that Angelica would manifest falling hair,
vomiting, and weakness.
Angelica showed no reaction to the chemotherapy on its first day. On the next day,
however, redness appeared on her face and she started vomiting. Upon inquiry from
Dr. Li, she told them that this was normal. On August 23 Angelica appeared very
weak. When asked about this, Dr. Li said that it was a normal reaction. Seeing the
effects of chemotherapy, Reynaldo advised the doctor to stop the treatment. As they
were settling the bills the next day, Angelica had an epileptic fit. It took a while for a
doctor to come and give her calcium injection to calm her down. Angelica had another
convulsion the next day. They again gave her calcium.
Dr. Li moved Angelica to another room to ward off infection. But she bled through
her mouth. As Dr. Li could not be located, a certain Dr. Marbella came and told him
that Angelica’s blood platelets had gone down. They gave her continuous blood
transfusions but the bleeding did not stop. Dr. Li called Dr. Abesamis, an oncologist-
pediatrician, to assist in the case. When Angelica had another attack, Dr. Abesamis
pumped her chest to revive her. They strapped her hands to the bed and attached
instruments to her to provide her oxygen and suction blood from her stomach. She
later became hysterical and tried to remove the instruments attached to her. Angelica
died at 3:00 a.m. When Dr. Li came by, she said that a malfunction occurred.
When Reynaldo asked Dr. Li for a death certificate, she became arrogant, calling
him names. Dr. Li even asked him to
122
Li vs. Soliman
sign a promissory note as he did not have enough cash on him to settle the hospital
bill.
For her part, Dr. Li testified that Dr. Tamayo referred Angelica to her after he
operated on the patient. Angelica suffered from a highly malignant, highly aggressive
type of cancer known as osteosarcoma. Less than 20% of patients who were operated
on for this type of cancer survived the first year. It usually came back within six
months. There has been no known cure for cancer as even its causes have not been
ascertained.
Dr. Tamayo referred the case to Dr. Li because he found during the surgery that
the cancer could have already spread from the bone to the soft tissue and the
surrounding area. Dr. Tamayo asked Dr. Li if she could give Angelica adjuvant
chemotherapy. When she met the Solimans, Dr. Li told them what adjuvant
chemotherapy was about, why it would be given, how it would be given, and how
chemotherapy works. Surgery, she told them, was not enough for, while the tumor
had been removed, it left small lesions that could not be seen by the eyes.
Chemotherapy would clean out the small lesions to lower the chances of the cancer
recurring. Dr. Li gave no guarantee of a cure. She merely told the Solimans that, if
adjuvant chemotherapy was to be given, the chances of their daughter’s survival
would increase and the chances of the cancer returning would lower.
Dr. Li met the Solimans following Angelica’s amputation and they discussed the
side-effects of chemotherapy. Dr. Li told the Solimans that, since it could not be
helped that the drugs would get into the other parts of Angelica’s body, those parts
could also be affected. Angelica might lose hair and experience nausea and vomiting
(which may be controlled by medicines). She could become infertile or sterile. Blood
elements, such as the red and white blood cells, might also be affected and so had to
be monitored. She also explained to the Solimans other side-effects, including loss of
appetite and darkening of skin when exposed to sunlight. The kidneys and
123
VOL. 651, JUNE 7, 2011 123
Li vs. Soliman
heart could also be affected which was the reason for monitoring these organs as well.
Dr. Li met the Solimans again sometime in the first week of August at which
meeting they again discussed the chemotherapy procedure and its side-effects. When
Dr. Li met Lina about a week later to once more discuss the treatment, the latter
wanted to be told again about the side-effects of chemotherapy. Before Angelica was
admitted to the hospital, Lina called up Dr. Li at her house and they discussed the
same things.
On August 18 St. Luke’s hospital readmitted Angelica for the chemotherapy. On
the first day, they gave her fluids to make sure that her kidney functioned well and
that she was hydrated. Seeing no problem, Dr. Li started Angelica’s chemotherapy
on August 19.
Regarding the redness on Angelica’s face, Dr. Li explained that these were rashes.
To make sure, Dr. Li consulted Dr. Abesamis because the rashes could also possibly
mean that the patient had systemic lupus. Regarding Angelica’s convulsions or
epileptic attacks, these were actually carpo-petal spasms, a twitching of a group of
muscles of the hands and legs. Dr. Li checked Angelica’s calcium levels, which turned
out low, so she gave her supplemental calcium. Regarding the vomiting of blood, Dr.
Li explained that she did not actually vomit blood but that her gums began bleeding.
She just had to spit it out.
According to Dr. Li, Angelica died due to overwhelming infection which had spread
throughout her body, causing multiple organ failures and platelet reduction. Dr. Li
insisted that the reduction in platelet count was due to infection although she
conceded on cross-examination that, theoretically, the chemotherapy could have
reduced the platelets as well. Dr. Li also alleged that Angelica had a poor defense
mechanism because of her cancer.124
Li vs. Soliman
Dr. Jaime Tamayo testified for Dr. Li. He recalled treating the cancerous growth
in Angelica’s lower left leg. The doctor amputated the leg to remove the source of the
tumor. Residual tumor cells had to be treated, however, by chemotherapy. Even
before the amputation, the Solimans knew of the possibility that Angelica would have
to undergo chemotherapy after surgery. The Soliman’s consultation with other
doctors, including the doctor who performed the biopsy and confirmed the diagnosis
for osteosarcoma, made them aware of that possibility.
After the surgery, Dr. Tamayo explained to the Solimans that the amputation was
not enough and that chemotherapy was needed to go after the malignant cells that
might have metastasized. He told the Solimans that their daughter’s condition was
grave and that her chances would improve with chemotherapy. Dr. Tamayo knew
that even with surgery and chemotherapy, very few patients lived beyond five years,
as the mortality rate was between 80 to 90%. He did not, however, consider it
necessary to tell the Solimans this.
In sum, the Solimans claim that Dr. Li informed them of only three possible side-
effects of chemotherapy: falling hair, vomiting, and weakness. Dr. Li, on the other
hand, testified that she was more thorough than this, apprising the Solimans of the
following side-effects of chemotherapy: hair loss, nausea, vomiting, possible infertility
or sterility, lowering of red and white blood cells, adverse effects on platelets, loss of
appetite, darkening of the skin, and possible adverse effects on the heart and kidneys.
The question now is who to believe.
First. The burden is of course on the Solimans to prove their allegations of wrong-
doing on Dr. Li’s part. Quite importantly, the trial court which had the benefit of
perceiving not only the witnesses’ utterances but what the movements of their eyes
and mouths said, gave credence to Dr. Li’s testimony over that of the Solimans. The
trial court held that Dr.
125
VOL. 651, JUNE 7, 2011 125
Li vs. Soliman
Li in fact explained the effects of the chemotherapy to them prior to the procedure.
Second. The Court of Appeals (CA) of course found otherwise. It believed the
Solimans’ version that Dr. Li warned them only of the three side effects, given that
every time Angelica’s condition appeared to worsen, they would seek an explanation
from Dr. Li. This, said the CA, tended to show that they were unaware of the other
side-effects of the treatment.
But if it were true that Dr. Li assured Lina no less than three times that her
daughter would suffer only three bearable side effects, why did Lina not confront the
doctor when other side effects, which caused Angelica greater pains, began to surface?
Besides, the fact that the Solimans, especially Lina, still sought explanations from
Dr. Li for her daughter’s new pains and distress is understandable. Lina had a clear
tendency to repeatedly inquire about matters of which she had been previously
informed. By her own admission, she asked Dr. Li to tell her of the side effects of
chemotherapy no less than three times: a) when they first met after the amputation;
b) on the phone while she discussed the rescheduling of the chemotherapy with Dr.
Li; and c) when the latter came to administer dextrose to Angelica before the
chemotherapy. It should not, therefore, be surprising for Lina to want to hear the
doctor’s explanation about those side effects even when the latter had previously done
so.
What is more, it would be quite natural for parents, watching their daughter’s
deteriorating condition, to want to know the doctor’s explanation for it. The previous
explanations did not have the benefit of the real thing occurring in their sight. The
Solimans needed assurances that these manifestations, now come to pass, were to be
expected. In fact, when Angelica began vomiting, the first anticipated side effect, the
Solimans
126
Li vs. Soliman
still anxiously queried the attending medical staff the reason for it.1
Third. The claim that Dr. Li gave assurance that Angelica had a 95% chance of
recovery after chemotherapy cannot be believed. The Solimans knew that their
daughter had bone cancer. Having consulted with other doctors from four medical
institutions, the Ago Medical and Educational Center in Bicol, the UERM Medical
Center in Manila, the National Children’s Hospital in Quezon City, and finally the
St. Luke’s hospital, all of whom gave the same dire opinion, it would be quite unlikely
for the Solimans to accept Dr. Li’s supposed assurance that their daughter had 95%
chance of returning to normal health after chemotherapy. In fact, it would be most
unlikely for someone of Dr. Li’s expertise to make such a grossly reckless claim to a
patient who actually had only a 20% chance of surviving the first year. She would
literary be inviting a malpractice suit.
Fourth. At the heart of the Solimans’ claim for damages is the proposition that
they would not have agreed to submit their daughter to chemotherapy had they
known that the side effects she faced were more than just hair loss, vomiting, and
weakness. They would not have agreed if they had known that she would suffer
greater distress and soon die.
But the Solimans are arguing from hindsight. The fact is that they were willing to
assume huge risks on the chance that their daughter could cheat death. They did not
mind that their young daughter’s left leg would be amputated from above the knee
for a 50% chance of preventing the spread of the cancer. There is probably no person
on this planet whose family members, relatives, or close friends have not been
touched by cancer. Every one knows of the travails and agonies of chemotherapy, yet
it is rare indeed for a cancer patient or his relatives not to take a chance with this
treatment,
_______________
1 TSN, September 19, 1994, p. 14; TSN, December 15, 1994, pp. 6-7.
127
VOL. 651, JUNE 7, 2011 127
Li vs. Soliman
which had proved successful in extending the lives of some. Unfortunately for the
Solimans, their daughter did not number among the successful cases.
Fifth. The Solimans accepted the risks that chemotherapy offered with full
knowledge of its effects on their daughter. It is not fair that they should blame Dr. Li
for Angelica’s suffering and death brought about by a decease that she did not wish
upon her. Indeed, it was not Dr. Li, according to Reynaldo, who convinced him to
agree to submit his daughter to chemotherapy but Dr. Tamayo. The latter explained
to him the need for her daughter to undergo chemotherapy to increase the chance of
containing her cancer. This consultation took place even before the Solimans met Dr.
Li.
It is a mark of their insensitivity that the Solimans included as proof of the
damages they suffered, the expenses they incurred for the surgical procedure
performed by Dr. Tamayo, including the latter’s professional fees. The amputation
that Dr. Tamayo performed took place before the chemotherapy and before the
Solimans met Dr. Li. The Solimans cannot be trusted to make an appropriate claim.
Petition granted, judgment and resolution set aside.
Note.—The breach of professional duties of skill and care, or their improper
performance by a physician surgeon, whereby the patient is injured in body or in
health, constitutes actionable malpractice, and as to this aspect of medical
malpractice, the determination of the reasonable level of care and the breach thereof,
expert testimony is essential. (Cayao-Lasam vs. Ramolete, 574 SCRA 439 [2008])
——o0o——
G.R. No. 159132. December 18, 2008.*
FE CAYAO-LASAM, petitioner, vs. SPOUSES CLARO and EDITHA RAMOLETE,
respondents.**
Administrative Law; Double Jeopardy; Requisites; The principle of double jeopardy finds
no application in administrative cases.—The principle of double jeopardy finds no application
in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before
a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5)
when the defendant was acquitted or convicted, or the case was dismissed or otherwise
terminated without the express consent of the accused. These elements were not present in
the proceedings before the Board of Medicine, as the proceedings involved in the instant case
were administrative and not criminal in nature. The Court has already held that double
jeopardy does not lie in administrative cases.
Same; Physicians; Board of Medicine; Appeals; The right to appeal from a decision of the
Board of Medicine to the Professional Regulation Commission is available to both
complainants and respondents.—Section 35 of the Rules and Regulations Governing the
Regulation and Practice of Professionals cited by petitioner was subsequently amended to
read: Sec. 35. The complainant/respondent may appeal the order, the resolution or the
decision of the Board within thirty (30) days from receipt thereof to the Commission whose
decision shall be final and executory. Interlocutory order shall not be appealable to the
Commission. (Amended by Res. 174, Series of 1990). Whatever doubt was created by the
previous provision was settled with said amendment. It is axiomatic that the right to appeal
is not a natural right or a part of due process, but a mere statutory privilege that may be
exercised only in the manner prescribed by law. In this case, the clear intent of the
amendment is to render the right to appeal from a decision of the Board available to both
complainants and respondents.
Same; Statutory Construction; It is an elementary rule that when the law speaks in clear
and categorical language, there is no need, in the absence of legislative intent to the contrary,
for any interpretation.—Such conclusion is bolstered by the fact that in 2006, the PRC issued
Resolution No. 06-342(A),
_______________
* THIRD DIVISION.
** The Court of Appeals is deleted from the title pursuant to Section 4, Rule 45 of the Rules of Court.
440
or the New Rules of Procedure in Administrative Investigations in the Professional

Regulation Commission and the Professional Regulatory Boards, which provides for the
method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.—The decision, order or
resolution of the Board shall be final and executory after the lapse of fifteen (15) days from
receipt of the decision, order or resolution without an appeal being perfected or taken by
either the respondent or the complainant. A party aggrieved by the decision, order or
resolution may file a notice of appeal from the decision, order or resolution of the
Board to the Commission within fifteen (15) days from receipt thereof, and serving
upon the adverse party a notice of appeal together with the appellant’s brief or memorandum
on appeal, and paying the appeal and legal research fees. x x x The above-stated provision
does not qualify whether only the complainant or respondent may file an appeal; rather, the
new rules provide that “a party aggrieved” may file a notice of appeal. Thus, either the
complainant or the respondent who has been aggrieved by the decision, order or resolution of
the Board may appeal to the Commission. It is an elementary rule that when the law speaks
in clear and categorical language, there is no need, in the absence of legislative intent to the
contrary, for any interpretation. Words and phrases used in the statute should be given their
plain, ordinary, and common usage or meaning.
Same; Same; Jurisdiction; Batas Pambansa (B.P.) Blg. 129 conferred upon the Court of
Appeals (CA) exclusive appellate jurisdiction over appeals from decisions of the Professional
Regulation Commission (PRC).—The PRC is not expressly mentioned as one of the agencies
which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its
absence from the enumeration does not, by this fact alone, imply its exclusion from the
coverage of said Rule. The Rule expressly provides that it should be applied to appeals from
awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of
its quasi-judicial functions. The phrase “among these agencies” confirms that the
enumeration made in the Rule is not exclusive to the agencies therein listed. Specifically, the
Court, in Yang v. Court of Appeals, 186 SCRA 287 (1990), ruled
that BatasPambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate jurisdiction
over appeals from decisions of the PRC.
Physicians; Medical Malpractice; Words and Phrases; Medical malpractice is a
particular form of negligence which consists in the failure of a physician or surgeon to apply
to his practice of medicine that degree of care and skill which is ordinarily employed by the
profession generally, under similar conditions, and in like surrounding circumstances; There
are four elements involved in medical negligence cases—duty, breach, injury and
proximate441
, 441
causation.—Anent the substantive merits of the case, petitioner questions the PRC
decision for being without an expert testimony to support its conclusion and to establish the
cause of Editha’s injury. Petitioner avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as to the cause of the injury. Medical
malpractice is a particular form of negligence which consists in the failure of a physician or
surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions, and in like surrounding
circumstances. In order to successfully pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something which a reasonably prudent physician or
surgeon would not have done, and that the failure or action caused injury to the patient.
There are four elements involved in medical negligence cases: duty, breach, injury and
proximate causation.
Same; Same; Witnesses; Expert Witnesses; The breach of professional duties of skill and
care, or their improper performance by a physician surgeon, whereby the patient is injured in
body or in health, constitutes actionable malpractice, and as to this aspect of medical
malpractice, the determination of the reasonable level of care and the breach thereof, expert
testimony is essential.—A physician-patient relationship was created when Editha employed
the services of the petitioner. As Editha’s physician, petitioner was duty-bound to use at least
the same level of care that any reasonably competent doctor would use to treat a condition
under the same circumstances. The breach of these professional duties of skill and care, or
their improper performance by a physician surgeon, whereby the patient is injured in body
or in health, constitutes actionable malpractice. As to this aspect of medical malpractice, the
determination of the reasonable level of care and the breach thereof, expert testimony is
essential. Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation.
Same; Same; Same; Same; 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.—In the present
case, respondents did not present any expert testimony to support their claim that petitioner
failed to do something which a reasonably prudent physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was
clearly an expert on the subject. Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject442
matter about which he or she is to testify, either by the study of recognized authorities
on the subject or by practical experience. Dr. Manalo specializes in gynecology and obstetrics,
authored and co-authored various publications on the subject, and is a professor at the
University of the Philippines.
Same; Same; Negligence; Proximate Cause; Words and Phrases; Medical malpractice, in
our jurisdiction, is often brought as a civil action for damages under Article 2176 of the Civil
Code, and the defenses in an action for damages are provided for under Article 2179;
Proximate cause is that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred.—
Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under
Article 2176 of the Civil Code. The defenses in an action for damages, provided for under
Article 2179 of the Civil Code are: Art. 2179. When the plaintiff’s own negligence was
the immediate and proximate cause of his injury, he cannot recover damages. But
if his negligence was only contributory, the immediate and proximate cause of the injury
being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded. Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces
injury, and without which the result would not have occurred. 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.
Same; Same; Same; Same; Same; Where the immediate cause of an accident resulting in
an injury is the plaintiff’s own act, which contributed to the principal occurrence as one of its
determining factors, he cannot recover damages for the injury; Contributory negligence is the
act or omission amounting to want of ordinary care on the part of the person injured, which,
concurring with the defendant’s negligence, is the proximate cause of the injury.—
Contributory negligence is the act or omission amounting to want of ordinary care on the part
of the person injured, which, concurring with the defendant’s negligence, is the proximate
cause of the injury. Difficulty seems to be apprehended in deciding which acts of the injured
party shall be considered immediate causes of the accident. Where the immediate cause of
an accident resulting in an injury is the plaintiff’s own act, which contributed to the principal
occurrence as one of its determining factors, he cannot recover damages for the injury. Again,
based on the evidence presented in the present443
, 443
case under review, in which no negligence can be attributed to the petitioner,
the immediate cause of the accident resulting in Editha’s injury was her own
omission when she did not return for a follow-up check up, in defiance of
petitioner’s orders. The immediate cause of Editha’s injury was her own act; thus,
she cannot recover damages from the injury.
Actions; Pleadings and Practice; Service of Notice; Burden of Proof; It is a well-settled
rule that when service of notice is an issue, the rule is that the person alleging that the notice
was served must prove the fact of service—the burden of proving notice rests upon the party
asserting its existence.—It is a well-settled rule that when service of notice is an issue, the
rule is that the person alleging that the notice was served must prove the fact of service. The
burden of proving notice rests upon the party asserting its existence. In the present case,
respondents did not present any proof that petitioner was served a copy of the Memorandum
on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in
fact informed the petitioner of the appeal proceedings before the PRC.
Same; Same; Same; Due Process; Failure of the appellant to furnish the appellee a copy
of the Memorandum of Appeal submitted to the Professional Regulation Commission (PRC)
constitutes a violation of due process.—In EDI-Staffbuilders International, Inc. v. National
Labor Relations Commission, 537 SCRA 409 (2007), in which the National Labor Relations
Commission failed to order the private respondent to furnish the petitioner a copy of the
Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural
due process guaranteed by the Constitution, which could have served as basis for the
nullification of the proceedings in the appeal. The same holds true in the case at bar. The
Court finds that the failure of the respondents to furnish the petitioner a copy of the
Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus,
the proceedings before the PRC were null and void.
Physicians; Doctors are protected by a special rule of law—they are not guarantors of care
and they are not insurers against mishaps or unusual consequences.—Doctors are protected
by a special rule of law. They are not guarantors of care. They are not insurers against
mishaps or unusual consequences specially so if the patient herself did not exercise the proper
diligence required to avoid the injury.
PETITION for review on certiorari of a decision of the Court of Appeals.444

Thaddeus Venturanza for petitioner.
Ronnie Ragonton for respondent.
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorariunder Rule 45 of the Rules
of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision1 dated
July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha)
was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to
vaginal bleeding. Upon advice of petitioner relayed viatelephone, Editha was
admitted to the LMC on the same day. A pelvic sonogram2 was then conducted on
Editha revealing the fetus’ weak cardiac pulsation.3The following day, Editha’s repeat
pelvic sonogram4 showed that aside from the fetus’ weak cardiac pulsation, no fetal
movement was also appreciated. Due to persistent and profuse vaginal bleeding,
petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or
“raspa.”
On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged
from the hospital the following day.
On September 16, 1994, Editha was once again brought at the LMC, as she was
suffering from vomiting and severe abdominal pains. Editha was attended by Dr.
Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly
informed Editha that there was a dead fetus in the latter’s womb. After, Editha
underwent laparotomy,5she was found to have a massive intra-
_______________
1 Penned by Justice Hakim S. Abdulwahid and concurred in by Justices B.A. Adefuin-Dela Cruz and
Jose L. Sabio, Jr.; Rollo, pp. 51-56.
2 CA Rollo, p. 307.
3 Id.
4 Id., at p. 111.
5 Laparotomy, or abdominal exploration, is a surgical procedure that allows a surgeon to look and to
make needed repairs or changes inside the ab-
445
, 445
abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a

procedure for hysterectomy6 and as a result, she has no more chance to bear a child.
On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed
a Complaint7 for Gross Negligence and Malpractice against petitioner before the
Professional Regulation Commission (PRC).
Respondents alleged that Editha’s hysterectomy was caused by petitioner’s
unmitigated negligence and professional incompetence in conducting the D&C
procedure and the petitioner’s failure to remove the fetus inside Editha’s
womb.8 Among the alleged acts of negligence were: first, petitioner’s failure to check
up, visit or administer medication on Editha during her first day of confinement at
the LMC;9 second, petitioner recommended that a D&C procedure be performed on
Editha without conducting any internal examination prior to the procedure; 10 third,
petitioner immediately suggested a D&C procedure instead of closely monitoring the
state of pregnancy of Editha.11
In her Answer,12 petitioner denied the allegations of negligence and incompetence
with the following explanations: upon Editha’s confirmation that she would seek
admission at the LMC, petitioner immediately called the hospital to anticipate the
arrival of Editha and ordered through the telephone the medicines Editha needed to
take, which the nurses carried out; petitioner visited Editha on the morning of July
28, 1994 during her rounds; on July 29, 1994, she per-
_______________
dominal cavity. <http://uimc.discovery hospital.com/main.php?id=813>(visited

May 28, 2008).
6 Hysterectomy is a surgical removal of the uterus, resulting in the inability to become pregnant
(sterility). It may be done through the abdomen or the vagina.
<http://www.nlm.nih.gov/medlineplus/ency/article/002915.htm> (visited May 28, 2008).
7 Rollo, pp. 57-61.
8 Rollo, p. 59.
9 Id., at p. 57.
10 Id., at pp. 57-58.
11 Id., at p. 58.
12 Id., at pp. 62-74.
446
formed an internal examination on Editha and she discovered that the latter’s cervix
was already open, thus, petitioner discussed the possible D&C procedure, should the
bleeding become more profuse; on July 30 1994, she conducted another internal
examination on Editha, which revealed that the latter’s cervix was still open; Editha
persistently complained of her vaginal bleeding and her passing out of some meaty
mass in the process of urination and bowel movement; thus, petitioner advised Editha
to undergo D&C procedure which the respondents consented to; petitioner was very
vocal in the operating room about not being able to see an abortus;13 taking the words
of Editha to mean that she was passing out some meaty mass and clotted blood, she
assumed that the abortus must have been expelled in the process of bleeding; it was
Editha who insisted that she wanted to be discharged; petitioner agreed, but she
advised Editha to return for check-up on August 5, 1994, which the latter failed to
do.
Petitioner contended that it was Editha’s gross negligence and/or omission in
insisting to be discharged on July 31, 1994 against doctor’s advice and her unjustified
failure to return for check-up as directed by petitioner that contributed to her life-
threatening condition on September 16, 1994; that Editha’s hysterectomy was
brought about by her very abnormal pregnancy known as placenta increta, which was
an extremely rare and very unusual case of abdominal placental implantation.
Petitioner argued that whether or not a D&C procedure was done by her or any other
doctor, there would be no difference at all because at any stage of gestation before
term, the uterus would rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a
Decision,14 exonerating petitioner from the charges filed against her. The Board held:
“Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case
of Ectopic Pregnancy Interstitial. This type of ectopic
_______________
13 Abortus is an aborted fetus, specifically a human fetus less than 12 weeks old or weighing at birth less
than 17 ounces. <http://medical.meriam-webster.com/medical/abortus> (visited May 28, 2008).
14 Rollo, pp. 103-107.
447
, 447
pregnancy is one that is being protected by the uterine muscles and manifestations may take
later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due
to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram
Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians
will assume that the pregnancy is within the uterus unless so specified by the Sonologist who
conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to
determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that her cervix is already open and so as to stop
the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an
ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and
curettage is done only within the uterus. Therefore, a more extensive operation needed in
this case of pregnancy in order to remove the fetus.”15
Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000,
the PRC rendered a Decision16 reversing the findings of the Board and revoking
petitioner’s authority or license to practice her profession as a physician.17
Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of
the Rules of Court. Petitioner also dubbed her petition as one for certiorari18 under
Rule 65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the Petition for Review under
Rule 43 of the Rules of Court was an improper remedy, as the enumeration of
the quasi-judicial agencies in Rule 43 is exclusive.19 PRC is not among the quasi-
judicial bodies whose judgment or final orders are subject of a petition for review to
the CA, thus, the petition for review of the PRC Decision, filed at the CA, was
improper. The CA further held that should the petition be treated as a petition
for certiorari under Rule 65, the same would still be dis-
_______________
15 Id., at p. 106.
16 Id., at pp. 123-126.
17 Id., at p. 126.
18 Rollo, pp. 129-159.
19 Id., at p. 54.
448
missed for being improper and premature. Citing Section 2620 of Republic Act (R.A.)
No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate
remedy under the ordinary course of law which petitioner should have availed herself
of was to appeal to the Office of the President.21
Hence, herein petition, assailing the decision of the CA on the following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT
THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED
AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF
THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE
PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER
WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARIWHERE THE
DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR
WHERE THE DECISION WAS A PATENT NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL
FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL
REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN
DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION
FOR CERTIORARIWITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED
UPON BY THE PETITIONER;
5. PRC’S GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE
HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO
DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND
VOID;
_______________
20 Section 26 of R.A. No. 2382 provides: “Section 26. Appeal for Judgment.—The decision of the Board of
Medical Examiners shall automatically become final thirty days after the date of its promulgation unless the
respondent, during the same period, has appealed to the Commissioner of Civil Service and later to the Office of
the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of
the case, or may file in court a petition for certiorari.”
21 Rollo, pp. 54-55.
449
, 449
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE

ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING
AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF
SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE
RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF
PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING
PETITIONER’S LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT
EDITHAT [SIC] RAMOLETE’S INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY
DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE
NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF
RESPONDENT EDITHA’S INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT
WITNESS AUGUSTO MANALO, M.D.; [and]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS
OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE
ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants to appeal to the PRC
from the decision of the Board. She invokes Article IV, Section 35 of the Rules and
Regulations Governing the Regulation and Practice of Professionals, which provides:
“Sec. 35. The respondent may appeal the decision of the Board within thirty days from
receipt thereof to the Commission whose decision shall be final. Complainant, when
allowed by law, may interpose an appeal from the Decision of the Board within the
same period.” (Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that while the
respondent, as a matter of right, may appeal the Decision of the Board to the
Commission, the complainant may interpose
_______________
22 Rollo, pp. 17-18.

450
an appeal from the decision of the Board only when so allowed by law. 23 Petitioner
cited Section 26 of Republic Act No. 2382 or “The Medical Act of 1959,” to wit:
“Section 26. Appeal from judgment.—The decision of the Board of Medical Examiners
(now Medical Board) shall automatically become final thirty days after the date of its
promulgation unless the respondent, during the same period, has appealed to the
Commissioner of Civil Service (now Professional Regulation Commission) and later to the
Office of the President of the Philippines. If the final decision is not satisfactory, the
respondent may ask for a review of the case, or may file in court a petition for certiorari.”
Petitioner posits that the reason why the Medical Act of 1959 allows only the
respondent in an administrative case to file an appeal with the Commission while the
complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that
the revocation of license to practice a profession is penal in nature.24
The Court does not agree.
For one, the principle of double jeopardy finds no application in administrative
cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a
competent court; (3) after arraignment; (4) when a valid plea has been entered; and
(5) when the defendant was acquitted or convicted, or the case was dismissed or
otherwise terminated without the express consent of the accused.25 These elements
were not present in the proceedings before the Board of Medicine, as the proceedings
involved in the instant case were administrative and not criminal in nature. The
Court has already held that double jeopardy does not lie in administrative cases.26
Moreover, Section 35 of the Rules and Regulations Governing the Regulation and
Practice of Professionals cited by petitioner was subsequently amended to read:
_______________
23 Rollo, pp. 23-24.

24 Id., at p. 25.
25 Tecson v. Sandiganbayan, 376 Phil. 191, 200; 318 SCRA 80, 89 (1999).
26 De Vera v. Layague, 395 Phil. 253, 261; 341 SCRA 67, 74 (2000), citing Tecson v. Sandiganbayan, 376
Phil. 191; 318 SCRA 80 (1999).
451
, 451
“Sec. 35. The complainant/respondent may appeal the order, the resolution or the
decision of the Board within thirty (30) days from receipt thereof to the Commission whose
decision shall be final and executory. Interlocutory order shall not be appealable to the
Commission. (Amended by Res. 174, Series of 1990).”27(Emphasis supplied)
Whatever doubt was created by the previous provision was settled with said
amendment. It is axiomatic that the right to appeal is not a natural right or a part of
due process, but a mere statutory privilege that may be exercised only in the manner
prescribed by law.28 In this case, the clear intent of the amendment is to render the
right to appeal from a decision of the Board available to both complainants and
respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution
No. 06-342(A), or the New Rules of Procedure in Administrative Investigations in the
Professional Regulation Commission and the Professional Regulatory Boards, which
provides for the method of appeal, to wit:
“Sec. 1. Appeal; Period Non-Extendible.—The decision, order or resolution of the
Board shall be final and executory after the lapse of fifteen (15) days from receipt of the
decision, order or resolution without an appeal being perfected or taken by either the
respondent or the complainant. A party aggrieved by the decision, order or resolution
may file a notice of appeal from the decision, order or resolution of the Board to
the Commission within fifteen (15) days from receipt thereof,and serving upon the
adverse party a notice of appeal together with the appellant’s brief or memorandum on
appeal, and paying the appeal and legal research fees. x x x”29
The above-stated provision does not qualify whether only the complainant or
respondent may file an appeal; rather, the new rules provide that “a party aggrieved”
may file a notice of appeal. Thus,
_______________
27 PRC Yearbook, series of 1998.

28 Remulla v. Manlongat, G.R. No. 148189, November 11, 2004, 442 SCRA 226, 232; Philippine National
Bank v. Garcia, Jr., 437 Phil. 289, 293; 388 SCRA 485, 489 (2002); Republic of the Philippines v. Court of
Appeals, 372 Phil. 259, 265; 313 SCRA 376, 381 (1999).
29 Article IV, Section 1 of Resolution No. 06-342(A).
452
either the complainant or the respondent who has been aggrieved by the decision,
order or resolution of the Board may appeal to the Commission. It is an elementary
rule that when the law speaks in clear and categorical language, there is no need, in
the absence of legislative intent to the contrary, for any interpretation.30 Words and
phrases used in the statute should be given their plain, ordinary, and common usage
or meaning.31
Petitioner also submits that appeals from the decisions of the PRC should be with
the CA, as Rule 4332 of the Rules of Court was precisely formulated and adopted to
provide for a uniform rule of appellate procedure for quasi-judicial
agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from
the purview of Rule 43 just because it is not mentioned therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
“Section 1. Scope.—This Rule shall apply to appeals from judgments or final orders of
the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees’ Compensation Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board of Investments, Construction
_______________
30 Domingo v. Commission on Audit, 357 Phil. 842, 848; 297 SCRA 163, 168 (1998).
31 Id., citing Mustang Lumber, Inc. v. Court of Appeals, 327 Phil. 214, 235; 257 SCRA 430, 448 (1996).
32 Entitled “Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.
33 Memorandum for the Petitioner, Rollo, p. 345.
34 Id.
453
, 453
Industry Arbitration Commission, and voluntary arbitrators authorized by law.” (Emphasis

supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies which are
expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its
absence from the enumeration does not, by this fact alone, imply its exclusion from
the coverage of said Rule.35 The Rule expressly provides that it should be applied to
appeals from awards, judgments final orders or resolutions of any quasi-judicial
agency in the exercise of its quasi-judicial functions. The phrase “among these
agencies” confirms that the enumeration made in the Rule is not exclusive to the
agencies therein listed.36
Specifically, the Court, in Yang v. Court of Appeals,37ruled
that Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate
38
jurisdiction over appeals from decisions of the PRC. The Court held:
“The law has since been changed, however, at least in the matter of the particular court
to which appeals from the Commission should be taken. On August 14, 1981, Batas
Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of
Appeals “exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions except those falling under the appellate jurisdiction of the Supreme
Court. x x x.” In virtue of BP 129, appeals from the Professional Regulation
Commission are now exclusively cognizable by the Court of Appeals.”39 (Emphasis
supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil
Procedure,40 lodged with the CA such jurisdiction over the appeals of decisions made
by the PRC.
_______________
35 Orosa v. Roa, G.R. No. 140423, July 14, 2006, 495 SCRA 22, 27.
36 Id.
37 G.R. No. 48113, June 6, 1990, 186 SCRA 287.
38 Entitled, “The Judiciary Reorganization Act of 1980” effective August 14, 1981.
40 Effective July 1, 1997.
454
Anent the substantive merits of the case, petitioner questions the PRC decision for
being without an expert testimony to support its conclusion and to establish the cause
of Editha’s injury. Petitioner avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as to the cause of the injury.41
Medical malpractice is a particular form of negligence which consists in the failure
of a physician or surgeon to apply to his practice of medicine that degree of care and
skill which is ordinarily employed by the profession generally, under similar
conditions, and in like surrounding circumstances.42 In order to successfully pursue
such a claim, a patient must prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or surgeon would not have done,
and that the failure or action caused injury to the patient.43
There are four elements involved in medical negligence cases: duty, breach, injury
and proximate causation.44
A physician-patient relationship was created when Editha employed the services of
the petitioner. As Editha’s physician, petitioner was duty-bound to use at least the
same level of care that any reasonably competent doctor would use to treat a condition
under the same circumstances.45 The breach of these professional duties of skill and
care, or their improper performance by a physician surgeon, whereby the patient is
injured in body or in health, constitutes actionable malpractice.46 As to this aspect of
medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential.47 Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the
_______________
41 Rollo, p. 357.
42 Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 95; 341 SCRA 760, 769 (2000), citing 61 Am. Jur. 2d
337, §205 on Physicians, Surgeons, etc.
43 Id., at pp. 95-96, citing Garcia-Rueda v. Pascasio, 344 Phil. 323; 278 SCRA 769 (1997).
44 Id., at p. 96; p. 769.
45 Id.
46 Garcia-Rueda v. Pascasio, supra note 43, at p. 332.
47 Reyes v. Sisters of Mercy Hospital, supra note 42, at p. 96; p. 769.
455
, 455
light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.48
In the present case, respondents did not present any expert testimony to support
their claim that petitioner failed to do something which a reasonably prudent
physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo,
who was clearly an expert on the subject.
Generally, to qualify as an expert witness, one must have acquired special
knowledge of the subject matter about which he or she is to testify, either by the study
of recognized authorities on the subject or by practical experience.49
Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored
various publications on the subject, and is a professor at the University of the
Philippines.50 According to him, his diagnosis of Editha’s case was “Ectopic Pregnancy
Interstitial (also referred to as Cornual), Ruptured.”51 In stating that the D&C
procedure was not the proximate cause of the rupture of Editha’s uterus resulting in
her hysterectomy, Dr. Manalo testified as follows:
Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was
the proximate cause of the rupture of the uterus. The condition which she found herself in on the
second admission. Will you please tell us whether that is true or not?
A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach
the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was
thinking a while ago about another reason—well, why I don’t think so, because it is the triggering
factor for the rupture, it
_______________
48 Cruz v. Court of Appeals, 346 Phil. 872, 884; 282 SCRA 188, 200 (1997).
49 Ramos v. Court of Appeals, 378 Phil. 1198, 1236; 321 SCRA 584, 601-602 (1999).
50 Rollo, pp. 92-101.
51 Id., at p. 89.
456
could have—the rupture could have occurred much earlier, right after the D&C or a few days after the
D&C.
Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the
hysterectomy or right upon admission on September 15, 1994 which is about 1 ½ months after the
patient was discharged, after the D&C was conducted. Would you tell us whether there is any
relation at all of the D&C and the rupture in this particular instance?
A: I don’t think so for the two reasons that I have just mentioned—that it would not be
possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the
D&C that rupture could have occurred earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons given by him, it
is evident that the D&C procedure was not the proximate cause of the rupture of
Editha’s uterus.
During his cross-examination, Dr. Manalo testified on how he would have
addressed Editha’s condition should he be placed in a similar circumstance as the
petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal
dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the
procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well,
I think you should still have some reservations, and wait a little more time.
Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your
standard practice to check the fetal parts or fetal tissues that were allegedly removed?
A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of
the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So there’s
no way.
_______________
52 CA Rollo, pp. 149-151.

457
, 457
Q: There was [sic] some portions of the fetal parts that were removed?
A: No, it was described as scanty scraping if I remember it right—scanty.
Q: And you would not mind checking those scant or those little parts that were removed?
A: Well, the fact that it was described means, I assume that it was checked, ‘no. It was described
as scanty and the color also, I think was described. Because it would be very unusual, even
improbable that it would not be examined, because when you scrape, the specimens are
right there before your eyes. It’s in front of you. You can touch it. In fact, some of them
will stick to the instrument and therefore to peel it off from the instrument, you have to
touch them. So, automatically they are examined closely.
Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?
A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-
up somewhere and if you have to wait until he arrive at a certain place before you give the order,
then it would be a lot of time wasted. Because if you know your patient, if you have handled your
patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for
not allowing telephone orders unless it is the first time that you will be encountering the
patient. That you have no idea what the problem is.
Q: But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone
orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day
practice somehow justifies telephone orders. I have patients whom I have justified and then
all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided
that they will go home inasmuch as they anticipated that I will discharge them the following day.
So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that
patient and I think I have full grasp of her problems. So, that’s when I make this telephone orders.
And, of course458
before giving that order I ask about how she feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the D&C procedure was conducted
in accordance with the standard practice, with the same level of care that any
reasonably competent doctor would use to treat a condition under the same
circumstances, and that there was nothing irregular in the way the petitioner dealt
with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil action for
damages under Article 217654 of the Civil Code. The defenses in an action for
damages, provided for under Article 2179 of the Civil Code are:
“Art. 2179. When the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his negligence was
only contributory, the immediate and proximate cause of the injury being the defendant’s
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages
to be awarded.”
Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and without
which the result would not have occurred.55 An injury or damage is proximately
caused by an act or a failure to act, whenever it appears from the evidence in the case
that the act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a direct result
or a reasonably probable consequence of the act or omission.56
In the present case, the Court notes the findings of the Board of Medicine:
_______________
53 CA Rollo, pp. 175-179.

54 Art. 2176 of the Civil Code provides: “Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions
of this Chapter.”
55 Ramos v. Court of Appeals, supra note 49, at p. 1237; p. 617.
56 Ramos v. Court of Appeals, id.
459
, 459
“When complainant was discharged on July 31, 1994, herein respondent advised her
to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in
complainant’s Discharge Sheet. However, complainant failed to do so. This being the
case, the chain of continuity as required in order that the doctrine of proximate cause can be
validly invoked was interrupted. Had she returned, the respondent could have
examined her thoroughly.57 x x x” (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that assuming that there
was in fact a misdiagnosis, the same would have been rectified if Editha followed the
petitioner’s order to return for a check-up on August 4, 1994. Dr. Manalo stated:
“Granting that the obstetrician-gynecologist has been misled (justifiably) up to
the point that there would have been ample opportunity to rectify the
misdiagnosis, had the patient returned, as instructed for her follow-up evaluation.
It was one and a half months later that the patient sought consultation with
another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture,
is a dynamic process. Much change in physical findings could be expected in 1 1/2 months,
including the emergence of suggestive ones.”58
It is undisputed that Editha did not return for a follow-up evaluation, in defiance
of the petitioner’s advise. Editha omitted the diligence required by the circumstances
which could have avoided the injury. The omission in not returning for a follow-up
evaluation played a substantial part in bringing about Editha’s own injury. Had
Editha returned, petitioner could have conducted the proper medical tests and
procedure necessary to determine Editha’s health condition and applied the
corresponding treatment which could have prevented the rupture of Editha’s uterus.
The D&C procedure having been conducted in accordance with the standard medical
practice, it is clear that Editha’s omission was the proximate cause of her own injury
and not merely a contributory negligence on her part.
Contributory negligence is the act or omission amounting to want of ordinary care on
the part of the person injured, which, concurring
_______________
57 Rollo, p. 106.
58 Id., at pp. 80-81.
460
with the defendant’s negligence, is the proximate cause of the injury. 59Difficulty
seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident.60 Where the immediate cause of an
accident resulting in an injury is the plaintiff’s own act, which contributed to the
principal occurrence as one of its determining factors, he cannot recover damages for
the injury.61 Again, based on the evidence presented in the present case under
review, in which no negligence can be attributed to the petitioner, the
immediate cause of the accident resulting in Editha’s injury was her own
omission when she did not return for a follow-up check up, in defiance of
petitioner’s orders. The immediate cause of Editha’s injury was her own act;
thus, she cannot recover damages from the injury.
Lastly, petitioner asserts that her right to due process was violated because she
was never informed by either respondents or by the PRC that an appeal was pending
before the PRC.62 Petitioner claims that a verification with the records section of the
PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal
before the PRC, which did not attach the actual registry receipt but was merely
indicated therein.63
Respondents, on the other hand avers that if the original registry receipt was not
attached to the Memorandum on Appeal, PRC would not have entertained the appeal
or accepted such pleading for lack of notice or proof of service on the other
party.64 Also, the registry receipt could not be appended to the copy furnished to
petitioner’s former counsel, because the registry receipt was already appended to the
original copy of the Memorandum of Appeal filed with PRC.65
_______________
59 Ma-ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, August 27, 1990, 189 SCRA 88,
93.
60 Rakes v. Atlantic Gulf and Pacific Co., 7 Phil. 359, 374 (1907).
61 Taylor v. Manila Electric Railroad and Light Co., 16 Phil. 8 (1910).
62 Rollo, p. 25.
63 Id., at p. 350.
64 Rollo, p. 318.
65 Id.
461
, 461
It is a well-settled rule that when service of notice is an issue, the rule is that the
person alleging that the notice was served must prove the fact of service. The burden
of proving notice rests upon the party asserting its existence.66 In the present case,
respondents did not present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of
proving that they had in fact informed the petitioner of the appeal proceedings before
the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor Relations
Commission,67 in which the National Labor Relations Commission failed to order the
private respondent to furnish the petitioner a copy of the Appeal Memorandum, the
Court held that said failure deprived the petitioner of procedural due process
guaranteed by the Constitution, which could have served as basis for the nullification
of the proceedings in the appeal. The same holds true in the case at bar. The Court
finds that the failure of the respondents to furnish the petitioner a copy of the
Memorandum of Appeal submitted to the PRC constitutes a violation of due process.
Thus, the proceedings before the PRC were null and void.
All told, doctors are protected by a special rule of law. They are not guarantors of
care. They are not insurers against mishaps or unusual consequences68 specially so if
the patient herself did not exercise the proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET
ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating
petitioner is AFFIRMED. No pronouncement as to costs.
_______________
66 Petition for Habeas Corpus of Benjamin Vergara v. Judge Gedorio, Jr., 450 Phil. 623, 634; 402 SCRA
520, 526-527 (2003).
67 G.R. No. 145587, October 26, 2007, 537 SCRA 409.
68 Id., citing “The Physician’s Liability and the Law on Negligence” by Constantine Nunez, p. 1, citing
Louis Nizer, My Life in Court, New York: Double Day & Co., 1961 in Tolentino, Jr., Medicine and Law,
Proceedings of the Symposium on Current Issues Common to Medicine and Law, U.P. Law Center, 1980.
G.R. No. 126297. February 2, 2010.*
PROFESSIONAL SERVICES, INC., petitioner, vs. THE COURT OF APPEALS and
NATIVIDAD and ENRIQUE AGANA, respondents.
G.R. No. 126467. February 2, 2010.*
NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr.,
Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA,
petitioners, vs. THE COURT OF APPEALS and JUAN FUENTES, respondents.
G.R. No. 127590. February 2, 2010.*
MIGUEL AMPIL, petitioner, vs. NATIVIDAD and ENRIQUE AGANA, respondents.
Medical Negligence; Corporate Negligence; Ostensible Agency; Court holds that
Professional Services, Inc. (PSI) is liable to the Aganas not under the principle of respondent
superior for lack of evidence of an employment relationship with Dr. Ampil but under the
principle of ostensible agency for the negligence of Dr. Ampil and pro hac vice under the
principle of corporate negligence for its failure to perform its duties as a hospital.—After
gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not
under the principle of respondeat superior for lack of evidence of an employment relationship
with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil
and, pro hac vice, under the principle of corporate negligence for its failure to perform its
duties as a hospital.
Same; Same; Same; While in theory a hospital as a juridical entity cannot practice
medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its
business of facilitating medical and surgical treatment; Three legal relationships crisscross
_______________
* EN BANC.
283within that reality.—While in theory a hospital as a juridical entity cannot practice
medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of
its business of facilitating medical and surgical treatment. Within that reality, three legal
relationships crisscross: (1) between the hospital and the doctor practicing within its
premises; (2) between the hospital and the patient being treated or examined within its
premises and (3) between the patient and the doctor. The exact nature of each relationship
determines the basis and extent of the liability of the hospital for the negligence of the doctor.
Same; Same; Same; Regardless of its relationship with the doctor, the hospital may be
held directly liable to the patient for its own negligence or failure to follow established
standard of conduct to which it should conform as a corporation.—Where an employment
relationship exists, the hospital may be held vicariously liable under Article 2176 in relation
to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no
employment relationship exists but it is shown that the hospital holds out to the patient that
the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in
relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent
authority. Moreover, regardless of its relationship with the doctor, the hospital may be held
directly liable to the patient for its own negligence or failure to follow established standard
of conduct to which it should conform as a corporation.
Same; Same; Same; Employer-Employee Relationship; Court still employs the “control
test” to determine the existence of an employer-employee relationship between hospital and
doctor.—This Court still employs the “control test” to determine the existence of an employer-
employee relationship between hospital and doctor. In Calamba Medical Center, Inc. v.
National Labor Relations Commission, et al., 571 SCRA 585 (2008), it held: Under the
“control test,” an employment relationship exists between a physician and a hospital if the
hospital controls both the means and the details of the process by which the physician is to
accomplish his task.
Same; Same; Same; Same; Control as a determinative factor in testing the employer-
employee relationship between doctor and hospital under which the hospital could be held
vicariously liable to a patient in medical negligence cases is a requisite fact to be established
284by preponderance of evidence.—To allay the anxiety of the intervenors, the Court
holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI
was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the
employer-employee relationship between doctor and hospital under which the hospital could
be held vicariously liable to a patient in medical negligence cases is a requisite fact to be
established by preponderance of evidence. Here, there was insufficient evidence that PSI
exercised the power of control or wielded such power over the means and the details of the
specific process by which Dr. Ampil applied his skills in the treatment of Natividad.
Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the
principle of respondeat superior.
Same; Same; Same; Same; Factors that Determine Apparent Authority.—There is,
however, ample evidence that the hospital (PSI) held out to the patient (Natividad) that the
doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent
authority: first, the hospital’s implied manifestation to the patient which led the latter to
conclude that the doctor was the hospital’s agent; and second, the patient’s reliance upon the
conduct of the hospital and the doctor, consistent with ordinary care and prudence.
SECOND MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Enrique Agana & Associates and Horacio Alvaro B. Peralta for Natividad Agana
and Enrique Agana.
Castelo & Associates Law Offices collaborating counsel for the Heirs of Natividad
Agana and Enrique Agana.
The Bengzon Law Firm for Professional Services, Inc.
The Law Firm of Raymundo M. Armovit for Miguel Ampil.
Agcaoili Law Offices for Heirs of Natividad Agana.
Bu C. Castro for intervenor private hospitals.285
Caguioa & Gatmaitan for intervenor Asian Hospital, Inc.
Pilar Nenuca P. Almira for Manila Medical Services, Inc.
Benjamin M. Tongol for Juan Fuentes.
RESOLUTION
CORONA, J.:
With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second
motion for reconsideration2 urging referral thereof to the Court en banc and seeking
modification of the decision dated January 31, 2007 and resolution dated February
11, 2008 which affirmed its vicarious and direct liability for damages to respondents
Enrique Agana and the heirs of Natividad Agana (Aganas).
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private
Hospital Association of the Philippines (PHAP)5 all sought to intervene in these cases
invoking the common ground that, unless modified, the assailed decision and
resolution will jeopardize the financial viability of private hospitals and jack up the
cost of health care.
The Special First Division of the Court granted the motions for intervention of
MMSI, AHI and PHAP (hereafter intervenors),6 and referred en consulta to the
Court en banc the mo-
_______________
1 Rollo (G.R. No. 126297), p. 468.

2 Id., at p. 489.
3 Filed a motion for leave of court to intervene (by way of attached memorandum), id., at p. 512.
4 Filed a motion to intervene and for leave to file memorandum-in-intervention, id., p. 534. AHI did not
file any memorandum.
5 Filed a motion for intervention (by way of attached brief/
memorandum), id., p. 602.
6 Resolution dated June 16, 2008, id., at p. 647.
286tion for prior leave of court and the second motion for reconsideration of PSI. 7
Due to paramount public interest, the Court en bancaccepted the referral8 and
heard the parties on oral arguments on one particular issue: whether a hospital may
be held liable for the negligence of physicians-consultants allowed to practice in its
premises.9
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and
Dr. Juan Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad
Agana (later substituted by her heirs), in a complaint10 for damages filed in the
Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by
Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her body two
gauzes11 which were used in the surgery they performed on her on April 11, 1984 at
the Medical City General Hospital. PSI was impleaded as owner, operator and
manager of the hospital.
In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr.
Ampil and Dr. Fuentes for damages.13 On appeal, the Court of Appeals (CA), absolved
Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI, sub-
_______________
7 Resolution dated June 12, 2008, id., at p. 645.

8 Resolution dated August 12, 2008, id., at p. 649.
9 As per Advisory dated March 4, 2009. It should be borne in mind that the issues in G.R. No. 126467
on the exculpation of Dr. Juan Fuentes from liability, and in G.R. No. 127590 on the culpability of Dr. Miguel
Ampil for negligence and medical malpractice, are deemed finally decided, no motion for reconsideration
having been filed by the Heirs of Agana in G.R. No. 126467 nor by Dr. Miguel Ampil in G.R. No. 127467
from the January 31, 2007 Decision of the First Division of the Court.
10 Docketed as Civil Case No. Q-43322, Record, p. 6.
11 Also referred to in the records as “sponges.”
12 Penned by then Presiding Judge and now Associate Justice of the Supreme Court Lucas Bersamin.
13 RTC Decision, Record, p. 133.
287ject to the right of PSI to claim reimbursement from Dr. Ampil.14
On petition for review, this Court, in its January 31, 2007 decision, affirmed the
CA decision.15 PSI filed a motion for reconsideration16 but the Court denied it in a
resolution dated February 11, 2008.17
The Court premised the direct liability of PSI to the Aganas on the following facts
and law:
First, there existed between PSI and Dr. Ampil an employer-employee relationship
as contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals18that
“for purposes of allocating responsibility in medical negligence cases, an employer-
employee relationship exists between hospitals and their consultants.”19 Although the
Court in Ramos later issued a Resolution dated April 11, 200220 reversing its earlier
finding on the existence of an employment relationship between hospital and doctor,
a similar reversal was not warranted in the present case because the defense raised
by PSI consisted of a mere general denial of control or responsibility over the actions
of Dr. Ampil.21
Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created
the public impression that he was its agent.22 Enrique testified that it was on account
of Dr. Ampil’s
_______________
14 CA decision dated September 6, 1996, penned by then Court of Appeals Associate Justice and later
Supreme Court Associate Justice Cancio Garcia (Ret.); CA Rollo, pp. 136-137.
15 G.R. Nos. 126297/126467/127590, 31 January 2007, 513 SCRA 478.
16 Rollo, p. 403.
17 G.R. Nos. 126297/126467/127590, 11 February 2008, 544 SCRA 170.
18 G.R. No. 124354, 29 December 1999, 321 SCRA 548.
19 Supra at 15, p. 499.
20 G.R. No. 124354, 11 April 2002, 380 SCRA 467.
21 Supra at 17, p. 179.
22 Supra at 15, p. 502.
288accreditation with PSI that he conferred with said doctor about his wife’s
(Natividad’s) condition.23 After his meeting with Dr. Ampil, Enrique asked Natividad
to personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad engaged the
services of Dr. Ampil, at the back of their minds was that the latter was a staff
member of a prestigious hospital. Thus, under the doctrine of apparent authority
applied in Nogales, et al. v. Capitol Medical Center, et al.,25 PSI was liable for the
negligence of Dr. Ampil.
Finally, as owner and operator of Medical City General Hospital, PSI was bound
by its duty to provide comprehensive medical services to Natividad Agana, to exercise
reasonable care to protect her from harm,26 to oversee or supervise all persons who
practiced medicine within its walls, and to take active steps in fixing any form of
negligence committed within its premises.27 PSI committed a serious breach of its
corporate duty when it failed to conduct an immediate investigation into the reported
missing gauzes.28
PSI is now asking this Court to reconsider the foregoing rulings for these reasons:
I
The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29,
1999) that “an employer-employee relations exists between hospital and their consultants”
stays should be set aside for being inconsistent with or contrary to the import of the resolution
granting the hospital’s motion for reconsideration in Ramos vs. Court of Appeals (G.R. No.
134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an
_______________
23 Supra at 17, p. 181, citing TSN, April 12, 1985, pp. 25-26.
24 Id.
25 G.R. No. 142625, 19 December 2006, 511 SCRA 204.
26 Supra at 15, p. 505.
27 Supra at 17, p. 182.
28 Id.
289employer-employee relationship between PSI and Dr. Ampil and PSI proved that it has
no control over Dr. Ampil. In fact, the trial court has found that there is no employer-
employee relationship in this case and that the doctor’s are independent contractors.
II
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and
specifically look to the Medical City Hospital (PSI) for medical care and support; otherwise
stated, respondents Aganas did not select Medical City Hospital (PSI) to provide medical care
because of any apparent authority of Dr. Miguel Ampil as its agent since the latter was
chosen primarily and specifically based on his qualifications and being friend and neighbor.
III
PSI cannot be liable under doctrine of corporate negligence since the proximate cause of
Mrs. Agana’s injury was the negligence of Dr. Ampil, which is an element of the principle of
corporate negligence.29
In their respective memoranda, intervenors raise parallel arguments that the
Court’s ruling on the existence of an employer-employee relationship between private
hospitals and consultants will force a drastic and complex alteration in the long-
established and currently prevailing relationships among patient, physician and
hospital, with burdensome operational and financial consequences and adverse
effects on all three parties.30
The Aganas comment that the arguments of PSI need no longer be entertained for
they have all been traversed in the assailed decision and resolution.31
After gathering its thoughts on the issues, this Court holds that PSI is liable to the
Aganas, not under the principle of respondeat superior for lack of evidence of an
employment
_______________
29 Rollo (G.R. No. 126297), pp. 489-490.

30 Id., at pp. 518-527, 605-613.
31 Id., at p. 659.
290relationship with Dr. Ampil but under the principle of ostensible agency for the
negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence
for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice medicine,32 in reality
it utilizes doctors, surgeons and medical practitioners in the conduct of its business
of facilitating medical and surgical treatment.33 Within that reality, three legal
relationships crisscross: (1) between the hospital and the doctor practicing within its
premises; (2) between the hospital and the patient being treated or examined within
its premises and (3) between the patient and the doctor. The exact nature of each
relationship determines the basis and extent of the liability of the hospital for the
negligence of the doctor.
Where an employment relationship exists, the hospital may be held vicariously
liable under Article 217634 in relation to Article 218035 of the Civil Code or the
principle of respondeat
_______________
32 Section 8, Republic Act No. 2382 (RA 2382) or The Medical Act of 1959.
33 See Acebedo Optical Co. Inc. v. CA, G.R. No. 100152, 31 March 2000, 314 SCRA 315.
34 Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties is called a quasi-delict and is governed by the provisions of this
Chapter.
35 Art. 2180. The obligation imposed by article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.
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.
291superior. Even when no employment relationship exists but it is shown that the
hospital holds out to the patient that the doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation to Article 143136 and Article 186937 of
the Civil Code or the principle of apparent authority.38 Moreover, regardless of its
relationship with the doctor, the hospital may be held directly liable to the patient for
its own negligence or failure to follow established standard of conduct to which it
should conform as a corporation.39
_______________
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.
The State is responsible in like manner when it acts through a special agent; but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided in
article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.
36 Article 1431. Through estoppel an admission or representation is rendered conclusive upon the
person making it, and cannot be denied or disproved as against the person relying thereon.
37 Art. 1869. Agency may be express, or implied from the acts of the principal, from his silence or
lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf
without authority.
38 Nogales v. Capitol Medical Center, et al., supra at 25.
39 Pedro Solis, Medical Jurisprudence (The Practice of Medicine and the Law), Quezon City: R.P. Garcia
Publishing Co., 1988, p. 321, citing U.S. district and appellate cases. See also Darling v. Charles-
292This Court still employs the “control test” to determine the existence of an
employer-employee relationship between hospital and doctor. In Calamba Medical
Center, Inc. v. National Labor Relations Commission, et al.40 it held:
“Under the “control test,”,an employment relationship exists between a physician and a
hospital if the hospital controls both the means and the details of the process by which the
physician is to accomplish his task.
xx xx xx
As priorly stated, private respondents maintained specific work-schedules, as determined
by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-
eight hours each week and which were strictly to be observed under pain of administrative
sanctions.
That petitioner exercised control over respondents gains light from the
undisputed fact that in the emergency room, the operating room, or any
department or ward for that matter, respondents’ work is monitored through its
nursing supervisors, charge nurses and orderlies. Without the approval or consent
of petitioner or its medical director, no operations can be undertaken in those
areas. For control test to apply, it is not essential for the employer to actually
supervise the performance of duties of the employee, it being enough that it has
the right to wield the power.” (emphasis supplied)
Even in its December 29, 1999 decision41 and April 11, 2002 resolution42 in Ramos,
the Court found the control test decisive.
In the present case, it appears to have escaped the Court’s attention that both the
RTC and the CA found no employment
_______________
ton Community Memorial Hospital, 14 A.L.R. 3D 860 (Ill. September 29, 1965).
40 G.R. No. 176484, 25 November 2008, 571 SCRA 585.

41 Supra at 18.
42 Supra at 20.
293relationship between PSI and Dr. Ampil, and that the Aganas did not question
such finding. In its March 17, 1993 decision, the RTC found “that defendant doctors
were not employees of PSI in its hospital, they being merely consultants without any
employer-employee relationship and in the capacity of independent
contractors.”43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the
issues of negligence, agency and corporate liability. In its September 6, 1996 decision,
the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was
clear in its discussion on the matter that it viewed their relationship as one of mere
apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration
of Dr. Fuentes.46 PSI also appealed from the CA decision, and it was then that the
issue of employment, though long settled, was unwittingly resurrected.
In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had
no employer-employee relationship, such finding became final and conclusive even to
this Court.47 There was no reason for PSI to have raised it as an issue in its petition.
Thus, whatever discussion on the matter that may have ensued was purely academic.
Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this
particular instance, the concurrent finding of the RTC and the CA that PSI was not
the employer
_______________
43 Supra at 13, p. 126.

44 Dr. Fuentes filed with the CA a petition for certiorari docketed as CA-G.R. SP No. 32198 (CA Rollo,
p. 1) while Dr. Ampil and PSI jointly filed an appeal docketed as CA-G.R. CV No. 42062 (CA Rollo, pp. 40
and 152).
45 Supra at 14, p. 135.
46 Rollo (G.R. No. 126467), p. 8.
47 Elsie Ang v. Dr. Erniefel Grageda, G.R. No. 166239, 8 June 2006, 490 SCRA 424.
294of Dr. Ampil is correct. Control as a determinative factor in testing the employer-
employee relationship between doctor and hospital under which the hospital could be
held vicariously liable to a patient in medical negligence cases is a requisite fact to be
established by preponderance of evidence. Here, there was insufficient evidence that
PSI exercised the power of control or wielded such power over the means and the
details of the specific process by which Dr. Ampil applied his skills in the treatment
of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence
of Dr. Ampil under the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient
(Natividad)48 that the doctor (Dr. Ampil) was its agent. Present are the two factors
that determine apparent authority: first, the hospital’s implied manifestation to the
patient which led the latter to conclude that the doctor was the hospital’s agent; and
second, the patient’s reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the
condition of his wife; that after the meeting and as advised by Dr. Ampil, he
“asked [his] wife to go to Medical City to be examined by [Dr. Ampil]”; and that the
next day, April 3, he told his daughter to take her mother to Dr. Ampil.50 This timeline
indicates that it was Enrique who actually made the decision on whom Natividad
should consult and where, and that the latter merely acceded to it. It explains the
testimony of Natividad that she consulted Dr. Ampil at the instigation of her
daughter.51
Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
_______________
48 Through the patient’s husband Enrique.

49 Nogales v. Capitol Medical Center, et al., supra at 25.
50 TSN, April 12, 1985, pp. 26-27.
51 Second Motion for Reconsideration, Rollo, pp. 495-496.
295
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for choosing
Dr. Ampil to contact with in connection with your wife’s illness?
A. First, before that, I have known him to be a specialist on that part of the body
as a surgeon, second, I have known him to be a staff member of the Medical
City which is a prominent and known hospital. And third, because he is a
neighbor, I expect more than the usual medical service to be given to us, than
his ordinary patients.52 (emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was
significantly influenced by the impression that Dr. Ampil was a staff member of
Medical City General Hospital, and that said hospital was well known and
prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally
related to Medical City.
PSI’s acts tended to confirm and reinforce, rather than negate, Enrique’s view. It
is of record that PSI required a “consent for hospital care”53 to be signed preparatory
to the surgery of Natividad. The form reads:
“Permission is hereby given to the medical, nursing and laboratory staff of the Medical City
General Hospital to perform such diagnostic procedures and to administer such medications
and treatments as may be deemed necessary or advisable by thephysicians of this
hospital for and during the confinement of xxx.” (emphasis supplied)
By such statement, PSI virtually reinforced the public impression that Dr. Ampil
was a physician of its hospital, rather than one independently practicing in it; that
the medications and treatments he prescribed were necessary and desirable; and that
the hospital staff was prepared to carry them out.
_______________
52 Supra at 50, pp. 25-26.

53 Exh. “D-1,” Exhibit Folder for Plaintiffs, p. 92.
296
PSI pointed out in its memorandum that Dr. Ampil’s hospital affiliation was not
the exclusive basis of the Aganas’ decision to have Natividad treated in Medical City
General Hospital, meaning that, had Dr. Ampil been affiliated with another hospital,
he would still have been chosen by the Aganas as Natividad’s surgeon.54
The Court cannot speculate on what could have been behind the Aganas’ decision
but would rather adhere strictly to the fact that, under the circumstances at that
time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member
of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique
advised his wife Natividad to go to the Medical City General Hospital to be examined
by said doctor, and the hospital acted in a way that fortified Enrique’s belief.
This Court must therefore maintain the ruling that PSI is vicariously liable for the
negligence of Dr. Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that PSI made the following
admission in its Motion for Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr.
Ampil’s acts during the operation. Considering further that Dr. Ampil was personally
engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as “Captain of the Ship,”
and as the Agana’s doctor to advise her on what to do with her situation vis-à-vis the two
missing gauzes. In addition to noting the missing gauzes, regular check-ups were
made and no signs of complications were exhibited during her stay at the hospital,
which could have alerted petitioner PSI’s hospital to render and provide post-
operation services to and tread on Dr. Ampil’s role as the doctor of Mrs. Agana. The
absence of negligence of PSI from the patient’s admission up to her discharge is
borne by the finding of facts in this case. Likewise evident therefrom is the absence
of any complaint from
_______________
54 Petitioner’s Memorandum with Compliance, pp. 57-58.
297Mrs. Agana after her discharge from the hospital which had she brought to the
hospital’s attention, could have alerted petitioner PSI to act accordingly and bring
the matter to Dr. Ampil’s attention. But this was not the case. Ms. Agana
complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI
possibly do something to fix the negligence committed by Dr. Ampil when it was
not informed about it at all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana “informed
the hospital of her discomfort and pain, the hospital would have been obliged to act
on it.”56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had no power to
control the means or method by which Dr. Ampil conducted the surgery on Natividad
Agana, it had the power to review or cause the reviewof what may have
irregularly transpired within its walls strictly for the purpose of determining whether
some form of negligence may have attended any procedure done inside its premises,
with the ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its business as
well as its prominence57 in the hospital industry, it assumed a duty to “tread on” the
“captain of the ship” role of any doctor rendering services within its premises for the
purpose of ensuring the safety of the patients availing themselves of its services and
facilities.
Third, by such admission, PSI defined the standards of its corporate conduct under
the circumstances of this case, specifically: (a) that it had a corporate duty to
Natividad even after her operation to ensure her safety as a patient; (b) that
_______________
55 Motion for Reconsideration, Rollo, pp. 429-430.

56 Id., at p. 434.
57 PSI has not denied its prominent place in the hospital industry but has in fact asserted such role in
its 1967 brochure (Annex “K” to its Manifestation filed on May 14, 2009).
298its corporate duty was not limited to having its nursing staff note or record the
two missing gauzes and (c) that its corporate duty extended to determining Dr.
Ampil’s role in it, bringing the matter to his attention, and correcting his
negligence.
And finally, by such admission, PSI barred itself from arguing in its second motion
for reconsideration that the concept of corporate responsibility was not yet in
existence at the time Natividad underwent treatment;58 and that if it had any
corporate responsibility, the same was limited to reporting the missing gauzes and
did not include “taking an active step in fixing the negligence committed.”59 An
admission made in the pleading cannot be controverted by the party making such
admission and is conclusive as to him, and all proofs submitted by him contrary
thereto or inconsistent therewith should be ignored, whether or not objection is
interposed by a party.60
Given the standard of conduct that PSI defined for itself, the next relevant
inquiry is whether the hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil
assumed the personal responsibility of informing Natividad about the two missing
gauzes.61 Dr. Ricardo Jocson, who was part of the group of doctors that attended to
Natividad, testified that toward the end of the surgery, their group talked about the
missing gauzes but Dr. Ampil assured them that he would personally notify the
patient about it.62 Furthermore, PSI claimed that there was no
_______________
58 Rollo, p. 505-506.
59 Id., at pp. 506-507.
60 Luciano Tan v. Rodil Enterprises, G.R. No. 168071, 18 December 2006, 511 SCRA 162; Heirs of Pedro
Clemena Y. Zurbano v. Heirs of Irene B. Bien, G.R. No. 155508, 11 September 2006, 501 SCRA 405.
61 Second Motion for Reconsideration, Rollo, pp. 502-503.
62 Id., at p. 503, citing TSN, February 26, 1987, p. 36.
299reason for it to act on the report on the two missing gauzes because Natividad
Agana showed no signs of complications. She did not even inform the hospital about
her discomfort.63
The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and nonchalantly
delegate to Dr. Ampil the duty to review what transpired during the operation. The
purpose of such review would have been to pinpoint when, how and by whom two
surgical gauzes were mislaid so that necessary remedial measures could be taken to
avert any jeopardy to Natividad’s recovery. Certainly, PSI could not have expected
that purpose to be achieved by merely hoping that the person likely to have mislaid
the gauzes might be able to retrace his own steps. By its own standard of corporate
conduct, PSI’s duty to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad
about the missing gauzes, PSI imposed upon itself the separate and independent
responsibility of initiating the inquiry into the missing gauzes. The purpose of the
first would have been to apprise Natividad of what transpired during her surgery,
while the purpose of the second would have been to pinpoint any lapse in procedure
that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to
determine corrective measures that would ensure the safety of Natividad. That Dr.
Ampil negligently failed to notify Natividad did not release PSI from its self-imposed
separate responsibility.
Corollary to its non-delegable undertaking to review potential incidents of
negligence committed within its premises, PSI had the duty to take notice of medical
records prepared by its own staff and submitted to its custody, especially when these
bear earmarks of a surgery gone awry. Thus, the record taken during the operation
of Natividad which reported a gauze count discrepancy should have given PSI
sufficient
_______________
63 Supra at 55.
300reason to initiatea review. It should not have waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation and consequently did
not initiate a review of what transpired during Natividad’s operation. Rather, it
shirked its responsibility and passed it on to others—to Dr. Ampil whom it expected
to inform Natividad, and to Natividad herself to complain before it took any
meaningful step. By its inaction, therefore, PSI failed its own standard of hospital
care. It committed corporate negligence.
It should be borne in mind that the corporate negligence ascribed to PSI is different
from the medical negligence attributed to Dr. Ampil. The duties of the hospital are
distinct from those of the doctor-consultant practicing within its premises in relation
to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation
gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil.
All this notwithstanding, we make it clear that PSI’s hospital liability based on
ostensible agency and corporate negligence applies only to this case, pro hac vice. It
is not intended to set a precedent and should not serve as a basis to hold hospitals
liable for every form of negligence of their doctors-consultants under any and all
circumstances. The ruling is unique to this case, for the liability of PSI arose from an
implied agency with Dr. Ampil and an admitted corporate duty to Natividad.64
Other circumstances peculiar to this case warrant this ruling,65 not the least of
which being that the agony wrought
_______________
64 In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v. Comelec (G.R. No. 164702, March
15, 2006, 484 SCRA 671), a ruling expressly qualified as pro hac vice is limited in application to one
particular case only; it cannot be relied upon as a precedent to govern other cases.
65 See Sps. Chua v. Hon. Jacinto Ang, et al., G.R. No. 156164, 4 September 2009, 598 SCRA 229.
301upon the Aganas has gone on for 26 long years, with Natividad coming to the end
of her days racked in pain and agony. Such wretchedness could have been avoided
had PSI simply done what was logical: heed the report of a guaze count discrepancy,
initiate a review of what went wrong and take corrective measures to ensure the
safety of Natividad. Rather, for 26 years, PSI hemmed and hawed at every turn,
disowning any such responsibility to its patient. Meanwhile, the options left to the
Aganas have all but dwindled, for the status of Dr. Ampil can no longer be
ascertained.66
Therefore, taking all the equities of this case into consideration, this Court believes
P15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest
from the finality of this resolution to full satisfaction.
WHEREFORE, the second motion for reconsideration is DENIED and the motions
for intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted
by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya,
Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15
million, subject to 12% p.a. interest from the finality of this resolution to full
satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon receipt by all
concerned parties of this resolution.
SO ORDERED.
Puno (C.J.), Carpio, Carpio-Morales, Velasco, Jr., Nachura, Leonardo-De Castro,
Brion, Peralta, Del Castillo, Villarama, Jr. and Perez, JJ., concur.
_______________
66 His last pleading was filed on May 13, 2001, Rollo (G.R. No. 127590), p. 217.
G.R. No. 187926. February 15, 2012.*
DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN,
petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.
Civil Law; Quasi-Delicts; Res Ipsa Loquitor; The doctrine of res ipsa loquitur means
“Where the thing which causes injury is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of things does not happen if those who have
the management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care.”—This doctrine
of res ipsa loquiturmeans “Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from
want of care.” The Black’s Law Dictionary defines the said doctrine. Thus: The thing speaks
for itself. Rebuttable presumption or inference that defendant was negligent, which arises
upon proof that the instrumentality causing injury was in defendant’s exclusive control, and
that the accident was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere
_______________
* THIRD DIVISION.
337
VOL. 666, FEBRUARY 15, 2012 337
Jarcia vs. People
fact that the accident happened provided the character of the accident and
circumstances attending it lead reasonably to belief that in the absence of negligence it would
not have occurred and that thing which caused injury is shown to have been under the
management and control of the alleged wrongdoer. Under this doctrine, the happening of an
injury permits an inference of negligence where plaintiff produces substantial evidence that
the injury was caused by an agency or instrumentality under the exclusive control and
management of defendant, and that the occurrence was such that in the ordinary course of
things would not happen if reasonable care had been used.
Same; Same; Same; The doctrine of res ipsa loquitur as a rule of evidence is unusual to
the law of negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence.—The doctrine of res
ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The doctrine, however, is not a rule of substantive
law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable
to the facts and circumstances of a given case, is not meant to and does not dispense with the
requirement of proof of culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.
Same; Same; Same; Requisites for the Application of the Doctrine of Res Ipsa Loquitur.—
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was
of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality
or agency which caused the injury was under the exclusive control of the person in charge;
and (3) the injury suffered must not have been due to any voluntary action or contribution of
the person injured.
Same; Same; “Negligence,” Defined; Words and Phrases.—Negligence is defined as the
failure to observe for the protection of the interests of another person that degree of care,
precaution, and
338
Jarcia vs. People
vigilance which the circumstances justly demand, whereby such other person suffers
injury.
Same; Same; “Reckless Imprudence,” Defined; Words and Phrases.—Reckless
imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.
Same; Same; Simple Negligence; Elements of Simple Negligence.—The elements of
simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2)
that the damage impending to be caused is not immediate or the danger is not clearly
manifest.
Same; Reckless Imprudence; The Court finds the petitioners civilly liable for their failure
to sufficiently attend to Roy Jr.’s medical needs when the latter was rushed to the ER, for while
a criminal conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability.—Although the Court sympathizes with the
plight of the mother and the child in this case, the Court is bound by the dictates of justice
which hold inviolable the right of the accused to be presumed innocent until proven guilty
beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their
failure to sufficiently attend to Roy Jr.’s medical needs when the latter was rushed to the ER,
for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance
of evidence is required to establish civil liability. Taken into account also was the fact that
there was no bad faith on their part.
Remedial Law; Civil Procedure; Appeals; Issues raised for the first time on appeal cannot
be considered because a party is not permitted to change his theory on appeal.—This Court
cannot also stamp its imprimatur on the petitioners’ contention that no physician-patient
relationship existed between them and patient Roy Jr., since they were not his attending
physicians at that time. They claim that they were merely requested by the ER nurse to see
the patient while they were passing by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the
want of doctor-patient relationship for the first time on appeal with this Court. It
339
VOL. 666, FEBRUARY 15, 2012 339
Jarcia vs. People
has been settled that “issues raised for the first time on appeal cannot be considered
because a party is not permitted to change his theory on appeal. To allow him to do so is
unfair to the other party and offensive to the rules of fair play, justice and due process.”
Stated differently, basic considerations of due process dictate that theories, issues and
arguments not brought to the attention of the trial court need not be, and ordinarily will not
be, considered by a reviewing court.
Civil Law; Physician-Patient Relationship; When a patient engages the services of a
physician, a physician-patient relationship is generated; Thus, in treating his patient, a
physician is under a duty to exercise that degree of care, skill and diligence which physicians
in the same general neighborhood and in the same general line of practice ordinarily possess
and exercise in like cases.—In the case of Lucas v. Tuaño, 586 SCRA 173 (2009), the Court
wrote that “[w]hen a patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and surgeons
practicing in the same field; and that he will employ such training, care, and skill in the
treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise
that degree of care, skill and diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and exercise in like cases. Stated
otherwise, the physician has the obligation to use at least the same level of care that any
other reasonably competent physician would use to treat the condition under similar
circumstances.”
Same; Same; Medical Ethics; Established medical procedures and practices, though in
constant instability, are devised for the purpose of preventing complications.—Article II,
Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states: A
physician should attend to his patients faithfully and conscientiously. He should secure for
them all possible benefits that may depend upon his professional skill and care. As the sole
tribunal to adjudge the physician’s failure to fulfill his obligation to his patients is, in most
cases, his own conscience, violation of this rule on his part is discreditable and inexcusable.
Established medical procedures and practices, though in constant instability, are devised for
340
Jarcia vs. People
the purpose of preventing complications. In this case, the petitioners failed to observe
the most prudent medical procedure under the circumstances to prevent the complications
suffered by a child of tender age.
Same; Negligence; While no criminal negligence was found in the petitioners’ failure to
administer the necessary medical attention to Roy Jr., the Court holds them civilly liable for
the resulting damages to their patient.—While no criminal negligence was found in the
petitioners’ failure to administer the necessary medical attention to Roy Jr., the Court holds
them civilly liable for the resulting damages to their patient. While it was the taxi driver who
ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.
Same; Damages; Actual Damages; Claims for actual damages must be adequately
supported by receipts.—It appears undisputed that the amount of P3,850.00, as expenses
incurred by patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds
the petitioners liable to pay this amount by way of actual damages.
Same; Same; Moral Damages; It is settled that moral damages are not punitive in nature,
but are designed to compensate and alleviate in some way the physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly inflicted on a person.—The Court is aware that no
amount of compassion can suffice to ease the sorrow felt by the family of the child at that
time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount
of P100,000.00 and P50,000.00, respectively, is proper in this case. It is settled that moral
damages are not punitive in nature, but are designed to compensate and alleviate in some
way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a
person. Intended for the restoration of the psychological or emotional status quo ante, the
award of moral damages is designed to compensate emotional injury suffered, not to impose
a penalty on the wrongdoer.
Same; Same; Exemplary Damages; Exemplary damages may be imposed by way of
example or correction for the public good.—The Court, likewise, finds the petitioners also
liable for exemplary dam-
341
VOL. 666, FEBRUARY 15, 2012 341
Jarcia vs. People
ages in the said amount. Article 2229 of the Civil Code provides that exemplary damages
may be imposed by way of example or correction for the public good.
Appeals.
Teresita R. Sanchez for petitioners.
Office of the Solicitor General for respondent.
MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their doctors. Time and
again, it can be said that the most important goal of the medical profession is the preservation
of life and health of the people. Corollarily, when a physician departs from his sacred duty
and endangers instead the life of his patient, he must be made liable for the resulting injury.
This Court, as this case would show, cannot and will not let the act go unpunished.1
This is a petition for review under Rule 45 of the Rules of Court challenging the
August 29, 2008 Decision2 of the Court of Appeals (CA), and its May 19, 2009
Resolution3 in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the
June 14, 2005 Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), finding
the accused guilty beyond reasonable doubt of simple imprudence resulting to serious
physical injuries.
_______________
1 See the case of Dr. Batiquin v. Court of Appeals, 327 Phil. 965; 258 SCRA 334 (1996).
2 Rollo, pp. 50-65. Penned by Associate Justice Isaias Dicdican, with Associate Justice Juan Q. Enriquez,
Jr. and Associate Justice Marlene Gonzales-Sison, concurring.
3 Id., at pp. 67-68.
4 Id., at pp. 70-79.
342
Jarcia vs. People
The Facts
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia)
and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty
which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical
injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he
was rushed to the Manila Doctors Hospital for an emergency medical treatment; that
an X-ray of the victim’s ankle was ordered; that the X-ray result showed no fracture
as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed Mrs. Santiago that since it
was only the ankle that was hit, there was no need to examine the upper leg; that
eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and
misalignment of the right foot; that Mrs. Santiago brought him back to the hospital;
and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture
in the shaft of the bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila for
preliminary investigation. Probable cause was found and a criminal case for reckless
imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr.
Bastan and Dr. Pamittan,5 before the RTC, docketed as Criminal Case No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt
of the crime of Simple Imprudence Resulting to Serious Physical Injuries. The
decretal portion of the RTC decision reads:
“WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL
JARCIA, JR. and DR. MARILOU BASTANGUILTY beyond reasonable doubt of the crime
of SIMPLE IMPRU-
_______________
5 No first name on record.
343
VOL. 666, FEBRUARY 15, 2012 343
Jarcia vs. People
DENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to
suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to
indemnify MRS. BELINDA SANTIAGO the amount of P3,850.00 representing medical
expenses without subsidiary imprisonment in case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered
despite warrant issued for her arrest, let warrant be issued for her arrest and the case against
her be ARCHIVED, to be reinstated upon her apprehension.
SO ORDERED.”6
The RTC explained:
“After a thorough and in depth evaluation of the evidence adduced by the
prosecution and the defense, this court finds that the evidence of the prosecution is
the more credible, concrete and sufficient to create that moral certainty in the mind
of the Court that accused herein [are] criminally responsible. The Court believes that
accused are negligent when both failed to exercise the necessary and reasonable
prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not approximate
negligence of a reckless nature but merely amounts to simple imprudence. Simple
imprudence consists in the lack of precaution displayed in those cases in which the
damage impending to be caused is not the immediate nor the danger clearly manifest.
The elements of simple imprudence are as follows.
1. that there is lack of precaution on the part of the offender; and
2. that the damage impending to be caused is not immediate of the danger is not
clearly manifest.
Considering all the evidence on record, The Court finds the accused guilty for
simple imprudence resulting to physical injuries. Under Article 365 of the Revised
Penal Code, the penalty provided for is arresto mayorin its minimum period.”7
_______________
6 Rollo, p. 79.
7 Id., at p. 78.
344
Jarcia vs. People
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008
Decision of the CA pertinently reads:
“This Court holds concurrently and finds the foregoing circumstances sufficient to sustain
a judgment of conviction against the accused-appellants for the crime of simple imprudence
resulting in serious physical injuries. The elements of imprudence are: (1) that the offender
does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that
it be without malice; (4) that material damage results from the imprudence; and (5) that
there is inexcusable lack of precaution on the part of the offender, taking into consideration
his employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an “inexcusable lack of
precaution” in the treatment of their patient is to be determined according to the standard of
care observed by other members of the profession in good standing under similar
circumstances, bearing in mind the advanced state of the profession at the time of treatment
or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the
Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the
needed training and skill possessed by physicians and surgeons practicing in the same field,
he will employ such training, care and skill in the treatment of his patients. He therefore has
a duty to use at least the same level of care that any other reasonably competent doctor would
use to treat a condition under the same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of establishing
accused-appellants’ negligence, and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the physician as well as a causal connection of such
breach and the resulting injury of his patient. The connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the proximate cause of the injury. Negligence,
no matter in what it consists, cannot create a right of action unless it is the proximate cause
of the injury complained of. The proximate cause of an injury is that cause which, in natural
and continuous sequence, unbroken by any efficient inter-
345
VOL. 666, FEBRUARY 15, 2012 345
Jarcia vs. People
vening cause, produces the injury and without which the result would not have occurred.
In the case at bench, the accused-appellants questioned the imputation against them and
argued that there is no causal connection between their failure to diagnose the fracture and
the injury sustained by Roy.
We are not convinced.
The prosecution is however after the cause which prolonged the pain and suffering of Roy
and not on the failure of the accused-appellants to correctly diagnose the extent of the injury
sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the applicability
of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase
which literally means “the thing or the transaction speaks for itself. The doctrine of res ipsa
loquitur is simply a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in
the absence of some explanation by the accused-appellant who is charged with negligence. It
is grounded in the superior logic of ordinary human experience and, on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of
the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son
during the latter’s ordeal at the hospital. She testified as follows:
Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra.
Pamittan to confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us
go home and you don’t even clean the wounds of my son.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
xxx xxx x x x346
Jarcia vs. People
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the wounds of my son, are you not going
to x-ray up to the knee because my son was complaining pain from his ankle up
to the middle part of the right leg.
Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-ray because it was the ankle
part that was run over.
Q: What did you do or tell her?
A: I told her, sir, why is it that they did not examine[x] the whole leg. They just
lifted the pants of my son.
Q: So you mean to say there was no treatment made at all?
A:None, sir.
xxx xxx xxx
A: I just listened to them, sir. And I just asked if I will still return my son.
xxx xxx xxx
Q: And you were present when they were called?
A: Yes, sir.
Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they have mistakes, sir.
Still, before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of
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.347
VOL. 666, FEBRUARY 15, 2012 347
Jarcia vs. People
In the above requisites, the fundamental element is the “control of the
instrumentality” which caused the damage. Such element of control must be shown
to be within the dominion of the accused-appellants. In order to have the benefit of
the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable and must establish that the essential elements of the doctrine
were present in a particular incident. The early treatment of the leg of Roy would
have lessen his suffering if not entirely relieve him from the fracture. A boy of tender
age whose leg was hit by a vehicle would engender a well-founded belief that his
condition may worsen without proper medical attention. As junior residents who only
practice general surgery and without specialization with the case consulted before
them, they should have referred the matter to a specialist. This omission alone
constitutes simple imprudence on their part. When Mrs. Santiago insisted on having
another x-ray of her child on the upper part of his leg, they refused to do so. The
mother would not have asked them if they had no exclusive control or prerogative to
request an x-ray test. Such is a fact because a radiologist would only conduct the x-
ray test upon request of a physician.
The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata.
He further testified based on his personal knowledge, and not as an expert, as he
examined himself the child Roy. He testified as follows:
Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical problem that was presented
to Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and
the history. “At sabi nila, nadaanan lang po ito.” And then, considering their
year of residency they are still junior residents, and they are not also orthopedic
residents but general surgery residents, it’s entirely different thing. Because if
you are an orthopedic resident, I am not trying to say…but if I were an
orthopedic resident, there would be more precise and accurate decision compare
to a general surgery resident in so far as involved.
Q: You mean to say there is no supervisor attending the emergency room?348
Jarcia vs. People
A: At the emergency room, at the Manila Doctor’s Hospital, the supervisor there
is a consultant that usually comes from a family medicine. They see where a
certain patient have to go and then if they cannot manage it, they refer it to the
consultant on duty. Now at that time, I don’t [know] why they don’t….Because
at that time, I think, it is the decision. Since the x-rays….
Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of
physicians, external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the proper standard of care. Where
common knowledge and experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but
how and why it occurred. In the case at bench, we give credence to the testimony of
Mrs. Santiago by applying the doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had
been exercised. A distinction must be made between the failure to secure results and
the occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular
practice. The latter circumstance is the primordial issue that confronted this Court
and we find application of the doctrine of res ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is
hereby DISMISSED and the assailed decision of the trial
349
VOL. 666, FEBRUARY 15, 2012 349
Jarcia vs. People
court finding accused-appellants guilty beyond reasonable doubt of simple
imprudence resulting in serious physical injuries is hereby AFFIRMED in toto.
SO ORDERED.”8
The petitioners filed a motion for reconsideration, but it was denied by the CA in
its May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of both the RTC and the CA
anchored on the following
“GROUNDS
1. IN AFFIRMING ACCUSED-PETITIONERS’ CONVICTION, THE COURT OF
APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE,
AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT
(FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM
FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF
TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENT’S RIGHT LEG
WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO
SUBJECT THE PATIENT’S WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED
FACTS CLEARLY NEGATING PETITIONERS’ ALLEGED NEGLIGENCE OR
IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY
DISREGARDED THE OPINION OF THE PROSECUTION’S EXPERT WITNESS, DR.
CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR
IMPRUDENCE COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF
PETITIONERS TO SUBJECT THE
_______________
8 Id., at pp. 58-65.
350
Jarcia vs. People
PATIENT’S WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN
AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING
UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED
PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE
UNJUSTIFIED FAILURE OF THE PATIENT’S MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY
THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT
LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT
THE HOSPITAL. THUS, THE PATIENT’S ALLEGED INJURY (PROLONGED PAIN
AND SUFFERING) WAS DUE TO HIS OWN MOTHER’S ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO
PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND
PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTER’S
ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE
EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE
PASSING BY THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING
ACCUSED-PETITIONERS OF THE CRIME CHARGED.”9
The foregoing can be synthesized into two basic issues: whether or not the doctrine
of res ipsa loquitur is applicable in this case; and whether or not the petitioners are
liable for criminal negligence.
_______________
9 Id., at pp. 20-22.
351
VOL. 666, FEBRUARY 15, 2012 351
Jarcia vs. People
The CA is correct in finding that there was negligence on the part of the
petitioners. After a perusal of the records, however, the Court is not convinced that
the petitioners are guilty of criminal negligence complained of. The Court is also of
the view that the CA erred in applying the doctrine of res ipsa loquitur in this
particular case.
As to the Application of the
Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means “Where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in
the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care.” The Black’s Law Dictionary
defines the said doctrine. Thus:
“The thing speaks for itself. Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that the instrumentality causing injury was in defendant’s
exclusive control, and that the accident was one which ordinarily does not happen in absence
of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere fact that the accident happened provided the
character of the accident and circumstances attending it lead reasonably to belief that in the
absence of negligence it would not have occurred and that thing which caused injury is shown
to have been under the management and control of the alleged wrongdoer. Under this
doctrine, the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that the injury was caused by an agency or instrumentality
under the exclusive control and management of defendant, and that the occurrence was such
that in the
352
Jarcia vs. People
ordinary course of things would not happen if reasonable care had been used.”10
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine,
however, is not a rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to the facts and circumstances of
a given case, is not meant to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and helps the plaintiff in proving a breach of the
duty. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.11
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the
accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3)the injury suffered must not have
been due to any voluntary action or contribution of the person injured.12
In this case, the circumstances that caused patient Roy Jr.’s injury and the series
of tests that were supposed to be undergone by him to determine the extent of the
injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time
who attended to the
_______________
10 Also quoted in the case of Layugan v. Intermediate Appellate Court, 249 Phil. 363, 377; 167 SCRA
363, 376 (1988).
11 Dr. Batiquin v. Court of Appeals, supra note 1, at pp. 979-980.
12 Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 98; 341 SCRA 760, 771 (2000).
353
VOL. 666, FEBRUARY 15, 2012 353
Jarcia vs. People
victim at the emergency room.13 While it may be true that the circumstances pointed
out by the courts below seem doubtless to constitute reckless imprudence on the part
of the petitioners, this conclusion is still best achieved, not through the scholarly
assumptions of a layman like the patient’s mother, but by the unquestionable
knowledge of expert witness/es. As to whether the petitioners have exercised the
requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of
expert opinion.
As to Dr. Jarcia and
Dr. Bastan’s negligence
The totality of the evidence on record clearly points to the negligence of the
petitioners. At the risk of being repetitious, the Court, however, is not satisfied that
Dr. Jarcia and Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.14
Reckless imprudence consists of voluntarily doing or failing to do, without malice,
an act from which material damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to perform such act.15
The elements of simple negligence are: (1) that there is lack of precaution on the
part of the offender, and (2) that the damage impending to be caused is not immediate
or the danger is not clearly manifest.16
_______________
13 TSN, September 20, 2004, p. 13.
14 Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 497.
15 Id., at p. 495.
16 Id., at p. 497.
354
Jarcia vs. People
In this case, the Court is not convinced with moral certainty that the petitioners
are guilty of reckless imprudence or simple negligence. The elements thereof were
not proved by the prosecution beyond reasonable doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric
orthopedic, although pointing to some medical procedures that could have been done
by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the
injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners’
judgment call and their diagnosis or appreciation of the condition of the victim at the
time they assessed him. Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians
as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk
so I [began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I
examined the patient at that time, the involved leg, I don’t know if that is left or right, the involved
leg then was swollen and the patient could not walk, so I requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or
lebistal tinial, we usually x-ray the entire extremity.355
VOL. 666, FEBRUARY 15, 2012 355
Jarcia vs. People
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the
fibula. The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such
injury?
A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we
actually examine the patient, we request for a detailed history. If it is an accident, then, we request
for the exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?
A: The patient was sideswiped, I don’t know if it is a car, but it is a vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So,
it was the mother that I interviewed.
Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the emergency room
by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who
happened to be my residents who were [on] duty at the emergency room.356
Jarcia vs. People
xxxx
A: At the emergency room, at the Manila Doctor’s Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see where a certain patient have to go and then if they
cannot manage it, they refer it to the consultant on duty. Now at that time, I don’t why they don’t …
Because at that time, I think, it is the decision. Since the x-rays…
xxxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the emergency room, including
neurology, orthopedic, general surgery, they see everything at the emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency
room, you would have subjected the entire foot to x-ray even if the history that was given
to Dr. Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my examination, we cannot
subject the whole body for x-ray if we think that the damaged was only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have conducted you would
discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not the
leg, which sometimes normally happens that the actual fractured bone do not get swollen.
x x x x357
VOL. 666, FEBRUARY 15, 2012 357
Jarcia vs. People
Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and
the history that was told to you is the region that was hit is the region of the foot, will the
doctor subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to
consider the kind of fracture that the patient sustained would you say the exact
mechanism of injury. For example spiral, “paikot yung bale nya,” so it was possible that
the leg was run over, the patient fell, and it got twisted. That’s why the leg seems to be
fractured.17 [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination
was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia
and Dr. Bastan were expected to know the medical protocol in treating leg fractures
and in attending to victims of car accidents. There was, however, no precise evidence
and scientific explanation pointing to the fact that the delay in the application of the
cast to the patient’s fractured leg because of failure to immediately diagnose the
specific injury of the patient, prolonged the pain of the child or aggravated his
condition or even caused further complications. Any person may opine that had
patient Roy Jr. been treated properly and given the extensive X-ray examination, the
extent and severity of the injury, spiral fracture of the mid-tibial part or the bigger
bone of the leg, could have been detected early on and the prolonged pain and
suffering of Roy Jr. could have been prevented. But still, that opinion, even how
logical it may seem would not, and could not, be enough basis to hold one criminally
liable; thus, a reasonable doubt as to the petitioners’ guilt.
Although the Court sympathizes with the plight of the mother and the child in this
case, the Court is bound by the
_______________
17 TSN, September 20, 2004, pp. 9-24.
358
Jarcia vs. People
dictates of justice which hold inviolable the right of the accused to be presumed
innocent until proven guilty beyond reasonable doubt. The Court, nevertheless, finds
the petitioners civilly liable for their failure to sufficiently attend to Roy Jr.’s medical
needs when the latter was rushed to the ER, for while a criminal conviction requires
proof beyond reasonable doubt, only a preponderance of evidence is required to
establish civil liability. Taken into account also was the fact that there was no bad
faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit
the victim. It may be true that the actual, direct, immediate, and proximate cause of
the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when
he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone
to excuse themselves from any liability. If this would be so, doctors would have a
ready defense should they fail to do their job in attending to victims of hit-and-run,
maltreatment, and other crimes of violence in which the actual, direct, immediate,
and proximate cause of the injury is indubitably the act of the perpetrator/s.
In failing to perform an extensive medical examination to determine the extent of
Roy Jr.’s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members
of the medical profession. Assuming for the sake of argument that they did not have
the capacity to make such thorough evaluation at that stage, they should have
referred the patient to another doctor with sufficient training and experience instead
of assuring him and his mother that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners’ contention that
no physician-patient relationship existed between them and patient Roy Jr., since
they were not his attending physicians at that time. They claim that they were merely
requested by the ER nurse to see the patient while they were passing by the ER for
their lunch. Firstly, this issue was never raised during the trial at the RTC or
359
VOL. 666, FEBRUARY 15, 2012 359
Jarcia vs. People
even before the CA. The petitioners, therefore, raise the want of doctor-patient
relationship for the first time on appeal with this Court. It has been settled that
“issues raised for the first time on appeal cannot be considered because a party is not
permitted to change his theory on appeal. To allow him to do so is unfair to the other
party and offensive to the rules of fair play, justice and due process.” 18 Stated
differently, basic considerations of due process dictate that theories, issues and
arguments not brought to the attention of the trial court need not be, and ordinarily
will not be, considered by a reviewing court.19
Assuming again for the sake of argument that the petitioners may still raise this
issue of “no physician–patient relationship,” the Court finds and so holds that there
was a “physician–patient” relationship in this case.
In the case of Lucas v. Tuaño,20 the Court wrote that “[w]hen a patient engages the
services of a physician, a physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and purposes, represents that he has
the needed training and skill possessed by physicians and surgeons practicing in the
same field; and that he will employ such training, care, and skill in the treatment of
the patient. Thus, in treating his patient, a physician is under a duty to exercise that
degree of care, skill and diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and exercise in like cases.
Stated otherwise, the physician has the obligation to use at least the same level of
care that any other reasonably competent physician would use to treat the condition
under similar circumstances.”
_______________
18 Balitaosan v. The Secretary of Education, 457 Phil. 300, 304; 410 SCRA 233, 235-236 (2003).
19 Del Rosario v. Bonga, 402 Phil. 949, 957-958; 350 SCRA 101, 108 (2001).
20 G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200.
360
Jarcia vs. People
Indubitably, a physician-patient relationship exists between the petitioners and
patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate
medical attention. The petitioners allegedly passed by and were requested to attend
to the victim (contrary to the testimony of Dr. Tacata that they were, at that time,
residents on duty at the ER).21 They obliged and examined the victim, and later
assured the mother that everything was fine and that they could go home. Clearly, a
physician-patient relationship was established between the petitioners and the
patient Roy Jr.
To repeat for clarity and emphasis, if these doctors knew from the start that they
were not in the position to attend to Roy Jr., a vehicular accident victim, with the
degree of diligence and commitment expected of every doctor in a case like this, they
should have not made a baseless assurance that everything was all right. By doing
so, they deprived Roy Jr. of adequate medical attention that placed him in a more
dangerous situation than he was already in. What petitioners should have done, and
could have done, was to refer Roy Jr. to another doctor who could competently and
thoroughly examine his injuries.
All told, the petitioners were, indeed, negligent but only civilly, and not criminally,
liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the
Philippines states:
“A physician should attend to his patients faithfully and conscientiously. He should secure
for them all possible benefits that may depend upon his professional skill and care. As the
sole tribunal to adjudge the physician’s failure to fulfill his obligation to his patients is, in
most cases, his own conscience, violation of this rule on his part is discreditable and
inexcusable.”22
_______________
21 TSN, September 20, 2004, p. 13.
22 As quoted in the case of Ruñez, Jr. v. Jurado, 513 Phil. 101, 106; 477 SCRA 1, 7 (2005).
361
VOL. 666, FEBRUARY 15, 2012 361
Jarcia vs. People
Established medical procedures and practices, though in constant instability, are
devised for the purpose of preventing complications. In this case, the petitioners failed
to observe the most prudent medical procedure under the circumstances to prevent
the complications suffered by a child of tender age.
As to the Award of Damages
While no criminal negligence was found in the petitioners’ failure to administer
the necessary medical attention to Roy Jr., the Court holds them civilly liable for the
resulting damages to their patient. While it was the taxi driver who ran over the foot
or leg of Roy Jr., their negligence was doubtless contributory.
It appears undisputed that the amount of P3,850.00, as expenses incurred by
patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual damages.
The Court is aware that no amount of compassion can suffice to ease the sorrow
felt by the family of the child at that time. Certainly, the award of moral and
exemplary damages in favor of Roy Jr. in the amount of P100,000.00 and P50,000.00,
respectively, is proper in this case.
It is settled that moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo ante, the award of moral
damages is designed to compensate emotional injury suffered, not to impose a penalty
on the wrongdoer.23
_______________
23 Quezon City Govt. v. Dacara, 499 Phil. 228, 243; 460 SCRA 243, 255-256 (2005).
362
Jarcia vs. People
The Court, likewise, finds the petitioners also liable for exemplary damages in the
said amount. Article 2229 of the Civil Code provides that exemplary damages may be
imposed by way of example or correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of
Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime
of reckless imprudence resulting to serious physical injuries but declaring them
civilly liable in the amounts of:
(1) P3,850.00 as actual damages;
(2) P100,000.00 as moral damages;
(3) P50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing of the
Information. The rate shall be 12% interest per annum from the finality of judgment
until fully paid.
SO ORDERED.
Carpio,** Peralta,*** Abad and Perez,**** JJ., concur.
Petition partly granted, judgment reversed and set aside.
Notes.—For lack of a specific law geared towards the type of negligence committed
by members of the medical profes-
_______________
** Designated as additional member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special
Order No. 1185 dated February 10, 2012.
*** Designated as Acting Chairperson, per Special Order No. 1184 dated February 10, 2012.
**** Designated as additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special
Order No. 1192 dated February 10, 2012.
363
VOL. 666, FEBRUARY 15, 2012 363
Jarcia vs. People
sion, such claim for damages is almost always anchored on the alleged violation of
Article 2176 of the Civil Code; In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient relationship between the doctor and
the victim. (Lucas vs. Tuaño, 586 SCRA 173 [2009])
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.
(Bontilao vs. Gerona, 630 SCRA 561 [2010])
Court holds that prosecutions under Article 365 should proceed from a single
charge regardless of the number or severity of the consequences; There shall be no
splitting of charges under Article 365, and only one information shall be filed in the
same first level court. (Ivler vs. Modesto-San Pedro, 635 SCRA 191 [2010])
——o0o——
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. Court of Appeals
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
ANNOTATED
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
587
VOL. 321, DECEMBER 29, 1999 587
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
ANNOTATED
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.

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
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
Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May
3
1995, which overturned the decision of the Regional Trial Court, dated 30 January
4
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.
590
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
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
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
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 damages with the Regional
6
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
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
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 services of
9
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
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:
________________
Id. at 195.
10
597
VOL. 321, DECEMBER 29, 1999 597
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 respondents
12
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-
________________
Rollo, p. 19.
11
Id. at 91-98.
12
598
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 loquiturto 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 injury complained of is
13
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-
________________
57B Am Jur 2d, 493 (1989).

13
599
VOL. 321, DECEMBER 29, 1999 599
agement 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. 14
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
15
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
16
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 an independent or separate ground of
liability. Instead, it is considered as merely evidentiary or in the nature of a
17
procedural rule. It is regarded as a mode of proof, or a mere procedural convenience

18
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
19
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
________________
14 Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
Ibid.
18
Id.
19
600
of going forward with the proof. Still, before resort to the doctrine may be allowed,
20
the following requisites must be satisfactorily shown:
1. 1.The accident is of a kind which ordinarily does not occur 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
In the above requisites, the fundamental element is the “control of the

instrumentality” which caused the damage. Such element of control must be shown
22
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
Medical malpractice cases do not escape the application of this doctrine. Thus, res
24
ipsa loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical negligence cases presents
25
a question of law since it is

________________
20 Id. at 503.
21 Voss 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.
22 St. 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
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. Ordinarily, 28
only physicians and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. Hence, in cases where the res ipsa
29
loquitur is applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a resulting injury would
30
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).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P. 237.
29 Stockham 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
occurred. When the doctrine is appropriate, all that the patient must do is prove a
31
nexus between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to produce
expert medical testimony to establish the standard of care. Resort to res ipsa
loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not under, or
32
in the area, of treatment, removal of the wrong part of the body when another part
33
was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the
34
removal of his tonsils, and loss of an eye while the patient plaintiff was under the
35
influence of anesthetic, during or following an operation for appendicitis, among 36
others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to show that
he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon
the circumstances of each case. It is generally restricted to situations in malpractice
cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised. A distinction must
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
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 loquiturcan have no application in a suit against a physician
or surgeon which involves the merits of a diagnosis or of a scientific treatment. The
38
physician or surgeon is not required at his peril to explain why any particular
the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the
39
only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the
40
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 41
there was such 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
43
Kansas Supreme Court in applying the 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
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 cholecystectomyshe suffered irreparable damage to
her brain. Thus, without undergoing surgery, she
________________
Id. at 971.
44
605
VOL. 321, DECEMBER 29, 1999 605
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 loquiturdoctrine and the
presumption of negligence allowed therein,
606
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 thus, cannot be said to be covering her negligence with
45
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 far as possible so that the anesthetist can see or “visualize” the patient’s epiglottis and vocal
cords. The anesthetist will then thread the endotracheal tube between the patient’s vocal cords into the
trachea, and then hook the tube to the breathing bag and anesthetic machine.
607
VOL. 321, DECEMBER 29, 1999 607
and hospital and absolved them of any liability towards Er-linda and her family.
We disagree with the findings of the Court of Appeals. We hold that private
respondents were unable to disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical
scientific evidence of the pathogenesis of the injury but also in providing the Court
the legal nexus upon which liability is based. As will be shown hereinafter, private
respondents’ own testimonies which are reflected in the transcript of stenographic
notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during
the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to
properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean
of the Capitol Medical Center School of Nursing and petitioner’s sister-in-law, who
was in the operating room right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any
on the patient?
A: In particular, I could see that she was intubating the
patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a
sudden I heard some remarks coming from Dra. Perfecta
608
Gutierrez herself. She was saying “Ang hirap maintubate
nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.”
xxx
ATTY. PAJARES:
Q: From whom did you hear those words “lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
Q. After hearing the phrase “lumalaki ang tiyan,” what did
you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds
ofthe left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particulartime?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after
a while the patient’s nailbed became bluish and I saw
thepatient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in
that trendelenburg position?
A: As far as I know, when a patient is in that position, there
is a decrease of blood supply to the brain. 46
xxx
________________
TSN, January 13, 1988, pp. 16-20.

46
609
VOL. 321, DECEMBER 29, 1999 609
The appellate court, however, disbelieved Dean Cruz’s testimony in the trial court by
declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the
fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable
of determining whether or not a patient is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More
importantly, there is no evidence that she ever auscultated the patient or that she conducted
any type of examination to check if the endotracheal tube was in its proper place, and to
determine the condition of the heart, lungs, and other organs. Thus, witness Cruz’s
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of
sufficient factual bases.47
In other words, what the Court of Appeals is trying to impress is that being a nurse,
and considered a layman in the process of intubation, witness Cruz is not competent
to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness
Cruz is not an anesthesiologist, she can very well testify upon matters on which she
is capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any
one. This is precisely allowed under the doctrine of res ipsa loquitur where the
48
testimony of expert witnesses is not required. It is the accepted rule that expert
testimony is not necessary for the proof of negligence in nontechnical matters or those
of which an ordinary person may be expected to have knowledge, or where the lack of
skill or want of care is so obvious as to render expert testimony
________________
CA Rollo, pp. 134-135.

47
Stockham vs. Hall, supra note 29.

48
610
unnecessary. We take judicial notice of the fact that anesthesia procedures have
49
become so common, that even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the tube was properly inserted.
This kind of observation, we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner’s witness, an experienced clinical nurse
whose long experience and scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of determining whether or not
the intubation was a success. She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital,
the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of Nursing. Reviewing witness Cruz’
50
statements, we find that the same were delivered in a straightforward manner, with
the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on
that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez
who admitted that she 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 immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
________________
61 Am Jur 2d, 513 (1989).

49
TSN, January 13, 1988, p. 3.

50
611
VOL. 321, 611
DECEMBER 29, 1999
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said “mahirap yata ito,
what were you referring to?
A: “Mahirap yata itong i-intubate,” that
was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away. 51
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 Erlinda is obese and has a short
52
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, review of current
53
drug therapy, physical examination and interpretation of laboratory data. The 54
physical examination 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
anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. A thorough analysis of the patient’s
55
airway normally 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
56
characteristics of the patient’s upper airway that could make tracheal intubation
difficult should be studied. Where the need arises, as when initial assessment
57
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 indiciaof 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
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
________________
TSN, November 15, 1990, p. 6.

58
614
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
59
the drug, 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 reaction to the short-acting
60
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
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
________________
TSN, February 28, 1991, pp. 10-11.

61
616
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 witnesses states:
62
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, Dr. Jamora
63
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
________________
Rule 130, RULES OF COURT.

62
61 Am Jur 2d, supra note 49, 516.

63
617
VOL. 321, DECEMBER 29, 1999 617
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 proximately
64
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,
65
moving or producing 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
________________
BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

64
Ibid.
65
618
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 the testimony of Dr. Hosaka, the lack of
66
oxygen became apparent only after he noticed that the nailbeds of Erlinda were
already blue. However, private respondents contend that a second intubation was
67
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
thesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
69
intubations may be anticipated by performing a thorough evaluation of the patient’s

airway prior to the operation. As stated beforehand, respondent Dra. Gutierrez
70
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. Having failed to observe common medical standards in pre-
72
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 73
responsibility 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.
71 Id., The book provides a thorough discussion on the management of difficult intubations.
72 Id.
73 Under 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
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 employees, presents
74
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
the application. This is particularly true with respondent hospital.
75
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
________________
75 These 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
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
77
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
78
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
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.
________________
79 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done.

624
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
with certainty. In other words, temperate damages can and should be awarded on
80
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 with a situation
82
where the injury suffered by the plaintiff would have led to expenses which were
difficult to
________________
80 Art. 2224, CIVIL CODE.

81 Should 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
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
________________
Id. at 327-328.
83
627
VOL. 321, DECEMBER 29, 1999 627
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 husband and the children, all petitioners in this case, will have to live
84
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.
________________
Id. at 328.
84
628
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])
——o0o——

G.R. No. 126297. January 31, 2007. *
PROFESSIONAL SERVICES, INC., petitioner, vs. NATIVIDAD and ENRIQUE

AGANA, respondents.
G.R. No. 126467. January 31, 2007. *
NATIVIDAD and ENRIQUE AGANA, respondents. NATIVIDAD (Substituted by her

children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA,
petitioners, vs. JUAN FUENTES, respondent.
G.R. No. 127590. January 31, 2007. *
MIGUEL AMPIL, petitioner, vs. NATIVIDAD AGANA and ENRIQUE AGANA,

respondents.
_______________
*FIRST DIVISION.
479
VOL. 513, JANUARY 31, 2007 479
Professional Services, Inc. vs. Agana
Civil Law; Damages; Negligence; The leaving of sponges or other foreign substances in
the wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.—An operation requiring the placing of sponges in the incision is not complete until
the sponges are properly removed, and it is settled that the leaving of sponges or other foreign
substances in the wound after the incision has been closed is at least prima facie negligence
by the operating surgeon. To put it simply, such act is considered so inconsistent with due
care as to raise an inference of negligence. There are even legions of authorities to the effect
that such act is negligence per se.
Same; Same; Same; To the mind of the Court, what was initially an act of negligence by
Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.—Here, Dr.
Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled
her that the pain she was experiencing was the ordinary consequence of her operation. Had he
been more candid, Natividad could have taken the immediate and appropriate medical
remedy to remove the gauzes from her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.
Same; Same; Same; Doctrine of Res Ipsa Loquitur; Requisites for the Applicability of the
Doctrine.—Literally, res ipsa loquiturmeans “the thing speaks for itself.” It is the rule that
the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit
an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case,
and present a question of fact for defendant to meet with an explanation. Stated differently,
where the thing which caused the injury, without the fault of the injured, is under the
exclusive control of the defendant and the injury is such that it should not have occurred if
he, having such control used proper care, it affords reasonable evidence, in the absence of
explanation that the injury arose from the defendant’s want of care, and the burden of proof
is shifted to him to establish that he has observed due care and diligence. From the foregoing
statements of the rule, the requisites for the applicability of the doctrine of res ipsa
loquitur are: (1) the occurrence of an injury; (2)the thing which caused the injury was under
the control and management of the defendant; (3) the occurrence was such that in the
ordinary course of things, would
480
ANNOTATED
not have happened if those who had control or management used proper care; and (4) the
absence of explanation by the defendant. Of the foregoing requisites, the most instrumental
is the “control and management of the thing which caused the injury.”
Same; Same; Same; Same; Res ipsa loquitur is not a rule of substantive law, hence, does
not per se create or constitute an independent or separate ground of liability, being a mere
evidentiary rule.—In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence,
does not per se create or constitute an independent or separate ground of liability, being a
mere evidentiary rule. In other words, mere invocation and application of the doctrine does
not dispense with the requirement of proof of negligence. Here, the negligence was proven to
have been committed by Dr. Ampil and not by Dr. Fuentes.
Same; Same; Same; Professionals are considered personally liable for the fault or
negligence they commit in the discharge of their duties and their employer cannot be held
liable for such fault or negligence.—A prominent civilist commented that professionals
engaged by an employer, such as physicians, dentists, and pharmacists, are not “employees”
under this article because the manner in which they perform their work is not within the
control of the latter (employer). In other words, professionals are considered personally liable
for the fault or negligence they commit in the discharge of their duties, and their employer
cannot be held liable for such fault or negligence. In the context of the present case, “a hospital
cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or
operation of patients.”
Same; Same; Same; In this jurisdiction, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in view of the pronouncement in
Ramos vs. Court of Appeals, 321 SCRA 584 (1999), that for purposes of apportioning
responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.—In our shores, the nature of
the relationship between the hospital and the physicians is rendered inconsequential in view
of our categorical pronouncement in Ramos v. Court of Appeals, 321 SCRA 584 (1999), that
for purposes of apportioning responsibility in
481
VOL. 513, JANUARY 31, 2007 481
medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians.
Same;Same; Same; PSI’s liability is also anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of corporate negligence.—But
the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is
also anchored upon the agency principle of apparent authority or agency by estoppel and the
doctrine of corporate negligence which have gained acceptance in the determination of a
hospital’s liability for negligent acts of health professionals. The present case serves as a
perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the “holding out” theory, or doctrine
of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes
liability, not as the result of the reality of a contractual relationship, but rather because of
the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists. The concept is essentially one of estoppel and
has been explained in this manner: “The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent to assume, or which he holds the
agent out to the public as possessing. The question in every case is whether the principal has
by his voluntary act placed the agent in such a situation that a person of ordinary prudence,
conversant with business usages and the nature of the particular business, is justified in
presuming that such agent has authority to perform the particular act in question.
Same; Same; Same; In cases where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or employee and that a patient has accepted
treatment from that physician in the reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physician’s negligence.—The applicability of
apparent authority in the field of hospital liability was upheld long time ago in Irving v.
Doctor Hospital of Lake Worth, Inc., 415 So. 2d 55 (1982). There, it was explicitly stated that
“there does not appear to be any rational basis for excluding the concept of apparent authority
from the field of hospital liability.” Thus, in cases where it can be shown that a hospital, by
its actions, has held out a particular physician as its agent and/or employee and
482
ANNOTATED
that a patient has accepted treatment from that physician in the reasonable belief that
it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s
negligence.
Same; Same; Same; By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising
their qualifications, the hospital created the impression that they were its agents, authorized
to perform medical or surgical services for its patients.—In this case, PSI publicly displays in
the lobby of the Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with
the Court of Appeals’ conclusion that it “is now estopped from passing all the blame to the
physicians whose names it proudly paraded in the public directory leading the public to believe
that it vouched for their skill and competence.” Indeed, PSI’s act is tantamount to holding out
to the public that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents, authorized to
perform medical or surgical services for its patients. As expected, these patients, Natividad
being one of them, accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants.
PETITION for review on certiorari of the decisions of the Court of Appeals.
Bengzon, Narciso, Cudala, Pecson, Bengzon & Jimenez for petitioner
Professional Services, Inc.
Enrique Agana & Associates for petitioners Natividad and Enrique Agana.
The Law Firm of Raymundo M. Armovit for petitioner Miguel Ampil.
Agcaoili Law Offices collaborating counsel for Heirs of Natividad Agana.
Benjamin M. Tongol for Juan Fuentes.
483
VOL. 513, JANUARY 31, 2007 483
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and delicate

endeavors, must assume the grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust, however technical, complex
and esoteric its character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the health, and indeed,
the very lives of those placed in the hospital’s keeping. 1
Assailed in these three consolidated petitions for review on certiorari is the Court
of Appeals’ Decision dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R.
2
SP No. 32198 affirming with modification the Decision dated March 17, 1993 of the
3
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and
nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General
Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody
anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner
in G.R. No. 127590, diagnosed her to be suffering from “cancer of the sigmoid.”
_______________
1 Beeck v. Tucson General Hospital, 500 P. 2d 1153 (1972), citing Darling v. Charleston Community
Memorial Hospital, 33 Ill. 2d 326, 211 N.E. 2d 253.

2 Penned by Associate Justice Cancio C. Garcia (now a member of the Supreme Court) and concurred in
by Associate Justices Eugenio S. Labitoria and Artemio G. Tuquero (both retired), Rollo, G.R. No. 126297,
pp. 36-51; 126467, pp. 27-42; 127590, pp. 23-38.
3 Penned by Judge Lucas P. Bersamin (now Justice of the Court of Appeals), Rollo, G.R. No. 126647, pp.
69-83.
484
On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City4
Hospital, performed an anterior resection surgery on Natividad. He found that the

malignancy in her sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467,
to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed
the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of
Operation dated April 11, 1984, the attending nurses entered these remarks:
“sponge count lacking 2
“announced to surgeon searched (sic) done but to no avail continue for closure.”
On April 24, 1984, Natividad was released from the hospital. Her hospital and
medical bills, including the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal
region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the
pain was the natural consequence of the surgery. Dr. Ampil then recommended that
she consult an oncologist to examine the cancerous nodes which were not removed
during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United
States to seek further treatment. After four months of consultations and laboratory
examinations, Natividad was told she was free of cancer. Hence, she was advised to
return to the Philippines.
_______________
4The medical staff was composed of physicians, both residents and interns, as well as nurses.
485
VOL. 513, JANUARY 31, 2007 485
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains.
Two weeks thereafter, her daughter found a piece of gauze protruding from her
vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then
assured her that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While confined there,
Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina—
a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal
vault. A recto-vaginal fistula had formed in her reproductive organs which forced
stool to excrete through the vagina. Another surgical operation was needed to remedy
the damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch
96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil
Case No. Q-43322. They alleged that the latter are liable for negligence for leaving
two pieces of gauze inside Natividad’s body and malpractice for concealing their acts
of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation
Commission (PRC) an administrative complaint for gross negligence and malpractice
against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The
PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it
failed to acquire jurisdiction over Dr. Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and
was duly substituted by her abovenamed children (the Aganas).
486
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding
PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal
part of which reads:
“WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the
defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for
exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil
and Dr. Fuentes only, as follows:
1. 1.As actual damages, the following amounts:
1. a.The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of

P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;
2. b.The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
3. c.The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;
1. 2.As moral damages, the sum of P2,000,000.00;

2. 3.As exemplary damages, the sum of P300,000.00;
3. 4.As attorney’s fees, the sum of P250,000.00;
4. 5.Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of
the complaint until full payment; and
5. 6.Costs of suit.
SO ORDERED.”
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of
Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial
execution of its Decision, which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold
487
VOL. 513, JANUARY 31, 2007 487
them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement with
PSI and Dr. Fuentes to indefinitely suspend any further execution of the RTC
Decision. However, not long thereafter, the Aganas again filed a motion for
an alias writ of execution against the properties of PSI and Dr. Fuentes.
On September 21, 1993, the RTC granted the motion and issued the corresponding
writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No.
32198. During its pendency, the Court of Appeals issued a Resolution dated October
5
29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV
No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its
Decision in Administrative Case No. 1690 dismissing the case against Dr. Fuentes.
6
The Board held that the prosecution failed to show that Dr. Fuentes was the one who
left the two pieces of gauze inside Natividad’s body; and that he concealed such fact
from Natividad.
_______________
5 The dispositive portion reads:

“WHEREFORE, let a writ of preliminary injunction be issued upon petitioner’s posting of bond in the amount of
P20,000.00, ENJOINING public respondents from implementing the questioned order dated September 21, 1993 and
from further taking any action in Civil Case No. Q-43322 entitled ‘Natividad G. Agana, et al., plaintiffs, versus
Professional Services, Inc., et al.,defendants’ pending resolution of the instant petition.
SO ORDERED.” See Rollo, G.R. No. 126297, p. 42.
6Rollo of G.R. No. 126467, pp. 84-89.
488
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing
of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
“WHEREFORE, except for the modification that the case against defendant-appellant Dr.
Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-
appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees,
the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and
the challenged order of the respondent judge dated September 21, 1993, as well as the alias
writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The
bond posted by the petitioner in connection with the writ of preliminary injunction issued by
this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services,
Inc.
SO ORDERED.”
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a
Resolution dated December 19, 1996.
7
Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in
holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee,
but a mere consultant or independent contractor. As such, he alone should answer for
his negligence.
_______________
7Rollo of G.R. No. 127590, p. 40.

489
VOL. 513, JANUARY 31, 2007 489
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding
that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the
doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima
facie proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in
finding him liable for negligence and malpractice sans evidence that he left the two
pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such
as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses’ failure to properly count the gauzes used during surgery;
and (3) the medical intervention of the American doctors who examined Natividad in
the United States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals
erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the
Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether
PSI may be held solidarily liable for the negligence of Dr. Ampil.
I—G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil Liable for Negligence and
Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other
possible causes of Natividad’s detriment. He argues that the Court should not
discount either of the following possibilities: first, Dr. Fuentes left the gauzes in
Natividad’s body after performing hysterectomy; second, the attending nurses erred
in counting the gauzes; and third, the American doctors were the ones who placed the
gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show
that he did not present any evidence to prove that the American doctors were the
ones who put or left
490
the gauzes in Natividad’s body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of gauzes used. As to
the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his
(Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified
by the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of
the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in
their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced
to surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to
‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body
of Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the
sponges are properly removed, and it is settled that the leaving of sponges or other
foreign substances in the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon. To put it simply, such act is considered so
8
inconsistent with due care as to raise an inference of negligence. There are even
legions of authorities to the effect that such act is negligence per se. 9
_______________
8 Rule v. Cheeseman, 317 P. 2d 472 (1957), citing Russel v. Newman, 116 Kan. 268 P. 752; Bernsden v.
Johnson, 174 Kan. 230, 255 P. 2d 1033.

9 Smith v. Zeagler, 157 So. 328 Fla. (1934), citing Ruth v. Johnson, (C.C.A.) 172 F. 191; Reeves v. Lutz,
179 Mo. App. 61, 162 S.W. 280; Rayburn v. Day, 126 Or. 135, 68 P. 1002, 59 A.L.R. 1062; Wynne v. Harvey,
96 Wash. 379, 165 P. 67; Harris v. Fall (C.C.A.), 177 F. 79,
491
VOL. 513, JANUARY 31, 2007 491
Of course, the Court is not blind to the reality that there are times when danger to a
patient’s life precludes a surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free from any obligation. Even if
it has been shown that a surgeon was required by the urgent necessities of the case
to leave a sponge in his patient’s abdomen, because of the dangers attendant upon
delay, still, it is his legal duty to so inform his patient within a reasonable time
thereafter by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler is explicit, thus:
10
“The removal of all sponges used is part of a surgical operation, and when a physician or
surgeon fails to remove a sponge he has placed in his patient’s body that should be removed
as part of the operation, he thereby leaves his operation uncompleted and creates a new
condition which imposes upon him the legal duty of calling the new condition to
his patient’s attention, and endeavoring with the means he has at hand to minimize
and avoid untoward results likely to ensue therefrom.”
Here, Dr. Ampil did not inform Natividad about the missing two pieces of
gauze. Worse, he even misled her that the pain she was experiencing was the ordinary
consequence of her operation. Had he been more candid, Natividad could have taken
the immediate and appropriate medical remedy to remove the gauzes from her body.
To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a
deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical
negligence. To successfully pursue this kind of case, a patient must only prove that a
health care provider
_______________
27 L.R.A. (N.S.) 1174; Moore v. Ivey, (Tex. Civ. App.) 264 S.W. 283; 21 R.C. L. 388.
10 157 So. 328 Fla. (1934)
492
either failed to do something which a reasonably prudent health care provider would
have done, or that he did something that a reasonably prudent provider would not
have done; and that failure or action caused injury to the patient. Simply put, the 11
elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead
surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s
body before closure of the incision. When he failed to do so, it was his duty to inform
Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American doctors and another
surgery. That Dr. Ampil’s negligence is the proximate cause of Natividad’s injury 12
could be traced from his act of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That they were later on
extracted from Natividad’s vagina established the causal link between Dr. Ampil’s
negligence and the injury. And what further aggravated such injury was
_______________
11Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769.
12In the leading case of Vda. de Bataclan v. Medina, (102 Phil. 181[1957]), this Court laid down the
following definition of proximate cause in this jurisdiction as follows:
[T]hat cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the
injury and without which the result would not have occurred. And more comprehensively, the proximate cause is that
acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal connection with the immediate predecessor, the final event
in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under which
circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result
therefrom.
493
VOL. 513, JANUARY 31, 2007 493
his deliberate concealment of the missing gauzes from the knowledge of Natividad
and her family.
II—G.R. No. 126467
Whether the Court of Appeals Erred in Absolving Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes
on the ground that it is contrary to the doctrine of res ipsa loquitur. According to
them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima
facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means “the thing speaks for itself.” It is the rule that
the fact of the occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or make out a
plaintiff’s prima facie case, and present a question of fact for defendant to meet with
an explanation. Stated differently, where the thing which caused the injury, without
13
the fault of the injured, is under the exclusive control of the defendant and the injury
is such that it should not have occurred if he, having such control used proper care, it
affords reasonable evidence, in the absence of explanation that the injury arose from
the defendant’s want of care, and the burden of proof is shifted to him to establish
that he has observed due care and diligence. 14
From the foregoing statements of the rule, the requisites for the applicability of
the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing
which caused the injury was under the control and management of the defen-
_______________
Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584.
13
Africa v. Caltex (Phils.) Inc., 123 Phil. 280; 16 SCRA 448 (1966).
14
494
dant; (3) the occurrence was such that in the ordinary course of things, would not
have happened if those who had control or management used proper care; and (4) the
absence of explanation by the defendant. Of the foregoing requisites, the most
instrumental is the “control and management of the thing which caused the injury.” 15
We find the element of “control and management of the thing which caused the
injury” to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation
of Natividad. He requested the assistance of Dr. Fuentes only to perform
hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area
had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil
then resumed operating on Natividad. He was about to finish the procedure when the
attending nurses informed him that two pieces of gauze were missing. A “diligent
search” was conducted, but the misplaced gauzes were not found. Dr. Ampil then
directed that the incision be closed. During this entire period, Dr. Fuentes was no
longer in the operating room and had, in fact, left the hospital.
Under the “Captain of the Ship” rule, the operating surgeon is the person in
complete charge of the surgery room and all personnel connected with the operation.
Their duty is to obey his orders. As stated before, Dr. Ampil was the lead surgeon. In
16
other words, he was the “Captain of the Ship.” That he discharged such role is evident
from his following
_______________
15 Ranos v. Court of Appeals, supra. In Ramos, the phrase used is “control of the instrumentality which
caused the damage,” citing St. John’s Hospital and School of Nursing v. Chapman, 434 P2d 160 (1967).
16 Rural Educational Assn v. Bush, 42 Tenn. App. 34, 298 S.W. 2d 761 (1956).
495
VOL. 513, JANUARY 31, 2007 495
conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of
Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave;
and (4)ordering the closure of the incision. To our mind, it was this act of ordering the
closure of the incision notwithstanding that two pieces of gauze remained unaccounted
for, that caused injury to Natividad’s body. Clearly, the control and management of
the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does
not per se create or constitute an independent or separate ground of liability, being a
mere evidentiary rule. In other words, mere invocation and application of the
17
doctrine does not dispense with the requirement of proof of negligence. Here, the
negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.
III—G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and
the resulting theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions,
providing medical services to the lowest classes of society, without regard for a
patient’s ability to pay. Those who could afford medical treatment were usually
18
treated at home by their doctors. However, the days of house calls and philanthropic
19
health care are over. The modern health care industry continues to distance itself
from its
_______________
17 Ramos v. Court of Appeals, supra at footnote 13.

18 Levin, Hospital Vicarious Liability for Negligence by Independent Contractor Physicians: A New Rule
for New Times, October 17, 2005.
19 Id.
496
charitable past and has experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently, significant changes in
health law have accompanied the business-related changes in the hospital industry.
One important legal change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital vicarious liability under the
theories of respondeat superior, apparent authority, ostensible authority, or agency
by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176
of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability
under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts
or omissions, but also for those of persons for whom one is responsible.
xxx xxx
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.
xxx xxx
_______________
Id.
20
497
VOL. 513, JANUARY 31, 2007 497
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an employer, such as
physicians, dentists, and pharmacists, are not “employees” under this article because
the manner in which they perform their work is not within the control of the latter
(employer). In other words, professionals are considered personally liable for the fault
or negligence they commit in the discharge of their duties, and their employer cannot
be held liable for such fault or negligence. In the context of the present case, “a
hospital cannot be held liable for the fault or negligence of a physician or surgeon in
the treatment or operation of patients.” 21
The foregoing view is grounded on the traditional notion that the professional
status and the very nature of the physician’s calling preclude him from being classed
as an agent or employee of a hospital, whenever he acts in a professional capacity. It 22
has been said that medical practice strictly involves highly developed and specialized
knowledge, such that physicians are generally free to exercise their own skill
23
_______________
21 Tolentino, The Civil Code of the Philippines, Volume V, 1992 Ed., p. 616.
22 Arkansas M.R. Co. v. Pearson, 98 Ark. 442, 153 SW 595 (1911); Runyan v. Goodrum, 147 Ark. 281, 228
SW 397, 13 ALR 1403 (1921); Rosane v. Senger, 112 Colo. 363, 149 P. 2d 372 (superseded by statute on other
grounds); Moon v. Mercy Hosp., 150 Col. 430, 373 P. 2d 944 (1962); Austin v. Litvak, 682 P. 2d 41, 50 ALR
4th 225 (1984); Western Ins. Co. v. Brochner, 682 P. 2d 1213 (1983); Rodriguez v. Denver, 702 P. 2d 1349
(1984).
23 Arkansas M.R. Co. v. Pearson, Id.; Nieto v. State, 952 P. 2d 834 (1997). But see Beeck v. Tucson General
Hosp., 18 Ariz. App. 165, 500 P. 2d 1153 (1972); Paintsville Hosp. Co., 683 SW 2d 255 (1985); Kelley v. Rossi,
395 Mass. 659, 481 NE 2d 1340 (1985) which held that a physician’s professional status does not prevent
him or her from being a servant or agent of the hospital.
498
and judgment in rendering medical services sans interference. Hence, when a doctor
24
practices medicine in a hospital setting, the hospital and its employees are deemed
to subserve him in his ministrations to the patient and his actions are of his own
responsibility. 25
The case of Schloendorff v. Society of New York Hospital was then considered an
26
authority for this view. The “Schloendorff doctrine” regards a physician, even if
employed by a hospital, as an independent contractorbecause of the skill he exercises
and the lack of control exerted over his work. Under this doctrine, hospitals are
exempt from the application of the respondeat superiorprinciple for fault or
negligence committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant
developments in medical care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and regulating medical care to patients.
No longer were a hospital’s functions limited to furnishing room, food, facilities for
treatment and operation, and attendants for its patients. Thus, in Bing v.
Thunig, the New York Court of Appeals deviated from the Schloendorff doctrine,
27
noting that modern hospitals actually do far more than provide facilities for
treatment. Rather, they regularly
_______________
24 Fridena v. Evans, 127 Ariz. 516, 522 P. 2d 463 (1980).

25 Kitto v. Gilbert, 39 Colo App 374, 570 P. 2d 544 (1977).
26 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (1914). The court in Schloendorff opined that a hospital
does not act through physicians but merely procures them to act on their own initiative and responsibility.
For subsequent application of the doctrine, see for instance, Hendrickson v. Hodkin, 250 App. Div 649, 294
NYS 982, revd on other grounds, 276 NY 252, 11 NE 2d 899 (1937); Necolayff v. Genesee Hosp., 270 App.
Div. 648, 61 NYS 2d 832, affd 296 NY 936, 73 NE2d 117 (1946); Davie v. Lenox Hill Hosp., Inc., 81 NYS 2d
583 (1948); Roth v. Beth El Hosp., Inc., 279 App. Div 917, 110 NYS 2d 583 (1952); Rufino v. US, 126 F. Supp.
132 (1954); Mrachek v. Sunshine Biscuit, Inc., 308 NY 116, 123 N.E. 2d 801 (1954).
27 2 NY 2d 656, 163 NYS 2d 3, 143 N.E. 2d 3 (1957).
499
VOL. 513, JANUARY 31, 2007 499
employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative
and manual workers. They charge patients for medical care and treatment, even
collecting for such services through legal action, if necessary. The court then
concluded that there is no reason to exempt hospitals from the universal rule
of respondeat superior.
In our shores, the nature of the relationship between the hospital and the
physicians is rendered inconsequential in view of our categorical pronouncement
in Ramos v. Court of Appeals that for purposes of apportioning responsibility in
28
medical negligence cases, an employer-employee relationship in effect exists between

hospitals and their attending and visiting physicians. This Court held:
“We now discuss the responsibility of the hospital in this particular incident. The unique
practice (among private hospitals) of filling up specialist staff with attending and visiting
“consultants,” who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing
of consultants and in the conduct of their work within the hospital premises.
Doctors who apply for ‘consultant’ slots, visiting or attending, are required to
submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinicopathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the
_______________
28 Supra at footnote 13.

500
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, x x x, the control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether such
a relationship in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employeremployee relationship in effect exists between
hospitals and their attending and visiting physicians.”
But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its
liability is also anchored upon the agency principle of apparent authority or agency
by estoppel and the doctrine of corporate negligence which have gained acceptance in
the determination of a hospital’s liability for negligent acts of health professionals.
The present case serves as a perfect platform to test the applicability of these
doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the “holding out” theory,
or doctrine of ostensible agency or agency by estoppel, has its origin from the law of
29
agency. It
_______________
29 Black’s Law Dictionary (6th Ed. 1990) 1100. The terms “ostensible agency,” “agency by estoppel,”
“apparent authority,” and “holding out” tend to be used interchangeably by the courts to refer to this theory
of liability. See for instance, Baker v. Werner, 654 P2d 263 (1982) and Adamski v. Tacoma Gen. Hosp., 20
Wash App. 98,
501
VOL. 513, JANUARY 31, 2007 501
imposes liability, not as the result of the reality of a contractual relationship, but
rather because of the actions of a principal or an employer in somehow misleading
the public into believing that the relationship or the authority exists. The concept is 30
essentially one of estoppel and has been explained in this manner:

“The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public as
possessing. The question in every case is whether the principal has by his voluntary act
placed the agent in such a situation that a person of ordinary prudence, conversant with
business usages and the nature of the particular business, is justified in presuming that such
agent has authority to perform the particular act in question. 31
The applicability of apparent authority in the field of hospital liability was upheld
long time ago in Irving v. Doctor Hos-
_______________
579 P2d 970 (1978). Agency by estoppel is defined as “one created by operation of law and established by
proof of such acts of the principal as reasonably lead third persons to the conclusion of its existence. Arises
where principal by negligence in failing to supervise agent’s affairs, allows agent to exercise powers not
granted to him, thus justifying others in believing the agent possesses requisite authority.” Black’s, supra,
p. 62. An ostensible agency is “an implied or presumptive agency which exists where one, either
intentionally or from want of ordinary care, induces another to believe that a third person is his agent,
though he never in fact, employed him. It is, strictly speaking, no agency at all, but is in reality based
entirely upon estoppel.” Apparent authority refers to “the power to affect the legal relations of another
person by transactions with third persons, professedly as agent for the other, arising from and in accordance
with the other’s manifestations to such third persons.” Supra, p. 96.
30 Irving v. Doctors Hospital of Lake Worth, Inc., 415 So. 2d 55 (1982), quoting Arthur v. St. Peters
Hospital, 169 N.J. 575, 405 A. 2d 443 (1979).

31 Id., citing Hudson v. C., Loan Assn., Inc. v. Horowytz, 116 N.J.L. 605, 608, 186 A 437 (Sup. Ct. 1936).
502
pital of Lake Worth, Inc. There, it was explicitly stated that “there does not appear to
32
be any rational basis for excluding the concept of apparent authority from the field of
hospital liability.” Thus, in cases where it can be shown that a hospital, by its actions,
has held out a particular physician as its agent and/or employee and that a patient
has accepted treatment from that physician in the reasonable belief that it is being
rendered in behalf of the hospital, then the hospital will be liable for the physician’s
negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel.
Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence
or lack of action, or his failure to repudiate the agency, knowing that another person is acting
on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names
and specializations of the physicians associated or accredited by it, including those of
Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it
“is now estopped from passing all the blame to the physicians whose names it proudly
paraded in the public directory leading the public to believe that it vouched for their
skill and competence.” Indeed, PSI’s act is tantamount to holding out to the public
that Medical City Hospital, through its accredited physicians, offers quality health
care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents,
authorized to perform medical or surgical services for its patients. As expected, these
patients, Natividad being one of them, accepted the services on the reasonable belief
that such were being rendered by the hospital or its employees, agents, or servants.
The trial court correctly pointed out:
_______________
Supra.
32
503
VOL. 513, JANUARY 31, 2007 503
“x x x regardless of the education and status in life of the patient, he ought not be
burdened with the defense of absence of employer-employee relationship between
the hospital and the independent physician whose name and competence are
certainly certified to the general public by the hospital’s act of listing him and his
specialty in its lobby directory, as in the case herein. The high costs of today’s
medical and health care should at least exact on the hospital greater, if not
broader, legal responsibility for the conduct of treatment and surgery within its
facility by its accredited physician or surgeon, regardless of whether he is
independent or employed.” 33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like
PSI, are capable of acting only through other individuals, such as physicians. If these
accredited physicians do their job well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially. Logically, where negligence
mars the quality of its services, the hospital should not be allowed to escape liability
for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and
malpractice is that PSI as owner, operator and manager of Medical City Hospital,
“did not perform the necessary supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and
medical interns who assisted Drs. Ampil and Fuentes in the performance of their
duties as surgeons.” Premised on the doctrine of corporate negligence, the trial court
34
held that PSI is directly liable for such breach of duty.

We agree with the trial court.
_______________
RTC Decision, p. 9, Rollo of G.R. No. 126467, p. 127.

33
RTC Decision, p. 2, Rollo of G.R. No. 126467, p. 120.

34
504
Recent years have seen the doctrine of corporate negligence as the judicial answer to
the problem of allocating hospital’s liability for the negligent acts of health
practitioners, absent facts to support the application of respondeat superior or
apparent authority. Its formulation proceeds from the judiciary’s acknowledgment
that in these modern times, the duty of providing quality medical service is no longer
the sole prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional medical staff
whose competence and performance need to be monitored by the hospitals
commensurate with their inherent responsibility to provide quality medical care. 35
The doctrine has its genesis in Darling v. Charleston Community Hospital. There, 36
the Supreme Court of Illinois held that “the jury could have found a hospital
negligent, inter alia, in failing to have a sufficient number of trained nurses attending
the patient; failing to require a consultation with or examination by members of the
hospital staff; and failing to review the treatment rendered to the patient.” On the basis
of Darling, other jurisdictions held that a hospital’s corporate negligence extends to
permitting a physician known to be incompetent to practice at the hospital. With the 37
passage of time, more duties were expected from hospitals, among them: (1) the use
of reasonable care in the maintenance of safe and adequate facilities and
equipment; (2) the selection and retention of competent physicians; (3) the overseeing
or supervision of all persons who practice medicine within its walls; and (4) the
formulation, adoption and enforcement of adequate rules
_______________
35 Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P2d 335 (1972).

36 Supra at footnote 1.
37 Corleto v. Hospital, 138 N.J. Super. 302, 350 A. 2d 534 (Super. Ct. Law Div.1975); Purcell v.
Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972); Hospital Authority v. Joiner, 229 Ga. 140,189 S.E. 2d
412 (1972).
505
VOL. 513, JANUARY 31, 2007 505
and policies that ensure quality care for its patients. Thus, in Tucson Medical Center,
38
Inc. v. Misevich, it was held that a hospital, following the doctrine of corporate
39
responsibility, has the duty to see that it meets the standards of responsibilities for
the care of patients. Such duty includes the proper supervision of the members of its
medical staff. And in Bost v. Riley, the court concluded that a patient who enters a
40
hospital does so with the reasonable expectation that it will attempt to cure him. The
hospital accordingly has the duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the physicians practicing in its
premises.
In the present case, it was duly established that PSI operates the Medical City
Hospital for the purpose and under the concept of providing comprehensive medical
services to the public. Accordingly, it has the duty to exercise reasonable care to
protect from harm all patients admitted into its facility for medical
treatment.Unfortunately, PSI failed to perform such duty. The findings of the trial
court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the
matter reported in the nota bene of the count nurse. Such failure established PSI’s
part in the dark conspiracy of silence and concealment about the gauzes.Ethical
considerations, if not also legal, dictated the holding of an immediate inquiry into the events,
if not for the benefit of the patient to whom the duty is primarily owed, then in the interest
of arriving at the truth. The Court cannot accept that the medical and the healing professions,
through their members like defendant surgeons, and their institutions like PSI’s hospital
facility, can callously turn their backs on and disregard even a mere probability of mistake
or negligence by refusing or failing to investigate a report of such seriousness as the one in
Natividad’s case.”
_______________
38 Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997).

39 115 Ariz. 34, 545 P2d 958 (1976).
40 262 S.E. 2d 391, cert denied 300 NC 194, 269 S.E. 2d 621 (1980).
506
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the
assistance of the Medical City Hospital’s staff, composed of resident doctors, nurses,
and interns. As such, it is reasonable to conclude that PSI, as the operator of the
hospital, has actual or constructiveknowledge of the procedures carried
out, particularly the report of the attending nurses that the two pieces of gauze were
missing. In Fridena v. Evans, it was held that a corporation is bound by the
41
knowledge acquired by or notice given to its agents or officers within the scope of their
authority and in reference to a matter to which their authority extends. This means
that the knowledge of any of the staff of Medical City Hospital constitutes knowledge
of PSI. Now, the failure of PSI, despite the attending nurses’ report, to investigate
and inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the
negligence committed. This renders PSI, not only vicariously liable for the negligence
of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:
“x x x In recent years, however, the duty of care owed to the patient by the hospital has
expanded. The emerging trend is to hold the hospital responsible where the hospital
has failed to monitor and review medical services being provided within its
walls. See Kahn Hospital Malpractice Prevention, 27 De Paul Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App.
75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the
malpractice of a medical practitioner because he was an independent contractor within the
hospital. The Court of Appeals pointed out that the hospital had created a
professional staff whose competence
_______________
41 127 Ariz. 516, 622 P. 2d 463 (1980).

507
VOL. 513, JANUARY 31, 2007 507
and performance was to be monitored and reviewed by the governing body of the
hospital, and the court held that a hospital would be negligent where it had
knowledge or reason to believe that a doctor using the facilities was employing a
method of treatment or care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a
hospital has certain inherent responsibilities regarding the quality of medical care
furnished to patients within its walls and it must meet the standards of
responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital,
18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of
Appeals that a hospital has the duty of supervising the competence of the doctors on its staff.
x x x.
xxx xxx
In the amended complaint, the plaintiffs did plead that the operation was performed at
the hospital with its knowledge, aid, and assistance, and that the negligence of the
defendants was the proximate cause of the patient’s injuries. We find that such general
allegations of negligence, along with the evidence produced at the trial of this case,
are sufficient to support the hospital’s liability based on the theory of negligent
supervision.”
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its
responsibility, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the accreditation and supervision of the latter. In neglecting
to offer such proof, PSI failed to discharge its burden under the last paragraph of
Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr.
Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a patient,
the law imposes on him certain obligations. In order to escape liability, he must
possess that reasonable degree of learning, skill and experience required by
508
his profession. At the same time, he must apply reasonable care and diligence in the
exercise of his skill and the application of his knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision
of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
Puno (C.J., Chairperson), Corona and Azcuna, JJ., concur.
Garcia, J., No part.
Petitions denied, challenged CA decision in CA-G.R. No. CV No. 42062 and CA-
G.R. SP No. 32198 affirmed.
Note.—Under the Captain-of-the-Ship Doctrine, a surgeon is likened to a captain
of the ship in that it is his duty to control everything going on in the operating room.
(Ramos vs. Court of Appeals, 380 SCRA 467 [2002])
——o0o——
509
G.R. No. 160110. June 18, 2014.*
MARIANO C. MENDOZA and ELVIRA LIM, petitioners, vs. SPOUSES LEONORA
J. GOMEZ and GABRIEL V. GOMEZ, respondents.
Civil Law; Quasi-Delicts; Proximate Cause; Words and Phrases; Proximate cause is
defined as that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.—Proximate cause is defined as that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred. And more comprehensively, the proximate legal
cause is that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the first event should, as an
ordinary prudent and intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result therefrom.
Same; Same; According to Manresa, liability for personal acts and omissions is founded
on that indisputable principle of justice recognized by all legislations that when a person by
his act or omission causes damage or prejudice to another, a juridical relation is created by
virtue of which the injured person acquires a right to be indemnified and the person causing
the damage is charged with the corresponding duty of repairing the damage.—Having settled
the fact of Mendoza’s negligence, then, the next question that confronts us is who may be
held liable. According to Manresa, liability for personal acts and omissions is founded on that
indisputable principle of justice recognized by all legislations that when a person by his act
or omission causes damage or prejudice to another, a juridical relation
_______________
* SECOND DIVISION.
506
Mendoza vs. Gomez
is created by virtue of which the injured person acquires a right to be indemnified and
the person causing the damage is charged with the corresponding duty of repairing the
damage. The reason for this is found in the obvious truth that man should subordinate his
acts to the precepts of prudence and if he fails to observe them and causes damage to another,
he must repair the damage. His negligence having caused the damage, Mendoza is certainly
liable to repair said damage.
Same; Same; Vicarious Liability; In our jurisdiction, vicarious liability or imputed
negligence is embodied in Article 2180 of the Civil Code and the basis for damages in the
action under said article is the direct and primary negligence of the employer in the selection
or supervision, or both, of his employee.—Mendoza’s employer may also be held liable under
the doctrine of vicarious liability or imputed negligence. Under such doctrine, a person who
has not committed the act or omission which caused damage or injury to another may
nevertheless be held civilly liable to the latter either directly or subsidiarily under certain
circumstances. In our jurisdiction, vicarious liability or imputed negligence is embodied in
Article 2180 of the Civil Code and the basis for damages in the action under said article is
the direct and primary negligence of the employer in the selection or supervision, or both, of
his employee.
Same; Same; Same; In Filcar Transport Services v. Espinas, 674 SCRA 117 (2012), the
Supreme Court (SC) held that the registered owner is deemed the employer of the negligent
driver, and is thus vicariously liable under Article 2176, in relation to Article 2180, of the Civil
Code.—In Filcar Transport Services v. Espinas, 674 SCRA 117 (2012), we held that the
registered owner is deemed the employer of the negligent driver, and is thus vicariously liable
under Article 2176, in relation to Article 2180, of the Civil Code. Citing Equitable Leasing
Corporation v. Suyom, 388 SCRA 445 (2002), the Court ruled that insofar as third persons
are concerned, the registered owner of the motor vehicle is the employer of the negligent
driver, and the actual employer is considered merely as an agent of such owner. Thus,
whether there is an employer-employee relationship between the registered owner and the
driver is irrelevant in determining the liability of the registered owner who the law holds
primarily and directly responsible for any accident, injury or death caused by the operation
of the vehicle in the streets and highways.507
VOL. 726, JUNE 18, 2014 507
Mendoza vs. Gomez
Same; Same; Same; With the enactment of the motor vehicle registration law, the defenses
available under Article 2180 of the Civil Code — that the employee acts beyond the scope of
his assigned task or that it exercised the due diligence of a good father of a family to prevent
damage — are no longer available to the registered owner of the motor vehicle, because the
motor vehicle registration law, to a certain extent, modified Article 2180.—Generally, when
an injury is caused by the negligence of a servant or employee, there instantly arises a
presumption of law that there was negligence on the part of the master or employer either in
the selection of the servant or employee (culpa in eligiendo) or in the supervision over him
after the selection (culpa vigilando), or both. The presumption is juris tantum and not juris
et de jure; consequently, it may be rebutted. Accordingly, the general rule is that if the
employer shows to the satisfaction of the court that in the selection and supervision of his
employee he has exercised the care and diligence of a good father of a family, the presumption
is overcome and he is relieved of liability. However, with the enactment of the motor vehicle
registration law, the defenses available under Article 2180 of the Civil Code — that the
employee acts beyond the scope of his assigned task or that it exercised the due diligence of
a good father of a family to prevent damage — are no longer available to the registered owner
of the motor vehicle, because the motor vehicle registration law, to a certain extent, modified
Article 2180.
Same; Same; Unjust Enrichment; Under the civil law principle of unjust enrichment, the
registered owner of the motor vehicle has a right to be indemnified by the actual employer of
the driver; and under Article 2181 of the Civil Code, whoever pays for the damage caused by
his dependents or employees may recover from the latter what he has paid or delivered in
satisfaction of the claim.—As such, there can be no other conclusion but to hold Lim
vicariously liable with Mendoza. This does not mean, however, that Lim is left without any
recourse against Enriquez and Mendoza. Under the civil law principle of unjust enrichment,
the registered owner of the motor vehicle has a right to be indemnified by the actual employer
of the driver; and under Article 2181 of the Civil Code, whoever pays for the damage caused
by his dependents or employees may recover from the latter what he has paid or delivered in
satisfaction of the claim.
508
Mendoza vs. Gomez
Same; Same; Damages; Article 2202 of the Civil Code provides that in crimes and quasi-
delicts, the defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of.—Article 2202 of the Civil Code provides
that in crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary
that such damages have been foreseen or could have reasonably been foreseen by the
defendant. Article 2199 of the same Code, however, sets the limitation that, 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. As such, to warrant an award of actual
or compensatory damages, the claimant must prove that the damage sustained is the natural
and probable consequences of the negligent act and, moreover, the claimant must adequately
prove the amount of such damage.
Same; Same; Same; Moral Damages; Moral damages are not meant to be punitive but
are designed to compensate and alleviate the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar harm unjustly caused to a person.—Moral damages are awarded to enable the
injured party to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he has undergone, by reason of the defendant’s culpable action. In prayers
for moral damages, however, recovery is more an exception rather than the rule. Moral
damages are not meant to be punitive but are designed to compensate and alleviate the
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. To
be entitled to such an award, the claimant must satisfactorily prove that he has suffered
damages and that the injury causing it has sprung from any of the cases listed in Articles
2219 and 2220 of the Civil Code. Moreover, the damages must be shown to be the proximate
result of a wrongful act or omission. The claimant must thus establish the factual basis of
the damages and its causal tie with the acts of the defendant.
Same; Same; Same; Exemplary Damages; In motor vehicle accident cases, exemplary
damages may be awarded where the defendant’s misconduct is so flagrant as to transcend
simple negligence
509
VOL. 726, JUNE 18, 2014 509
Mendoza vs. Gomez
and be tantamount to positive or affirmative misconduct rather than passive or negative
misconduct.—In motor vehicle accident cases, exemplary damages may be awarded where
the defendant’s misconduct is so flagrant as to transcend simple negligence and be
tantamount to positive or affirmative misconduct rather than passive or negative
misconduct. In characterizing the requisite positive misconduct which will support a claim
for punitive damages, the courts have used such descriptive terms as willful, wanton, grossly
negligent, reckless, or malicious, either alone or in combination. Gross negligence is the
absence of care or diligence as to amount to a reckless disregard of the safety of persons or
property. It evinces a thoughtless disregard of consequences without exerting any effort to
avoid them.
Same; Same; Same; Attorney’s Fees; The general rule remains that attorney’s fees are not
recoverable in the absence of a stipulation thereto, the reason being that it is not sound policy
to set a premium on the right to litigate.—From the very opening sentence of Article 2208 of
the Civil Code, it is clearly intended to retain the award of attorney’s fees as the exception in
our law, as the general rule remains that attorney’s fees are not recoverable in the absence
of a stipulation thereto, the reason being that it is not sound policy to set a premium on the
right to litigate. As such, in Spouses Agustin v. Court of Appeals, 186 SCRA 375 (1990), we
held that, the award of attorney’s fees being an exception rather than the general rule, it is
necessary for the court to make findings of facts and law that would bring the case within
the exception and justify the grant of such award. Thus, the reason for the award of attorney’s
fees must be stated in the text of the court’s decision; otherwise, if it is stated only in the
dispositive portion of the decision, the same must be disallowed on appeal.
Same; Same; Same; Cost of Suit; The Rules of Court provide that, generally, costs shall
be allowed to the prevailing party as a matter of course.—The Rules of Court provide that,
generally, costs shall be allowed to the prevailing party as a matter of course, thus: Section
1. Costs ordinarily follow results of suit.—Unless otherwise provided in these rules, costs
shall be allowed to the prevailing party as a matter of course, but the court shall have power,
for special reasons, to adjudge that either party shall pay the costs of an action, or that the
same be divided, as may be equitable. No costs shall be
510
Mendoza vs. Gomez
allowed against the Republic of the Philippines, unless otherwise provided by law.
Same; Same; Same; Interest Rates; Moratory Interests; Interest by way of damages has
been defined as interest allowed in actions for breach of contract or tort for the unlawful
detention of money already due. This type of interest is frequently called “moratory interest.”—
Interest by way of damages has been defined as interest allowed in actions for breach of
contract or tort for the unlawful detention of money already due. This type of interest is
frequently called “moratory interest.” Interest as a part of damage, is allowed, not by
application of arbitrary rules, but as a result of the justice of the individual case and as
compensation to the injured party. The legal provision on interests in quasi-delicts is Article
2211 of the Civil Code which provides that in crimes and quasi-delicts, interest as part of the
damage, may, in a proper case, be adjudicated in the discretion of the court. Generally,
interest is allowed as a matter of right for failure to pay liquidated claims when due. For
unliquidated claims, however, Article 2213 of the Civil Code provides that interest cannot be
recovered upon unliquidated claims or damages, except when the demand can be established
with reasonable certainty. In the case at bar, although the award of exemplary damages is
unliquidated in the sense that petitioners cannot know for sure, before judgment, the exact
amount that they are required to pay to respondents, the award of actual or compensatory
damages, however, such as the truck repairs and medical expenses, is arguably liquidated in
that they can be measured against a reasonably certain standard. Moreover, justice would
seem to require that the delay in paying for past losses which can be made reasonably certain
should be compensated through an award of interest.
PETITION for review on certiorari of a decision of the Court of Appeals, Special
Fourth Division.
Antonio I. Senador for petitioners.
Law Offices of Valdez, Maulit and Associates for respondents.
511
VOL. 726, JUNE 18, 2014 511
Mendoza vs. Gomez
PEREZ, J.:
Assailed in the present appeal by certiorari is the Decision1 dated 29 September
2003 of the Special Fourth Division of the Court of Appeals (CA) in C.A.-G.R. CV No.
71877, which affirmed with modification the Decision2dated 31 January 2001 of the
Regional Trial Court (RTC), Branch 172, Valenzuela City in Civil Case No. 5352-V-
97, and which effectively allowed the award of actual, moral, and exemplary damages,
as well as attorney’s fees and costs of the suit in favor of respondent Spouses Leonora
and Gabriel Gomez (respondents).
Antecedent Facts
On 7 March 1997, an Isuzu Elf truck (Isuzu truck) with plate number UAW
582,3 owned by respondent Leonora J. Gomez (Leonora)4 and driven by Antenojenes
Perez (Perez),5 was hit by a Mayamy Transportation bus (Mayamy bus) with
temporary plate number 1376-1280,6registered under the name of petitioner Elvira
Lim (Lim)7and driven by petitioner Mariano C. Mendoza (Mendoza).8
Owing to the incident, an Information for reckless imprudence resulting in damage
to property and multiple physical injuries was filed against Mendoza.9 Mendoza,
however, eluded arrest, thus, respondents filed a separate complaint for
_______________
1 Rollo, pp. 17-23; penned by Associate Justice Elvi John S. Asuncion with Associate Justices Mercedes
Gozo-Dadole and Lucas P. Bersamin (now a member of this Court), concurring.
2 Records, pp. 86-88; penned by Judge Floro P. Alejo.
3 Folder of Exhibits, pp. 1-2; Exhibits “A-3” and “B-1.”
4 Id., at p. 1; Exhibit “A-2.”
5 Id., at p. 6; Exhibit “E.”
6 Id.
7 Id., at p. 10; Exhibit “I.”
8 Id., at p. 6; Exhibits “E” and “E-2.”
9 Records, pp. 9-10.
512
Mendoza vs. Gomez
damages against Mendoza and Lim, seeking actual damages, compensation for lost
income, moral damages, exemplary damages, attorney’s fees and costs of the
suit.10This was docketed as Civil Case No. 5352-V-97.
According to PO1 Melchor F. Rosales (PO1 Rosales), investigating officer of the
case, at around 5:30 a.m., the Isuzu truck, coming from Katipunan Road and heading
towards E. Rodriguez, Sr. Avenue, was travelling along the downward portion of Boni
Serrano Avenue when, upon reaching the corner of Riviera Street, fronting St.
Ignatius Village, its left front portion was hit by the Mayamy bus.11According to PO1
Rosales, the Mayamy bus, while traversing the opposite lane, intruded on the lane
occupied by the Isuzu truck.12
PO1 Rosales also reported that Mendoza tried to escape by speeding away, but he
was apprehended in Katipunan Road corner C. P. Garcia Avenue by one Traffic
Enforcer Galante and a security guard of St. Ignatius Village.13
As a result of the incident, Perez, as well as the helpers on board the Isuzu truck,
namely Melchor V. Anla (Anla), Romeo J. Banca (Banca), and Jimmy Repisada
(Repisada), sustained injuries necessitating medical treatment amounting to
P11,267.35, which amount was shouldered by respondents. Moreover, the Isuzu truck
sustained extensive damages on its cowl, chassis, lights and steering wheel,
amounting to P142,757.40.14
Additionally, respondents averred that the mishap deprived them of a daily income
of P1,000.00. Engaged in the business of buying plastic scraps and delivering them to
recycling plants, respondents claimed that the Isuzu truck was vital in the
furtherance of their business.
_______________
10 Id., at pp. 1-4 and 57-59.
11 Folder of Exhibits, p. 6; Exhibit “E.”
12 TSN, 18 September 1998, p. 8; Testimony of PO1 Rosales.
13 Folder of Exhibits, p. 6; Exhibit “E-3.”
14 Records, p. 86; RTC Decision.
513
VOL. 726, JUNE 18, 2014 513
Mendoza vs. Gomez
For their part, petitioners capitalized on the issue of ownership of the bus in
question. Respondents argued that although the registered owner was Lim, the
actual owner of the bus was SPO1 Cirilo Enriquez (Enriquez), who had the bus
attached with Mayamy Transportation Company (Mayamy Transport) under the so-
called “kabit system.” Respondents then impleaded both Lim and Enriquez.
Petitioners, on the other hand, presented Teresita Gutierrez (Gutierrez), whose
testimony was offered to prove that Mayamy Bus or Mayamy Transport is a business
name registered under her name, and that such business is a sole proprietorship.
Such was presented by petitioners to rebut the allegation of respondents that
Mayamy Transport is a corporation;15 and to show, moreover, that although Gutierrez
is the sole proprietor of Mayamy Transport, she was not impleaded by respondents
in the case at bar.16
After weighing the evidence, the RTC found Mendoza liable for direct personal
negligence under Article 2176 of the Civil Code, and it also found Lim vicariously
liable under Article 2180 of the same Code.
As regards Lim, the RTC relied on the Certificate of Registration issued by the
Land Transportation Office on 9 December 199617 in concluding that she is the
registered owner of the bus in question. Although actually owned by Enriquez,
following the established principle in transportation law, Lim, as the registered
owner, is the one who can be held liable.
Thus, the RTC disposed of the case as follows:
WHEREFORE, judgment is hereby rendered in favor of the [respondents] and against the
[petitioners]:
1. Ordering the [petitioners] except Enriquez to pay [respondents], jointly and severally,
the costs of re-
_______________
15 TSN, 13 April 1999, p. 2; Testimony of Gutierrez.
16 Records, p. 73.
17 Folder of Exhibits, p. 10; Exhibit “I.”
514
Mendoza vs. Gomez
pair of the damaged vehicle in the amount of P142,757.40;
2. Ordering the defendants except Enriquez to pay [respondents], jointly and severally,
the amount of P1,000.00 per day from March 7, 1997 up to November 1997 representing the
unrealized income of the [respondents] when the incident transpired up to the time the
damaged Isuzu truck was repaired;
the amount of P100,000.00 as moral damages, plus a separate amount of P50,000.00 as
exemplary damages;
the amount of P50,000.00 as attorney’s fees;
5. Ordering the [petitioners] except Enriquez to pay [respondents] the costs of suit.18
Displeased, petitioners appealed to the CA, which appeal was docketed as C.A.-
G.R. CV No. 71877. After evaluating the damages awarded by the RTC, such were
affirmed by the CA with the exception of the award of unrealized income which the
CA ordered deleted, viz.:
WHEREFORE, premises considered, the appeal is PARTLY GRANTED. The judgment
of the Regional Trial Court of Valenzuela City, Branch 172 dated January 31, 2001,
is MODIFIED, in that the award of P1,000.00 per day from March 1997 up to November
1997 representing unrealized income is DELETED. The award of P142,757.40 for the cost of
repair of the damaged vehicle, the award of P100,000.00 as moral damages, the award of
P50,000.00 as exemplary damages, the award of P50,000.00 as attorney’s fees and the costs
of the suit are hereby MAINTAINED.19
_______________
18 Records, p. 88.
19 Rollo, p. 22.
515
VOL. 726, JUNE 18, 2014 515
Mendoza vs. Gomez
The Present Petition
Unsatisfied with the CA’s ruling, petitioners filed an appeal by certiorari before
the Court, raising the following issues:20
1. The court a quo has decided questions of substance in a way not in accord with law or with
the applicable decisions of the Supreme Court when it awarded:
a. Moral damages in spite of the fact that the [respondents’] cause of action is
clearly based on quasi-delictand [respondents] did not sustain physical
injuries to be entitled thereto pursuant to Article 2219(2) of the New Civil Code and
pertinent decisions of the Supreme Court to that effect. The court a quo erroneously
concluded that the driver acted in bad faith and erroneously applied the provision of
Article 21 of the same code to justify the award for bad faith is not consistent with
quasi-delict which is founded on fault or negligence.
b. Exemplary damages in spite of the fact that there is no finding that the
vehicular accident was due to petitioner-driver’s gross negligence to be entitled thereto
pursuant to Article 2231 of the New Civil Code and pertinent decisions of the Supreme
Court to that effect. The factual basis of the court a quo that “the act of the driver of
the bus in attempting to escape after causing the accident in wanton disregard of the
consequences of his negligent act is such gross negligence that justifies an award of
exemplary damages” is an act after the fact which is not within the contemplation of
Article 2231 of the New Civil Code.
c. Attorney’s fees in spite of the fact that the assailed decisions of the trial court
and the court a quo are bereft with jurisdictions for the award of at-
_______________
20 Id., at p. 10.
516
Mendoza vs. Gomez
torney’s fees pursuant to the pertinent decisions of the Supreme Court on the matter
and provision Article 2208 of the New Civil Code. The court a quo erroneously applied
the decision of the Supreme Court in Bañas, Jr. vs. Court of Appeals, 325 SCRA 259
(2000).
The petition is partially meritorious.

Respondents anchor their claim for damages on Mendoza’s negligence, banking on
Article 2176 of the Civil Code, to wit:
Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no preexisting
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
In impleading Lim, on the other hand, respondents invoke the latter’s vicarious
liability as espoused in Article 2180 of the same Code:
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.
xxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business of industry.
The first question to address, then, is whether or not Mendoza’s negligence was
duly proven. Negligence is defined as the failure to observe for the protection of the
interests of another person, that degree of care, precaution and vigilance
517
VOL. 726, JUNE 18, 2014 517
Mendoza vs. Gomez
which the circumstances justly demand, whereby such other person suffers injury.21
As found by the RTC, and affirmed by the CA, Mendoza was negligent in driving
the subject Mayamy bus, as demonstrated by the fact that, at the time of the collision,
the bus intruded on the lane intended for the Isuzu truck. Having encroached on the
opposite lane, Mendoza was clearly in violation of traffic laws. Article 2185 of the
Civil Code provides that unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation. In the case at bar, Mendoza’s violation of traffic laws
was the proximate cause of the harm.
Proximate cause is defined as that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred. And more comprehensively, the
proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
predecessor, the final event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom.22
The evidence on record shows that before the collision, the Isuzu truck was in its
rightful lane, and was even at a stop, having been flagged down by a security guard
of St. Ignatius
_______________
21 Tolentino, Civil Code of the Philippines, Vol. V, p. 594.
22 Dumayag v. People, G.R. No. 172778, 26 November 2012, 686 SCRA 347, 359, citing Vallacar Transit
v. Catubig, G.R. No. 175512, 30 May 2011, 649 SCRA 281, 295-296.
518
Mendoza vs. Gomez
Village.23 The mishap occurred when the Mayamy bus, travelling at a fast speed as
shown by the impact of the collision, and going in the opposite direction as that of the
Isuzu truck, encroached on the lane rightfully occupied by said Isuzu truck, and
caused the latter to spin, injuring Perez, Anla, Banca, and Repisada, and considerably
damaging the Isuzu truck.
Having settled the fact of Mendoza’s negligence, then, the next question that
confronts us is who may be held liable. According to Manresa, liability for personal
acts and omissions is founded on that indisputable principle of justice recognized by
all legislations that when a person by his act or omission causes damage or prejudice
to another, a juridical relation is created by virtue of which the injured person
acquires a right to be indemnified and the person causing the damage is charged with
the corresponding duty of repairing the damage. The reason for this is found in the
obvious truth that man should subordinate his acts to the precepts of prudence and
if he fails to observe them and causes damage to another, he must repair the
damage.24His negligence having caused the damage, Mendoza is certainly liable to
repair said damage.
Additionally, Mendoza’s employer may also be held liable under the doctrine of
vicarious liability or imputed negligence. Under such doctrine, a person who has not
committed the act or omission which caused damage or injury to another may
nevertheless be held civilly liable to the latter either directly or subsidiarily under
certain circumstances.25 In our jurisdiction, vicarious liability or imputed negligence
is embodied in Article 2180 of the Civil Code and the basis for damages in the action
under said article is the direct and
_______________
23 TSN, 18 September 1998, p. 1; Testimony of Anlap.
24 Sangco, Torts and Damages, Vol. I, p. 1.
25 Sangco, Torts and Damages, Vol. II, p. 433.
519
VOL. 726, JUNE 18, 2014 519
Mendoza vs. Gomez
primary negligence of the employer in the selection or supervision, or both, of his
employee.26
In the case at bar, who is deemed as Mendoza’s employer? Is it Enriquez, the actual
owner of the bus or Lim, the registered owner of the bus?
In Filcar Transport Services v. Espinas,27 we held that the registered owner is
deemed the employer of the negligent driver, and is thus vicariously liable under
Article 2176, in relation to Article 2180, of the Civil Code. Citing Equitable Leasing
Corporation v. Suyom,28 the Court ruled that insofar as third persons are concerned,
the registered owner of the motor vehicle is the employer of the negligent driver, and
the actual employer is considered merely as an agent of such owner. Thus, whether
there is an employer-employee relationship between the registered owner and the
driver is irrelevant in determining the liability of the registered owner who the law
holds primarily and directly responsible for any accident, injury or death caused by
the operation of the vehicle in the streets and highways.29
As early as Erezo v. Jepte,30 the Court, speaking through Justice Alejo Labrador
summarized the justification for holding the registered owner directly liable, to wit:
x x x The main aim of motor vehicle registration is to identify the owner so that if any accident
happens, or that any damage or injury is caused by the vehicles on the public highways,
responsibility therefore can be fixed on a definite individual, the registered owner. Instances
are numerous where vehicle running on public highways caused accidents or injuries to
pedestrians or other vehicles without positive identification of the owner or driv-
_______________
26 Id., at p. 466.
27 G.R. No. 174156, 20 June 2012, 674 SCRA 117, 128.
28 437 Phil. 244, 252; 388 SCRA 445, 453-454 (2002).
30 102 Phil. 103, 108-109 (1957).
520
Mendoza vs. Gomez
ers, or with very scant means of identification. It is to forestall these circumstances, so
inconvenient or prejudicial to the public, that the motor vehicle registration is primarily
ordained, in the interest of the determination of persons responsible for damages or injuries
caused on public highways.
“One of the principal purposes of motor vehicles legislation is identification of the vehicle
and of the operator, in case of accident; and another is that the knowledge that means of
detection are always available may act as a deterrent from lax observance of the law and of
the rules of conservative and safe operation. Whatever purpose there may be in these
statutes, it is subordinate at the last to the primary purpose of rendering it certain that the
violator of the law or of the rules of safety shall not escape because of lack of means to discover
him.” The purpose of the statute is thwarted, and the displayed number becomes a “snare
and delusion,” if courts will entertain such defenses as that put forward by appellee in this
case. No responsible person or corporation could be held liable for the most outrageous acts
of negligence, if they should be allowed to place a “middleman” between them and the public,
and escape liability by the manner in which they recompense their servants.31
Generally, when an injury is caused by the negligence of a servant or employee,
there instantly arises a presumption of law that there was negligence on the part of
the master or employer either in the selection of the servant or employee (culpa in
eligiendo) or in the supervision over him after the selection (culpa vigilando), or both.
The presumption is juris tantum and not juris et de jure; consequently, it may be
rebutted. Accordingly, the general rule is that if the employer shows to the
satisfaction of the court that in the selection and supervision of his employee he has
exercised the care and diligence of a good father of a family, the presumption is over-
_______________
31Id., at p. 109, citing King v. Brenham Automobile Co., 145 S. W. 278, 279.
521
VOL. 726, JUNE 18, 2014 521
Mendoza vs. Gomez
come and he is relieved of liability.32 However, with the enactment of the motor vehicle
registration law, the defenses available under Article 2180 of the Civil Code — that
the employee acts beyond the scope of his assigned task or that it exercised the due
diligence of a good father of a family to prevent damage — are no longer available to
the registered owner of the motor vehicle, because the motor vehicle registration law,
to a certain extent, modified Article 2180.33
As such, there can be no other conclusion but to hold Lim vicariously liable with
Mendoza.
This does not mean, however, that Lim is left without any recourse against
Enriquez and Mendoza. Under the civil law principle of unjust enrichment, the
registered owner of the motor vehicle has a right to be indemnified by the actual
employer of the driver; and under Article 2181 of the Civil Code, whoever pays for the
damage caused by his dependents or employees may recover from the latter what he
has paid or delivered in satisfaction of the claim.
Having identified the persons liable, our next question is what may be awarded.
Actual or Compensatory Damages. Actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They simply
make good or replace the loss caused by the wrong.34
Article 2202 of the Civil Code provides that in crimes and quasi-delicts, the
defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably been foreseen by the defendant.
Article 2199 of the same Code, however, sets the limitation that, except as provided
by law or by stipula-
_______________
522
Mendoza vs. Gomez
tion, one is entitled to an adequate compensation only for such pecuniary loss suffered
by him as he has duly proved. As such, to warrant an award of actual or compensatory
damages, the claimant must prove that the damage sustained is the natural and
probable consequences of the negligent act and, moreover, the claimant must
adequately prove the amount of such damage.
In the case at bar, the RTC, basing on the receipts submitted by respondents and
which receipts petitioners had the opportunity to examine, found that the total
repairs on the Isuzu truck amounted to P142,757.40, and that the full hospitalization
and medical expenses of Perez, Anla, Banca, and Repisada amounted to P11,267.35.
As such, these are the amounts that respondents are entitled to as actual and
compensatory damages.
Although respondents alleged in their complaint that the damage to their Isuzu
truck caused them the loss of a daily income of P1,000.00, such claim was not duly
substantiated by any evidence on record, and thus cannot be awarded in their favor.
Moral Damages. Moral damages are awarded to enable the injured party to
obtain means, diversions or amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendant’s culpable action.35
In prayers for moral damages, however, recovery is more an exception rather than
the rule. Moral damages are not meant to be punitive but are designed to compensate
and alleviate the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar harm unjustly caused to a person. To be entitled to such an award, the
claimant must satisfactorily prove that he has suffered damages and that the injury
causing it has sprung from any of the cases
_______________
35 Kierulf v. Court of Appeals, 336 Phil. 414, 432; 269 SCRA 433, 452 (1997).
523
VOL. 726, JUNE 18, 2014 523
Mendoza vs. Gomez
listed in Articles 2219 and 2220 of the Civil Code. Moreover, the damages must be
shown to be the proximate result of a wrongful act or omission. The claimant must
thus establish the factual basis of the damages and its causal tie with the acts of the
defendant.36
In fine, an award of moral damages calls for the presentation of 1) evidence of
besmirched reputation or physical, mental or psychological suffering sustained by the
claimant; 2) a culpable act or omission factually established; 3) proof that the
wrongful act or omission of the defendant is the proximate cause of the damages
sustained by the claimant; and 4) the proof that the act is predicated on any of the
instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.37
A review of the complaint and the transcript of stenographic notes yields the
pronouncement that respondents neither alleged nor offered any evidence of
besmirched reputation or physical, mental or psychological suffering incurred by
them. All that Leonora and her counsel had to say on the matter of damages other
than actual or compensatory damages is this:38
Q: Did you ever spend covering attorney’s fees?
A: Yes, sir. P50,000.00.
Q: Aside from the actual damage that you have mentioned x x x, how much more would you like this Court
to award you by way of moral damages?
A: P100,000.00, sir.
Q: How about exemplary damages?
A: P50,000.00, sir.
_______________
36 Regala v. Carin, G.R. No. 188715, 6 April 2011, 647 SCRA 419, 426-427.
37 Id., at pp. 427-428.
38 TSN, 17 September 1998, pp. 12-13; Testimony of Gomez.
524
Mendoza vs. Gomez
Q: What happened to you, what did you feel when the defendants failed to immediately repair your vehicle
that was damaged Madam Witness?
A: I have incurred expenses and I was forced to apply for a loan, sir.
In Kierulf v. CA,39 we observed that this Court cannot remind the bench and the
bar often enough that in order that moral damages may be awarded, there must be
pleading and proof of moral suffering, mental anguish, fright and the like.
Citing Francisco v. GSIS,40 the Court held that there must be clear testimony on the
anguish and other forms of mental suffering. Thus, if the plaintiff fails to take the
witness stand and testify as to his social humiliation, wounded feelings and anxiety,
moral damages cannot be awarded.
Moreover, respondents were not able to show that their claim properly falls under
Articles 2219 and 2220 of the Civil Code. Respondents cannot rely on Article 2219(2)
of the Civil Code which allows moral damages in quasi-delictscausing physical
injuries because in physical injuries, moral damages are recoverable only by the
injured party,41and in the case at bar, herein respondents were not the ones who were
actually injured.
In B.F. Metal (Corp.) v. Sps. Lomotan, et al.,42 the Court, in a claim for damages
based on quasi-delict causing physical injuries, similarly disallowed an award of
moral damages to the owners of the damaged vehicle, when neither of them figured
in the accident and sustained injuries.
Neither can respondents rely on Article 21 of the Civil Code as the RTC
erroneously did. Article 21 deals with acts contra bonus mores, and has the
following elements: (1) There is an
_______________
39 Supra note 35 at pp. 431-432; p. 451.
40 117 Phil. 586, 597; 7 SCRA 577, 586 (1963).
41 Soberano, et al. v. MRR Co., 124 Phil. 1330, 1337; 18 SCRA 732, 738 (1966).
42 574 Phil. 740, 753; 551 SCRA 618, 628-629 (2008).
525
VOL. 726, JUNE 18, 2014 525
Mendoza vs. Gomez
act which is legal; (2) but which is contrary to morals, good custom, public order, or
public policy; (3) and it is done with intent to injure.43 In the present case, it can hardly
be said that Mendoza’s negligent driving and violation of traffic laws are legal acts.
Moreover, it was not proven that Mendoza intended to injure Perez, et al. Thus,
Article 21 finds no application to the case at bar.
All in all, we find that the RTC and the CA erred in granting moral damages to
respondents.
Exemplary Damages. Article 2229 of the Civil Code provides that exemplary or
corrective damages are imposed, by way of example or correction for the public good,
in addition to moral, temperate, liquidated or compensatory damages. Article 2231 of
the same Code further states that in quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence.
Our jurisprudence sets certain conditions when exemplary damages may be
awarded: First, they may be imposed by way of example or correction only in addition,
among others, to compensatory damages, and cannot be recovered as a matter of
right, their determination depending upon the amount of compensatory damages that
may be awarded to the claimant. Second, the claimant must first establish his right
to moral, temperate, liquidated or compensatory damages. Third, the wrongful act
must be accompanied by bad faith, and the award would be allowed only if the guilty
party acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.44
In motor vehicle accident cases, exemplary damages may be awarded where the
defendant’s misconduct is so flagrant as to transcend simple negligence and be
tantamount to positive or affirmative misconduct rather than passive or negative
misconduct. In characterizing the requisite positive miscon-
_______________
44 Id., at p. 1035.
526
Mendoza vs. Gomez
duct which will support a claim for punitive damages, the courts have used such
descriptive terms as willful, wanton, grossly negligent, reckless, or malicious, either
alone or in combination.45
Gross negligence is the absence of care or diligence as to amount to a reckless
disregard of the safety of persons or property. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid them.46
In the case at bar, having established respondents’ right to compensatory
damages, exemplary damages are also in order, given the fact that Mendoza was
grossly negligent in driving the Mayamy bus. His act of intruding or encroaching on
the lane rightfully occupied by the Isuzu truck shows his reckless disregard for safety.
In Baño v. Bachelor Express, Inc., et al.,47 where an erring bus, in the process of
overtaking a jeepney, also encroached on the opposite lane, and consequently collided
with a dump truck, the Court held the driver of the bus grossly negligent and affirmed
the award of exemplary damages.
Attorney’s Fees. Article 2208 of the Civil Code enumerates the instances when
attorney’s fees may be recovered:
Art. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:
(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;
_______________
45 Id., at p. 1041.
46 Achevara v. Ramos, G.R. No. 175172, 29 September 2009, 601 SCRA 270, 288.
47 G.R. No. 191703, 12 March 2012, 667 SCRA 782.
527
VOL. 726, JUNE 18, 2014 527
Mendoza vs. Gomez
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiff’s valid and demandable claim;
(8) In actions for indemnity under workmen’s compensation and employer’s liability laws;
(11) In any other case where the court deems it just and equitable that attorney’s fees and
expenses of litigation should be recovered;
In all cases, the attorney’s fees and expenses of litigation must be reasonable.
From the very opening sentence of Article 2208 of the Civil Code, it is clearly
intended to retain the award of attorney’s fees as the exception in our law, as the
general rule remains that attorney’s fees are not recoverable in the absence of a
stipulation thereto, the reason being that it is not sound policy to set a premium on
the right to litigate.48
_______________
48 Mirasol v. Judge De la Cruz, 173 Phil. 518, 522; 84 SCRA 337, 342 (1978).
528
Mendoza vs. Gomez
As such, in Spouses Agustin v. CA,49 we held that, the award of attorney’s fees
being an exception rather than the general rule, it is necessary for the court to make
findings of facts and law that would bring the case within the exception and justify
the grant of such award. Thus, the reason for the award of attorney’s fees must be
stated in the text of the court’s decision; otherwise, if it is stated only in the dispositive
portion of the decision, the same must be disallowed on appeal.
In the case at bar, the RTC Decision had nil discussion on the propriety of
attorney’s fees, and it merely awarded such in the dispositive. The CA Decision, on
the other hand, merely stated that the award of attorney’s fees is merited as such is
allowed when exemplary damages are awarded.50 Following established
jurisprudence,51 however, the CA should have disallowed on appeal said award of
attorney’s fees as the RTC failed to substantiate said award.
Costs of suit. The Rules of Court provide that, generally, costs shall be allowed
to the prevailing party as a matter of course, thus:52
Section 1. Costs ordinarily follow results of suit.—Unless otherwise provided in these rules,
costs shall be allowed to the prevailing party as a matter of course, but the court shall have
power, for special reasons, to adjudge that either party shall pay the costs of an action, or
that the same be divided, as may be equitable. No costs shall be allowed against the Republic
of the Philippines, unless otherwise provided by law.
_______________
49 264 Phil. 744, 752; 186 SCRA 375, 384 (1990).
50 Rollo, p. 22.
51 See also Mercury Drug Corporation v. Baking, 551 Phil. 182; 523 SCRA 184 (2007).
52 Sec. 1, Rule 142 of the Rules of Court.
529
VOL. 726, JUNE 18, 2014 529
Mendoza vs. Gomez
In the present case, the award of costs of suit to respondents, as the prevailing
party, is in order.
Interests. Interest by way of damages has been defined as interest allowed in
actions for breach of contract or tort for the unlawful detention of money already due.
This type of interest is frequently called “moratory interest.” Interest as a part of
damage, is allowed, not by application of arbitrary rules, but as a result of the justice
of the individual case and as compensation to the injured party.53
The legal provision on interests in quasi-delicts is Article 2211 of the Civil Code
which provides that in crimes and quasi-delicts, interest as part of the damage, may,
in a proper case, be adjudicated in the discretion of the court.
Generally, interest is allowed as a matter of right for failure to pay liquidated
claims when due.54 For unliquidated claims, however, Article 2213 of the Civil Code
provides that interest cannot be recovered upon unliquidated claims or damages,
except when the demand can be established with reasonable certainty.
In the case at bar, although the award of exemplary damages is unliquidated in
the sense that petitioners cannot know for sure, before judgment, the exact amount
that they are required to pay to respondents, the award of actual or compensatory
damages, however, such as the truck repairs and medical expenses, is arguably
liquidated in that they can be measured against a reasonably certain
standard.55 Moreover, justice would seem to require that the delay in paying for past
losses which can be made reasonably certain should be compensated through an
award of interest.56
_______________
54 Id.
55 Id., at p. 1088.
56 Id.
530
Mendoza vs. Gomez
WHEREFORE, premises considered, the Court Resolves to PARTIALLY
GRANT the appeal by certiorari, as follows:
1) DECLARE Mariano Mendoza and Elvira Lim solidarily liable to respondent
Spouses Leonora and Gabriel Gomez;
2) MAINTAIN the award of actual or compensatory damages in the amount of
P142,757.40 for the repair of the Isuzu Elf truck, with legal interest beginning 31
January 2001 until fully paid;
3) GRANT additional actual or compensatory damages in the amount of
P11,267.35 for the medical expenses shouldered by respondent Spouses Leonora and
Gabriel Gomez, with legal interest beginning 31 January 2001 until fully paid;
4) DELETE the award of moral damages;
5) MAINTAIN the award of exemplary damages at P50,000.00;
6) DELETE the award of attorney’s fees; and
7) MAINTAIN the award of costs of suit.
SO ORDERED.
Brion** (Acting Chairperson), Del Castillo, Mendoza****and Perlas-Bernabe, JJ.,
concur.
Petition partially granted.
Notes.—The negligence of an employee who is engaged in the performance of his
assigned tasks gives rise to the vicarious liability of his employer under Article 2180
of the Civil Code; The employer has the burden of proving that it exercised the
necessary diligence to rebut the legal presumption of
_______________
** Per Special Order No. 1698 dated 13 June 2014.
**** Per Special Order No. 1696 dated 13 June 2014.
531
VOL. 726, JUNE 18, 2014 531
Mendoza vs. Gomez
its negligence in supervising its employees. (Keppel Cebu Shipyard, Inc. vs. Pioneer
Insurance and Surety Corporation, 601 SCRA 96 [2009])
To substantiate a claim for unjust enrichment, the claimant must unequivocally
prove that another party knowingly received something of value to which he was not
entitled and that the state of affairs are such that it would be unjust for the person
to keep the benefit. (Philippine Commercial International Bank vs. Balmaceda, 658
SCRA 33 [2011])
——o0o——
G.R. No. 190022. February 15, 2012.*
PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and
BEN SAGA, petitioners, vs.PURIFICACION VIZCARA, MARIVIC VIZCARA,
CRESENCIA A. NATIVIDAD, HECTOR VIZCARA, JOEL VIZCARA and
DOMINADOR ANTONIO, respondents.
Civil Law; Quasi-Delicts; Article 2176 of the New Civil Code prescribes a civil liability
for damages caused by a person’s act or omission constituting fault or negligence.—Article
2176 of the New Civil Code prescribes a civil liability for damages caused by a person’s act or
omission constituting fault or negligence. It states: Article 2176. Whoever by act or omission
causes damage to another,
_______________
* SECOND DIVISION.
364
Philippine National Railways Corporation vs. Vizcara
there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there was no pre-existing contractual relation between the parties, is called
quasi-delict and is governed by the provisions of this chapter.
Same; Same; Negligence; Words and Phrases; Negligence is the omission to do something
which a reasonable man, guided by considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and reasonable man
would not do.—In Layugan v. Intermediate Appellate Court, 167 SCRA 363 (1988), negligence
was defined as the omission to do something which a reasonable man, guided by
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing
of something which a prudent and reasonable man would not do. It is the failure to observe
for the protection of the interests of another person, that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers injury.
To determine the existence of negligence, the time-honored test was: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary conduct
of the discreet pater familias of the Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
Remedial Law; Civil Procedure; Appeals; In petitions for review on certiorari, only
questions of law may be put into issue.—In petitions for review on certiorari, only questions
of law may be put into issue. Questions of fact cannot be entertained. To distinguish one from
the other, a question of law exists when the doubt or difference centers on what the law is on
a certain state of facts. A question of fact, on the other hand, exists if the doubt centers on
the truth or falsity of the alleged facts. Certainly, the finding of negligence by the RTC, which
was affirmed by the CA, is a question of fact which this Court cannot pass upon as this would
entail going into the factual matters on which the negligence was based. Moreover, it was not
shown that the present case falls under any of the recognized excep-
365
VOL. 666, FEBRUARY 15, 2012 365
tions to the oft repeated principle according great weight and respect to the factual
findings of the trial court and the CA.
Civil Law; Quasi-Delicts; Negligence; A reliable signaling device in good condition, not
just a dilapidated “Stop, Look and Listen” signage, is needed to give notice to the public. It is
the responsibility of the railroad company to use reasonable care to keep the signal devices in
working order. Failure to do so would be an indication of negligence.—Both courts ruled that
the petitioners fell short of the diligence expected of it, taking into consideration the nature
of its business, to forestall any untoward incident. In particular, the petitioners failed to
install safety railroad bars to prevent motorists from crossing the tracks in order to give way
to an approaching train. Aside from the absence of a crossing bar, the “Stop, Look and Listen”
signage installed in the area was poorly maintained, hence, inadequate to alert the public of
the impending danger. A reliable signaling device in good condition, not just a dilapidated
“Stop, Look and Listen” signage, is needed to give notice to the public. It is the responsibility
of the railroad company to use reasonable care to keep the signal devices in working order.
Failure to do so would be an indication of negligence. Having established the fact of
negligence on the part of the petitioners, they were rightfully held liable for damages.
Same; Same; Same; Contributory Negligence; Words and Phrases; Contributory
negligence is conduct on the part of the injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard which he is required to conform for his own
protection.—As to whether there was contributory negligence on the part of the respondents,
this court rule in the negative. Contributory negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm he has suffered, which falls below the
standard which he is required to conform for his own protection. It is an act or omission
amounting to want of ordinary care on the part of the person injured which, concurring with
the defendant’s negligence, is the proximate cause of the injury. Here, we cannot see how the
respondents could have contributed to their injury when they were not even aware of the
forthcoming danger.
Same; Same; Same; At this age of modern transportation, it behooves the Philippine
National Railways (PNR) to exert serious efforts to catch up with the trend, including the
contemporary stan-
366
dards in railroad safety.—At this age of modern transportation, it behooves the PNR to
exert serious efforts to catch up with the trend, including the contemporary standards in
railroad safety. As an institution established to alleviate public transportation, it is the duty
of the PNR to promote the safety and security of the general riding public and provide for
their convenience, which to a considerable degree may be accomplished by the installation of
precautionary warning devices. Every railroad crossing must be installed with barriers on
each side of the track to block the full width of the road until after the train runs past the
crossing. To even draw closer attention, the railroad crossing may be equipped with a device
which rings a bell or turns on a signal light to signify the danger or risk of crossing. It is
similarly beneficial to mount advance warning signs at the railroad crossing, such as a
reflectorized crossbuck sign to inform motorists of the existence of the track, and a stop, look
and listen signage to prompt the public to take caution. These warning signs must be erected
in a place where they will have ample lighting and unobstructed visibility both day and night.
Same; Same; Doctrine of Last Clear Chance; Words and Phrases; The doctrine of last
clear chance provides that where both parties are negligent but the negligent act of one is
appreciably later in point of time than that of the other, or where it is impossible to determine
whose fault or negligence brought about the occurrence of the incident, the one who had the
last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the
consequences arising therefrom.—The doctrine of last clear chance provides that where both
parties are negligent but the negligent act of one is appreciably later in point of time than
that of the other, or where it is impossible to determine whose fault or negligence brought
about the occurrence of the incident, the one who had the last clear opportunity to avoid the
impending harm but failed to do so, is chargeable with the consequences arising therefrom.
Stated differently, the rule is that the antecedent negligence of a person does not preclude
recovery of damages caused by the supervening negligence of the latter, who had the last fair
chance to prevent the impending harm by the exercise of due diligence. To reiterate, the
proximate cause of the collision was the petitioners’ negligence in ensuring that motorists
and pedestrians alike may safely cross the railroad track. The unsuspecting driver and
passengers of the jeepney did not have any participation in the occurrence of the unfortu-
367
VOL. 666, FEBRUARY 15, 2012 367
nate incident which befell them. Likewise, they did not exhibit any overt act manifesting
disregard for their own safety. Thus, absent preceding negligence on the part of the
respondents, the doctrine of last clear chance cannot be applied.
Appeals.
Javier, Estrada, Radjaie, Marzan for petitioners.
Edgardo Villarin for respondents.
REYES, J.:
Nature of the Petition
Before this Court is a petition for review on certiorariunder Rule 45 of the 1997
Rules of Civil Procedure, seeking to annul and set aside the Decision1 dated July 21,
2009 of the Court of Appeals (CA) in CA-G.R. CV No. 90021, which affirmed with
modification the Decision2 dated March 20, 2007 of the Regional Trial Court (RTC),
Branch 40, Palayan City, and Resolution3 dated October 26, 2009, which denied the
petitioners’ motion for reconsideration.
The Antecedent Facts
On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara
(Reynaldo) was driving a passenger jeepney headed towards Bicol to deliver onion
crops, with his companions, namely, Cresencio Vizcara (Cresencio), Crispin
Natividad (Crispin), Samuel Natividad (Samuel), Dominador Anto-
_______________
1 Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Portia Aliño-
Hormachuelos and Magdangal De Leon, concurring; Rollo, pp. 31-46.
2 Id., at pp. 81-97.
3 Id., at pp. 52-54.
368
nio (Dominador) and Joel Vizcara (Joel). While crossing the railroad track in Tiaong,
Quezon, a Philippine National Railways (PNR) train, then being operated by
respondent Japhet Estranas (Estranas), suddenly turned up and rammed the
passenger jeepney. The collision resulted to the instantaneous death of Reynaldo,
Cresencio, Crispin, and Samuel. On the other hand, Dominador and Joel, sustained
serious physical injuries.4
At the time of the accident, there was no level crossing installed at the railroad
crossing. Additionally, the “Stop, Look and Listen” signage was poorly maintained.
The “Stop” signage was already faded while the “Listen” signage was partly blocked
by another signboard.5
On September 15, 2004, the survivors of the mishap, Joel and Dominador, together
with the heirs of the deceased victims, namely, Purificacion Vizcara, Marivic Vizcara,
Cresencia Natividad and Hector Vizcara, filed an action for damages against PNR,
Estranas and Ben Saga, the alternate driver of the train, before the RTC of Palayan
City. The case was raffled to Branch 40 and was docketed as Civil Case No. 0365-P.
In their complaint, the respondents alleged that the proximate cause of the fatalities
and serious physical injuries sustained by the victims of the accident was the
petitioners’ gross negligence in not providing adequate safety measures to prevent
injury to persons and properties. They pointed out that in the railroad track of Tiaong,
Quezon where the accident happened, there was no level crossing bar, lighting
equipment or bell installed to warn motorists of the existence of the track and of the
approaching train. They concluded their complaint with a prayer for actual, moral
and compensatory damages, as well as attorney’s fees.6
_______________
4 Id., at p. 82.
5 Id., at pp. 38-39.
6 Id., at pp. 81-83.
369
VOL. 666, FEBRUARY 15, 2012 369
For their part, the petitioners claimed that they exercised due diligence in
operating the train and monitoring its roadworthiness. They asseverate that right
before the collision, Estranas was driving the train at a moderate speed. Four
hundred (400) meters away from the railroad crossing, he started blowing his horn to
warn motorists of the approaching train. When the train was only fifty (50) meters
away from the intersection, respondent Estranas noticed that all vehicles on both
sides of the track were already at a full stop. Thus, he carefully proceeded at a speed
of twenty-five (25) kilometers per hour, still blowing the train’s horn. However, when
the train was already ten (10) meters away from the intersection, the passenger
jeepney being driven by Reynaldo suddenly crossed the tracks. Estranas immediately
stepped on the brakes to avoid hitting the jeepney but due to the sheer weight of the
train, it did not instantly come to a complete stop until the jeepney was dragged 20
to 30 meters away from the point of collision.7
The Ruling of the Trial Court
After trial on the merits, the RTC rendered its Decision8dated March 20, 2007,
ruling in favor of the respondents, the dispositive portion of which reads:
“WHEREFORE, premises considered, judgment is hereby rendered ordering
defendants Philippine National Railways Corporation (PNR), Japhet Estranas and
Ben Saga to, jointly and severally pay the following amounts to:
1. a) PURIFICACION VIZCARA:
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;
2) P35,000.00, for funeral expenses;
3) P5,000.00 for re-embalming expenses;
_______________
7 Id., at pp. 8-9.
8 Supra note 2.
370
4) P40,000.00 for wake/interment expenses;
5) P300,000.00 as reimbursement for the value of the jeepney with license
plate no. DTW-387;
6) P200,000.00 as moral damages;
7) P100,000.00 as exemplary damages; and
8) P20,000.00 for Attorney’s fees.
b) MARIVIC VIZCARA:
1) P50,000.00, as indemnity for the death of Cresencio Vizcara;
c) HECTOR VIZCARA:
1) P50,000.00 as indemnity for the death of Samuel Vizcara;
d) CRESENCIA NATIVIDAD:
1) P50,000.00 as indemnity for the death of Crispin Natividad;
e) JOEL VIZCARA
1) P9,870.00 as reimbursement for his actual expenses;
f) DOMINADOR ANTONIO
1) P63,427.00 as reimbursement for his actual expenses;
4) P10,000.00 for Attorney’s fees.371
VOL. 666, FEBRUARY 15, 2012 371
and
2. Costs of suit.
SO ORDERED.9
The Ruling of the CA
Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently,
on July 21, 2009, the CA rendered the assailed decision, affirming the RTC decision
with modification with respect to the amount of damages awarded to the respondents.
The CA disposed, thus:
“WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision
is AFFIRMED WITH MODIFICATION, as follows:
(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for
wake/interment expenses to PURIFICACION VIZCARA is deleted. In lieu
thereof, P25,000.00 as temperate damages is awarded;
(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA,
HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00
to P100,000.00 each while moral damages awarded to JOEL VIZCARA and DOMINADOR
ANTONIO are likewise reducedfrom P50,000.00 to P25,000.00;
(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC
VIZCARA, HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from
P100,000.00 to P50,000.00 each while exemplary damages awarded to JOEL VIZCARA and
DOMINADOR ANTONIO are likewise reducedfrom P25,000.00 to P12,500.00; and
(4) The award for attorney’s fees in favor of the Appellees as well as the award of
P300,000.00 to Appellee PURIFICACION as reimbursement for the value of the jeepney
is DELETED.
SO ORDERED.”10
_______________
9 Id., at pp. 95-97.
372
In the assailed decision, the CA affirmed the RTC’s finding of negligence on the
part of the petitioners. It concurred with the trial court’s conclusion that petitioner
PNR’s failure to install sufficient safety devices in the area, such as flagbars or safety
railroad bars and signage, was the proximate cause of the accident. Nonetheless, in
order to conform with established jurisprudence, it modified the monetary awards to
the victims and the heirs of those who perished due to the collision.
The petitioners filed a Motion for Reconsideration11 of the decision of the CA.
However, in a Resolution12 dated October 26, 2009, the CA denied the same.
Aggrieved, the petitioners filed the present petition for review on certiorari,
raising the following grounds:
I
THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT
WAS THE NEGLIGENCE OF THE PETITIONERS;
II
THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE
FINDS NO APPLICATION IN THE INSTANT CASE;
III
THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE
PETITIONERS OR ERRED IN NOT FINDING AT THE LEAST, CONTRIBUTORY
NEGLIGENCE ON THE PART OF THE RESPONDENTS.13
_______________
10 Id., at pp. 44-45.
11 Id., at pp. 47-51.
12 Supra note 3.
13 Id., at p. 12.
373
VOL. 666, FEBRUARY 15, 2012 373
The petitioners maintain that the proximate cause of the collision was the
negligence and recklessness of the driver of the jeepney. They argue that as a
professional driver, Reynaldo is presumed to be familiar with traffic rules and
regulations, including the right of way accorded to trains at railroad crossing and the
precautionary measures to observe in traversing the same. However, in utter
disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney to
a full stop before crossing the railroad track and thoughtlessly followed the ten-
wheeler truck ahead of them. His failure to maintain a safe distance between the
jeepney he was driving and the truck ahead of the same prevented him from seeing
the PNR signage displayed along the crossing.14
In their Comment,15 the respondents reiterate the findings of the RTC and the CA
that the petitioners’ negligence in maintaining adequate and necessary public safety
devices in the area of the accident was the proximate cause of the mishap. They
asseverate that if there was only a level crossing bar, warning light or sound, or
flagman in the intersection, the accident would not have happened. Thus, there is no
other party to blame but the petitioners for their failure to ensure that adequate
warning devices are installed along the railroad crossing.16
This Court’s Ruling
The petition lacks merit.
The petitioners’ negligence was the
proximate cause of the accident.
Article 2176 of the New Civil Code prescribes a civil liability for damages caused
by a person’s act or omission constituting fault or negligence. It states:
_______________
14 Id., at pp. 13-14.
15 Id., at pp. 68-80.
16 Id., at p. 79.
374
Article 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no
pre-existing contractual relation between the parties, is called quasi-delict and is governed
by the provisions of this chapter.
In Layugan v. Intermediate Appellate Court,17 negligence was defined as the
omission to do something which a reasonable man, guided by considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of something
which a prudent and reasonable man would not do. It is the failure to observe for the
protection of the interests of another person, that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers
injury.18 To determine the existence of negligence, the time-honored test was: Did the
defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.19
In the instant petition, this Court is called upon to determine whose negligence
occasioned the ill-fated incident. The records however reveal that this issue had been
rigorously discussed by both the RTC and the CA. To emphasize, the RTC ruled that
it was the petitioners’ failure to install adequate safety devices at the railroad
crossing which proxi-
_______________
17 249 Phil. 363; 167 SCRA 363 (1988).
18 Id., at p. 373; pp. 372-373, citing Blacks Law Dictionary, Fifth Edition, 930; Cooley on Torts, Fourth
Edition, Vol. 3, 265.
19 Picart v. Smith, 37 Phil. 809, 813 (1918).
375
VOL. 666, FEBRUARY 15, 2012 375
mately caused the collision. This finding was affirmed by the CA in its July 21,
2009 Decision. It is a well-established rule that factual findings by the CA are
conclusive on the parties and are not reviewable by this Court. They are entitled to
great weight and respect, even finality, especially when, as in this case, the CA
affirmed the factual findings arrived at by the trial court.20
Furthermore, in petitions for review on certiorari, only questions of law may be
put into issue. Questions of fact cannot be entertained.21 To distinguish one from the
other, a question of law exists when the doubt or difference centers on what the law
is on a certain state of facts. A question of fact, on the other hand, exists if the doubt
centers on the truth or falsity of the alleged facts.22Certainly, the finding of negligence
by the RTC, which was affirmed by the CA, is a question of fact which this Court
cannot pass upon as this would entail going into the factual matters on which the
negligence was based.23 Moreover, it was not shown that the present case
_______________
20 Cebu Shipyard & Eng’g Works, Inc. v. William Lines, Inc., 366 Phil. 439, 451; 306 SCRA 762, 774
(1999), citing Meneses v. Court of Appeals, 316 Phil. 210, 222; 246 SCRA 162, 171 (1995); Tay Chun Suy v.
Court of Appeals, G.R. No. 93640, January 7, 1994, 229 SCRA 151, 156; First Philippine International Bank
v. Court of Appeals, 322 Phil. 280, 319; 252 SCRA 259, 307 (1996); Fortune Motors (Phils.) Corp. v. Court of
Appeals, 335 Phil. 315, 330; 267 SCRA 653, 669-670 (1997).
21 Id., at p. 452; p. 775.
22 Westmont Investment Corporation v. Francia, Jr., G.R. No. 194128, December 7, 2011,
citing Microsoft Corp. v. Maxicorp, Inc., 481 Phil. 550, 561; 438 SCRA 224, 231 (2004).
23 Philippine National Railways v. Brunty, G.R. No. 169891, November 2, 2006, 506 SCRA 685, 697,
citing Estacion v. Bernardo, 518 Phil. 388, 398; 483 SCRA 222, 231 (2006); Lambert v. Heirs of Ray Castillon,
492 Phil. 384, 389; 452 SCRA 285, 290 (2005); Pestaño v. Sps. Sumayang, 400 Phil. 740, 748; 346 SCRA 870,
878 (2000).
376
falls under any of the recognized exceptions24 to the oft repeated principle according
great weight and respect to the factual findings of the trial court and the CA.
At any rate, the records bear out that the factual circumstances of the case were
meticulously scrutinized by both the RTC and the CA before arriving at the same
finding of negligence on the part of the petitioners, and we found no compelling reason
to disturb the same. Both courts ruled that the petitioners fell short of the diligence
expected of it, taking into consideration the nature of its business, to forestall any
untoward incident. In particular, the petitioners failed to install safety railroad bars
to prevent motorists from crossing the tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar, the “Stop, Look and Listen” signage
installed in the area was poorly maintained, hence, inadequate to alert the public of
the impending danger. A reliable signaling device in good condition, not just a
dilapidated “Stop, Look and Listen” signage, is needed to give notice to the public. It
is the responsibility of the railroad com-
_______________
24 Instances when the findings of fact of the trial court and/or Court of Appeals may be reviewed by the
Supreme Court are: (1) when the conclusion is a finding grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues
of the case and the same is contrary to the admissions of both appellant and appellee; (7) the findings of the
Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as
in the petitioners’ main and reply briefs are not disputed by the respondents; and (10) the finding of fact of
the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence
on record. (Misa v. Court of Appeals, G.R. No. 97291, August 5, 1992, 212 SCRA 217, 221-222)
377
VOL. 666, FEBRUARY 15, 2012 377
pany to use reasonable care to keep the signal devices in working order. Failure to do
so would be an indication of negligence.25 Having established the fact of negligence on
the part of the petitioners, they were rightfully held liable for damages.
There was no contributory negligence
on the part of the respondents.
As to whether there was contributory negligence on the part of the respondents,
this court rule in the negative. Contributory negligence is conduct on the part of the
injured party, contributing as a legal cause to the harm he has suffered, which falls
below the standard which he is required to conform for his own protection. It is an
act or omission amounting to want of ordinary care on the part of the person injured
which, concurring with the defendant’s negligence, is the proximate cause of the
injury.26 Here, we cannot see how the respondents could have contributed to their
injury when they were not even aware of the forthcoming danger. It was established
during the trial that the jeepney carrying the respondents was following a ten-
wheeler truck which was only about three to five meters ahead. When the truck
proceeded to traverse the railroad track, Reynaldo, the driver of the jeepney, simply
followed through. He did so under the impression that it was safe to proceed. It bears
noting that the prevailing circumstances immediately before the collision did not
manifest even the slightest indication of an imminent harm. To begin with, the truck
they were trailing was able to safely cross the track. Likewise, there was no crossing
bar to
_______________
25 Philippine National Railways v. Court of Appeals, G.R. No. 157658, October 15, 2007, 536 SCRA 147,
155.
26 See National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008,
572 SCRA 71, 81-82, citing Estacion v. Bernardo, 518 Phil. 388, 401; 483 SCRA 222, 227 (2006); Ma-ao
Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, August 27, 1990, 189 SCRA 88, 93.
378
prevent them from proceeding or, at least, a stoplight or signage to forewarn them of
the approaching peril. Thus, relying on his faculties of sight and hearing, Reynaldo
had no reason to anticipate the impending danger.27 He proceeded to cross the track
and, all of a sudden, his jeepney was rammed by the train being operated by the
petitioners. Even then, the circumstances before the collision negate the imputation
of contributory negligence on the part of the respondents. What clearly appears is
that the accident would not have happened had the petitioners installed reliable and
adequate safety devices along the crossing to ensure the safety of all those who may
utilize the same.
At this age of modern transportation, it behooves the PNR to exert serious efforts
to catch up with the trend, including the contemporary standards in railroad safety.
As an institution established to alleviate public transportation, it is the duty of the
PNR to promote the safety and security of the general riding public and provide for
their convenience, which to a considerable degree may be accomplished by the
installation of precautionary warning devices. Every railroad crossing must be
installed with barriers on each side of the track to block the full width of the road
until after the train runs past the crossing. To even draw closer attention, the railroad
crossing may be equipped with a device which rings a bell or turns on a signal light
to signify the danger or risk of crossing. It is similarly beneficial to mount advance
warning signs at the railroad crossing, such as a reflectorized crossbuck sign to
inform motorists of the existence of the track, and a stop, look and listen signage to
prompt the public to take caution. These warning signs must be erected in a place
where they will have ample lighting and unobstructed visibility both day and night.
If only these safety devices were installed at the Tiaong railroad crossing and the
accident nevertheless occurred, we
_______________
27 See Cusi v. Philippine National Railways, 179 Phil. 284, 294; 90 SCRA 357, 365 (1979).
379
VOL. 666, FEBRUARY 15, 2012 379
could have reached a different disposition in the extent of the petitioner’s liability.
The exacting nature of the responsibility of railroad companies to secure public
safety by the installation of warning devices was emphasized in Philippine National
Railways v. Court of Appeals,28 thus:
“[I]t may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which
duties pertain both to the operation of trains and to the maintenance of the crossings.
Moreover, every corporation constructing or operating a railway shall make and construct at
all points where such railway crosses any public road, good, sufficient, and safe crossings,
and erect at such points, at sufficient elevation from such road as to admit a free passage of
vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of
the proximity of the railway, and warn persons of the necessity of looking out for trains. The
failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is
evidence of negligence and disregard of the safety of the public, even if there is no law or
ordinance requiring it, because public safety demands that said device or equipment be
installed.”29
The responsibility of the PNR to secure public safety does not end with the
installation of safety equipment and signages but, with equal measure of
accountability, with the upkeep and repair of the same. Thus, in Cusi v. Philippine
National Railways,30 we held:
“Jurisprudence recognizes that if warning devices are installed in railroad crossings, the
travelling public has the right to rely on such
_______________
28 Philippine National Railways v. Court of Appeals, G.R. No. 157658, October 15, 2007, 536 SCRA 147.
29 Id., at pp. 155-156, citing Philippine National Railway v. Brunty, G.R. No. 169891, November 2, 2006, 506
SCRA 685, 699.
30 Cusi v. Philippine National Railways, 179 Phil. 284, 294; 90 SCRA 357, 363-364 (1979).
380
warning devices to put them on their guard and take the necessary precautions before
crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care
to keep such devices in good condition and in working order, or to give notice that they are
not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held
that if a railroad company maintains a signalling device at a crossing to give warning of the
approach of a train, the failure of the device to operate is generally held to be evidence of
negligence, which maybe considered with all the circumstances of the case in determining
whether the railroad company was negligent as a matter of fact.”31
The maintenance of safety equipment and warning signals at railroad crossings is
equally important as their installation since poorly maintained safety warning
devices court as much danger as when none was installed at all. The presence of
safety warning signals at railroad crossing carries with it the presumption that they
are in good working condition and that the public may depend on them for assistance.
If they happen to be neglected and inoperative, the public may be misled into relying
on the impression of safety they normally convey and eventually bring injury to
themselves in doing so.
The doctrine of last clear
chance is not applicable.
Finally, the CA correctly ruled that the doctrine of last clear chance is not
applicable in the instant case. The doctrine of last clear chance provides that where
both parties are negligent but the negligent act of one is appreciably later in point of
time than that of the other, or where it is impossible to determine whose fault or
negligence brought about the occurrence of the incident, the one who had the last
clear opportunity to avoid the impending harm but failed to do so, is chargeable with
the consequences arising therefrom. Stated
_______________
31 Id., at p. 292; pp. 363-364, citing 74 C.J.S., 1347, 1348 and 44 Am Jur. 766, pp. 8-9.
381
VOL. 666, FEBRUARY 15, 2012 381
differently, the rule is that the antecedent negligence of a person does not preclude
recovery of damages caused by the supervening negligence of the latter, who had the
last fair chance to prevent the impending harm by the exercise of due diligence.32 To
reiterate, the proximate cause of the collision was the petitioners’ negligence in
ensuring that motorists and pedestrians alike may safely cross the railroad track.
The unsuspecting driver and passengers of the jeepney did not have any participation
in the occurrence of the unfortunate incident which befell them. Likewise, they did
not exhibit any overt act manifesting disregard for their own safety. Thus, absent
preceding negligence on the part of the respondents, the doctrine of last clear chance
cannot be applied.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the
Court of Appeals dated July 21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED.
SO ORDERED.
Carpio, Villarama, Jr.,** Perez and Sereno, JJ., concur.
Petition denied, judgment affirmed.
Notes.—In instances where both parties are at fault, this Court has consistently
applied the doctrine of last clear chance in order to assign liability. (Bank of America
NT & SA vs. Philippine Racing Club, 594 SCRA 301 [2009])
_______________
32 Canlas v. Court of Appeals, 383 Phil. 315, 324; 326 SCRA 415, 423-424 (2000), citing Philippine Bank
of Commerce v. Court of Appeals, 336 Phil. 667, 680; 269 SCRA 695, 707-708 (1997), citing LBC Air Cargo,
Inc. v. Court of Appeals, 311 Phil. 715, 722-724; 241 SCRA 619, 624 (1995); Picart v. Smith, 37 Phil. 809,
814 (1915); Pantranco North Express, Inc. v. Baesa, 258-A Phil. 975, 980; 179 SCRA 384, 389-390
(1989); Glan People’s Lumber and Hardware v. Intermediate Appellate Court, 255 Phil. 447; 173 SCRA 464
(1989).
** Additional Member in lieu of Associate Justice Arturo D. Brion per Special Order No. 1195 dated
February 15, 2012.
382
The doctrine of last clear chance does not apply where the party charged is
required to act instantaneously, and the injury cannot be avoided by the application
of all means at hand after the peril is or should have been discovered. (Achevara vs.
Ramos, 601 SCRA 270 [2009])
Foreseeability is the fundamental test of negligence—to be negligent, a defendant
must have acted or failed to act in such a way that an ordinary reasonable man would
have realized that certain interests of certain persons were unreasonably subjected
to a general but definite class of risks. (Philippine Hawk Corporation vs. Lee, 612
SCRA 576 [2010])
——o0o——
G.R. No. 186412. September 7, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLITO VILLACORTA,
accused-appellant.
Witnesses; The determination by the trial court of the credibility of witnesses, when
affirmed by the appellate court, is accorded full weight and credit as well as great respect, if
not conclusive effect.—It is fundamental that the determination by the trial court of the credi-
_______________
** Designated as an additional member in lieu of Associate Justice Jose Catral Mendoza, per Raffle dated
July 19, 2010.
*** Designated as an additional member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Raffle
dated August 31, 2011.
**** Designated as an additional member in lieu of Associate Justice Maria Lourdes P. A. Sereno, per
Special Order No. 1076 dated September 6, 2011.
* FIRST DIVISION.
271
VOL. 657, SEPTEMBER 7, 2011 271
People vs. Villacorta
bility of witnesses, when affirmed by the appellate court, is accorded full weight and
credit as well as great respect, if not conclusive effect. Such determination made by the trial
court proceeds from its first-hand opportunity to observe the demeanor of the witnesses, their
conduct and attitude under grilling examination, thereby placing the trial court in the unique
position to assess the witnesses’ credibility and to appreciate their truthfulness, honesty and
candor.
Denials; Alibi; Denial, like alibi, as an exonerating justification, is inherently weak and
if uncorroborated, regresses to blatant impotence.—Denial, like alibi, as an exonerating
justification, is inherently weak and if uncorroborated, regresses to blatant impotence. Like
alibi, it also constitutes self-serving negative evidence which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who testify on affirmative
matters.
Proximate Cause; Proximate cause has been defined as “that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.”—Nevertheless, there is merit in the
argument proffered by Villacorta that in the event he is found to have indeed stabbed Cruz,
he should only be held liable for slight physical injuries for the stab wound he inflicted upon
Cruz. The proximate cause of Cruz’s death is the tetanus infection, and not the stab wound.
Proximate cause has been defined as “that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the
result would not have occurred.”
Criminal Law; Physical Injuries; When such intent is lacking but wounds were inflicted,
the crime is not frustrated murder but physical injuries only.—The intent must be proved in
a clear and evident manner to exclude every possible doubt as to the homicidal (or murderous)
intent of the aggressor. The onus probandi lies not on accused-appellant but on the
prosecution. The inference that the intent to kill existed should not be drawn in the absence
of circumstances sufficient to prove this fact beyond reasonable doubt. When such intent is
lacking but wounds were inflicted, the crime is not frustrated murder but physical injuries
only.272
Same; Aggravating Circumstances; Treachery; Treachery exists when an offender
commits any of the crimes against persons, employing means, methods or forms which tend
directly or especially to ensure its execution, without risk to the offender, arising from the
defense that the offended party might make.—Treachery exists when an offender commits any
of the crimes against persons, employing means, methods or forms which tend directly or
especially to ensure its execution, without risk to the offender, arising from the defense that
the offended party might make. This definition sets out what must be shown by evidence to
conclude that treachery existed, namely: (1) the employment of such means of execution as
would give the person attacked no opportunity for self-defense or retaliation; and (2) the
deliberate and conscious adoption of the means of execution.
APPEAL from a decision of the Court of Appeals.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 02550, which affirmed the Decision2 dated September 22, 2006 of the
Regional Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No. 27039-
MN, finding accused-appellant Orlito Villacorta (Villacorta) guilty of murder, and
sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of
Danilo Cruz (Cruz) the sum of P50,000.00 as civil indemnity, plus the costs of suit.
_______________
1 Rollo, pp. 2-16; penned by Associate Justice Sixto C. Marella, Jr. with Associate Justices Amelita G.
Tolentino and Japar B. Dimaampao, concurring.
2 CA Rollo, pp. 58-60; penned by Presiding Judge Benjamin T. Antonio.
273
VOL. 657, SEPTEMBER 7, 2011 273
On June 21, 2002, an Information3 was filed against Villacorta charging him with
the crime of murder, as follows:
“That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a sharpened
bamboo stick, with intent to kill, treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said weapon one
DANILO SALVADOR CRUZ, thereby inflicting upon the victim serious wounds which caused
his immediate death.”
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4
During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja)
and Dr. Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store
located at C-4 Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular
customers at Mendeja’s store. At around two o’clock in the morning, while Cruz was
ordering bread at Mendeja’s store, Villacorta suddenly appeared and, without
uttering a word, stabbed Cruz on the left side of Cruz’s body using a sharpened
bamboo stick. The bamboo stick broke and was left in Cruz’s body. Immediately after
the stabbing incident, Villacorta fled. Mendeja gave chase but failed to catch
Villacorta. When Mendeja returned to her store, she saw her neighbor Aron removing
the broken bamboo stick from Cruz’s body.5 Mendeja and Aron then brought Cruz to
Tondo Medical Center.6
_______________
3 Records, p. 1.
4 CA Rollo, p. 6.
5 TSN, October 20, 2003, pp. 2-9.
6 Records, p. 72.
274
Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital.
When Cruz sustained the stab wound on January 23, 2002, he was taken to the Tondo
Medical Center, where he was treated as an out-patient. Cruz was only brought to
the San Lazaro Hospital on February 14, 2002, where he died the following day, on
February 15, 2002. While admitting that he did not personally treat Cruz, Dr.
Belandres was able to determine, using Cruz’s medical chart and diagnosis, that Cruz
died of tetanus infection secondary to stab wound.7 Dr. Belandres specifically
described the cause of Cruz’s death in the following manner:
“The wound was exposed x x—spurs concerted, the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal pain and the cause of death is hypoxic
encephalopathy—neuro transmitted—due to upper G.I. bleeding x x x. Diagnosed of Tetanus,
Stage III.”8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who
attended to Cruz at the San Lazaro Hospital, but the prosecution and defense agreed
to dispense with Dr. Matias’ testimony based on the stipulation that it would only
corroborate Dr. Belandres’ testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing Cruz.
Villacorta recounted that he was on his way home from work at around two o’clock in
the morning of January 21, 2002. Upon arriving home, Villacorta drank coffee then
went outside to buy cigarettes at a nearby store. When Villacorta was about to leave
the store, Cruz put his arm around Villacorta’s shoulder. This prompted Villacorta to
box Cruz, after which, Villacorta went home. Villacorta did
_______________
7 TSN, May 5, 2003, pp. 1-11; Dr. Domingo Belandres, Jr. was also referred to as Dr. Domingo
Melendres, Jr. in the TSN.
8 Id., at p. 6.
275
VOL. 657, SEPTEMBER 7, 2011 275
not notice that Cruz got hurt. Villacorta only found out about Cruz’s death upon his
arrest on July 31, 2002.9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of
murder, qualified by treachery. The dispositive portion of said Decision reads:
“WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta
guilty beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay the heirs of Danilo Cruz the sum of P50,000.00 as
civil indemnity for the death of said victim plus the costs of suit.”10
Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a
notice of appeal to assail his conviction by the RTC.11 The Court of Appeals directed
the PAO to file Villacorta’s brief, within thirty days from receipt of notice.
Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People, through
the Office of the Solicitor General (OSG), filed its Appellee’s Brief13 on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in
toto the RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he was
adopting the Appellant’s Brief he filed before the Court of Appeals.14 The OSG,
likewise, manifested that it was no longer filing a supplemental brief.15
_______________
9 TSN, March 6, 2006, pp. 2-5.
10 CA Rollo, p. 60.
11 Records, p. 144.
12 CA Rollo, pp. 37-57.
13 Id., at pp. 67-96.
14 Rollo, pp. 30-32.
15 Id., at p. 35.
276
In his Appellant’s Brief, Villacorta raised the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION
TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE COULD
ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing
incident. It was Mendeja who positively identified Villacorta as the one who stabbed
Cruz in the early morning of January 23, 2002. Villacorta asserts that Mendeja’s
account of the stabbing incident is replete with inconsistencies and incredulities, and
is contrary to normal human experience, such as: (1) instead of shouting or calling for
help when Villacorta allegedly stabbed Cruz, Mendeja attempted to run after and
catch Villacorta; (2) while, by Mendeja’s own account, there were other people who
witnessed the stabbing and could have chased after Villacorta, yet, oddly, only
Mendeja did; (3) if Cruz was stabbed so swiftly and suddenly as Mendeja described,
then it would have been physically improbable for Mendeja to have vividly recognized
the perpetrator, who immediately ran away after the stabbing; (4) after the stabbing,
both Villacorta and Cruz ran in opposite directions; and (5) Mendeja had said that
the bamboo stick, the alleged murder weapon, was left at her
_______________
16 CA Rollo, p. 39.
277
VOL. 657, SEPTEMBER 7, 2011 277
store, although she had also stated that the said bamboo stick was left embedded in
Cruz’s body. Villacorta maintains that the aforementioned inconsistencies are neither
trivial nor inconsequential, and should engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the
credibility of witnesses, when affirmed by the appellate court, is accorded full weight
and credit as well as great respect, if not conclusive effect. Such determination made
by the trial court proceeds from its first-hand opportunity to observe the demeanor of
the witnesses, their conduct and attitude under grilling examination, thereby placing
the trial court in the unique position to assess the witnesses’ credibility and to
appreciate their truthfulness, honesty and candor.17
In this case, both the RTC and the Court of Appeals gave full faith and credence
to the testimony of prosecution witness Mendeja. The Court of Appeals rejected
Villacorta’s attempts to impugn Mendeja’s testimony, thus:
“Appellant’s reason for concluding that witness Mendeja’s testimony is incredible because
she did not shout or call for help and instead run after the appellant, fails to impress the
Court because persons who witness crimes react in different ways.
“x x x the makings of a human mind are unpredictable; people react differently and
there is no standard form of behavior when one is confronted by a shocking incident.
Equally lacking in merit is appellant’s second reason which is, other persons could have
run after the appellant after the stabbing incident. As explained by witness Mendeja, the
other person whom she identified as Aron was left to assist the appellant who was wounded.
Further, the stabbing occurred at 2:00 o’clock in the morn-
_______________
17 People v. Mayingque, G.R. No. 179709, July 6, 2010, 624 SCRA 123, 140.
277
VOL. 657, SEPTEMBER 7, 2011 277
ing, a time when persons are expected to be asleep in their house, not roaming the streets.
His [Villacorta’s] other argument that the swiftness of the stabbing incident rendered
impossible or incredible the identification of the assailant cannot likewise prosper in view of
his admission that he was in the store of witness Mendeja on January 23, 2002 at 2:00 o’clock
in the morning and that he assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot support appellant’s
argument. Appellant and the victim were known to witness Mendeja, both being her friends
and regular customers. There was light in front of the store. An opening in the store
measuring 1 and ¼ meters enables the person inside to see persons outside, particularly those
buying articles from the store. The victim was in front of the store buying bread when
attacked. Further, immediately after the stabbing, witness Mendeja ran after the appellant
giving her additional opportunity to identify the malefactor. Thus, authorship of the attack
can be credibly ascertained.”18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja
to fabricate such a lie and falsely accuse Villacorta of stabbing Cruz on January 23,
2002. We have ruled time and again that where the prosecution eyewitness was
familiar with both the victim and accused, and where the locus criminis afforded good
visibility, and where no improper motive can be attributed to the witness for
testifying against the accused, then her version of the story deserves much weight.19
The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta
are on matters that have no bearing on the fundamental fact which Mendeja testified
on: that Villacorta stabbed Cruz in the early morning of January 23, 2002, right in
front of Mendeja’s store.
_______________
18 CA Rollo, pp. 9-10.
19 People v. Alcantara, 471 Phil. 690, 700; 427 SCRA 673, 682 (2004).
279
VOL. 657, SEPTEMBER 7, 2011 279
In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber,
Villacorta could only muster an uncorroborated denial. Denial, like alibi, as an
exonerating justification, is inherently weak and if uncorroborated, regresses to
blatant impotence. Like alibi, it also constitutes self-serving negative evidence which
cannot be accorded greater evidentiary weight than the declaration of credible
witnesses who testify on affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as
affirmed by the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the
event he is found to have indeed stabbed Cruz, he should only be held liable for slight
physical injuries for the stab wound he inflicted upon Cruz. The proximate cause of
Cruz’s death is the tetanus infection, and not the stab wound.
Proximate cause has been defined as “that cause, which, in natural and continuous
without which the result would not have occurred.”21
In this case, immediately after he was stabbed by Villacorta in the early morning
of January 23, 2002, Cruz was rushed to and treated as an out-patient at the Tondo
Medical Center. On February 14, 2002, Cruz was admitted to the San Lazaro Hospital
for symptoms of severe tetanus infection, where he died the following day, on
February 15, 2002. The prosecution did not present evidence of the emergency
medical treatment Cruz received at the Tondo Medical Center, subsequent visits by
Cruz to Tondo Medical Center or any other hospital for follow-up medical treatment
of his stab
_______________
20 People v. Barde, G.R. No. 183094, September 22, 2010, 631 SCRA 187, 211.
21 Calimutan v. People, 517 Phil. 272, 284; 482 SCRA 44, 60 (2006).
280
wound, or Cruz’s activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case
of very similar factual background as the one at bar. During an altercation on October
23, 1980, Urbano hacked Javier with a bolo, inflicting an incised wound on Javier’s
hand. Javier was treated by Dr. Meneses. On November 14, 1980, Javier was rushed
to the hospital with lockjaw and convulsions. Dr. Exconde, who attended to Javier,
found that Javier’s serious condition was caused by tetanus infection. The next day,
on November 15, 1980, Javier died. An Information was filed against Urbano for
homicide. Both the Circuit Criminal Court and the Intermediate Appellate Court
found Urbano guilty of homicide, because Javier’s death was the natural and logical
consequence of Urbano’s unlawful act. Urbano appealed before this Court, arguing
that Javier’s own negligence was the proximate cause of his death. Urbano alleged
that when Dr. Meneses examined Javier’s wound, he did not find any tetanus
infection and that Javier could have acquired the tetanus germs when he returned to
work on his farm only two (2) weeks after sustaining his injury. The Court granted
Urbano’s appeal.
We quote extensively from the ratiocination of the Court in Urbano:
“The issue, therefore, hinges on whether or not there was an efficient intervening cause
from the time Javier was wounded until his death which would exculpate Urbano from any
liability for Javier’s death.
We look into the nature of tetanus-
“The incubation period of tetanus, i.e., the time between injury and the appearance
of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short incubation period indi-
_______________
22 241 Phil. 1; 157 SCRA 1 (1988).
281
VOL. 657, SEPTEMBER 7, 2011 281
cates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality
rate approaches 100 percent.
“Non-specific premonitory symptoms such as restlessness, irritability, and headache
are encountered occasionally, but the commonest presenting complaints are pain and
stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus is the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of the
injury. In the vast majority, however, most muscles are involved to some degree, and
the signs and symptoms encountered depend upon the major muscle groups affected.
“Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval
referred to as the onset time. As in the case of the incubation period, a short onset time
is associated with a poor prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases rigidity and causes
simultaneous and excessive contraction of muscles and their antagonists. Spasms may
be both painful and dangerous. As the disease progresses, minimal or inapparent
stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory
muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible
central nervous system damage and death.
“Mild tetanus is characterized by an incubation period of at least 14 days and an
onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and
generalized spasms are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked, dysphagia and
generalized rigidity are present, but ventilation remains adequate even during spasms.
The criteria for severe tetanus include a short incubation time, and an on-
282
set time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent
prolonged, generalized convulsive spasms. (Harrison’s Principle of Internal Medicine,
1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man’s body depends
on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This incident took place on October 23,
1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like
lockjaw and muscle spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus
germs at the time, it is more medically probable that Javier should have been infected with
only a mild case of tetanus because the symptoms of tetanus appeared on the 22nd
day after the hacking incident or more than 14 days after the infliction of the wound.
Therefore, the onset time should have been more than six days. Javier, however, died on the
second day from the onset time. The more credible conclusion is that at the time Javier’s
wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet
present. Consequently, Javier’s wound could have been infected with tetanus after the
hacking incident. Considering the circumstance surrounding Javier’s death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.”23
The incubation period for tetanus infection and the length of time between the
hacking incident and the manifestation of severe tetanus infection created doubts in
the mind of the Court that Javier acquired the severe tetanus infection from the
hacking incident. We explained in Urbano that:
“The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And
since we are dealing with a criminal conviction, the proof that the accused caused the
_______________
23 Id., at pp. 9-11; pp. 9-10.
283
VOL. 657, SEPTEMBER 7, 2011 283
victim’s death must convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by tetanus was an
efficient intervening cause later or between the time Javier was wounded to the time of his
death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77
Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximatecause of Javier’s death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
“A prior and remote cause cannot be made the basis of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or defective condition
sets into operation the instances, which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-
932). (at p. 125)”24
We face the very same doubts in the instant case that compel us to set aside the
conviction of Villacorta for murder. There had been an interval of 22 days between
the date of the stabbing and the date when Cruz was rushed to San Lazaro Hospital,
exhibiting symptoms of severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would have appeared a lot sooner
than 22 days later. As the Court noted in Urbano, severe tetanus infection has a short
incubation period, less than 14 days; and those that exhibit symptoms with two to
three days from the injury, have one hundred percent (100%) mortality. Ulti-
_______________
24 Id., at pp. 11-12; p. 10.
284
mately, we can only deduce that Cruz’s stab wound was merely the remote cause, and
its subsequent infection with tetanus might have been the proximate cause of Cruz’s
death. The infection of Cruz’s stab wound by tetanus was an efficient intervening
cause later or between the time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal liability. Villacorta is guilty of
slight physical injuries under Article 266(1) of the Revised Penal Code for the stab
wound he inflicted upon Cruz. Although the charge in the instant case is for murder,
a finding of guilt for the lesser offense of slight physical injuries may be made
considering that the latter offense is necessarily included in the former since the
essential ingredients of slight physical injuries constitute and form part of those
constituting the offense of murder.25
We cannot hold Villacorta criminally liable for attempted or frustrated murder
because the prosecution was not able to establish Villacorta’s intent to kill. In fact,
the Court of Appeals expressly observed the lack of evidence to prove such an intent
beyond reasonable doubt, to wit:
“Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on
the left side of the body and then immediately fled. The instrument used is not as lethal as
those made of metallic material. The part of the body hit is not delicate in the sense that
instant death can ensue by reason of a single stab wound. The assault was done only once.
Thus, there is doubt as to whether appellant had an intent to kill the victim, which should
be resolved in favor of the appellant. x x x.”26
The intent must be proved in a clear and evident manner to exclude every possible
doubt as to the homicidal (or murderous) intent of the aggressor. The onus
probandilies not on
_______________
25 People v. Vicente, 423 Phil. 1065, 1078; 372 SCRA 765, 776 (2001).
26 CA Rollo, p. 13.
285
VOL. 657, SEPTEMBER 7, 2011 285
accused-appellant but on the prosecution. The inference that the intent to kill existed
should not be drawn in the absence of circumstances sufficient to prove this fact
beyond reasonable doubt. When such intent is lacking but wounds were inflicted, the
crime is not frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo Medical Center for
medical treatment immediately after the stabbing incident. Right after receiving
medical treatment, Cruz was then released by the Tondo Medical Center as an out-
patient. There was no other evidence to establish that Cruz was incapacitated for
labor and/or required medical attendance for more than nine days. Without such
evidence, the offense is only slight physical injuries.28
We still appreciate treachery as an aggravating circumstance, it being sufficiently
alleged in the Information and proved during trial.
The Information specified that “accused, armed with a sharpened bamboo stick,
with intent to kill, treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said weapon
one DANILO SALVADOR CRUZ x x x.”
Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the offended
party might make. This definition sets out what must be shown by evidence to
conclude that treachery existed, namely: (1) the employment of such means of
execution as would give the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious adoption of the means of execution.
To reiterate, the essence of qualifying
_______________
27 People v. Pagador, 409 Phil. 338, 351-352; 357 SCRA 299, 309 (2001).
28 Li v. People, 471 Phil. 128, 150; 427 SCRA 217, 235 (2004).
286
circumstance is the suddenness, surprise and the lack of expectation that the attack
will take place, thus, depriving the victim of any real opportunity for self-defense
while ensuring the commission of the crime without risk to the aggressor.29 Likewise,
even when the victim was forewarned of the danger to his person, treachery may still
be appreciated since what is decisive is that the execution of the attack made it
impossible for the victim to defend himself or to retaliate.30
Both the RTC and the Court of Appeals found that treachery was duly proven in
this case, and we sustain such finding. Cruz, the victim, was attacked so suddenly,
unexpectedly, and without provocation. It was two o’clock in the morning of January
23, 2002, and Cruz, who was out buying bread at Mendeja’s store, was unarmed. Cruz
had his guard down and was totally unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a sharpened bamboo stick, and without
uttering a word, stabbed Cruz at the left side of his body, then swiftly ran away.
Villacorta’s treacherous mode of attack left Cruz with no opportunity at all to defend
himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
“ART. 266. Slight physical injuries and maltreatment.—The crime of slight physical
injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party from labor from one to nine days, or shall require medical
attendance during the same period.”
The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The
Indeterminate Sentence Law does not
_______________
29 People v. Casta, G.R. No. 172871, September 16, 2008, 565 SCRA 341, 356-357.
30 People v. Napalit, G.R. No. 181247, March 19, 2010, 616 SCRA 245, 252.
31 Revised Penal Code, Article 27.
287
VOL. 657, SEPTEMBER 7, 2011 287
apply since said law excludes from its coverage cases where the penalty imposed does
not exceed one (1) year.32 With the aggravating circumstance of treachery, we can
sentence Villacorta with imprisonment anywhere within arresto menor in the
maximum period, i.e., twenty-one (21) to thirty (30) days. Consequently, we impose
upon Villacorta a straight sentence of thirty (30) days of arresto menor; but given that
Villacorta has been in jail since July 31, 2002 until present time, already way beyond
his imposed sentence, we order his immediate release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be
recovered in a criminal offense resulting in physical injuries. Moral damages
compensate for the mental anguish, serious anxiety, and moral shock suffered by the
victim and his family as being a proximate result of the wrongful act. An award
requires no proof of pecuniary loss. Pursuant to previous jurisprudence, an award of
Five Thousand Pesos (P5,000.00) moral damages is appropriate for less serious, as
well as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02550, affirming the Decision dated September 22, 2006 of the
Regional Trial Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is
REVERSED and SET ASIDE. A new judgment is entered finding Villacorta GUILTY
beyond reasonable doubt of the crime of slight physical injuries, as defined and
punished by Article 266 of the Revised Penal Code, and sentenced to suffer the
penalty of thirty (30) days arresto menor. Considering that Villacorta has been
incarcerated well beyond the period of the penalty herein imposed, the Director of the
Bureau of Prisons is ordered to cause Villacorta’s immediate
_______________
32 People v. Tan, 411 Phil. 813, 843; 359 SCRA 283, 308 (2001).
33 Aradillos v. Court of Appeals, 464 Phil. 650, 679; 419 SCRA 514, 536 (2004); People v. Loreto, 446
Phil. 592, 614; 398 SCRA 448, 465 (2003).
288
release, unless Villacorta is being lawfully held for another cause, and to inform this
Court, within five (5) days from receipt of this Decision, of the compliance with such
order. Villacorta is ordered to pay the heirs of the late Danilo Cruz moral damages in
the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Corona (C.J., Chairperson), Bersamin, Del Castillo andVillarama, Jr., JJ.,
concur.
Judgment reversed and set aside.
Note.—Although treachery absorbs abuse of superior strength when both are
attendant to the crime committed, the presence of one of these circumstances does
not necessarily automatically result in the presence of the other. (People vs. Ibañez,
428 SCRA 146 [2004])
——o0o——
G.R. No. 190601. February 7, 2011.*
SPOUSES LUIGI M. GUANIO and ANNA HERNANDEZ-GUANIO,
petitioners, vs. MAKATI SHANGRI-LA HOTEL and RESORT, INC., also doing
business under the name of SHANGRI-LA HOTEL MANILA, respondent.
Civil Law; Contracts; Breach of Contract; Words and Phrases; Breach of contract is
defined as the failure without legal reason to comply with the terms of a contract.—Breach of
contract is defined as the failure without legal reason to cmmomply with the terms of a
contract. It is also defined as the [f]ailure, without legal excuse, to perform any promise which
forms the whole or part of the contract. The appellate court, and even the trial court, observed
that petitioners were remiss in their obligation to inform respondent of the change in the
expected number of guests. The observation is re-
_______________
* THIRD DIVISION.
592
Guanio vs. Makati Shangri-La Hotel and Resort, Inc.
flected in the records of the case. Petitioners’ failure to discharge such obligation thus
excused, as the above-quoted paragraph 4.5 of the parties’ contract provide, respondent from
liability for “any damage or inconvenience” occasioned thereby.
Reyes, Cabrera, Rojas, Golez & Associates for petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & Delos Angeles Law Offices for
respondent.
CARPIO-MORALES, J.:
For their wedding reception on July 28, 2001, spouses Luigi M. Guanio and Anna
Hernandez-Guanio (petitioners) booked at the Shangri-la Hotel Makati (the hotel).
Prior to the event, Maukati Shangri-La Hotel & Resort, Inc. (respondent)
scheduled an initial food tasting. Petitioners claim that they requested the hotel to
prepare for seven persons─the two of them, their respective parents, and the wedding
coordinator. At the scheduled food tasting, however, respondent prepared for only six.
Petitioners initially chose a set menu which included black cod, king prawns and
angel hair pasta with wild mushroom sauce for the main course which cost P1,000.00
per person. They were, however, given an option in which salmon, instead of king
prawns, would be in the menu at P950.00 per person. They in fact partook of the
salmon.
Three days before the event, a final food tasting took place. Petitioners aver that
the salmon served was half the size of what they were served during the initial food
tasting; and when queried about it, the hotel quoted a much higher price (P1,200.00)
for the size that was initially served to them. The parties eventually agreed on a final
price—P1,150 per person.593
VOL. 641, FEBRUARY 7, 2011 593
A day before the event or on July 27, 2001, the parties finalized and forged their
contract.1
Petitioners claim that during the reception, respondent’s representatives,
Catering Director Bea Marquez and Sales Manager Tessa Alvarez, did not show up
despite their assurance that they would; their guests complained of the delay in the
service of the dinner; certain items listed in the published menu were unavailable;
the hotel’s waiters were rude and unapologetic when confronted about the delay; and
despite Alvarez’s promise that there would be no charge for the extension of the
reception beyond 12:00 midnight, they were billed and paid P8,000 per hour for the
three-hour extension of the event up to 4:00 A.M. the next day.
Petitioners further claim that they brought wine and liquor in accordance with
their open bar arrangement, but these were not served to the guests who were forced
to pay for their drinks.
Petitioners thus sent a letter-complaint to the Makati Shangri-la Hotel and Resort,
Inc. (respondent) and received an apologetic reply from Krister Svensson, the hotel’s
Executive Assistant Manager in charge of Food and Beverage. They nevertheless filed
a complaint for breach of contract and damages before the Regional Trial Court (RTC)
of Makati City.
In its Answer, respondent claimed that petitioners requested a combination of king
prawns and salmon, hence, the price was increased to P1,200.00 per person, but
discounted at P1,150.00; that contrary to petitioners’ claim, Marquez and Alvarez
were present during the event, albeit they were not permanently stationed thereat
as there were three other hotel functions; that while there was a delay in the service
of the
_______________
1 The Banquet and Meeting Services Contract dated July 26, 2001 was faxed to petitioners, while the
Banquet Event Order was signed on July 25, 2001. As per RTC Decision, the final price for the menu was
only finalized on July 27, 2001.
594
meals, the same was occasioned by the sudden increase of guests to 470 from the
guaranteed expected minimum number of guests of 350 to a maximum of 380, as
stated in the Banquet Event Order (BEO);2 and that Isaac Albacea, Banquet Service
Director, in fact relayed the delay in the service of the meals to petitioner Luigi’s
father, Gil Guanio.
Respecting the belated service of meals to some guests, respondent attributed it to
the insistence of petitioners’ wedding coordinator that certain guests be served first.
On Svensson’s letter, respondent, denying it as an admission of liability, claimed
that it was meant to maintain goodwill to its customers.
By Decision of August 17, 2006, Branch 148 of the Makati RTC rendered judgment
in favor of petitioners, disposing as follows:
“WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiffs and against the defendant ordering the defendants to pay the plaintiff the following:
1) The amount of P350,000.00 by way of actual damages;
2) The amount of P250,000.00 for and as moral damages;
3) The amount of P100,000.00 as exemplary damages;
4) The amount of P100,000.00 for and as attorney’s fees.
With costs against the defendant.
SO ORDERED.”3
In finding for petitioners, the trial court relied heavily on the letter of Svensson
which is partly quoted below:
“Upon receiving your comments on our service rendered during your reception here with us,
we are in fact, very distressed. Right from minor issues pappadums served in the soup instead
of the creutons, lack of valet parkers, hard rolls being too hard till a major one—slow
_______________
2 Rollo, pp. 159-161.

3 Id., at p. 407.
595
VOL. 641, FEBRUARY 7, 2011 595
service, rude and arrogant waiters, we have disappointed you in all means.
Indeed, we feel as strongly as you do that the services you received were unacceptable and
definitely not up to our standards. We understand that it is our job to provide excellent
service and in this instance, we have fallen short of your expectations. We ask you please to
accept our profound apologies for causing such discomfort and annoyance.”4 (underscoring
supplied)
The trial court observed that from “the tenor of the letter . . . the defendant[-herein
respondent] admits that the services the plaintiff[-herein petitioners] received were
unacceptable and definitely not up to their standards.”5 On appeal, the Court of
Appeals, by Decision of July 27, 2009,6reversed the trial court’s decision, it holding
that the proximate cause of petitioners’ injury was an unexpected increase in their
guests:
“x x x Hence, the alleged damage or injury brought about by the confusion, inconvenience
and disarray during the wedding reception may not be attributed to defendant-appellant
Shangri-la.
We find that the said proximate cause, which is entirely attributable to plaintiffs-
appellants, set the chain of events which resulted in the alleged inconveniences, to the
plaintiffs-appellants. Given the circumstances that obtained, only the Sps. Guanio may
bear whatever consequential damages that they may have allegedly
suffered.”7 (underscoring supplied)
Petitioners’ motion for reconsideration having been denied by Resolution of
November 18, 2009, the present petition for review was filed.
_______________
4 Id., at p. 141.
5 Id., at p. 405.
6 Penned by Associate Justice Apolinario D. Bruselas, Jr., with the concurrence of Associate Justices
Andres B. Reyes, Jr. and Pampio A. Abarintos, id., at pp. 8-26.
7 Id., at pp. 20-21.
596
The Court finds that since petitioners’ complaint arose from a contract, the
doctrine of proximate cause finds no application to it:
“The doctrine of proximate cause is applicable only in actions for quasi-delicts, not in
actions involving breach of contract. x x x The doctrine is a device for imputing liability to a
person where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the obligation, and the function
of the law is merely to regulate the relation thus created.”8 (emphasis and underscoring
supplied)
What applies in the present case is Article 1170 of the Civil Code which reads:
“Art. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence or delay, and those who in any manner contravene the tenor thereof, are liable for
damages.”
RCPI v. Verchez, et al. 9 enlightens:
“In culpa contractual x x x the mere proof of the existence of the contract and the failure
of its compliance justify, prima facie, a corresponding right of relief. The law, recognizing the
obligatory force of contracts, will not permit a party to be set free from liability for any kind
of misperformance of the contractual undertaking or a contravention of the tenor thereof. A
breach upon the contract confers upon the injured party a valid cause for recovering that
which may have been lost or suffered. The remedy serves to preserve the interests of the
promissee that may include his “expectation interest,” which is his interest in having the
benefit of his bargain by being put in as good a position as he would have been in had the
_______________
8 Calalas v. Court of Appeals, G.R. No. 122039, May 31, 2000, 332 SCRA 356, 357.
9 G.R. No. 164349, January 31, 2006, 481 SCRA 384, citing FGU Insurance Corporation v. G.P. Sarmiento
Trucking Corporation, 435 Phil. 333, 341-342; 386 SCRA 312, 320 (2002).
597
VOL. 641, FEBRUARY 7, 2011 597
contract been performed, or his “reliance interest,” which is his interest in being
reimbursed for loss caused by reliance on the contract by being put in as good a position as
he would have been in had the contract not been made; or his “restitution interest,” which
is his interest in having restored to him any benefit that he has conferred on the other party.
Indeed, agreements can accomplish little, either for their makers or for society, unless they
are made the basis for action. The effect of every infraction is to create a new duty, that is, to
make RECOMPENSE to the one who has been injured by the failure of another to observe
his contractual obligation unless he can show extenuating circumstances, like proof of his
exercise of due diligence x x x or of the attendance of fortuitous event, to excuse him
from his ensuing liability.” (emphasis and underscoring in the original; capitalization
supplied)
The pertinent provisions of the Banquet and Meeting Services Contract between
the parties read:
“4.3 The ENGAGER shall be billed in accordance with the prescribed rate for the
minimum guaranteed number of persons contracted for, regardless of under attendance or
non-appearance of the expected number of guests, except where the ENGAGER cancels the
Function in accordance with its Letter of Confirmation with the HOTEL. Should the
attendance exceed the minimum guaranteed attendance, the ENGAGER shall also be billed
at the actual rate per cover in excess of the minimum guaranteed attendance.
xxxx
4.5. The ENGAGER must inform the HOTEL at least forty eight (48) hours before the
scheduled date and time of the Function of any change in the minimum guaranteed covers.
In the absence of such notice, paragraph 4.3 shall apply in the event of under attendance. In
case the actual number of attendees exceed the minimum guaranteed number by
ten percent (10%), the HOTEL shall not in any way be held liable for any damage
or inconvenience which may be caused thereby. The ENGAGER shall also
undertake to advise the guests of the situation and
598
take positive steps to remedy the same.”10 (emphasis, italics and underscoring supplied)
Breach of contract is defined as the failure without legal reason to comply with the
terms of a contract. It is also defined as the [f]ailure, without legal excuse, to perform
any promise which forms the whole or part of the contract.11
The appellate court, and even the trial court, observed that petitioners were remiss
in their obligation to inform respondent of the change in the expected number of
guests. The observation is reflected in the records of the case. Petitioners’ failure to
discharge such obligation thus excused, as the above-quoted paragraph 4.5 of the
parties’ contract provide, respondent from liability for “any damage or inconvenience”
occasioned thereby.
As for petitioners’ claim that respondent departed from its verbal agreement with
petitioners, the same fails, given that the written contract which the parties entered
into the day before the event, being the law between them.
Respecting the letter of Svensson on which the trial court heavily relied as
admission of respondent’s liability but which the appellate court brushed aside, the
Court finds the appellate court’s stance in order. It is not uncommon in the hotel
industry to receive comments, criticisms or feedback on the service it delivers. It is
also customary for hotel management to try to smooth ruffled feathers to preserve
goodwill among its clientele.
Kalalo v. Luz holds:12
“Statements which are not estoppels nor judicial admissions have no quality of
conclusiveness, and an opponent whose admis-
_______________
10 Vide Banquet and Meeting Services Contract, Rollo, pp. 138-141, 140.
11 Cathay Pacific Airways Ltd. v. Spouses Vasquez, G.R. No. 150843. March 14, 2003, 399 SCRA 207.
12 L-27782, July 31, 1970, 34 SCRA 337, 348.
599
VOL. 641, FEBRUARY 7, 2011 599
sions have been offered against him may offer any evidence which serves as an explanation
for his former assertion of what he now denies as a fact.”
Respondent’s Catering Director, Bea Marquez, explained the hotel’s procedure on
receiving and processing complaints, viz.:
ATTY. CALMA:
Q You mentioned that the letter indicates an acknowledgement of the concern and that there was-the
first letter there was an acknowledgment of the concern and an apology, not necessarily indicating
that such or admitting fault?
A Yes.
Q Is this the letter that you are referring to?
If I may, Your Honor, that was the letter dated August 4, 2001, previously marked as plaintiff’s
exhibits, Your Honor. What is the procedure of the hotel with respect to customer concern?
A Upon receipt of the concern from the guest or client, we acknowledge receipt of such concern, and as
part of procedure in service industry particularly Makati Shangri-la we apologize for whatever
inconvenience but at the same time saying, that of course, we would go through certain investigation
and get back to them for the feedback with whatever concern they may have.
Q Your Honor, I just like at this point mark the exhibits, Your Honor, the letter dated August 4, 2001
identified by the witness, Your Honor, to be marked as Exhibit 14 and the signature of Mr. Krister
Svensson be marked as Exhibit 14-A.13
xxxx
Q In your opinion, you just mentioned that there is a procedure that the hotel follows with respect to the
complaint, in your opinion was this procedure followed in this particular concern?
_______________
13 TSN, March 16, 2005, pp. 21-23.

600
A Yes, ma’am.
Q What makes you say that this procedure was followed?
A As I mentioned earlier, we proved that we did acknowledge the concern of the client in this case and
we did emphatize from the client and apologized, and at the same time got back to them in whatever
investigation we have.
Q You said that you apologized, what did you apologize for?
A Well, first of all it is a standard that we apologize, right? Being in the service industry, it is a practice
that we apologize if there is any inconvenience, so the purpose for apologizing is mainly to show
empathy and to ensure the client that we are hearing them out and that we will do a better
investigation and it is not in any way that we are admitting any fault.14 (underscoring supplied)
To the Court, the foregoing explanation of the hotel’s Banquet Director overcomes
any presumption of admission of breach which Svensson’s letter might have
conveyed.
The exculpatory clause notwithstanding, the Court notes that respondent could
have managed the “situation” better, it being held in high esteem in the hotel and
service industry. Given respondent’s vast experience, it is safe to presume that this
is not its first encounter with booked events exceeding the guaranteed cover. It is not
audacious to expect that certain measures have been placed in case this predicament
crops up. That regardless of these measures, respondent still received complaints as
in the present case, does not amuse.
Respondent admitted that three hotel functions coincided with petitioners’
reception. To the Court, the delay in service might have been avoided or minimized if
respondent exercised prescience in scheduling events. No less than quality service
should be delivered especially in events which possibility of repetition is close to nil.
Petitioners are not expected to get married twice in their lifetimes.
_______________
14 TSN, March 16, 2005, pp. 24-26.

601
VOL. 641, FEBRUARY 7, 2011 601
In the present petition, under considerations of equity, the Court deems it just to
award the amount of P50,000.00 by way of nominal damages to petitioners, for the
discomfiture that they were subjected to during to the event.15 The Court recognizes
that every person is entitled to respect of his dignity, personality, privacy and peace
of mind.16 Respondent’s lack of prudence is an affront to this right.
WHEREFORE, the Court of Appeals Decision dated July 27, 2009 is PARTIALLY
REVERSED. Respondent is, in light of the foregoing discussion, ORDERED to pay
the amount of P50,000.00 to petitioners by way of nominal damages.
SO ORDERED.
Brion, Bersamin, Villarama, Jr. and Sereno, JJ., concur.
Judgment partially reversed.
Note.—An action for annulment of contract is one filed where consent is vitiated
by lack of legal capacity of one of the contracting parties, or by mistake, violence,
intimidation, undue influence or fraud. By its very nature, annulment contemplates
a contract which is voidable, that is, valid until annulled. Such contract is binding on
all the contracting parties until annulled and set aside by a court of law. It may be
ratified. An action for annulment of contract has a four-year prescriptive period.
(Leonardo vs. Court of Appeals, 438 SCRA 201 [2004])
——o0o——
_______________
15 Civil Code, Article 2222. The court may award nominal damages in every obligation arising from any
source enumerated in Article 1157, or in every case where any property right has been invaded.
16 Id., at Article 26.
G.R. No. 184905. August 28, 2009.*
LAMBERT S. RAMOS, petitioner, vs. C.O.L. REALTY CORPORATION, respondent.
Torts and Damages; Quasi-Delicts; If the master is injured by the negligence of a third
person and by the concurring contributory negligence of his own servant or agent, the latter’s
negligence is imputed to his superior and will defeat the superior’s action against the third
person, assuming of course that the contributory negligence was the proximate cause of the
injury of which complaint is made; The act of crossing an avenue which is prohibited by law
constitutes negligence.—Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in
this case, viz.: Article 2179. When the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the injury being the defendant’s
_______________
* THIRD DIVISION.
527
VOL. 597, AUGUST 28, 2009 527
Ramos vs. C.O.L. Realty Corporation
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. Article 2185. Unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation. If the master is injured by the negligence of a third person
and by the concurring contributory negligence of his own servant or agent, the latter’s
negligence is imputed to his superior and will defeat the superior’s action against the third
person, assuming of course that the contributory negligence was the proximate cause of the
injury of which complaint is made. Applying the foregoing principles of law to the instant
case, Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence
because it was prohibited by law. Moreover, it was the proximate cause of the accident, and
thus precludes any recovery for any damages suffered by respondent from the accident.
Same; Same; Proximate Cause; Words and Phrases; Proximate cause is defined as that
cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred.—Proximate
cause is defined as that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.
Appeals.
Esguerra & Blanco for petitioner.528
Ramon U. Ampil for respondent.
YNARES-SANTIAGO, J.:
The issue for resolution is whether petitioner can be held solidarily liable with his
driver, Rodel Ilustrisimo, to pay respondent C.O.L. Realty the amount of P51,994.80
as actual damages suffered in a vehicular collision.
The facts, as found by the appellate court, are as follows:
“On or about 10:40 o’clock in the morning of 8 March 2004, along Katipunan (Avenue),
corner Rajah Matanda (Street), Quezon City, a vehicular accident took place between a
Toyota Altis Sedan bearing Plate Number XDN 210, owned by petitioner C.O.L. Realty
Corporation, and driven by Aquilino Larin (“Aquilino”), and a Ford Expedition, owned by x x
x Lambert Ramos (Ramos) and driven by Rodel Ilustrisimo (“Rodel”), with Plate Number LSR
917. A passenger of the sedan, one Estela Maliwat (“Estela”) sustained injuries. She was
immediately rushed to the hospital for treatment.
(C.O.L. Realty) averred that its driver, Aquilino, was slowly driving the Toyota Altis car
at a speed of five to ten kilometers per hour along Rajah Matanda Street and has just crossed
the center lane of Katipunan Avenue when (Ramos’) Ford Expedition violently rammed
against the car’s right rear door and fender. With the force of the impact, the sedan turned
180 degrees towards the direction where it came from.
Upon investigation, the Office of the City Prosecutor of Quezon City found probable cause
to indict Rodel, the driver of the Ford Expedition, for Reckless Imprudence Resulting in
Damage to Property. In the meantime, petitioner demanded from respondent reimbursement
for the expenses incurred in the repair of its car and the hospitalization of Estela in the
aggregate amount of P103,989.60. The demand fell on deaf ears prompting (C.O.L. Realty) to
file a Complaint for Damages based on quasi-delict before the Metropolitan Trial Court of
Metro Manila (MeTC), Quezon City, docketed as Civil Case No. 33277, and subsequently
raffled to Branch 42.
As could well be expected, (Ramos) denied liability for damages insisting that it was the
negligence of Aquilino, (C.O.L. Realty’s) driver, which was the proximate cause of the
accident. (Ramos)
529
VOL. 597, AUGUST 28, 2009 529
maintained that the sedan car crossed Katipunan Avenue from Rajah Matanda Street despite
the concrete barriers placed thereon prohibiting vehicles to pass through the intersection.
(Ramos) further claimed that he was not in the vehicle when the mishap occurred. He
asserted that he exercised the diligence of a good father of a family in the selection and
supervision of his driver, Rodel.
Weighing the respective evidence of the parties, the MeTC rendered the Decision dated 1
March 2006 exculpating (Ramos) from liability, thus:
“WHEREFORE, the instant case is DISMISSED for lack of merit. The
Counterclaims of the defendant are likewise DISMISSED for lack of sufficient factual
and legal basis.
SO ORDERED.”
The aforesaid judgment did not sit well with (C.O.L. Realty) so that he (sic) appealed the
same before the RTC of Quezon City, raffled to Branch 215, which rendered the assailed
Decision dated 5 September 2006, affirming the MeTC’s Decision. (C.O.L. Realty’s) Motion
for Reconsideration met the same fate as it was denied by the RTC in its Order dated 5 June
2007.”1
C.O.L. Realty appealed to the Court of Appeals which affirmed the view that
Aquilino was negligent in crossing Katipunan Avenue from Rajah Matanda Street
since, as per Certification of the Metropolitan Manila Development Authority
(MMDA) dated November 30, 2004, such act is specifically prohibited. Thus:
“This is to certify that as per records found and available in this office the crossing of
vehicles at Katipunan Avenue from Rajah Matanda Street to Blue Ridge
Subdivision, Quezon City has (sic) not allowed since January 2004 up to the present
in view of the ongoing road construction at the area.”2 (Emphasis supplied)
_______________
1 Rollo, pp. 31-32.

2 Id., at p. 34.
530
Barricades were precisely placed along the intersection of Katipunan Avenue and
Rajah Matanda Street in order to prevent motorists from crossing Katipunan Avenue.
Nonetheless, Aquilino crossed Katipunan Avenue through certain portions of the
barricade which were broken, thus violating the MMDA rule.3
However, the Court of Appeals likewise noted that at the time of the collision,
Ramos’ vehicle was moving at high speed in a busy area that was then the subject of
an ongoing construction (the Katipunan Avenue-Boni Serrano Avenue underpass),
then smashed into the rear door and fender of the passenger’s side of Aquilino’s car,
sending it spinning in a 180-degree turn.4 It therefore found the driver Rodel guilty
of contributory negligence for driving the Ford Expedition at high speed along a busy
intersection.
Thus, on May 28, 2008, the appellate court rendered the assailed Decision,5 the
dispositive portion of which reads, as follows:
“WHEREFORE, the Decision dated 5 September 2006 of the Regional Trial Court of
Quezon City, Branch 215 is hereby MODIFIED in that respondent Lambert Ramos is held
solidarily liable with Rodel Ilustrisimo to pay petitioner C.O.L. Realty Corporation the
amount of P51,994.80 as actual damages. Petitioner C.O.L. Realty Corporation’s claim for
exemplary damages, attorney’s fees and cost of suit are DISMISSED for lack of merit.
SO ORDERED.”
Petitioner filed a Motion for Reconsideration but it was denied. Hence, the instant
petition, which raises the following sole issue:
_______________
3 Id.
4 Id., at p. 35.
5 Id., at pp. 30-37; penned by Associate Justice Japar B. Dimaampao and concurred in by Associate
Justices Mario L. Guariña III and Romeo F. Barza.
531
VOL. 597, AUGUST 28, 2009 531
THE COURT OF APPEALS’ DECISION IS CONTRARY TO LAW AND
JURISPRUDENCE, AND THE EVIDENCE TO SUPPORT AND JUSTIFY THE SAME IS
INSUFFICIENT.
We resolve to GRANT the petition.
There is no doubt in the appellate court’s mind that Aquilino’s violation of the
MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda Street
was the proximate cause of the accident. Respondent does not dispute this; in its
Comment to the instant petition, it even conceded that petitioner was guilty of mere
contributory negligence.6
Thus, the Court of Appeals acknowledged that:
“The Certification dated 30 November 2004 of the Metropolitan Manila Development
Authority (MMDA) evidently disproved (C.O.L. Realty’s) barefaced assertion that its driver,
Aquilino, was not to be blamed for the accident—
“TO WHOM IT MAY CONCERN:
This is to certify that as per records found and available in this office the crossing
of vehicles at Katipunan Avenue from Rajah Matanda Street to Blue Ridge Subdivision,
Quezon City has (sic) not allowed since January 2004 up to the present in view of the
ongoing road construction at the area.
This certification is issued upon request of the interested parties for whatever legal
purpose it may serve.”
(C.O.L. Realty) admitted that there were barricades along the intersection of Katipunan
Avenue and Rajah Matanda Street. The barricades were placed thereon to caution drivers
not to pass through the intersecting roads. This prohibition stands even if, as (C.O.L. Realty)
claimed, the “barriers were broken” at that point creating a small gap through which any
vehicle could pass. What is clear to Us is that Aquilino recklessly ignored these barricades
and drove through it. Without doubt, his negligence is established by the
_______________
6 Id., at p. 161.
532
fact that he violated a traffic regulation. This finds support in Article 2185 of the Civil Code—
“Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation.”
Accordingly, there ought to be no question on (C.O.L. Realty’s) negligence which
resulted in the vehicular mishap.”7
However, it also declared Ramos liable vicariously for Rodel’s contributory
negligence in driving the Ford Expedition at high speed along a busy intersection.
On this score, the appellate court made the following pronouncement:
“As a professional driver, Rodel should have known that driving his vehicle at a high speed
in a major thoroughfare which was then subject of an on-going construction was a perilous
act. He had no regard to (sic) the safety of other vehicles on the road. Because of the impact
of the collision, (Aquilino’s) sedan made a 180-degree turn as (Ramos’) Ford Expedition
careened and smashed into its rear door and fender. We cannot exculpate Rodel from liability.
Having thus settled the contributory negligence of Rodel, this created a presumption of
negligence on the part of his employer, (Ramos). For the employer to avoid the solidary
liability for a tort committed by his employee, an employer must rebut the presumption by
presenting adequate and convincing proof that in the selection and supervision of his
employee, he or she exercises the care and diligence of a good father of a family. Employers
must submit concrete proof, including documentary evidence, that they complied with
everything that was incumbent on them.
(Ramos) feebly attempts to escape vicarious liability by averring that Rodel was highly
recommended when he applied for the position of family driver by the Social Service
Committee of his parish. A certain Ramon Gomez, a member of the church’s livelihood
program, testified that a background investigation would have to be made before an applicant
is recommended to the parishioners for employment. (Ramos) supposedly tested Rodel’s
driving skills before
_______________
7 Id., at pp. 34-35.

533
VOL. 597, AUGUST 28, 2009 533
accepting him for the job. Rodel has been his driver since 2001, and except for the mishap in
2004, he has not been involved in any road accident.
Regrettably, (Ramos’) evidence which consisted mainly of testimonial evidence remained
unsubstantiated and are thus, barren of significant weight. There is nothing on the records
which would support (Ramos’) bare allegation of Rodel’s 10-year unblemished driving record.
He failed to present convincing proof that he went to the extent of verifying Rodel’s
qualifications, safety record, and driving history.
So too, (Ramos) did not bother to refute (C.O.L. Realty’s) stance that his driver was texting
with his cellphone while running at a high speed and that the latter did not slow down albeit
he knew that Katipunan Avenue was then undergoing repairs and that the road was
barricaded with barriers. The presumption juris tantumthat there was negligence in the
selection of driver remains unrebutted. As the employer of Rodel, (Ramos) is solidarily liable
for the quasi-delict committed by the former.
Certainly, in the selection of prospective employees, employers are required to examine
them as to their qualifications, experience and service records. In the supervision of
employees, the employer must formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for the breach thereof. These, (Ramos)
failed to do.”8
Petitioner disagrees, arguing that since Aquilino’s willful disregard of the MMDA
prohibition was the sole proximate cause of the accident, then respondent alone
should suffer the consequences of the accident and the damages it incurred. He
argues:
“20. It becomes apparent therefore that the only time a plaintiff, the respondent herein,
can recover damages is if its negligence was only contributory, and such contributory
negligence was the proximate cause of the accident. It has been clearly established in this
case, however, that respondent’s negligence was not merely contributory, but the sole
proximate cause of the accident.
_______________
8 Id., at pp. 35-36.

534
xxxx
22. As culled from the foregoing, respondent was the sole proximate cause of the
accident. Respondent’s vehicle should not have been in that position since crossing the said
intersection was prohibited. Were it not for the obvious negligence of respondent’s driver in
crossing the intersection that was prohibited, the accident would not have happened. The
crossing of respondent’s vehicle in a prohibited intersection unquestionably produced the
injury, and without which the accident would not have occurred. On the other hand,
petitioner’s driver had the right to be where he was at the time of the mishap. As correctly
concluded by the RTC, the petitioner’s driver could not be expected to slacken his speed while
travelling along said intersection since nobody, in his right mind, would do the same.
Assuming, however, that petitioner’s driver was indeed guilty of any contributory negligence,
such was not the proximate cause of the accident considering that again, if respondent’s
driver did not cross the prohibited intersection, no accident would have happened. No
imputation of any lack of care on Ilustrisimo’s could thus be concluded. It is obvious then that
petitioner’s driver was not guilty of any negligence that would make petitioner vicariously
liable for damages.
23. As the sole proximate cause of the accident was respondent’s own driver, respondent
cannot claim damages from petitioner.”9
On the other hand, respondent in its Comment merely reiterated the appellate
court’s findings and pronouncements, conceding that petitioner is guilty of mere
contributory negligence, and insisted on his vicarious liability as Rodel’s employer
under Article 2184 of the Civil Code.
Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz.:
“Article 2179. When the plaintiff’s own negligence was the immediate and proximate
cause of his injury, he cannot recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the defendant’s lack of due
_______________
9 Id., at pp. 12-13.

535
VOL. 597, AUGUST 28, 2009 535
care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation.”
If the master is injured by the negligence of a third person and by the concurring
contributory negligence of his own servant or agent, the latter’s negligence is imputed
to his superior and will defeat the superior’s action against the third person, assuming
of course that the contributory negligence was the proximate cause of the injury of
which complaint is made.10
Applying the foregoing principles of law to the instant case, Aquilino’s act of
crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was
prohibited by law. Moreover, it was the proximate cause of the accident, and thus
precludes any recovery for any damages suffered by respondent from the accident.
Proximate cause is defined as that cause, which, in natural and continuous
without which the result would not have occurred. And more comprehensively, the
proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
predecessor, the final event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to
_______________
10 Am. Jur. 2d, Volume 58, Negligence, Section 464; cited in Ford Philippines, Inc. v. Citibank, N.A.,
G.R. No. 128604, January 29, 2001, 350 SCRA 446.
536
expect at the moment of his act or default that an injury to some person might
probably result therefrom.11
If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue
from Rajah Matanda, the accident would not have happened. This specific untoward
event is exactly what the MMDA prohibition was intended for. Thus, a prudent and
intelligent person who resides within the vicinity where the accident occurred,
Aquilino had reasonable ground to expect that the accident would be a natural and
probable result if he crossed Katipunan Avenue since such crossing is considered
dangerous on account of the busy nature of the thoroughfare and the ongoing
construction of the Katipunan-Boni Avenue underpass. It was manifest error for the
Court of Appeals to have overlooked the principle embodied in Article 2179 of the
Civil Code, that when the plaintiff’s own negligence was the immediate and
proximate cause of his injury, he cannot recover damages.
Hence, we find it unnecessary to delve into the issue of Rodel’s contributory
negligence, since it cannot overcome or defeat Aquilino’s recklessness which is the
immediate and proximate cause of the accident. Rodel’s contributory negligence has
relevance only in the event that Ramos seeks to recover from respondent whatever
damages or injuries he may have suffered as a result; it will have the effect of
mitigating the award of damages in his favor. In other words, an assertion of
contributory negligence in this case would benefit only the petitioner; it could not
eliminate respondent’s liability for Aquilino’s negligence which is the proximate
result of the accident.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
dated May 28, 2008 in CA-G.R. SP No. 99614 and its Resolution of October 13, 2008
are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial
_______________
11 McKee v. Intermediate Appellate Court, G.R. No. 68102, July 16, 1992, 211 SCRA 517.
537
VOL. 597, AUGUST 28, 2009 537
Court of Quezon City, Branch 215 dated September 5, 2006 dismissing for lack of
merit respondent’s complaint for damages is hereby REINSTATED.
SO ORDERED.
Chico-Nazario, Velasco, Jr., Nachura and Peralta, JJ., concur.
Petition granted, judgment and resolution reversed and set aside.
Notes.—The accident victim is guilty of contributory negligence if he did not use
the pedestrian overpass while crossing the avenue. (Mendoza vs. Soriano, 524 SCRA
260 [2007])
The doctrine of last clear chance states that where both parties are negligent but
the negligent act of one is appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence caused the loss, the one who had
the last clear opportunity to avoid the loss but failed to do so is chargeable with the
loss. (Lapanday Agricultural and Development Corporation (LADECO) vs. Angala,
525 SCRA 229 [2007])
——o0o——

G.R. No. 182201. November 14, 2016.*
UNIVERSAL INTERNATIONAL INVESTMENT (BVI) LIMITED,

petitioner, vs. RAY BURTON DEVELOPMENT CORPORATION, respondent.
G.R. No. 185815. November 14, 2016.*
UNIVERSAL INTERNATIONAL INVESTMENT (BVI) LIMITED,

petitioner, vs. RAY BURTON DEVELOPMENT CORPORATION, respondent.
Civil Law; Contracts; If the terms of the contract are clear and leave no doubt upon the
intention of the contracting parties, the lit-
_______________
* FIRST DIVISION.
452
Universal International Investment (BVI) Limited vs. Ray
Burton Development Corporation
eral meaning of its stipulations shall control.—If the terms of the contract are clear and
leave no doubt upon the intention of the contracting parties, the literal meaning of its
stipulations shall control. In this case, the very words of Section 6 of the Contracts to Sell
refer only to situations of (1) force majeure or (2) substantial delay in the condominium
project, Elizabeth Place.
Same; Damages; In order to recover damages, the claimant must prove (1) an injury or a
wrong sustained (2) as a consequence of a breach of contract or tort and (3) caused by the party
chargeable with a wrong.—In order to recover damages, the claimant must prove (1) an injury
or a wrong sustained (2) as a consequence of a breach of contract or tort and (3) caused by the
party chargeable with a wrong. As Universal claims actual damages, it is only entitled to
such pecuniary loss as it has duly proved.
Same; Same; To justify a grant of compensatory damages, it is necessary that the actual
amount of loss to be proved with a reasonable certainty, premised upon competent proof and
the best evidence obtainable by the injured party.—Assuming that the condominium units
were utilized for profit, this Court finds no iotaof evidence as to the amount of profits that
Universal would have earned from the properties. To justify a grant of compensatory
damages, it is necessary that the actual amount of loss to be proved with a reasonable degree
of certainty, premised upon competent proof and the best evidence obtainable by the injured
party.
Proximate Cause; Proximate cause is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and without which
the result would not have occurred.—The act or omission of respondent must have been the
proximate cause, as distinguished from the remote cause, of the loss sustained by the
claimant. Proximate cause — determined by a mixed consideration of logic, common sense,
policy, and precedent — is that cause which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without which the result would
not have occurred.
Civil Law; In order that the debtor may be held to be in default, the following requisite
conditions must be present: (1) the obligation is demandable and already liquidated; (2) the
debtor delays perform-
453
VOL. 808, NOVEMBER 14, 2016 453
ance of the obligation; and (3) the creditor requires the performance judicially or
extrajudicially.—The excuse given by RBDC deserves scant consideration. In order that the
debtor may be held to be in default, the following requisite conditions must be present: (1)
the obligation is demandable and already liquidated; (2) the debtor delays performance of the
obligation; and (3) the creditor requires the performance judicially or extrajudicially.
Same; Contracts; Damages; Temperate Damages; Temperate Damages may be recovered
when the court finds that some pecuniary loss has been suffered but the amount cannot be
proven with certainty.—Temperate damages may be recovered when the court finds that
some pecuniary loss has been suffered but the amount cannot, from the nature of the case,
be proven with certainty. In this case, there is no doubt that Universal sustained pecuniary
loss, albeit difficult to quantify, arising from RBDC’s failure to execute deeds of absolute sale
and to deliver the CCTs of the properties.
Same; Same; Same; Exemplary Damages; Exemplary damages are corrective damages
imposed by way of example or correction for the public good.—Exemplary damages are
corrective damages imposed by way of example or correction for the public good. The grant
thereof is intended to serve as a deterrent to or negative incentive for curbing socially
deleterious actions.
Same; Same; Same; Same; Article 2232 of the Civil Code of the Philippines provides that
in contracts, the court may award exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.—Article 2232 of the Civil Code of the
Philippines provides that in contracts, the court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. In this
case, we find that respondent indeed acted in that manner when, despite demand for and full
payment of the properties, it refused to execute deeds of absolute sale and release the CCTs
to petitioner without any sound basis.
PETITIONS for review on certiorari of the decisions and resolutions of the Court of
Appeals.
454
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner.
Paul Bernard T. Irao for respondent.
SERENO, CJ.:
At bench is a review of the damage claims for contractual breach sought by
petitioner Universal International Investment (BVI) Limited (Universal) against
respondent Ray Burton Development Corporation (RBDC). In G.R. No. 185815,
Universal contests the Court of Appeals’ (CA) Decision and Resolution rejecting its
demand for damages against RBDC.1 Petitioner seeks damages for nondelivery of the
properties it had purchased from respondent and the titles thereto. In G.R. No.
182201, Universal assails the CA Decision and Resolution, which affirmed the
discharge of one of respondent’s attached properties meant to secure petitioner’s
claims for damages.2
Factual Antecedents
RBDC owned and developed Elizabeth Place, a condominium located at H.V. De la

Costa St., Salcedo Village, Makati City. On 18 October 1996, respondent and
petitioner entered into separate Contracts to Sell3 covering the purchase of 10
_______________
1 Rollo (G.R. No. 185815), pp. 64-86. The CA Decision dated 31 July 2007 and Resolution dated 11
December 2008 in C.A.-G.R. S.P. No. 89468 were penned by Associate Justice Portia Aliño-Hormachuelos,
with Associate Justices Lucas P. Bersamin and Estela M. Perlas-Bernabe (both now members of this Court),
concurring.
2 Rollo (G.R. No. 182201), pp. 53-78. The CA Decision dated 25 June 2007 and Resolution dated 14
March 2008 in C.A.-G.R. S.P. No. 89578 were penned by Associate Justice Lucenito N. Tagle, with Associate
Justices Amelita G. Tolentino and Sixto Marella, Jr., concurring.
3 Rollo (G.R. No. 185815), pp. 88-343.
455
VOL. 808, NOVEMBER 14, 2016 455
condominium units and 10 parking slots in the building. In February 1999, petitioner
paid respondent the full purchase price of these properties amounting to
P52,836,781.50.4
Universal issued a letter dated 23 August 2000 to RBDC demanding the
cancellation of the sales transaction after the latter failed to deliver possession of the
properties and reneged on its obligation to transfer the Condominium Certificates of
Title (CCTs) to petitioner’s name.5 On 6 August 2001, respondent sent a letter to
Universal informing the latter that the construction of the subject properties had
been completed.6 Several demand letters followed.7
RBDC ultimately failed to satisfy the demand of Universal to deliver the
properties. Thereafter, petitioner discovered that the mother title to the lot of
Elizabeth Place had been mortgaged to China Banking Corporation (China Bank)
since 31 July 1991.8 Petitioner found that a Mortgage Clearance from the Housing
and Land Use Regulatory Board (HLURB) had been issued on 17 October 19969 and
the securities foreclosed by China Bank on 18 May 2001.10
Proceedings before the HLURB
On 29 May 2002, Universal filed with the Expanded National Capital Region Field
Office (ENCRFO) of the HLURB a Complaint for Specific Performance or Rescission
of Contract and Damages.11 To secure its claims, petitioner moved for the issuance of
a writ of preliminary attachment against the properties of RBDC. Universal imputed
fraud to respondent
_______________
4 Id., at pp. 344-358.

5 Id., at p. 1033.
6 Id., at p. 412; dated 1 August 2001.
7 Id., at pp. 359-363.
8 Id., at pp. 364-379.
9 Id., at p. 382.
10 Id., at p. 1575; Memorandum of respondents, p. 14.
11 Id., at pp. 383-393; dated 21 May 2002.
456
for concealing the mortgage with China Bank. On 3 June 2002, a Writ of Attachment
was issued by the ENCRFO.12
Universal sought the delivery of (1) the condominium units and (2) their CCTs. In
the event that delivery were to be proven impossible, it prayed for the rescission of
the Contracts to Sell with a refund of the purchase price plus the penalty interest
stipulated under Section 6 thereof. The contracts provide for a 1.5% monthly interest
on the total purchase price, computed from the date of cancellation of the sale until
full refund of the payments.
RBDC countered13 that Universal could not rightly demand delivery, for the latter
had yet to pay transfer charges under the Contracts to Sell. In the alternative,
respondent claimed that it had already delivered the properties when it sent a letter
to petitioner on 6 August 2001.
As regards the CCTs, RBDC argued that petitioner should demand these from
China Bank. The CA summarized that contention of respondent in this wise:14
Moreover, RBDC claims that it was impeded from releasing the titles of Elizabeth Place to
the deserving buyers because Chinabank had illegally foreclosed the mortgage over Elizabeth
Place; that in fact, RBDC had instituted a case for delivery of titles before the HLURB
entitled “Ray Burton Development Corp. versus China Banking Corp.” docketed as HLURB
REM 121401-11726; and that in a Judgment Upon Compromise dated August 1, 2002,
HLURB directed Chinabank “to release the titles of all units in Elizabeth Place that
are now fully paid and those that will in the future be fully paid to their respective
buyers irrespective of who the seller is.” RBDC asserted that Universal should instead
_______________
12 Id., at pp. 394-395; issued by Jesse A. Obligacion, Regional Director of the ENCRFO.
13 Id., at pp. 396-411; Answer dated 25 June 2002.
14 Id., at p. 67; CA Decision dated 31 July 2007, p. 4.
457
VOL. 808, NOVEMBER 14, 2016 457
direct its claim for delivery of the titles of the properties to Chinabank. (Emphasis supplied)
On 25 March 2003, the ENCRFO issued a Decision15 in favor of Universal. The

former found that petitioner had completed the payment of the total contract price of
P52,836,781.50 in February 1999. At that point, said the ENCRFO, the reciprocal
obligation of respondent to deliver possession of the properties and their CCTs
became due and demandable.
On 12 May 2003, RBDC filed a Petition for Review16before the Board of
Commissioners (BOC) of the HLURB. Respondent also moved for the partial
discharge17 of one of its attached properties: the lot in Lapu-Lapu City with Transfer
Certificate of Title (TCT) No. T-29726.
RBDC reiterated its arguments below. Universal likewise echoed its earlier
assertions, but additionally claimed that respondent’s Petition for Review lacked the
appeal bond needed to perfect an appeal.18
The BOC did not dismiss respondent’s Petition for Review. Instead, on 10 October
2003, it issued an Order19directing the remand of the case to the ENCRFO so that the
latter could include China Bank in the proceedings. Universal moved for
reconsideration, but to no avail.20
_______________
15 Id., at pp. 450-456; the Decision docketed as HLURB Case No. REM-052902-11917 was penned by
Housing and Land Use Arbiter Atty. Joselito F. Melchor.
16 Id., at pp. 457-485; dated 12 May 2003.
17 Id., at pp. 209-212; dated 16 May 2003.
18 Id., at pp. 486-504; Opposition to the Petition for Review dated 10 June 2003.
19 Id., at pp. 506-508; the Order docketed as HLURB Case No. REM-A-030519-0118 was penned by the
Second Division of the HLURB.
20 Id., at pp. 509-522; Motion for Reconsideration dated 5 November 2003.
458
The BOC did not rule upon the motion of RBDC for the discharge of its Lapu-Lapu
City property. Therefore, respondents filed a second Motion for Partial Discharge.21In
its Resolution dated 29 June 2004, the BOC allowed the discharge of the Lapu-Lapu
City property owned by respondent, since the latter was willing to put up a
counterbond.22
Proceedings before the OP
Universal successfully appealed its case before the Office of the President (OP).23 In
its Decision dated 29 October 2004,24 the OP reversed the ruling of the BOC and held
that Universal had a right to rescind the Contracts to Sell, as well as to refund the
purchase price of the properties with the liquidated damages specified in Section 6 of
the contracts. Nonetheless, the OP maintained the validity of the discharge of the
Lapu-Lapu City property.25
Proceedings before the CA
Universal assailed the discharge of the Lapu-Lapu City property via a Petition
for Certiorari under Rule 65 of the Rules of Court in C.A.-G.R. S.P. No. 89578.26 In its
Decision dated 25 June 2007 and Resolution dated 14 March 2008, the CA dismissed
the action for lack of merit. Anent the main controversy involving the nondelivery of
the condominium units and parking slots, RBDC filed a Petition for Review 27 under
Rule 43 of the Rules of Court in C.A.-G.R. S.P. No.
_______________
21 Id., at pp. 548-556; dated 19 November 2003.

22 Id., at pp. 557-560; Resolution dated 29 June 2004.
23 Id., at pp. 561-562; Notice of Appeal dated 15 July 2004.
24 Id., at pp. 637-643.
25 Id., at pp. 691-693; Order dated 7 April 2005.
26 Rollo (G.R. No. 182201), pp. 449-473; Petition for Certiorari dated 10 October 2005.
27 Rollo (G.R. No. 185815), pp. 694-734; Petition for Review dated 10 May 2005.
459
VOL. 808, NOVEMBER 14, 2016 459
89468. In both proceedings, the parties repeated their arguments a quo.
During the pendency of the case before the CA, Universal
manifested28 that China Bank had released the subject properties, and that
petitioner had already obtained their CCTs on 5 January 2005.
On account of this supervening event, RBDC moved that this case be considered
moot and academic.29
Universal responded that its acquisition of the condominium units from China
Bank resulted only in the partial satisfaction of the former’s claims against RBDC.
Petitioner claimed before the CA that respondent must still pay for the damages
specified in Section 6 of the Contracts to Sell on account of the latter’s delayed
delivery of the properties. Universal also claimed compensation for property losses
amounting to P19,646,483.72, supposedly to cover the depreciation costs and
expenses it had incurred for the release of the properties from China Bank.
In its Decision dated 31 July 2007, which was maintained in its Resolution dated
11 December 2008, the CA wholly denied Universal’s entreaty for damages.
Proceedings before this Court
The consolidated Petitions for Review on Certiorari filed by Universal under Rule
45 of the Rules of Court, docketed as G.R. Nos. 182201 and 185815, collectively raise
three points.30
_______________
28 Id., at pp. 1095-1101, 1120; Rejoinder with Manifestation re: Partial Satisfaction of Judgment dated
20 December 2005; Universal’s Counter-Manifestation and Opposition dated 2 February 2006.
29 Id., at p. 1103; Manifestation of Lack of Cause of Action with Motion to Declare Respondent in
Indirect Contempt dated 12 January 2006.
30 Rollo (G.R. No. 182201), pp. 16-51; Petition for Review dated 8 May 2008. Rollo (G.R. No. 185815),
pp. 9-62 and 1495-1546; Peti-
460
First, Universal contends that the CA gravely erred when the latter sustained the
OP’s discharge of the Lapu-Lapu City property, notwithstanding the irregularities in
the proceedings below.
Second, Universal argues that because RBDC failed to attach an appeal bond
when the latter elevated the ENCRFO Decision to the BOC, that ruling had become
final and executory and can no longer be reviewed by the BOC, the OP, the CA, or
this Court.
Third, petitioner claims that the CA gravely erred in refusing to award damages
and property losses. Petitioner seeks damages on account of the contractual breaches
of respondent consisting of the latter’s failure to deliver the properties and to transfer
their CCTs to the name of Universal. Petitioner also narrates that RBDC concealed
the mortgage of the properties to China Bank.
RBDC stands by the validity of the partial discharge of its Lapu-Lapu City
property. In the main, it denies committing any breach of contract against Universal.
Absent any dereliction on its part, respondent claims that petitioner should not be
awarded damages.31
Issues
Given the developments in this case, this Court adjudges that the main issues to
be resolved are as follows:
I. Whether the CA incorrectly affirmed the discharge of the Lapu-Lapu City property of
RBDC;
_______________
tion for Review dated 19 February 2009 and Memorandum dated 29 June 2010.
31 Rollo (G.R. No. 182201), pp. 593-611; Comment dated 11 September 2008. Rollo (G.R. No. 185815),
pp. 1370-1401 and 1562-1600; Comment dated 24 June 2009 and Memorandum dated 18 June 2010.
461
VOL. 808, NOVEMBER 14, 2016 461
II. Whether the CA gravely erred in denying the demand of petitioner for the liquidated
damages specified in Section 6 of the Contracts to Sell;
III. Whether the CA committed a grievous error in not granting the claims of petitioner for
losses amounting to P19,646,483.72;
IV. Whether petitioner is entitled to damages on account of the contractual breaches
committed by respondent.
Ruling of the Court
At the outset, this Court outrightly rejects the argument of Universal regarding
the failure of RBDC to attach an appeal bond when the latter elevated the ENCRFO
Decision to the BOC for being moot and academic. To recall, the appealed ENCRFO
Decision required RBDC to deliver the purchased properties and pay damages to
Universal; and if that delivery was no longer possible, to refund the purchase price
plus interests thereon.
The properties and the titles thereto were finally delivered to Universal on 5
January 2005. Hence, its only existing claim in this case is for damages, which an
appeal bond does not secure under Section 3(c), Rule XII of the 1996 HLURB Rules
of Procedure.32 Since interests, damages, and attorney’s fees
_______________
32 The provision reads:

SECTION 3. Contents of the Petition for Review.—
xxxx
In addition, the appellant shall attach to the petition the following:
xxxx
c. In case of an award of a money judgment in the complainant’s favor, an appeal bond satisfactory to the Board
equivalent to the amount of the award excluding interests, damages and attorney’s fees.
462
need not be covered by an appeal bond, that controversy has come to an end with no
practical and effective relief to be given to petitioner.33
The Discharge of the Lapu-Lapu

City Property
Universal highlights the irregularities that supposedly attended the discharge of

the Lapu-Lapu City property owned by RBDC. First, the BOC Order dated 10 October
2003, which did not rule upon the issue of the discharge, was improvidently modified
by its Resolution dated 29 June 2004. The Order was modified upon respondent’s
filing of a second Motion for Partial Discharge, instead of a proper Motion for
Reconsideration. Second, since the BOC had directed the remand of the case to the
ENCRFO, the former lost the jurisdiction to order the discharge. Third, the discharge
transpired without notice and hearing.
On the first infirmity, we hold that the CA did not exceed its jurisdiction when it
sustained the BOC Resolution dated 29 June 2004 granting the discharge, even if not
through a motion for reconsideration but via a second Motion for Partial Discharge.
The second Motion for Partial Discharge may very well take the place of a motion for
reconsideration, considering that it also sought the reconsideration of the BOC’s
failure to resolve the first Motion for Partial Discharge. It is basic that the caption
should not be the governing factor, but rather the allegations contained in the motion
or pleading, that should determine the nature of the action.34
As regards the second and the third irregularities, this Court finds no justification
for the exercise of its discretionary power of appellate review. The CA, which heard
the issues
_______________
33 Ruiz v. Court of Appeals, 164 Phil. 87; 72 SCRA 83 (1976).

34 Munsalud v. National Housing Authority, 595 Phil. 750; 575 SCRA 144 (2008).
463
VOL. 808, NOVEMBER 14, 2016 463
under the framework of a special civil action for certiorari, has thoroughly explained
the purported irregularities. We quote with approval the following excerpt from the
assailed CA Decision:35
It is absurd to assume that the ENCRFO, a subordinate of the HLURB Board of
Commissioners, is the only agency that can discharge the writ of attachment it previously
issued. As the Board is the reviewing body of the entire HLURB, it definitely has the power
to overturn, revise or modify the ruling handed down by its subordinate. To rule otherwise
would render the appeal before the Board nugatory and irrelevant.
xxxx
As for the alleged lack of hearing, petitioner’s filing of an Opposition to respondent’s

motion for partial discharge before the HLURB Board sufficiently satisfies said requirement.
x x x.
Universal’s Claim for Liquidated

Damages under Section 6 of the
Contracts to Sell
Proceeding to the main controversy of these consolidated cases, Universal asserts

that because RBDC failed to transfer possession of the properties, and their CCTs,
petitioner-buyer is entitled to damages by way of the interest specified in Section 6 of
the Contracts to Sell, viz.:
SECTION 6. BREACH AND/OR VIOLATIONS OF THE CONTRACT.—
This agreement shall be deemed cancelled, at the option of the BUYER, in the event that
SELLER, for the reasons of force majeure, decide not to continue with the Project or the
Project has been substantially de-
_______________
35 Rollo (G.R. No. 182201), pp. 66-67.
464
layed. In such a case, the BUYER shall be entitled to refund all the payments made
with interest at one-and-a-half (1 1/2) percent per month on the amount paid
computed from the date of cancellation until the payments have been fully
refunded. Substantial delay is defined as six (6) months from date of estimated date of
completion. The parties agree that the estimated date of completion shall be December 31,
1998. (Emphasis supplied)
RBDC counters that it cannot be considered in breach of the agreement, since

Universal failed to pay the transfer charges. The CA agreed with respondent’s
reasoning and thus rejected petitioner’s demand for liquidated damages. This Court
concurs with the CA’s rejection of liquidated damages, but for a different reason.
If the terms of the contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control.36 In this case,
the very words of Section 6 of the Contracts to Sell refer only to situations of (1) force
majeure or (2) substantial delay in the condominium project, Elizabeth Place.
Universal is not alleging either of these two circumstances. Rather, it is claiming
damages for RBDC’s failure to deliver possession of the condominium units, parking
slots, and their CCTs. Hence, Section 6 of the Contracts to Sell is clearly inapplicable
to petitioner’s cause of action.
The Demand of Universal to Recover

Losses amounting to P19,646,483.72
Universal reiterates its claims for actual damages based on the losses it suffered
amounting to P19,646,483.72. This amount represents the depreciation between the
P57,146,483.72 purchase price of the properties in 1996 and the P37,500,000
_______________
36 Civil Code of the Philippines, Article 1370.
465
VOL. 808, NOVEMBER 14, 2016 465
market value of the properties appraised at the time that petitioner obtained the
titles from China Bank in 2005.37
Petitioner computes that the purchase price in 1996 totals P57,146,483.72, which
is the summation of the following amounts: P52,836,781.50 total contract price;
P770,613.68 condominium dues, P368,881.63 real estate taxes, and the P3,170,206.91
expenses paid to China Bank for the release of the properties. In effect, petitioner
seeks to recover the depreciation costs and the additional sums it paid to obtain the
release of the properties from China Bank. For lack of legal basis, the CA entirely
rejected petitioner’s claims for losses.
Universal now seeks refuge under Article 2200 of the Civil Code to justify its claim
for damages:
ARTICLE 2200. Indemnification for damages shall comprehend not only the value of the
loss suffered, but also that of the profits which the obligee failed to obtain.
To adjudicate petitioner’s claims, this Court looks into the fundamental elements
in recovering damages. In MEA Builders, Inc. v. Court of Appeals,38 We defined
damages as follows:
In legal contemplation, the term “damages” is the sum of money which the law awards or
imposes as a pecuniary compensation, a recompense or satisfaction for an injury done or a
wrong sustained as a consequence either of a breach of a contractual obligation or a tortuous
act.
Based on the above definition, in order to recover damages, the claimant must
prove (1) an injury or a wrong sustained
_______________
37 CA Rollo, pp. 1350-1375; Valuation of CB Richard Ellis of Elizabeth Place Condominium dated 31
August 2006. Using the Market Value Approach, it opined that the market value of the 10 residential
condominium units and 10 parking slots amounted to P37,500,000 as or 5 January 2005.
38 490 Phil. 565, 577; 450 SCRA 155, 167 (2005).
466
(2) as a consequence of a breach of contract or tort and (3) caused by the party
chargeable with a wrong.39 As Universal claims actual damages, it is only entitled to
such pecuniary loss as it has duly proved.40
Losses Sustained by Universal
Petitioner cites Article 2200 of the Civil Code to support its claim for losses
equivalent to a P19,646,483.72 reduction in the market value of the condominium
units. This provision speaks of indemnification for lost profitsthat would have been
obtained by the claimant if not for the injury caused by the erring party. 41 In the
present case, however, Universal does not even allege that it is marketing the
properties for profit, either by lease or by sale. Thus, Article 2200 cannot serve as the
proper basis for recovering the value of the condominium units.
In the alternative, assuming that the condominium units were utilized for profit,
this Court finds no iota of evidence as to the amount of profits that Universal would
have earned from the properties. To justify a grant of compensatory damages, it is
necessary that the actual amount of loss to be proved with a reasonable degree of
certainty, premised upon competent proof and the best evidence obtainable by the
injured party.42
We cannot consider as unearned profits the P19,646,483.72 difference between the
total contract price and the present
_______________
39 Garrido v. Dela Paz, G.R. No. 183967, 11 December 2013.

40 Civil Code of the Philippines, Article 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.”
41 Uy v. Puzon, 169 Phil. 581; 79 SCRA 598 (1977).
42 Integrated Packaging Corporation v. Court of Appeals, 388 Phil. 835; 333 SCRA 170 (2000).
467
VOL. 808, NOVEMBER 14, 2016 467
market value of the properties. That conclusion presupposes that Universal has (1)
successfully marketed the properties (2) at a favorable retail price that would allow
it to recover its original investment. In National Power Corp. v. Philipp Brothers
Oceanic, Inc.,43 this Court explained that in order to recover actual damages, the
alleged unearned profits must not be conjectural or based on contingent transactions.
Speculative damages are too remote to be included in an accurate estimate of
damages.44
Breach of Contract by RBDC
Both parties entered into a contract to sell, not a contract of sale. In the former
agreement, ownership is reserved by the vendor.45 Upon full payment of the purchase
price, the resulting duties of RBDC as vendor are found in Section 3 of the subject
agreement, viz.:
SECTION 3. TITLE AND OWNERSHIP OF UNIT.—
a) Upon full payment of the BUYER of the above purchase price, including any and all
payments as provided herein, and upon full compliance by the BUYER of all his obligation
as contained in this contract, the SELLER shall deliver to the BUYER a Deed of Absolute
Sale conveying its rights, interests and title to the UNIT and the appurtenant undivided
interest in the common areas of the Project, and the corresponding Condominium
Certificate of Title. The BUYER shall give the SELLER reasonable time from date of
completion of the Project to secure the title to the UNIT. A copy of the Deed of Absolute Sale
is attached as Annex A. x x x. (Emphasis supplied)
_______________
43 421 Phil. 532; 369 SCRA 629 (2001).

44 Coca Cola Bottlers, Phils., Inc. v. Roque, 367 Phil. 493; 308 SCRA 215 (1999).
45 Go v. Pura V. Kalaw, Inc., 529 Phil. 150; 497 SCRA 154 (2006).
468
RBDC only has two obligations specified by Section 3: (1) to deliver deeds of
absolute sale; and (2) to deliver the corresponding CCTs. Contrary to the demands of
petitioner, respondent did not have any contractual obligation to surrender
possession of the properties. Neither did the latter have to cause the transfer of the
CCTs to petitioner’s name.
In Chua v. Court of Appeals,46 we explained the nature and the incidents of a
contract to sell as follows:
In a contract to sell, the obligation of the seller to sell becomes demandable only upon the
happening of the suspensive condition. In this case, the suspensive condition is the full
payment of the purchase price by Chua. Such full payment gives rise to Chua’s right to
demand the execution of the contract of sale.
It is only upon the existence of the contract of sale that the seller becomes obligated
to transfer the ownership of the thing sold to the buyer.
xxxx
In the sale of real property, the seller is not obligated to transfer in the name of the
buyer a new certificate of title, but rather to transfer ownership of the real property.
There is a difference between transfer of the certificate of title in the name of the buyer, and
transfer of ownership to the buyer. The buyer may become the owner of the real property
even if the certificate of title is still registered in the name of the seller. (Emphasis supplied)
Universal does not base its claim for damages on grounds supported by the
Contracts to Sell. Instead, it argues that respondent’s failure to transfer the CCTs
and convey possession of the properties caused the depreciation of their market
_______________
46 449 Phil. 25, 45-46; 401 SCRA 54, 69-70 (2003).
469
VOL. 808, NOVEMBER 14, 2016 469
value. Hence, this Court rules that petitioner’s premise for its recovery of depreciation
losses is misplaced.47
Proximate Cause of
Universal’s Losses
The act or omission of respondent must have been the proximate cause, as
distinguished from the remote cause, of the loss sustained by the
claimant.48 Proximate cause — determined by a mixed consideration of logic, common
sense, policy, and precedent49 — is that cause which, in natural and continuous
without which the result would not have occurred.50
Applying that definition to the case at bar, Universal must demonstrate that the
breaches of RBDC caused the depreciation of the condominium units; or conversely,
that had respondent performed its contractual obligations, the properties would not
have diminished in value.
Universal does not specify how RBDC’s nondelivery of the properties resulted in
the depreciation of their value. Neither does petitioner prove that had it possessed
the properties, it could have avoided their decline in the real estate market. At most,
it has only been able to show that with the passage of time, its P57,146,483.72
investment in 1996 was reduced to P37,500,000 in 2005. Therefore, considering the
dearth of proof of causality in this case, this Court cannot justly exact the supposed
P19,646,483.72 depreciated value of the 10 condominium units and 10 parking slots
from RBDC.
_______________
47 See Bueno v. La Compañia “Minas de Carbon,” 5 Phil. 210 (1905).
48 See Manila Electric Co. v. Remoquillo, et al., 99 Phil. 117 (1956).
49 Land Bank of the Philippines v. Kho, G.R. Nos. 205839 & 205840, 7 July 2016, 796 SCRA 21.
50 Ramos v. C.O.L. Realty Corporation, 614 Phil. 169; 597 SCRA 526 (2009).
470
Recovery from RBDC of Sums
Paid by Universal to China Bank
As mentioned above, Universal seeks to recover from RBDC the additional sums
paid by the former to obtain the release of the properties from China Bank.
Respondent counters that it should not be made to pay the P770,613.68 condominium
dues, P368,881.63 real estate taxes, and P3,170,206.91 expenses, given that China
Bank was the one obliged by the HLURB to release the condominium units.
We agree with RBDC. Respondent correctly argues that it is not chargeable for the
alleged expense items. Clearly — and logically — the HLURB did not require any
additional payment for the fully paid buyers of the condominium units. Hence,
Universal should not have paid any additional amount to China Bank. In the
final Judgment Upon Compromise dated 1 August 2002, the HLURB directed the
bank to release the titles to all the units without qualification:51
The affidavits of undertaking of the mortgagee bank are requirements in the issuance of
a clearance to mortgage as provided for under Section 18 of Presidential Decree No. 957 for
the protection of the buyers.
It is clear from the affidavits that the mortgagee bank undertook to cancel/release the
mortgage to fully paid units notwithstanding the nonpayment of the total mortgage loan
incurred by the mortgagor. The mortgagee bank has to abide by this undertaking.
Moreover, Section 25 of Presidential Decree No. 957 substantially provides that the titles
to fully paid condominium units should be secured and delivered to the buyers.
Therefore, the China Banking Corporation should release the titles to all fully paid
condominium units to the buyers whether they are its buyers or the buyers of
_______________
51 Rollo (G.R. No. 185815), pp. 441-442.
471
VOL. 808, NOVEMBER 14, 2016 471
Ray Burton Development Corporation or Mercantile Investment Company, Inc.
Given that the sums expended by Universal should not have been incurred in the
first place, this Court finds no just reason for petitioner to demand the payment of
the expenses, association dues, and realty taxes from RBDC. Notably, as regards the
payment of association dues and realty taxes, the Contracts to Sell provide that these
shall not be shouldered by respondent seller.52
Universal’s Entitlement to Damages

on Account of RBDC’s Breaches
As discussed, respondent had two obligations specified in Section 3 of the

Contracts to Sell: (1) to deliver the deeds of absolute sale; and (2) to give the
corresponding CCTs. RBDC admittedly failed to perform these obligations, but
invoked the excuse that Universal had defaulted on the payment of transfer charges
under Section 5(a) of the Contracts to Sell. The provision reads as follows:53
SECTION 5. TAXES ASSESSMENTS AND EXPENSES.—
a) Documentary stamp taxes, registration fees, taxes and assessments on transfer of real
properties and other necessary and incidental expenses and all other forms of taxes as
imposed by the government related to the acquisition of the property as well as
other expenses that may be incurred in connection with the execution of the Absolute
Deed of Sale and the conveyance/transfer of Title to the BUYER, shall be for the sole
account and responsibility of the BUYER.
_______________
52 Id., at pp. 91-92; Contract to Sell dated 18 October 1996, Sections 5 and 7, pp. 5-6.
53 Id., at p. 91; Contract to Sell dated 18 October 1996, p. 5.
472
In the event the SELLER agrees to handle the registration of the Deed of Sale and effect
title transfer in the name of the BUYER, the amount of taxes, fees, and expenses covering
the same shall be paid by the BUYER to the SELLER within five (5) days from receipt of the
Notice of Completion and Delivery of the Unit issued by the SELLER. (Emphasis supplied)
The excuse given by RBDC deserves scant consideration. In order that the debtor
may be held to be in default, the following requisite conditions must be present: (1)
the obligation is demandable and already liquidated; (2) the debtor delays
performance of the obligation; and (3) the creditor requires the performance judicially
or extrajudicially.54
Nowhere in the records does this Court find a demand from RBDC for Universal
to pay any sum under the above provision. None of the letters of respondent to
petitioner resembles a notice requiring the latter to tender any payment for
government charges and expenses connected with the execution of the Deed of
Absolute Sale or the transfer of titles. Moreover, there is no liquidated demand to
speak of, as there is no itemized final computation.55 All in all, this Court does not
consider Universal to have defaulted on the payment of transfer charges.
Section 5(a) must be construed as a whole. Its first paragraph refers to the
payment for (1) government-imposed taxes, fees, and expenses related to the
acquisition of the property; and (2) expenses that may be incurred in connection
_______________
54 Social Security System v. Moonwalk Development and Housing Corporation, G.R. No. 73345, 7 April
1993, 221 SCRA 119.
55 Rollo (G.R. No. 185815), pp. 1089-1091; letter dated 21 August 2001. This correspondence from Carol
N. Co of RBDC to Mr. S.K. Tang of Universal stated the estimate of expenses related to the transfer of title
and other charges. Both items contained the annotation “to be determined later.”
473
VOL. 808, NOVEMBER 14, 2016 473
with the execution of the Deeds of Absolute Sale and the conveyance or transfer of
titles to the buyer.
The second paragraph of Section 5 specifies that in the event the seller handles
the registration of the Deed of Absolute Sale and effects title transfer in the name of
the buyer, then that is the time that the buyer would have to give the seller the
payment for those transactions. Specifically, the buyer must tender payment within
five days from receipt of the seller’s notice of completion and delivery of the unit.
We appreciate that the charges under Section 5(a) are sums to be expended for the
titling of the properties. However, the obligation to pay these charges — specifically
to the seller — arises only “in the event” that the latter elects to handle the titling of
the properties. In this case, RBDC has not averred that it has undertaken that
responsibility. Consequently, Universal cannot be obliged to pay the transfer charges
to respondent. RBDC cannot demand performance by Universal without offering to
comply with its own prestation.56
RBDC is then left with no just reason not to perform its obligations to Universal.
As early as February 1999, respondent should have (1) executed deeds of absolute
sale; and (2) given the CCTs of the properties to petitioner. RBDC has not at all
complied with its duties despite the fact that Universal has already fully paid the
purchase price of the properties.
Temperate Damages in lieu

of Actual Damages
As explained above, Universal failed to prove its claims for actual damages, both
as regards the liquidated damages under Section 6 of the Contracts to Sell and the
alleged losses amounting to P19,646,483.72.
_______________
56 Tolentino, Arturo M., Civil Code of the Philippines, Vol. IV, p. 109 (1991); see Consolidated
Industrial Gases, Inc. v. Alabang Medical Center, 721 Phil. 155; 709 SCRA 409 (2013).
474
Nonetheless, petitioner may still be awarded damages in the concept of temperate
or moderate damages. Temperate damages may be recovered when the court finds
that some pecuniary loss has been suffered but the amount cannot, from the nature
of the case, be proven with certainty.57 In this case, there is no doubt that Universal
sustained pecuniary loss, albeit difficult to quantify, arising from RBDC’s failure to
execute deeds of absolute sale and to deliver the CCTs of the properties.
Had RBDC fulfilled these obligations, its transaction with Universal under the
Contracts to Sell would have been complete.58 After an absolute deed of sale has been
signed by the parties, notarized and hence, turned into a public instrument, then the
delivery of the real property is deemed made by the seller to the
buyer.59 Consequently, the buyer would have right away enjoyed the possession of the
realties. Likewise, the titles thereto would have permitted the use of the properties
as collateral for further investments. Universal lost all of these opportunities after
RBDC failed to perform the latter’s duties as a seller.
Hence, this Court is empowered to calculate moderate damages, rather than let
the aggrieved party suffer without redress from RBDC’s wrongful act.60
The calculation of temperate damages is usually left to the sound discretion of the
courts.61 We observe the limit that in giving recompense, the amount must be
reasonable, bearing
_______________
57 Canada v. All Commodities Marketing Corporation, 590 Phil. 342; 569 SCRA 321 (2008).
58 Chua v. Court of Appeals, supra note 46.
59 Civil Code of the Philippines, Article 1498. “When the sale is made through a public instrument,
the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot clearly be inferred. x x x.”
60 Hernandez v. Dolor, 479 Phil. 593; 435 SCRA 668 (2004).
61 Bacolod v. People, 714 Phil. 90; 701 SCRA 229 (2013).
475
VOL. 808, NOVEMBER 14, 2016 475
in mind that the same should be more than nominal, but less than compensatory.62 In
jurisprudence, this Court has pegged temperate damages to an amount equivalent to
a certain percentage of the actual damages claimed by the injured party.63
The plight of the petitioner in Pacific Basin Securities Co., Inc. v. Oriental
Petroleum64 is parallel to that of Universal. In that case, the petitioner was also not
given transfer documents for the properties it had purchased, and the respondent
unjustifiably refused to record the transfer of the P17,727,000 worth of shares
purchased by the former. As a result, the petitioner therein was prevented from
reselling the subject shares in the stock market. For that dereliction, this Court
awarded the petitioner therein P1 million for temperate damages equivalent to 5% of
the actual damages claimed.
Anent the failure to deliver the titles to a purchased property, Government Service
Insurance System v. Spouses Labung-Deang65 is instructive. Similar to petitioners
herein, Spouses Labung-Deang were deprived by the bank of copies of the title to the
property that they had purchased. Consequently, the spouses failed to mortgage it as
security for a P50,000 loan that they could have utilized to renovate their house. As
recompense, this Court awarded them P20,000 temperate damages equivalent to 40%
of the amount of their alleged injury.
_______________
62 International Container Terminal Services, Inc. v. Chua, 730 Phil. 475; 720 SCRA 107 (2014).
63 In Dueñas v. Guce-Africa, 618 Phil. 10; 603 SCRA 11 (2009), this Court specifically calculated that
the temperate damages were equivalent to 20% of the original price of the subject of the breached contract.
In Iron Bulk Shipping Philippines Co., Ltd. v. Remington Industrial Sales Corporation, 462 Phil. 694; 417
SCRA 229 (2003), we specified that 30% of the alleged cost of actual damages was reasonable enough for
temperate damages.
64 558 Phil. 425; 531 SCRA 667 (2007).
65 417 Phil. 662; 365 SCRA 341 (2001).
476
Aside from those two analogous cases, this Court has reviewed other cases
involving the award of temperate damages for breaches of contract. We have
considered the: (1) investment to be lost by the injured party;66 (2) duration of
suffering of the injured party;67 and (3) urgent action undertaken by the party in
breach to remedy the situation.68 Thus, we take into account the following: (1) in 1999,
Universal invested P52,836,781.50 for 10 condominium units and 10 parking slots of
Elizabeth Place in Makati City; (2) Universal asked RBDC about the monthly rental
rates of each of the properties, which turned out be in the range of P20,000 to
P48,000;69 (3) for six years, petitioner had no titles to or possession of the properties;
and (4) RBDC could have easily executed deeds of absolute sale as the templates of
these contracts had already been attached to the Contracts to Sell.70
Having laid down all the circumstances obtaining in this case, this Court is of the
view that an award for temperate damages equivalent to 15% of the P52,836,781.50
purchase value of the properties, or P7,925,517.23, is just and reasonable.
_______________
66 Adrian Wilson International Associates, Inc. v. TMX Philippines, Inc., 639 Phil. 335; 625 SCRA 321
(2010); Canada v. All Commodities Marketing Corp., supra note 57; College Assurance Plan v. Belfranlt
Development, Inc., 563 Phil. 355; 538 SCRA 27 (2007).
67 Caritas Health Shield, Inc. v. MRL Cybertech Corp., G.R. Nos. 221651 & 221691, 11 July 2016.
68 Araneta v. Bank of America, 148-B Phil. 124; 40 SCRA 144 (1971).
69 Rollo (G.R. No. 185815), p. 1091; table of rates given to Universal on 27 July 2000.
70 Id., at pp. 95-97. The last sentence of Section 3(a) of the Contracts to Sell reads: “A copy of the Deed
of Absolute Sale is attached as Annex A.”
477
VOL. 808, NOVEMBER 14, 2016 477
Exemplary Damages
and Attorney’s Fees
Since petitioner is entitled to temperate damages, then the courts may also
examine the propriety of imposing exemplary damages on respondent.71 Exemplary
damages are corrective damages imposed by way of example or correction for the
public good.72 The grant thereof is intended to serve as a deterrent to or negative
incentive for curbing socially deleterious actions.73 Relevant to this case, this Court
highlights that the State has an avowed policy to protect innocent buyers in real
estate transactions.74
Article 2232 of the Civil Code of the Philippines provides that in contracts, the
court may award exemplary damages if the defendant acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner. In this case, we find that respondent
indeed acted in that manner when, despite demand for and full payment of the
properties,75 it refused to execute deeds of absolute sale and release the CCTs to
petitioner without any sound basis.76 As already discussed, Universal’s
_______________
71 Civil Code of the Philippines, Article 2229. ‘‘Exemplary or corrective damages are imposed, by way
of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory
damages.”
72 Zenith Insurance Corp. v. Court of Appeals, 263 Phil. 1120; 185 SCRA 398 (1990).
73 Del Rosario v. Court of Appeals, 334 Phil. 812; 267 SCRA 158 (1997).
74 Subdivision and Condominium Buyer’s Protective Decree, Presidential Decree No. 957 (1976);
see United Overseas Bank of the Philippines, Inc. v. Board of Commissioners-HLURB, G.R. No. 182133, 23
June 2015, 760 SCRA 300; Casa Filipina Realty Corporation v. Office of the President, 311 Phil. 170; 241
SCRA 165 (1995).
75 Republic Flour Mills Corporation v. Forbes Factors, Inc., 675 Phil. 599; 659 SCRA 537 (2011).
76 Metropolitan Bank and Trust Company v. Rosales, 724 Phil. 66; 713 SCRA 75 (2014).
478
nonpayment of transfer charges does not even serve as a potent excuse for RBDC’s
refusal to execute deeds of absolute sale and to deliver the titles of the purchased
properties.
Moreover, there was no impediment to RBDC’s issuance of deeds of absolute sale.
As the owner, it could have still sold the properties even if it mortgaged them to China
Bank.77 As for the CCTs, respondent need not cause their transfer to the name of
petitioners. RBDC could have simply turned them over to Universal in 1999, two
years prior the foreclosure of the securities by China Bank in 2001. To make matters
worse, respondent did not categorically deny that it had failed to disclose to petitioner
that the lot of Elizabeth Place had been mortgaged to China Bank prior the execution
of the Contracts to Sell.78This Court holds that the totality of these circumstances
justify the imposition of exemplary damages on RBDC.
_______________
77 Ranjo v. Salmon, 15 Phil. 436 (1910).

78 Subdivision and Condominium Buyer’s Protective Decree. Presidential Decree No. 957, Section 18
commands:
No mortgage on any unit or lot shall be made by the owner or developer without prior written approval of the Authority.
Such approval shall not be granted unless it is shown that the proceeds of the mortgage loan shall be used for the
development of the condominium or subdivision project and effective measures have been provided to ensure such
utilization. The loan value of each lot or unit covered by the mortgage shall be determined and the buyer
thereof, if any, shall be notified before the release of the loan. The buyer may, at his option, pay his installment
for the lot or unit directly to the mortgagee who shall apply the payments to the corresponding mortgage indebtedness
secured by the particular lot or unit being paid for, with a view to enabling said buyer to obtain title over the lot or unit
promptly after full payment thereof. (Emphasis supplied)
479
VOL. 808, NOVEMBER 14, 2016 479
In Cantemprate v. CRS Realty Development Corporation,79 which is fairly akin to
the case at bar, the developer did not deliver the titles to the buyers of the fully paid
properties. For failing to comply with its unequivocal duty, this Court affirmed the
HLURB’s award of P30,000 exemplary damages and P20,000 attorney’s fees to each
of the buyers. Considering that ruling vis-à-vis the dereliction of RBDC in the present
case, which also involves the violation of a straightforward obligation to execute the
deeds of absolute sale and to deliver the CCTs for the 10 condominium units and 10
parking slots, an award of P300,000 as exemplary damages is justified to set an
example.
Given the award of exemplary damages, this Court likewise finds it just and
equitable under the circumstances to award P200,000 as attorney’s fees.80 In addition,
all damages awarded shall earn interest at the rate of 6% per annum from the date
of finality of this judgment until full payment.
WHEREFORE, premises considered, in G.R. No. 182201, the Court of Appeals’
Decision dated 25 June 2007 and Resolution dated 14 March 2008 in C.A.-G.R. S.P.
No. 89578 are AFFIRMED. In G.R. No. 185815, the Court of Appeals’ Decision dated
31 July 2007 and Resolution dated 11 December 2008 in C.A.-G.R. S.P. No. 89468
are AFFIRMED with the MODIFICATION that P7,925,517.23 as temperate
damages, P300,000 as exemplary damages, and P200,000 as attorney’s fees are
awarded to petitioner Universal International Investment (BVI) Limited. All
damages awarded shall earn interest at the rate of 6% per annum from the date of
finality of this judgment until full payment.
_______________
79 605 Phil. 574; 587 SCRA 492 (2009).

80 Civil Code of the Philippines, Article 2208. “In the absence of stipulation, attorney’s fees and
expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages
are awarded. x x x x”; see Philtranco Service Enterprises, Inc. v. Court of Appeals, 340 Phil. 98; 273 SCRA
562 (1997); Air France v. Carrascoso, 124 Phil. 722; 18 SCRA 155 (1966).
480
SO ORDERED.
Leonardo-De Castro, Peralta** and Reyes,*** JJ., concur.
Caguioa, J., On Leave.
Judgment and resolution in G.R. No. 182201 affirmed, while judgment and
resolution in G.R. No. 185815 affirmed with modification.
Note.—In motor vehicle accident cases, exemplary damages may be awarded
where the defendant’s misconduct is so flagrant as to transcend simple negligence
and be tantamount to positive or affirmative misconduct rather than passive or
negative misconduct. (Mendoza vs. Gomez, 726 SCRA 505 [2014])
——o0o——
_______________
** Designated additional member, in lieu of Associate Justice Lucas P. Bersamin, per Raffle dated 28
September 2016, who concurred in the Court of Appeals’ Decision in C.A.-G.R. S.P. No. 89468.
*** Designated additional member, in lieu of Associate Justice Estela M. Perlas-Bernabe, per Raffle
dated 28 September 2016, who concurred in the Court of Appeals’ Decision in C.A.-G.R. S.P. No. 89468.
G.R. No. 117954. April 27, 2000. *
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO ACURAM,

accused-appellant.
Criminal Law; Murder; Policemen; That a policeman could display such indifference to
a crime committed in his presence—ignoring a shooting incident and going his way—is highly
incredible.—To begin with, while appellant denies that he fled and hid after the shooting
incident, we find that his behavior proves otherwise. Appellant admits that he was at the
scene of the crime at the time the shooting happened. Considering that he is a law
enforcement officer, the unusual incident should have at least elicited his curiosity and he
should have inquired about it. However, he chose to ignore the incident and go his way. That
a policeman could display such indifference to a crime committed in his presence is highly
_______________
*SECOND DIVISION.
130
ANNOTATED
People vs. Acuram
incredible. While it was true that he reported for duty the day after the incident, the
following day, he was ordered by his commanding officer restricted within the camp pending
investigation of the case. By this time, appellant must have learned that his commanding
officer had received a radio message and that he was already a suspect. As the trial court
noted, no superior officer will hold back from any of his men involved, such a grave charge.
Despite these, appellant did not present himself before the police in El Salvador, Misamis
Oriental. Instead, he was conveniently nowhere to be found.
Same; Same; Same; Mitigating Circumstances; Voluntary Surrender; The essence of
voluntary surrender is spontaneity and the intent of the accused to give himself up and submit
himself unconditionally to the authorities either because he acknowledges his guilt or he
wishes to save them the trouble and expense necessarily incurred in his search and capture;
Being restrained by one’s superior to stay within the camp without submitting to the
investigating authorities concerned, is not tantamount to voluntary surrender as contemplated
by law.—Appellant’s first contention that he is entitled to the mitigating circumstance of
voluntary surrender, in our view, is quite untenable. The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit himself
unconditionally to the authorities either because he acknowledges his guilt or he wishes to
save them the trouble and expense necessarily incurred in his search and capture. In this
case, it was appellant’s commanding officer who surrendered him to the custody of the court.
Being restrained by one’s superiors to stay within the camp without submitting to the
investigating authorities concerned, is not tantamount to voluntary surrender as
contemplated by law. The trial court is correct in not appreciating the mitigating
circumstance of voluntary surrender in appellant’s favor.
Same; Same; Aggravating Circumstances; Treachery; Treachery cannot be appreciated
where the accused shot the victim as a result of a rash and impetuous impulse rather than
from a deliberate act of the will.—On his second assignment of error, however, we find
convincing merit. Appellant asserts that the trial court erred in concluding that the killing
was qualified by treachery. On this point, we agree. For treachery to be considered an
aggravating circumstance, there must be proof that the accused consciously adopted a mode
of attack to facilitate the perpetration of the killing without risk to
131
VOL. 331, APRIL 27, 2000 131
People vs. Acuram
himself. In this case, the shooting was done at the spur of the moment. As observed by
the trial court, the victim had shouted damning curses at the driver and the passengers of
the jeepney. The shooting was on instantaneous response to the cursing, as appellant
correctly claimed. Treachery cannot be appreciated where the accused shot the victim as a
result of a rash and impetuous impulse rather than from a deliberate act of the will.
Same; Same; Evidence; Circumstantial Evidence; Requisites;Direct evidence of the
commission of the crime is not the only matrix where the trial court may draw its conclusions
and findings—from direct evidence of a minor fact or facts, by a chain of circumstances the
mind is led intuitively, or by a conscious process of reasoning, towards a conviction that from
said fact or facts some other facts may be validly inferred.—Appellant contends that the trial
court erred in ruling that he was the perpetrator of the crime. He claims he was not
conclusively identified and the alleged fatal weapon was not positively tested. True,
prosecution witnesses did not positively identify appellant as the one who fired the gun at
the victim. Nevertheless, direct evidence of the commission of the crime is not the only matrix
where the trial court may draw its conclusions and findings of guilt. It is settled that
conviction may be based on circumstantial evidence provided that the following requisites
must concur: (a) there is more than one circumstance; (b) the facts from which the inferences
are derived are proven; and (c) the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt. Circumstantial evidence could be of similar weight and
probative value as direct evidence. From direct evidence of a minor fact or facts, by a chain
of circumstances the mind is led intuitively, or by a conscious process of reasoning, towards
a conviction that from said fact or facts some other facts may be validly inferred. No greater
degree of certainty is required when the evidence is circumstantial than when it is direct. In
either case, what is required is that there be proof beyond reasonable doubt that the crime
was committed and that the accused committed the crime.
Same; Same; Paraffin Tests; Negative findings of the paraffin test do not conclusively
show that a person did not fire a gun.—Appellant’s insistence on his innocence in view of the
absence of paraffin and ballistic tests, in our view, is far from convincing. Suffice it to state
that even negative findings of the paraffin test do not conclusively show that a person did not
fire a gun. The absence of
132
ANNOTATED
People vs. Acuram
nitrates could be explained if a person discharged a firearm with gloves on, or if he
thoroughly washed his hands thereafter.
Same; Same; Physicians; The perceived delay in giving medical treatment to the victim
does not break at all the causal connection between the wrongful act of the accused and the
injuries sustained by the victim—it does not constitute an efficient intervening cause; Anyone
inflicting injuries is responsible for all the consequences of his criminal act such as death that
supervenes in consequence of the injuries, and the fact that the injured did not receive proper
medical attendance would not affect the malefactor’s criminal responsibility.—We cannot hold
the attending doctors liable for the death of the victim. The perceived delay in giving medical
treatment to the victim does not break at all the causal connection between the wrongful act
of the appellant and the injuries sustained by the victim. It does not constitute an efficient
intervening cause. The proximate cause of the death of the deceased is the shooting by the
appellant. It is settled that anyone inflicting injuries is responsible for all the consequences
of his criminal act such as death that supervenes in consequence of the injuries. The fact that
the injured did not receive proper medical attendance would not affect appellant’s criminal
responsibility. The rule is founded on the practical policy of closing to the. wrongdoer a
convenient avenue of escape from the just consequences of his wrongful act. If the rule were
otherwise, many criminals could avoid just accounting for their acts by merely establishing
a doubt as to the immediate cause of death.
APPEAL from a decision of the Regional Trial Court of Cagayan de Oro City, Br. 22.

The Solicitor General for plaintiff-appellee.
Quimpo, Willkom, Borja, Neri, Calejesan, Jardin Law Offices for accused-
appellant.
QUISUMBING, J.:
On appeal is the decision rendered on August 24, 1994, by the Regional Trial Court
of Cagayan de Oro City, Branch 22,
133
VOL. 331, APRIL 27, 2000 133
People vs. Acuram
in Criminal Case No. 91-1161, finding accused-appellant Orlando Acuram guilty of
murder.
On September 30, 1991, Assistant Provincial Prosecutor Benber Apepe charged
appellant with the crime of murder, allegedly committed as follows:
“On June 29, 1991, at about 7:00 o’clock in the evening, at Poblacion, El Salvador, Misamis
Oriental, which is within the jurisdiction of the Honorable Court, the above-named accused,
with intent to kill and treachery did, then and there, wilfully, unlawfully and feloniously and
with the use of his armalite rifle, shoot at one Orlando Manabat who was just standing on
1
the highway waiting for a ride towards home, thus, hitting and wounding the latter on the
right leg or thigh, which caused his death the following day.
CONTRARY TO and in violation of Article 248, paragraph 1, of the Revised Penal Code. 2
Upon arraignment appellant, assisted by counsel, entered a plea of not guilty to the
charge. Thereafter, trial on the merits ensued. Subsequently, the trial court rendered
3
judgment, disposing as follows:

“WHEREFORE, in the light of the foregoing facts, convincingly proved by the prosecution,
the accused, ORLANDO ACURAM, is hereby found guilty beyond reasonable doubt, of the
crime of MURDER, qualified by treachery, and is meted the penalty of reclusion perpetua and
to indemnify the heirs of the deceased ROLANDO MANABAT the jurisprudential sum of fifty
thousand (P50,000.00) pesos, without subsidiary imprisonment in case of insolvency and to
pay the cost of the suit.
SO ORDERED.” 4
_______________
1 Corrected by witness as “Rolando” Manabat, TSN, January 13, 1992, p. 14.

2 Rollo, p. 9.
3 Records, pp. 29-30.
4Rollo, p. 56.
134
People vs. Acuram
The records disclose that on June 29, 1991, at around seven o’clock in the evening,
Rolando Manabat, Oscar Manabat, Bartolome Nabe, and Peterson Valendres, after
the day’s work, proceeded to the market in El Salvador, Misamis Oriental, to buy fish.
Since no fish was available at that time, they decided to head for home instead. They
went to the national highway, stood at the right side facing east towards the direction
of Cagayan de Oro City and waited for a ride there. They flagged down an
approaching passenger jeepney which, however, swerved dangerously towards them.
At this juncture, Rolando Manabat shouted at the jeep “Pesteng yawa-a kamo,
Manligis man kamo”(You devils, why did you try to run over us?). A passenger inside
the jeepney shouted back, “Ngano man diay, isog mo?” (Why? Are you brave?).
Immediately thereafter, two gunshots rang out in the air, accompanied by sparks
coming from the front right side of the jeepney. Then Rolando shouted, “Agay. I was
shot.” The vehicle did not stop but instead speeded towards the direction of Cagayan
de Oro City. Wounded on the right knee, Rolando was brought by his companions to
the Cagayan de Oro Medical Center. Later on, they were informed that Rolando
needed blood transfusion and so they transferred him at around 11:25 P.M. to the
Northern Mindanao Regional Hospital in the same city.
Upon arrival at the hospital, Rolando was examined by Dr. Ismael Naypa, Jr. The
doctor found the victim’s blood pressure to be just forty over zero (40/0) and the
victim’s right leg was heavily bandaged. He decided to operate on the victim when
the latter’s blood pressure stabilized. At about 5:00 A.M. the following day, the victim
underwent surgery. Unfortunately, the victim died at around 11:00 A.M. Dr. Naypa
later testified that the cause of Rolando’s death was “secondary to huddle respiratory
syndrome secondary to blood loss, secondary to gunshot wounds,” or briefly, massive
loss of blood due to gunshot wound. He stated that under normal circumstances, the
wound would not necessarily cause death but in this case where the wound transected
the major part of the leg, the wound was fatal. He clarified that the victim sustained
only one gunshot wound which entered at the front
135
VOL. 331, APRIL 27, 2000 135
People vs. Acuram
portion of the right knee and exited at the back of the right knee, causing two wounds.5
The El Salvador police conducted investigation on the incident. It was discovered

that appellant Orlando Acuram, a policeman assigned with the 421st PNP Company
based at San Martin, Villanueva, Misamis Oriental, was among the passengers of the
errant jeepney. He was seated at the front, right side of the jeepney and was the only
one among its passengers who was carrying a firearm. Pending investigation, he was
restricted to the camp effective July 1, 1991, upon orders of his commanding officer,
Major Rodolfo De La Piedra. Appellant was later surrendered by his commanding
6
officer to the custody of the court on the basis of the warrant of arrest issued by MCTC
Judge Evelyn Nery. On motion by the prosecution and without objection from the
7
defense, the trial court suspended appellant from the service and ordered his
detention at the provincial jail. 8
During the trial, appellant admitted that he was on board the mentioned jeepney
and had a gun at that time but denied firing it. He claimed that it was impossible for
him to fire his rifle during that time since he was sitting at the front seat of the
jeepney, sandwiched between the driver and the latter’s father-in-law. Moreover, he
said that the rifle was locked and wrapped by his jacket and its barrel was even
pointed towards the driver. 9
The trial court found the version of the defense weak, self-serving and unreliable.
On the basis of the evidence presented by the prosecution, the court found appellant
guilty as charged. Insisting on his innocence, appellant readily filed his notice of
appeal. In his brief, appellant raises the following errors allegedly committed by the
10
trial court:
_______________
5 TSN, March 4, 1992, pp. 4-15.

6 Records, p. 13.
7 TSN, December 29, 1992, p. 30; Records, p. 15.
8 Records, p. 52.
9 TSN, December 29, 1992, pp. 5-24.
10 Rollo, p. 57.
136
People vs. Acuram
“I
THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED APPELLANT

TOOK FLIGHT OR ESCAPED AFTER THE NIGHT OF THE INCIDENT OR IN FAILING
TO CONSIDER THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.
II
THE TRIAL COURT ERRED IN DECLARING THAT THE KILLING WAS ATTENDED
BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY, GRANTING ARGUENDO
THAT THE ACCUSED APPELLANT IS GUILTY.
III
THE TRIAL COURT ERRED IN RULING THAT ACCUSED-APPELLANT IS THE

PERPETRATOR OF THE CRIME CHARGED, DESPITE THE FACT THAT ACCUSED WAS
NOT PROPERLY AND CONCLUSIVELY IDENTIFIED, AND THE ALLEGED WEAPON
NOT POSITIVELY TESTED.
IV
THAT THE TRIAL COURT GRAVELY ERRED IN DISREGARDING EVIDENCE

POINTING TO THE INNOCENCE OF THE ACCUSED-APPELLANT, THAT IS, THE
EXISTENCE OF EFFICIENT INTERVENING CAUSE, WHICH IS THE PROXIMATE
CAUSE OF THE DEATH OF THE VICTIM.” 11
We shall take up in seriatim the challenges posed by appellant to the credibility and
sufficiency of the evidence for the prosecution. We shall also consider the weight and
credibility of his defense.
To begin with, while appellant denies that he fled and hid after the shooting
incident, we find that his behavior proves otherwise. Appellant admits that he was
at the scene of the crime at the time the shooting happened. Considering that he
_______________
Rollo, p. 87.
11
137
VOL. 331, APRIL 27, 2000 137
People vs. Acuram
is a law enforcement officer, the unusual incident should have at least elicited his
curiosity and he should have inquired about it. However, he chose to ignore the
incident and go his way. That a policeman could splay such indifference to a crime
12
committed in his presence is highly incredible. While it was true that he reported for
duty the day after the incident, the following day, he was ordered by his commanding
officer restricted within the camp pending investigation of the case. By this time,
appellant must have learned that his commanding officer had received a radio
message and that he was already a suspect. As the trial court noted, no superior
officer will hold back from any of his men involved, such a grave charge. Despite
these, appellant did not present himself before the police in El Salvador, Misamis
Oriental. Instead, he was conveniently nowhere to be found.
Thus, appellant’s first contention that he is entitled to the mitigating circumstance
of voluntary surrender, in our view, is quite untenable. The essence of voluntary
surrender is spontaneity and the intent of the accused to give himself up and submit
himself unconditionally to the authorities either because he acknowledges his guilt
or he wishes to save them the trouble and expense necessarily incurred in his search
and capture. In this case, it was appellant’s commanding officer who surrendered
13
him to the custody of the court. Being restrained by one’s superiors to stay within the
camp without submitting to the investigating authorities concerned, is not
tantamount to voluntary surrender as contemplated by law. The trial court is correct
in not appreciating the mitigating circumstance of voluntary surrender in appellant’s
favor.
On his second assignment of error, however, we find convincing merit. Appellant
asserts that the trial court erred in concluding that the killing was qualified by
treachery. On this point, we agree. For treachery to be considered an aggravating
circumstance, there must be proof that the accused consciously adopted a mode of
attack to facilitate the perpetra-
_______________
TSN, December 29, 1992, pp. 13-14.

12
People vs. Ramos, 296 SCRA 559, 572-573 (1998).

13
138
People vs. Acuram
tion of the killing without risk to himself. In this case, the shooting was done at the
14
spur of the moment. As observed by the trial court, the victim had shouted damning
curses at the driver and the passengers of the jeepney. The shooting was on
instantaneous response to the cursing, as appellant correctly claimed. Treachery 15
cannot be appreciated where the accused shot the victim as a result of a rash and
impetuous impulse rather than from a deliberate act of the will. 16
Thirdly, appellant contends that the trial court erred in ruling that he was the
perpetrator of the crime. He claims he was not conclusively identified and the alleged
fatal weapon was not positively tested. True, prosecution witnesses did not positively
identify appellant as the one who fired the gun at the victim. Nevertheless, direct
evidence of the commission of the crime is not the only matrix where the trial court
may draw its conclusions and findings of guilt. It is settled that conviction may be
17
based on circumstantial evidence provided that the following requisites must concur:
(a) there is more than one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. Circumstantial evidence could be of
18
similar weight and probative value as direct evidence. From direct evidence of a
minor fact or facts, by a chain of circumstances the mind is led intuitively, or by a
conscious process of reasoning, towards a conviction that from said fact or facts some
other facts may be validly inferred. No greater degree of certainty is required when
19
the evidence is circumstantial than when it is direct. In either case, what is required
is that there
_______________
14 People vs. Quitlong, 292 SCRA 360, 382 (1998).

15 Rollo, p. 95.
16 People vs. Navarro, 295 SCRA 139, 146 (1998).
17 People vs. Bermas, G.R. Nos. 76416 and 94312, July 5, 1999, p. 21, 309 SCRA 741.
18 Section 4, Rule 133, Rules of Court.
19 R.J. Francisco. Basic Evidence, p. 190 (1991).
139
VOL. 331, APRIL 27, 2000 139
People vs. Acuram
be proof beyond reasonable doubt that the crime was committed and that the accused
committed the crime. 20
As noted by the trial court and the Solicitor General, the evidence for the
prosecution is replete with details, duly proven by the prosecution and to some extent
by admissions of the defense, enough to sustain the guilt of appellant. These are: (1)
The appellant was a former member of the Philippine Constabulary and, during the
incident, was a member of the Philippine National Police. He was skilled in handling
firearms. (2) The appellant was issued a firearm (armalite rifle) by his command,
which he was then carrying with him before, during and after the incident. (3) At the
particular date, time and place of the incident, appellant was carrying his duly issued
armalite rifle inside the jeepney from where the gunfire came from. (4) The appellant
was sitting on the extreme front-right-side of the jeepney where the sparks of the
gunbursts were seen and heard by the witnesses. (5) There were no other persons
with a rifle inside the jeepney except the appellant. (6) The empty shells of an
armalite rifle were recovered at the place where the fatal shooting occurred. (7) The
appellant did not go forward to the authorities to present himself until after a
warrant of arrest was issued and, in fact, until his actual arrest. 21
The aforecited circumstances taken together constitute an unbroken chain leading

to a reasonable conclusion that appellant, to the exclusion of others, was responsible
for the victim’s death. They constitute proof beyond reasonable doubt that appellant
was the perpetrator of the offense. It is the height of desperation on appellant’s part
to insist that there should be an eyewitness to the precise moment the shot was fired
considering the sudden and completely unexpected shooting of the victim. Here, 22
circumstantial evidence suffices.

_______________
20 People vs. Mangat, G.R. No. 131618, July 6, 1999, pp. 7-8, 310 SCRA 101.
21 Rollo, pp. 43-44.
22 People vs. Fuertes, 229 SCRA 289, 300 (1994).
140
People vs. Acuram
Appellant’s insistence on his innocence in view of the absence of paraffin and ballistic
tests, in our view, is far from convincing. Suffice it to state that even negative findings
of the paraffin test do not conclusively show that a person did not fire a gun. The
absence of nitrates could be explained if a person discharged a firearm with gloves
on, or if he thoroughly washed his hands thereafter. 23
Lastly, in his attempt to exculpate himself, appellant blames the death of the
victim on the lack of prompt and proper medical attention given. He insists that the
delay in giving proper medical attendance to the victim constitutes an efficient
intervening cause which exempts him from criminal responsibility. This assertion is
disingenuous, to say the least. Appellant never introduced proof to support his
allegation that the attending doctors in this case were negligent in treating the
victim. On the contrary, Dr. Ismael Naypa, Jr., testified that the attending doctor at
the Cagayan de Oro Medical Center tried his best in treating the victim by applying
bandage on the injured leg to prevent hemorrhage. He added that the victim was
immediately given blood transfusion at the Northern Mindanao Regional Hospital
when the doctor found out that the victim had a very low blood pressure. Thereafter,
the victim’s blood pressure stabilized. Then, the doctor operated the victim as the
main blood vessel of the victim’s right leg was cut, thereby causing massive loss of
blood. The surgery was finished in three hours. Unfortunately, the victim died hours
later. We cannot hold the attending doctors liable for the death of the victim. The
perceived delay in giving medical treatment to the victim does not break at all the
causal connection between the wrongful act of the appellant and the injuries
sustained by the victim. It does not constitute efficient intervening cause. The
proximate cause of the death of the deceased is the shooting by the appellant. It is
settled that anyone inflicting injuries is responsible for all the consequences of his
criminal act such as death that supervenes in consequence of the injuries. The fact
_______________
People vs. Oliano, 287 SCRA 158, 177 (1998).
23
141
VOL. 331, APRIL 27, 2000 141
People vs. Acuram
that the injured did not receive proper medical attendance would not affect
appellant’s criminal responsibility. The rule is founded on the practical policy of
closing to the wrongdoer a convenient avenue of escape from the just consequences of
his wrongful act. If the rule were otherwise, many criminals could avoid just
accounting for their acts by merely establishing a doubt as to the immediate cause of
death. 24
To conclude, since the qualifying circumstance was not proved in this case, the
crime committed is only homicide, not murder. Under Article 249 of the Revised Penal
Code, the applicable penalty for homicide is only reclusion temporal. As there is
neither aggravating nor mitigating circumstance found by the trial court or shown
after a review of the records, the penalty in this case shall be fixed in its medium
period of reclusion temporal, which ranges from a minimum of 14 years, 8 months
and 1 day to a maximum of 17 years and 4 months. Further applying the
Indeterminate Sentence Law, the imposable penalty shall be within the range
of prision mayor as a minimum to reclusion temporal in its medium period as the
maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span
of reclusion temporal, medium, is from 14 years, 8 months and 1 day to 17 years and
4 months.
WHEREFORE, the assailed DECISION of the Regional Trial Court of Cagayan de
Oro City, Branch 22, in Criminal Case No. 91-1161, is hereby MODIFIED. Appellant
Orlando Acuram is hereby found GUILTY of HOMICIDE and sentenced to suffer a
prison term of 10 years of the medium period of prision mayor, as minimum, to 15
years and 10 months and 1 day of the medium period of reclusion temporal, as
maximum, with accessory penalties provided by law, to indemnify the heirs of the
deceased Rolando Manabat in the amount of P50,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
_______________
R. and C. Aquino. I The Revised Penal Code 74, 76-77, 84 (1997).

24
142
People vs. Villa, Jr.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena and De Leon, Jr., JJ., concur.
Judgment modified.
Notes.—If a policeman threatens the citizens he is tasked by law to protect, such
citizens cannot be expected to report with alacrity their supposed protector’s
felony. (People vs. Jamiro, 279 SCRA 290 [1997])
Drinking liquor while on duty constitutes conduct unbecoming a police officer
which, by itself, is subject to administrative sanction. (People vs. Demonteverde, 290
SCRA 175 [1998])
A police officer is not expected to remember all details of every incident he
investigates. (People vs. Sumalpong, 284 SCRA 464 [1998])
——o0o——

Torts Cerezo Onwards

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Torts Cerezo Onwards

Uploaded by

Copyright:

Available Formats

[No. 10107. February 4, 1916.

1. 1.MASTER AND SERVANT; EMPLOYERS' LIABILITY FOR INJURY TO

1. 2.ID.; ID.; ID.; EFFECT UPON COMMON LAW LIABILITY OF EMPLOYER.—

1. 4.ID.; ID.; ID.; DEFECTS IN WAYS, WORKS, AND MACHINERY.—An employee

1. 5.ID.; ID.; LIABILITY OF EMPLOYER.—After providing reasonably safe ways,

APPEAL from a judgment of the Court of First Instance of Manila. Crossfield, J.

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

1Registered in the name of petitioner with Plate No. PJK-666.

4 Rollo, pp. 28-29.

case. The question of delay,

and Salas, concurring; Rollo, pp. 26-32.

702; Tugade v. CA, 85 SCRA 226.

OPERATION OF SERVICE AND REPAIR ENTERPRISES FOR MOTOR VEHICLES, HEAVY

“Section 1. REQUIREMENTS FOR ACCREDITATION: (1) Enterprise applying for original

1. 1.1List of machineries/equipment/tools in useful condition;

Fernandez, 51 SCRA 181.

1 Rollo, pp. 20-31.

4 RTC Records, Exhibit “1,” pp. 84-89.

11 Art. 1755, Civil Code.

COLLEGE ASSURANCE PLAN and COMPREHENSIVE ANNUITY PLAN and

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Aquino and Amelita G. Tolentino, Rollo, p. 42.

3 RTC Decision, Rollo, p. 52.

1. 0.6Cause of Fire: Accidental (overheated coffee percolator). 4

against petitioners for damages.

4 Exh. “P-2,” id., at p. 89.

1. 1)P2.2 Million Pesos cost of rehabilitation (repairs, replacements and renovations) of

Respondent did not appeal from the CA decision. 13

The petition lacks merit.

159279, July 11, 2006, 494 SCRA 555, 558.

SCRA 153, 160.

RTC Decision, Rollo, p. 54.

Id., at pp. 333-334.

CA Decision, Rollo, pp. 46-47.

be limited to errors of law only. 26

23Petition, Rollo, p. 26.

14, 2005, 473 SCRA 151, 161.

documents which his investigation witnesses pre-sented. However, Fireman Sitchon

emphasized that he interviewed said investigation witnesses namely, Ronald

31 Id., at pp. 160-161.

evidence of the contents thereof. 33

allegation of negligence if the following requisites obtain: a) the accident is of a kind

January 27, 2006, 480 SCRA 314, 326.

WHEREFORE, the petition is DENIED for lack of merit.

CA Decision, Rollo, pp. 47-48.

TRAVEL & TOURS ADVISERS, INCORPORATED, petitioner, vs. ALBERTO

1. For plaintiff Alberto Cruz, Sr.

WHEREFORE, premises considered, judgment is hereby rendered ordering

4 Complaint dated April 22, 1998, id., at p. 70.

WHEREFORE, the instant appeal is PARTLY GRANTED. The assailed

12 Rollo, p. 44. (Emphasis ours)

13 Raynera v. Hiceta, 365 Phil. 546; 306 SCRA 102 (1999).

15 Rollo, pp. 44-48. (Citations omitted; emphasis ours)

Whoever by act or omission causes damage to another, there being fault or

16 Id., at pp. 48-49. (Citations omitted; emphasis ours)

Complementing Article 2176 is Article 2180 which states the following:

Thus, whenever an employee’s (defendant EDGAR CALAYCAY) negligence

In the selection of prospective employees, employers are required to examine them

18 Rollo, pp. 49-52. (Citations omitted)

28 Rollo, pp. 52-54. (Citations omitted)

Respondent Edgar Hernandez is also ORDERED to PAY the following: