1

Facts:
 Jorge Reyes has been suffering from recurring fever with chills for around days.
 Home medication afforded him no relief so he went to Mercy Community Clinic. He
was then attended by Dr. Marlyn Rico.
 Since typhoid fever was common at that time, the Widal test was performed and he
was found positive for typhoid.
 Thereafter, Dr. Marlyn Rico indorse Jorge Reyes to Dr. Marvie Blanes.
 Suspecting that that Jorge had typhoid fever, Dr. Marvie Blanes ordered that Jorge
be tested for compatibility with chloromycetin, an antibiotic. Such test was
conducted by Nurse Pagente.
 As there was no adverse reaction, Dr. Blanes administered 500 mg of the
antibiotic. Another dose was given 3 hours later.
 Subsequently, Jorge Reyes developed high fever and experienced vomiting and
convulsions. He then turned blue due to deficiency in oxygen – cyanosis – and
died. The cause of death was stated to be “ventricular arrhythmia secondary to
hyperpyrexia and typhoid fever.”
 The heirs of Reyes filed with the RTC a complaint for damages against Sisters of
Mercy, Sister Rose Palacio, Dr. Blanes, Dr. Rico and Mercy Community Clinic
contending that the death of Jorge was due to the wrongful administration of
chloromycetin. (NOTE: Petitioner’s action is for medical malpractice.)
 RTC ruled in favor of the respondents. The CA affirmed in toto the RTC decision.
Hence, this appeal.
 Petitioners contend that:
 Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed
Jorge’s illness as typhoid fever, and immediately prescribed the administration
of the antibiotic chloromycetin
 Dr. Marvie Blanes erred in ordering the administration of the second dose of
500 milligrams of chloromycetin barely 3 hours after the first was given.
 Testimony presented: That of Dr. Apolinar Vacalares, (Chief Pathologist of the
Northern Mindanao Training Hospital) who performed an autopsy on the body – Dr.
Vacalares testified that Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin overdose.

Issue: WON there was medical malpractice. NO

Held:

Dr. Apolinar Vacalares is not a specialist of typhoid fever and he is thus not
qualified to prove that Dr. Marlyn Rico erred in her diagnosis.
While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find
him to be so as he is not a specialist on infectious diseases like typhoid fever.
Furthermore, although he may have had extensive experience in performing autopsies,
he admitted that he had yet to do one on the body of a typhoid victim at the time he
 2

conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he
has treated only about three cases of typhoid fever.

The two doctors presented by respondents clearly were experts on the subject

They vouched for the correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a
diplomate whose specialization is infectious diseases and microbiology and an
associate professor at the Southwestern University College of Medicine and the Gullas
College of Medicine, testified that he has already treated over a thousand cases of
typhoid fever.

According to him, when a case of typhoid fever is suspected, the Widal test is normally
used, and if the 1:320 results of the Widal test on Jorge Reyes had been presented to
him along with the patient’s history, his impression would also be that the patient was
suffering from typhoid fever. As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. He also explained that despite the measures
taken by respondent doctors and the intravenous administration of two doses of
chloromycetin, complications of the disease could not be discounted.

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of
the Philippine and American Board of Pathology, an examiner of the Philippine Board of
Pathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual
Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center.

He stated that, as a clinical pathologist, he recognized that the Widal test is used for
typhoid patients, although he did not encourage its use because a single test would only
give a presumption necessitating that the test be repeated, becoming more conclusive
at the second and third weeks of the disease.

He corroborated Dr. Gotiong’s testimony that the danger with typhoid fever is really the
possible complications which could develop like perforation, hemorrhage, as well as
liver and cerebral complications.

Dr. Rico was not negligent in administering the 2 doses of 500 g of chloromycetin
The chloromycetin was likewise a proper prescription is best established by medical
authority. Even if the deceased suffered from an anaphylactic shock, this, of itself,
would not yet establish the negligence of the appellee-physicians for all that the law
requires of them is that they perform the standard tests and perform standard
procedures. The law cannot require them to predict every possible reaction to all drugs
administered.

The practice of medicine requires the highest degree of diligence

The practice of medicine is a profession engaged in only by qualified individuals. It is a
right earned through years of education, training, and by first obtaining a license from
the state through professional board examinations. Such license may, at any time and
for cause, be revoked by the government. In addition to state regulation, the conduct of
 3

doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline
and ethical rules which doctors have imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given these safeguards, there is no
need to expressly require of doctors the observance of “extraordinary” diligence.

As it is now, the practice of medicine is already conditioned upon the highest degree of
diligence. And, as we have already noted, the standard contemplated for doctors is
simply the reasonable average merit among ordinarily good physicians. That is
reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable
“skill and competence . . . that a physician in the same or similar locality . . . should
apply.”

There are thus four elements involved in medical negligence cases, namely: duty,
breach, injury, and proximate causation

Petitioner’s action is for medical malpractice. This 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 have done, or that he or she did something that a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury to the
patient.

The doctrine of Res Ipsa Loquitor is not applicable in this case.

Was there a physician-patient relationship between the respondent doctors and

Jorge Reyes? Yes.
Respondents were thus 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. It is breach of this duty which 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. 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.

The doctrine of res ipsa loquitor is not applicable in the case at bar

Though expert testimony is usually needed to prove malpractice, where common

knowledge and experience teach that the injury would not have occurred if due care had
been exercised, the doctrine of res ipsa loquitur can be invoked to establish
negligence.
 4

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.

When the doctrine is appropriate, all that the patient must do is prove a nexus between
the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical
testimony to establish the standard of care.

There is nothing unusual about the death of Jorge Reyes (absence of 1st
requisite that the accident was of a kind which does not ordinarily occur unless
someone is negligent)

In this case, while it is true that the patient died just a few hours after professional
medical assistance was rendered, there is really nothing unusual or extraordinary about
his death.

Prior to his admission, the patient already had recurring fevers and chills for five days
unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This
shows that he had been suffering from a serious illness and professional medical help
came too late for him.

It must be conceded that 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.

ELEMENTS

: (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.
 5

[G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD

and KRISTINE, all surnamed REYES, represented by their
mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF
MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE
BLANES, and DR. MARLYN RICO,respondents.

DECISION
FACTS
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The
other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all
surnamed Reyes, were their children. Five days before his death on January
8, 1987, Jorge had been suffering from a recurring fever with chills. After he
failed to get relief from some home medication he was taking, which consisted
of analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his
wife. He was attended to by respondent Dr. Marlyn Rico, resident physician
and admitting physician on duty, who gave Jorge a physical examination and
took his medical history. She noted that at the time of his admission, Jorge
was conscious, ambulatory, oriented, coherent, and with respiratory
distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had
been getting from 15 to 20 cases of typhoid per month.[3] Suspecting that
Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a
standard test for typhoid fever, to be performed on Jorge. Blood count, routine
urinalysis, stool examination, and malarial smear were also made.[4]After about
an hour, the medical technician submitted the results of the test from which
Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was
only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie
Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also
took Jorges history and gave him a physical examination. Like Dr. Rico, her
impression was that Jorge had typhoid fever. Antibiotics being the accepted
treatment for typhoid fever, she ordered that a compatibility test with the
antibiotic chloromycetin be done on Jorge. Said test was administered by
nurse Josephine Pagente who also gave the patient a dose of triglobe. As she
did not observe any adverse reaction by the patient to chloromycetin, Dr.
Blanes ordered the first five hundred milligrams of said antibiotic to be
 6

administered on Jorge at around 9:00 p.m. A second dose was administered

on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges
temperature rose to 41C. The patient also experienced chills and exhibited
respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him
under oxygen, used a suction machine, and administered hydrocortisone,
temporarily easing the patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest pains in the past. Jorge
replied he did not.[5] After about 15 minutes, however, Jorge again started to
vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-
applied the emergency measures taken before and, in addition, valium was
administered. Jorge, however, did not respond to the treatment and slipped
into cyanosis, a bluish or purplish discoloration of the skin or mucous
membrane due to deficient oxygenation of the blood. At around 2:00 a.m.,
Jorge died. He was forty years old. The cause of his death was Ventricular
Arrythemia Secondary to Hyperpyrexia and typhoid fever.
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu
City a complaint[6]for damages against respondents Sisters of Mercy, Sister
Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended their complaint to
implead respondent Mercy Community Clinic as additional defendant and to
drop the name of Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal contention was that Jorge
did not die of typhoid fever.[7]Instead, his death was due to the wrongful
administration of chloromycetin. They contended that had respondent doctors
exercised due care and diligence, they would not have recommended and
rushed the performance of the Widal Test, hastily concluded that Jorge was
suffering from typhoid fever, and administered chloromycetin without first
conducting sufficient tests on the patients compatibility with said drug. They
charged respondent clinic and its directress, Sister Rose Palacio, with
negligence in failing to provide adequate facilities and in hiring negligent
doctors and nurses.[8]
Respondents denied the charges. During the pre-trial conference, the
parties agreed to limit the issues on the following: (1) whether the death of
Jorge Reyes was due to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of defendants; (2)
whether respondent Mercy Community Clinic was negligent in the hiring of its
employees; and (3) whether either party was entitled to damages. The case
 7

was then heard by the trial court during which, in addition to the testimonies of
the parties, the testimonies of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief
Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro
City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he did not open the skull
to examine the brain. His findings[9] showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the nodules. Dr.
Vacalares testified that Jorge did not die of typhoid fever. He also stated that
he had not seen a patient die of typhoid fever within five days from the onset
of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong
and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose
expertise is microbiology and infectious diseases. He is also a consultant at
the Cebu City Medical Center and an associate professor of medicine at the
South Western University College of Medicine in Cebu City. He had treated
over a thousand cases of typhoid patients. According to Dr. Gotiong, the
patients history and positive Widal Test results ratio of 1:320 would make him
suspect that the patient had typhoid fever. As to Dr. Vacalares observation
regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr.
Gotiong said that such hyperplasia in the intestines of a typhoid victim may be
microscopic. He noted that since the toxic effect of typhoid fever may lead to
meningitis, Dr. Vacalares autopsy should have included an examination of the
brain.[10]
The other doctor presented was Dr. Ibarra Panopio, a member of the
American Board of Pathology, examiner of the Philippine Board of Pathology
from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief pathologist of the
Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that
although he was partial to the use of the culture test for its greater reliability in
the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr.
Gotiong, he agreed that the 1:320 ratio in Jorges case was already the
maximum by which a conclusion of typhoid fever may be made. No additional
information may be deduced from a higher dilution.[11] He said that Dr.
Vacalares autopsy on Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its decision absolving
respondents from the charges of negligence and dismissing petitioners action
for damages. The trial court likewise dismissed respondents counterclaim,
 8

holding that, in seeking damages from respondents, petitioners were impelled

by the honest belief that Jorges death was due to the latters negligence.
Petitioners brought the matter to the Court of Appeals. On July 31, 1997,
the Court of Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT
APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF
MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED
FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR
MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS
NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This 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.[12] 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 have done, or that he
or she did something that a reasonably prudent physician or surgeon would
not have done, and that the failure or action caused injury to the
patient.[13] There are thus four elements involved in medical negligence cases,
namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship
existed between respondent doctors and Jorge Reyes. Respondents were
thus 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. It is breach of this duty which constitutes actionable
malpractice.[14]As to this aspect of medical malpractice, the determination of
the reasonable level of care and the breach thereof, expert testimony is
essential. 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.[15]
 9

Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is
under the doctrine of res ipsa loquitur. As held in Ramos v. Court of
Appeals:[16]

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 loquitor 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. 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. When the doctrine is appropriate, all that the patient must do is prove
a nexus between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to produce
expert medical testimony to establish the standard of care. Resort to res ipsa
loquitor 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 in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient was under the influence of anesthetic,
during or following an operation for appendicitis, among others.[17]
 10

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa
loquitur applies to the present case because Jorge Reyes was merely
experiencing fever and chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet, he died after only ten hours
from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa
loquitur were present, namely: (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.
The contention is without merit. We agree with the ruling of the Court of
Appeals. In the Ramos case, the question was whether a surgeon, an
anesthesiologist, and a hospital should be made liable for the comatose
condition of a patient scheduled for cholecystectomy.[19] In that case, the
patient was given anesthesia prior to her operation. Noting that the patient
was neurologically sound at the time of her operation, the Court applied the
doctrine of res ipsa loquitur as mental brain damage does not normally occur in a
gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia procedures had
become so common that even an ordinary person could tell if it was
administered properly, we allowed the testimony of a witness who was not an
expert. In this case, while it is true that the patient died just a few hours after
professional medical assistance was rendered, there is really nothing unusual
or extraordinary about his death. Prior to his admission, the patient already
had recurring fevers and chills for five days unrelieved by the analgesic,
antipyretic, and antibiotics given him by his wife. This shows that he had been
suffering from a serious illness and professional medical help came too late
for him.
Respondents alleged failure to observe due care was not immediately
apparent to a layman so as to justify application of res ipsa loquitur. The
question required expert opinion on the alleged breach by respondents of the
standard of care required by the circumstances. Furthermore, on the issue of
the correctness of her diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico. As held in Ramos:

. . . . 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
 11

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. It must be conceded that 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.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts

of negligence allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied
upon the Widal test, diagnosed Jorges illness as typhoid fever, and
immediately prescribed the administration of the antibiotic
chloromycetin; and (2) Dr. Marvie Blanes erred in ordering the
[21]

administration of the second dose of 500 milligrams of chloromycetin barely

three hours after the first was given.[22] Petitioners presented the testimony of
Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training
Hospital, Cagayan de Oro City, who performed an autopsy on the body of
Jorge Reyes. Dr. Vacalares testified that, based on his findings during the
autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined,
which could be due to allergic reaction or chloromycetin overdose. We are not
persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert
witness, we do not find him to be so as he is not a specialist on infectious
diseases like typhoid fever.Furthermore, although he may have had extensive
experience in performing autopsies, he admitted that he had yet to do one on
the body of a typhoid victim at the time he conducted the postmortem on
Jorge Reyes. It is also plain from his testimony that he has treated only about
three cases of typhoid fever. Thus, he testified that:[23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid
fever?
 12

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within five
days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice of
medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid fever is
like this and like that. And the widal test does not specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your general practice
regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her
diagnosis. Both lower courts were therefore correct in discarding his
testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to
prove that brain injury was due to oxygen deprivation after the patient had
bronchospasms[24] triggered by her allergic response to a drug,[25] and not due
to faulty intubation by the anesthesiologist. As the issue was whether the
intubation was properly performed by an anesthesiologist, we rejected the
opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice,
procedure, and their complications; nor (2) an allergologist who could properly
advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the
drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents
clearly were experts on the subject. They vouched for the correctness of Dr.
Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization
is infectious diseases and microbiology and an associate professor at the
Southwestern University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a thousand cases of
 13

typhoid fever.[26] According to him, when a case of typhoid fever is suspected,

the Widal test is normally used,[27]and if the 1:320 results of the Widal test on
Jorge Reyes had been presented to him along with the patients history, his
impression would also be that the patient was suffering from typhoid
fever.[28] As to the treatment of the disease, he stated that chloromycetin was
the drug of choice.[29] He also explained that despite the measures taken by
respondent doctors and the intravenous administration of two doses of
chloromycetin, complications of the disease could not be discounted. His
testimony is as follows:[30]
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment if any would be
given?
A If those are the findings that would be presented to me, the first thing I would consider
would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered chloramphenical about 3
1/2 hours later, the patient associated with chills, temperature - 41oC, what could
possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is complications are
caused by toxins produced by the bacteria . . . whether you have suffered complications
to think of -- heart toxic myocardities; then you can consider a toxic meningitis and other
complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of 500
milligrams intravenous, after the skin test, and received a second dose of chloromycetin
of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to
41oC, and then about 40 minutes later the temperature rose to 100oF, cardiac rate of 150
per minute who appeared to be coherent, restless, nauseating, with seizures: what
significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis
because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium, became conscious
and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs
and vomitting . . . and death: what significance would you attach to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem
examination?
A No, the finding would be more on the meninges or covering of the brain.
 14

Q And in order to see those changes would it require opening the skull?
A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds
gastro-intestinal tract was normal, Dr. Rico explained that, while
hyperplasia[31] in the payers patches or layers of the small intestines is present
in typhoid fever, the same may not always be grossly visible and a
microscope was needed to see the texture of the cells.[32]
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is
a member of the Philippine and American Board of Pathology, an examiner of
the Philippine Board of Pathology, and chief pathologist at the MetroCebu
Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr.
Memorial Medical Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients, although he did not
encourage its use because a single test would only give a presumption
necessitating that the test be repeated, becoming more conclusive at the
second and third weeks of the disease.[33] He corroborated Dr. Gotiongs
testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as
liver and cerebral complications.[34] As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no additional information
could be obtained from a higher ratio.[35] He also agreed with Dr. Gotiong that
hyperplasia in the payers patches may be microscopic.[36]
Indeed, the standard contemplated is not what is actually the average
merit among all known practitioners from the best to the worst and from the
most to the least experienced, but the reasonable average merit among the
ordinarily good physicians.[37] Here, Dr. Marlyn Rico did not depart from the
reasonable standard recommended by the experts as she in fact observed the
due care required under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for typhoid fever and, in the
present case, greater accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The results of the Widal test
and the patients history of fever with chills for five days, taken with the fact
that typhoid fever was then prevalent as indicated by the fact that the clinic
had been getting about 15 to 20 typhoid cases a month, were sufficient to give
upon any doctor of reasonable skill the impression that Jorge Reyes had
typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug
chloromycetin, the drug of choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested with the
 15

petitioners. As they failed to present expert opinion on this, preponderant

evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took
over from Dr. Rico, was negligent in ordering the intravenous administration of
two doses of 500 milligrams of chloromycetin at an interval of less than three
hours. Petitioners claim that Jorge Reyes died of anaphylactic shock [38] or
possibly from overdose as the second dose should have been administered
five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by
the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical

authority. Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet proven better in promoting a favorable clinical
response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS
Annual, 1994, p. 211) The dosage likewise including the first administration of five
hundred milligrams (500 mg.) at around nine oclock in the evening and the second
dose at around 11:30 the same night was still within medically acceptable limits,
since the recommended dose of chloromycetin is one (1) gram every six (6)
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee
on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct.
(Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not
administered by the physician-on-duty, the evidence introduced that it was Dra.
Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once
more, this Court rejects any claim of professional negligence in this regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the
administration of a drug, is the skin test of which, however, it has been observed: Skin
testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific
histamine release, producing a weal-and-flare reaction in normal
individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a
negative skin test to a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical
Immunology, p. 349) What all this means legally is that even if the deceased suffered
from an anaphylactic shock, this, of itself, would not yet establish the negligence of
the appellee-physicians for all that the law requires of them is that they perform the
standard tests and perform standard procedures. The law cannot require them to
predict every possible reaction to all drugs administered. The onus probandi was on
 16

the appellants to establish, before the trial court, that the appellee-physicians ignored
standard medical procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and skills expected of
general practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one

which, like the business of a common carrier, is affected with public
interest. Moreover, they assert that since the law imposes upon common
carriers the duty of observing extraordinary diligence in the vigilance over the
goods and for the safety of the passengers,[40] physicians and surgeons should
have the same duty toward their patients.[41] They also contend that the Court
of Appeals erred when it allegedly assumed that the level of medical practice
is lower in Iligan City, thereby reducing the standard of care and degree of
diligence required from physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common
carriers. The Civil Code provides:

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 the
circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified

individuals. It is a right earned through years of education, training, and by first
obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by the
government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the observance of
extraordinary diligence. As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And, as we have already
noted, the standard contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is reasonable diligence
for doctors or, as the Court of Appeals called it, the reasonable skill and
competence . . . that a physician in the same or similar locality . . . should
apply.
WHEREFORE, the instant petition is DENIED and the decision of the
Court of Appeals is AFFIRMED.
 17

SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

FIRST DIVISION

G.R. No. 126297 January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467 January 31, 2007

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.

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

G.R. No. 127590 January 31, 2007

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

DECISION

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’
Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

FACTS

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
 18

medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed
an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had
spread on her left 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.

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,
 19

docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.

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

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

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

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of

P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States
of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic

Hospital, medical fees, and cost of the saline solution;

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

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

4. As attorney’s fees, the sum of P250,000.00;

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

6. Costs of suit.

SO ORDERED.

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

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

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
 20

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 Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.

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

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body; and that he concealed such fact from Natividad.

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

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

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

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

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December
19, 1996.

Hence, the instant consolidated petitions.

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

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

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina.
He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing
 21

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 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.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a 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
 22

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. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his 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 either
failed to do something which a reasonably prudent health care provider would have done, or that he
did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from 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 cause12 of Natividad’s injury could be traced from his act of closing the
incision despite the information given by the attending nurses that two pieces of gauze were still
missing. That they were later on extracted from Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground
that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces
of gauze were left inside 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.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want
 23

of care, and the burden of proof is shifted to him to establish that he has observed due care and
diligence.14

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

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

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

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete
charge of the surgery room and all personnel connected with the operation. Their duty is to obey his
orders.16 As stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of
the Ship." That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes
to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting
Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this
act of ordering the closure of the incision notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to 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.17 In other
words, mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not
by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

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

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical
services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who
could afford medical treatment were usually treated at home by their doctors.19 However, the days of
house calls and philanthropic health care are over. The modern health care industry continues to
distance itself from its charitable past and has experienced a significant conversion from a not-for-
 24

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.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

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

x x x x x x

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

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

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

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

ministrations to the patient and his actions are of his own

responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the discharge of their profession.

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

In our shores, the nature of the relationship between the hospital and the physicians is rendered
inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for
purposes of apportioning responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting physicians.
This Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than real.

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

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

attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the 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
 26

hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians. "

But the Ramos pronouncement is not our only basis in sustaining 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,29 has its origin from the law of
agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially one of estoppel and has
been explained in this manner:

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

The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out
a particular physician as its agent and/or employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the
hospital will be liable for the 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
 27

them, accepted the services on the reasonable belief that such were being rendered by the hospital
or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the
defense of absence of employer-employee relationship between the hospital and the independent
physician whose name and competence are certainly certified to the general public by the 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."34 Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem
of allocating 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.36 There, the Supreme
Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital.37 With the
passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and
policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine of corporate responsibility, has the duty
to see that it meets the standards of responsibilities for the care of patients. Such duty includes the
proper supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded
that a patient who enters a hospital does so with the reasonable expectation that it will attempt to
 28

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
negligene by refusing or failing to investigate a report of such seriousness as the one in Natividad’s
case.

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

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention,
27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P.
2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a
medical practitioner because he was an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a professional staff whose competence and
performance was to be monitored and reviewed by the governing body of the hospital, and the court
held that a hospital would be negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care which fell below the recognized
standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
 29

rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that the negligence of the defendants was the
proximate cause of the patient’s injuries. We find that such general allegations of negligence, along
with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability
based on the theory of negligent supervision."

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

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

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

(No Part)
CANCIO C. GARCIA
Associate Justice

CERTIFICATION
 30

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

A.C. No. 2655 October 12, 2010

LEONARD W. RICHARDS, Complainant,

vs.
PATRICIO A. ASOY, Respondent.

RESOLUTION

Per Curiam:

For consideration is the petition of Patricio A. Asoy (respondent) for reinstatement to the Bar.
Records disclose that the Ministry of Tourism, by 1st Indorsement of July 2, 1984, forwarded to the
Court a June 28, 1984 letter-complaint of Leonard Richards (complainant) against respondent.

By Resolution of November 11, 1985, the Court, noting respondent’s failure to comply, despite
notice, with its Resolution of August 8, 1984 requiring him to comment on complainant’s letter,
resolved to require him to show cause why he should not be disciplinarily dealt with or held in
contempt and to comply with the said Resolution of August 8, 1984, both within ten days from notice.

In the same Resolution of November 11, 1985, the Court noted several attempts, which were all
futile, to serve copy of the August 8, 1984 Resolution at respondent’s other addresses, viz: B.F.
Homes, Parañaque; the Central Bank Legal Department; Suite 306, Filmanbank Building, Plaza Sta.
Cruz, Sta. Cruz; Asia International Builders Corp., 5th Floor, ADC Bldg., Ayala Avenue, Makati (the
address given in respondent’s calling card); and respondent’s provincial address at the Bar Office
which was coursed through the IBP Tacloban Chapter.1

Still in the same Resolution of November 11, 1985, the Court noted that "unquestionably, respondent
had gone into hiding and was evading service of pleadings/orders/processes of this Court."2 The
Court accordingly suspended respondent from the practice of law until further orders from this Court.
Thus it disposed:

ACCORDINGLY, respondent, Atty. Patricio A. Asoy, is hereby SUSPENDED from the practice of law
until further Orders of this Court. Let copies of this Resolution be circularized to all Courts.

Should respondent appear before any lower Court, the latter shall serve upon him a copy of this
Resolution and require him to appear, within five (5) days, before the Deputy Clerk of Court and Bar
Confidant, who shall furnish him with a copy of the Administrative Complaint and require him to file
an Answer thereto, within five (5) days thereafter. The lower Court concerned shall furnish this Court
with copy of its Order immediately.3 (emphasis and underscoring supplied)

On January 9, 1986, respondent filed before the Court a MANIFESTATION/MOTION FOR

RECONSIDERATION alleging that on December 2, 1985, he "learned and secured a copy of
Supervisory Circular No. 17 wherein the Resolution of the . . . Court, promulgated on November 11,
1985 is quoted . . ."; that he was voluntarily submitting himself to the jurisdiction of the Court even if
 31

he had not been formally served a copy of the Resolution and had not been ordered by any lower
court to appear before the Deputy Clerk of Court and Bar Confidant; that on account of distance and
financial constraints, he could not possibly comply with the Order of this Court for him to appear
before the Deputy Clerk of Court and Bar Confidant within the five-day period stated; that he was
totally unaware of the existence of the complaint until December 2, 1985; and that to the best of his
knowledge, he had not violated his oath as an attorney at law nor is he guilty of any offense to
warrant his suspension from the practice of law.

Respondent thus prayed for the lifting of his suspension and for excusing him from personally
appearing before the Bar Confidant upon the undertaking that he would answer the complaint in five
days from receipt thereof.

On the directive of the Court, the Bar Confidant formalized the complaint against respondent on April
29, 1986.

By Resolution of October 1, 1986, the Court, noting respondent’s failure to file comment on the
administrative complaint within the period which expired on May 21, 1986, directed the sending of
the administrative complaint to respondent at his address in Iligan City for compliance with the
Resolution requiring him to file Answer to the Complaint.

On December 18, 1986, the Court received respondent’s ANSWER WITH MOTION TO LFIT
ORDER OF SUSPENSION, alleging that he received copy of the complaint only on November 19,
1986, "though the same was served and received at this present address (Rm. 302 Aalos Building,
Aguinaldo St., Iligan City) on May 6, 1986 and November 5, 1986"; and that he was begging the
indulgence of the Court and of the complainant for the delay in the filing of his Answer due to his
temporary transfer to Tubud, Lanao del Norte in view of his temporary appointment as Provincial
Administrator.

By Resolution of February 10, 1986, the Court denied respondent’s prayer to lift the order of
suspension from the practice of law but excused him from appearing before the Deputy Clerk of
Court and Bar Confidant.

The Court, by Resolution of July 9, 1987, after noting respondent’s unquestionable act of going into
hiding and evading service of pleadings/orders/processes of the Court which resulted in his
suspension, and after reciting the facts of the case which required no further evidentiary hearing as
they spoke for themselves, found respondent guilty of grave professional misconduct, viz:

Respondent is guilty of grave professional misconduct. He received from complainant, his client,
compensation to handle his case in the Trial Court, but the same was dismissed for lack of interest
and failure to prosecute. He had abandoned his client in violation of his contract ignoring the most
elementary principles of professional ethics. That Respondent had ignored the processes of this
Court and it was only after he was suspended from the practice of law that he surfaced, is highly
indicative of his disregard of an attorney’s duties to the Court. All the facts and circumstances taken
into consideration, Respondent has proven himself unworthy of the trust reposed in him by law as an
officer of the court.4 (emphasis and underscoring supplied)

The Court thereupon resolved to DISBAR him and order him to reimburse complainant the sum of
₱16,300 within thirty (30) days from notice. Thus the Court disposed:

ACCORDINGLY, for malpractice and violation of his oath as a lawyer, 1) respondent Atty. Patricio A.
Asoy is hereby ordered DISBARRED; and 2) he is hereby ordered to reimburse complainant,
 32

Leonard W. Richards, in the sum of ₱16,300.00 (₱15,000.00 + 1,300.00), the only sums
substantiated by the evidence on record, within thirty (30) days from notice hereof.

Copies of this Resolution shall be circulated to all Courts of the country and spread on the personal
record of respondent Atty. Patricio A. Asoy.

Copies of this Resolution shall likewise be furnished Complainant Leonard W. Richards, via airmail,
at his address of record, 4/169 Avoca Street, Randwick NSW 2031, Australia, with copy furnished
the Department of Foreign Affairs for onward transmittal to the Philippine Consulate General,
Sydney, Australia.

SO ORDERED.5 (emphasis and underscoring supplied)

After the promulgation of the July 9, 1987 Resolution, complainant, by letter dated November 3,
1987 which was received by the Court on November 11, 1987,6 complained that respondent had not
reimbursed him the ₱16,300.00.

By Resolution of March 15, 1988, the Court, noting respondent’s failure to comply with its Resolution
of July 9, 1987, resolved to require respondents to show cause why he failed to reimburse the
₱16,300.00 to complainant as required in its Resolution of July 9, 1987, and to comply with said
Resolution of July 9, 1987, both within ten days from notice.

Complainant, by another letter of January 13, 19897 which was received by the Court on January 20,
1989, informed that respondent still failed to comply with the order for reimbursement to him of
₱16,300.00.

Thirteen years after the promulgation of the Court’s Resolution disbarring respondent or on July 18,
2000, respondent filed a Petition for "readmission to the practice of law" stating, among other things,
that on January 2, 1996 or about nine years after his disbarment and directive to reimbursement
complainant was made, he effected payment of ₱16,300 via consignation with this Court’s Office of
the Cashier. By Resolution of December 12, 2000, the Court DENIED the petition for lack of merit. 1avv phi1

More than nine years after the Court denied his petition for "readmission to the practice of law" or on
August 2, 2010, the Court received another Petition from respondent, for "Reinstatement to the Bar,"
stating that, among other things, on January 2, 1996, he effected payment of ₱16,300.00 in favor of
complainant by consignation of the amount with the Office of the Cashier of the Supreme Court
as complainant could no longer be found or located; that he had already suffered and agonized for
his shortcomings; and that as "positive evidence of his repentance and rehabilitation," he attached
testimonials of "credible institutions and personalities."

Respondent justifies his belated ─ nine years ─ compliance with this Court’s order for him to
reimburse complaint the amount with his alleged inability to locate complainant. If that were the
case, respondent could have obtained complainant’s address from this Court, either through the
Office of the Clerk of Court or the Office of the Bar Confidant. Recall that in his letters of November
3, 1987 and January 20, 1989, complainant’s given address was the same as that stated in the
Court’s July 9, 1987 Resolution ─ 4/169 Avoca Street, Randwick NSW 2031, Australia.

Respondent’s justification for his 9-year belated "compliance" with the order for him to reimburse
complainant glaringly speaks of his lack of candor, of his dishonesty, if not defiance of Court orders,
qualities that do not endear him to the esteemed brotherhood of lawyers. The solemn oath which all
lawyers take upon admission to the bar to dedicate their lives to the pursuit of justice is neither a
mere formality nor hollow words meant to be taken lightly, but a sacred trust that lawyers must
 33

uphold and keep inviolable at all times.8 The lack of any sufficient justification or explanation for the
nine-year delay in complying with the Court’s July 9, 1987 and March 15, 1988 Resolutions to
reimburse complainant betrays a clear and contumacious disregard for the lawful orders of this
Court. Such disrespect on the part of respondent constitutes a clear violation of the lawyer’s Code of
Professional Responsibility which maintains that:

CANON 7 — A lawyer shall at all times uphold the integrity and dignity of the legal profession, and
support the activities of the Integrated Bar.

......

CANON 10 — A lawyer owes candor, fairness and good faith to the court.

Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall
he mislead or allow the court to be misled by any artifice.

Respondent denigrates the dignity of his calling by displaying a lack of candor towards this Court. By
taking his sweet time to effect reimbursement of the ₱16,300.00 – and through consignation with this
Court at that - he sent out a strong message that the legal processes and orders of this Court could
be treated with disdain or impunity.

Parenthetically, respondent’s consignation could not even be deemed compliance with the Court’s
directive to reimburse. The Court does not represent complainant; the latter’s postal address was
readily ascertainable from the records had respondent wished to communicate with complainant for
the purpose of making amends. The records are bereft of proof that respondent had actually
resorted to reimbursing the complainant directly. In short, evidence of atonement for respondent’s
misdeeds is sorely wanting.

WHEREFORE, respondent Patricio A. Asoy’s petition for reinstatement in the Roll of Attorneys is
DENIED.

SO ORDERED.

RENATO C. CORONA