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G.R. No. 124354 December 29, 1999 woman (TSN, October 19, 1989, p. 10).

Except for
occasional complaints of discomfort due to pains
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf allegedly caused by the presence of a stone in her
and as natural guardians of the minors, ROMMEL RAMOS, ROY gall bladder (TSN, January 13, 1988, pp. 4-5), she
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, was as normal as any other woman. Married to
vs. Rogelio E. Ramos, an executive of Philippine Long
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. Distance Telephone Company, she has three
ORLINO HOSAKA and DRA. PERFECTA children whose names are Rommel Ramos, Roy
GUTIERREZ, respondents. Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with


KAPUNAN, J.: her normal ways, she sought professional advice.
She was advised to undergo an operation for the
removal of a stone in her gall bladder (TSN, January
The Hippocratic Oath mandates physicians to give primordial 13, 1988, p. 5). She underwent a series of
consideration to the health and welfare of their patients. If a doctor examinations which included blood and urine tests
fails to live up to this precept, he is made accountable for his acts. A (Exhs. "A" and "C") which indicated she was fit for
mistake, through gross negligence or incompetence or plain human surgery.
error, may spell the difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she and
In the case at bar, the Court is called upon to rule whether a her husband Rogelio met for the first time Dr. Orlino
surgeon, an anesthesiologist and a hospital should be made liable Hozaka (should be Hosaka; see TSN, February 20,
for the unfortunate comatose condition of a patient scheduled for 1990, p. 3), one of the defendants in this case, on
cholecystectomy. 2 June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant),
Petitioners seek the reversal of the decision 3 of the Court of would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
Appeals, dated 29 May 1995, which overturned the decision 4 of the decided that she should undergo a
Regional Trial Court, dated 30 January 1992, finding private "cholecystectomy" operation after examining the
respondents liable for damages arising from negligence in the documents (findings from the Capitol Medical
performance of their professional duties towards petitioner Erlinda Center, FEU Hospital and DLSMC) presented to
Ramos resulting in her comatose condition. him. Rogelio E. Ramos, however, asked Dr. Hosaka
to look for a good anesthesiologist. Dr. Hosaka, in
The antecedent facts as summarized by the trial court are turn, assured Rogelio that he will get a good
reproduced hereunder: anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the
Plaintiff Erlinda Ramos was, until the afternoon of anesthesiologist's fee and which was to be paid after
June 17, 1985, a 47-year old (Exh. "A") robust the operation (TSN, October 19, 1989, pp. 14-15,
22-23, 31-33; TSN, February 27, 1990, p. 13; and Thereafter, Herminda went out of the operating room
TSN, November 9, 1989, pp. 3-4, 10, 17). and informed the patient's husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she
A day before the scheduled date of operation, she returned to the operating room, the patient told her,
was admitted at one of the rooms of the DLSMC, "Mindy, inip na inip na ako, ikuha mo ako ng ibang
located along E. Rodriguez Avenue, Quezon City Doctor." So, she went out again and told Rogelio
(TSN, October 19,1989, p. 11). about what the patient said (id., p. 15). Thereafter,
she returned to the operating room.
At around 7:30 A.M. of June 17, 1985 and while still
in her room, she was prepared for the operation by At around 10:00 A.M., Rogelio E. Ramos was
the hospital staff. Her sister-in-law, Herminda Cruz, "already dying [and] waiting for the arrival of the
who was the Dean of the College of Nursing at the doctor" even as he did his best to find somebody
Capitol Medical Center, was also there for moral who will allow him to pull out his wife from the
support. She reiterated her previous request for operating room (TSN, October 19, 1989, pp. 19-20).
Herminda to be with her even during the operation. He also thought of the feeling of his wife, who was
After praying, she was given injections. Her hands inside the operating room waiting for the doctor to
were held by Herminda as they went down from her arrive (ibid.). At almost 12:00 noon, he met Dr.
room to the operating room (TSN, January 13, 1988, Garcia who remarked that he (Dr. Garcia) was also
pp. 9-11). Her husband, Rogelio, was also with her tired of waiting for Dr. Hosaka to arrive (id., p. 21).
(TSN, October 19, 1989, p. 18). At the operating While talking to Dr. Garcia at around 12:10 P.M., he
room, Herminda saw about two or three nurses and came to know that Dr. Hosaka arrived as a nurse
Dr. Perfecta Gutierrez, the other defendant, who remarked, "Nandiyan na si Dr. Hosaka, dumating na
was to administer anesthesia. Although not a raw." Upon hearing those words, he went down to
member of the hospital staff, Herminda introduced the lobby and waited for the operation to be
herself as Dean of the College of Nursing at the completed (id., pp. 16, 29-30).
Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was At about 12:15 P.M., Herminda Cruz, who was
allowed to stay inside the operating room. inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here."
At around 9:30 A.M., Dr. Gutierrez reached a nearby She then saw people inside the operating room
phone to look for Dr. Hosaka who was not yet in "moving, doing this and that, [and] preparing the
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez patient for the operation" (TSN, January 13, 1988, p.
thereafter informed Herminda Cruz about the 16). As she held the hand of Erlinda Ramos, she
prospect of a delay in the arrival of Dr. Hosaka. then saw Dr. Gutierrez intubating the hapless
Herminda then went back to the patient who asked, patient. She thereafter heard Dr. Gutierrez say, "ang
"Mindy, wala pa ba ang Doctor"? The former replied, hirap ma-intubate nito, mali yata ang pagkakapasok.
"Huwag kang mag-alaala, darating na iyon" (Ibid.). O lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention
on what Dr. Gutierrez was doing. She thereafter
noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka Doctors Gutierrez and Hosaka were also asked by
approached her. She then heard Dr. Hosaka issue the hospital to explain what happened to the patient.
an order for someone to call Dr. Calderon, another The doctors explained that the patient had
anesthesiologist (id., p. 19). After Dr. Calderon bronchospasm (TSN, November 15, 1990, pp. 26-
arrived at the operating room, she saw this 27).
anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was Erlinda Ramos stayed at the ICU for a month. About
placed in a trendelenburg position — a position four months thereafter or on November 15, 1985,
where the head of the patient is placed in a position the patient was released from the hospital.
lower than her feet which is an indication that there
is a decrease of blood supply to the patient's brain
During the whole period of her confinement, she
(Id., pp. 19-20). Immediately thereafter, she went out
incurred hospital bills amounting to P93,542.25
of the operating room, and she told Rogelio E.
which is the subject of a promissory note and
Ramos "that something wrong was . . . happening" affidavit of undertaking executed by Rogelio E.
(Ibid.). Dr. Calderon was then able to intubate the
Ramos in favor of DLSMC. Since that fateful
patient (TSN, July 25, 1991, p. 9).
afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She
Meanwhile, Rogelio, who was outside the operating cannot move any part of her body. She cannot see
room, saw a respiratory machine being rushed or hear. She is living on mechanical means. She
towards the door of the operating room. He also saw suffered brain damage as a result of the absence of
several doctors rushing towards the operating room. oxygen in her brain for four to five minutes (TSN,
When informed by Herminda Cruz that something November 9, 1989, pp. 21-22). After being
wrong was happening, he told her (Herminda) to be discharged from the hospital, she has been staying
back with the patient inside the operating room in their residence, still needing constant medical
(TSN, October 19, 1989, pp. 25-28). attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to
Herminda Cruz immediately rushed back, and saw P10,000.00 (TSN, October 19, 1989, pp. 32-34).
that the patient was still in trendelenburg position She was also diagnosed to be suffering from "diffuse
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. cerebral parenchymal damage" (Exh. "G"; see
of that fateful day, she saw the patient taken to the also TSN, December 21, 1989,
Intensive Care Unit (ICU). p. 6). 5

About two days thereafter, Rogelio E. Ramos was Thus, on 8 January 1986, petitioners filed a civil case 6 for damages
able to talk to Dr. Hosaka. The latter informed the with the Regional Trial Court of Quezon City against herein private
former that something went wrong during the respondents alleging negligence in the management and care of
intubation. Reacting to what was told to him, Rogelio Erlinda Ramos.
reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) During the trial, both parties presented evidence as to the possible
looked for a good anesthesiologist (TSN, October cause of Erlinda's injury. Plaintiff presented the testimonies of Dean
19, 1989, p. 31).
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained On the part of Dr. Orlino Hosaka, this Court finds
by Erlinda was due to lack of oxygen in her brain caused by the that he is liable for the acts of Dr. Perfecta Gutierrez
faulty management of her airway by private respondents during the whom he had chosen to administer anesthesia on
anesthesia phase. On the other hand, private respondents primarily the patient as part of his obligation to provide the
relied on the expert testimony of Dr. Eduardo Jamora, a patient a good anesthesiologist', and for arriving for
pulmonologist, to the effect that the cause of brain damage was the scheduled operation almost three (3) hours late.
Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal). On the part of DLSMC (the hospital), this Court finds
that it is liable for the acts of negligence of the
After considering the evidence from both sides, the Regional Trial doctors in their "practice of medicine" in the
Court rendered judgment in favor of petitioners, to wit: operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the
After evaluating the evidence as shown in the finding scheduled operation after Dr. Hosaka inexcusably
of facts set forth earlier, and applying the aforecited failed to arrive on time.
provisions of law and jurisprudence to the case at
bar, this Court finds and so holds that defendants In having held thus, this Court rejects the defense
are liable to plaintiffs for damages. The defendants raised by defendants that they have acted with due
were guilty of, at the very least, negligence in the care and prudence in rendering medical services to
performance of their duty to plaintiff-patient Erlinda plaintiff-patient. For if the patient was properly
Ramos. intubated as claimed by them, the patient would not
have become comatose. And, the fact that another
On the part of Dr. Perfecta Gutierrez, this Court finds anesthesiologist was called to try to intubate the
that she omitted to exercise reasonable care in not patient after her (the patient's) nailbed turned bluish,
only intubating the patient, but also in not repeating belie their claim. Furthermore, the defendants
the administration of atropine (TSN, August 20, should have rescheduled the operation to a later
1991, pp. 5-10), without due regard to the fact that date. This, they should have done, if defendants
the patient was inside the operating room for almost acted with due care and prudence as the patient's
three (3) hours. For after she committed a mistake in case was an elective, not an emergency case.
intubating [the] patient, the patient's nailbed became
bluish and the patient, thereafter, was placed in xxx xxx xxx
trendelenburg position, because of the decrease of
blood supply to the patient's brain. The evidence WHEREFORE, and in view of the foregoing,
further shows that the hapless patient suffered brain judgment is rendered in favor of the plaintiffs and
damage because of the absence of oxygen in her against the defendants. Accordingly, the latter are
(patient's) brain for approximately four to five ordered to pay, jointly and severally, the former the
minutes which, in turn, caused the patient to become following sums of money, to wit:
comatose.
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff
Erlinda Ramos reckoned from petitioners. Rogelio referred the decision of the appellate court to a
November 15, 1985 or in the total new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
sum of P632,000.00 as of April 15, before the expiration of the reglementary period for filing a motion for
1992, subject to its being updated; reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for
2) the sum of P100,000.00 as reconsideration. The motion for reconsideration was submitted on 4
reasonable attorney's fees; July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile,
3) the sum of P800,000.00 by way petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
of moral damages and the further
admit the motion for reconsideration contending that the period to file
sum of P200,000,00 by way of
the appropriate pleading on the assailed decision had not yet
exemplary damages; and,
commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record.
4) the costs of the suit. Despite this explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its Resolution,
SO ORDERED. 7 dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already
Private respondents seasonably interposed an appeal to the Court of expired, to wit:
Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion of We said in our Resolution on July 25, 1995, that the
the decision of the appellate court reads: filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo,
WHEREFORE, for the foregoing premises the p. 12) was denied. It is, on the other hand, admitted
appealed decision is hereby REVERSED, and the in the latter Motion that plaintiffs/appellees received
complaint below against the appellants is hereby a copy of the decision as early as June 9, 1995.
ordered DISMISSED. The counterclaim of appellant Computation wise, the period to file a Motion for
De Los Santos Medical Center is GRANTED but Reconsideration expired on June 24. The Motion for
only insofar as appellees are hereby ordered to pay Reconsideration, in turn, was received by the Court
the unpaid hospital bills amounting to P93,542.25, of Appeals already on July 4, necessarily, the 15-
plus legal interest for justice must be tempered with day period already passed. For that alone, the latter
mercy. should be denied.

SO ORDERED. 8 Even assuming admissibility of the Motion for the


Reconsideration, but after considering the
The decision of the Court of Appeals was received on 9 June 1995 Comment/Opposition, the former, for lack of merit, is
by petitioner Rogelio Ramos who was mistakenly addressed as hereby DENIED.
"Atty. Rogelio Ramos." No copy of the decision, however, was sent
nor received by the Coronel Law Office, then counsel on record of SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 petitioners on the decision of the Court of Appeals was validly
April 1996. The next day, or on 12 April 1996, Atty. Sillano filed dismissed by the appellate court for having been filed beyond the
before this Court a motion for extension of time to file the present reglementary period. We do not agree.
petition for certiorari under Rule 45. The Court granted the motion for
extension of time and gave petitioners additional thirty (30) days after A careful review of the records reveals that the reason behind the
the expiration of the fifteen-day (15) period counted from the receipt delay in filing the motion for reconsideration is attributable to the fact
of the resolution of the Court of Appeals within which to submit the that the decision of the Court of Appeals was not sent to then
petition. The due date fell on 27 May 1996. The petition was filed on counsel on record of petitioners, the Coronel Law Office. In fact, a
9 May 1996, well within the extended period given by the Court. copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he
Petitioners assail the decision of the Court of Appeals on the was mistakenly addressed as Atty. Rogelio Ramos. Based on the
following grounds: other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record.
I Thus, no copy of the decision of the counsel on record. Petitioner,
not being a lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal counsel only
IN PUTTING MUCH RELIANCE ON THE
on 20 June 1995.
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR.
JAMORA; It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his
II
counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the
IN FINDING THAT THE NEGLIGENCE OF THE counsel on record of petitioner, there can be no sufficient notice to
RESPONDENTS DID NOT CAUSE THE speak of. Hence, the delay in the filing of the motion for
UNFORTUNATE COMATOSE CONDITION OF reconsideration cannot be taken against petitioner. Moreover, since
PETITIONER ERLINDA RAMOS; the Court of Appeals already issued a second Resolution, dated 29
March 1996, which superseded the earlier resolution issued on 25
III July 1995, and denied the motion for reconsideration of petitioner,
we believed that the receipt of the former should be considered in
IN NOT APPLYING THE DOCTRINE OF RES IPSA determining the timeliness of the filing of the present petition. Based
LOQUITUR. 11 on this, the petition before us was submitted on time.

Before we discuss the merits of the case, we shall first dispose of the After resolving the foregoing procedural issue, we shall now look into
procedural issue on the timeliness of the petition in relation to the the merits of the case. For a more logical presentation of the
motion for reconsideration filed by petitioners with the Court of discussion we shall first consider the issue on the applicability of the
Appeals. In their doctrine of res ipsa loquiturto the instant case. Thereafter, the first
Comment, 12 private respondents contend that the petition should not two assigned errors shall be tackled in relation to the res ipsa
be given due course since the motion for reconsideration of the loquiturdoctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the doctrine may be allowed, the following requisites must be
the transaction speaks for itself." The phrase "res ipsa loquitur'' is a satisfactorily shown:
maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise 1. The accident is of a kind which
a presumption of negligence, or make out a plaintiff's prima ordinarily does not occur in the
facie case, and present a question of fact for defendant to meet with absence of someone's negligence;
an explanation. 13 Where the thing which caused the injury
complained of is shown to be under the management of the 2. It is caused by an instrumentality
defendant or his servants and the accident is such as in ordinary within the exclusive control of the
course of things does not happen if those who have its management
defendant or defendants; and
or control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose
from or was caused by the defendant's want of care. 14 3. The possibility of contributing
conduct which would make the
plaintiff responsible is eliminated. 21
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an In the above requisites, the fundamental element is the "control of
inference of negligence on the part of the person who controls the instrumentality" which caused the damage. 22Such element of control
instrumentality causing the injury in the absence of some explanation must be shown to be within the dominion of the defendant. In order
by the defendant who is charged with negligence. 15 It is grounded in to have the benefit of the rule, a plaintiff, in addition to proving injury
the superior logic of ordinary human experience and on the basis of or damage, must show a situation where it is applicable, and must
such experience or common knowledge, negligence may be establish that the essential elements of the doctrine were present in
deduced from the mere occurrence of the accident a particular incident. 23
itself. 16 Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge. Medical malpractice 24 cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the
However, much has been said that res ipsa loquitur is not a rule of circumstances attendant upon the harm are themselves of such a
substantive law and, as such, does not create or constitute an character as to justify an inference of negligence as the cause of that
independent or separate ground of liability. 17 Instead, it is harm. 25 The application of res ipsa loquitur in medical negligence
considered as merely evidentiary or in the nature of a procedural cases presents a question of law since it is a judicial function to
rule. 18 It is regarded as a mode of proof, or a mere procedural of determine whether a certain set of circumstances does, as a matter
convenience since it furnishes a substitute for, and relieves a plaintiff of law, permit a given inference. 26
of, the burden of producing specific proof of negligence. 19 In other
words, mere invocation and application of the doctrine does not Although generally, expert medical testimony is relied upon in
dispense with the requirement of proof of negligence. It is simply a malpractice suits to prove that a physician has done a negligent act
step in the process of such proof, permitting the plaintiff to present or that he has deviated from the standard medical procedure, when
along with the proof of the accident, enough of the attending the doctrine of res ipsa loquitur is availed by the plaintiff, the need for
circumstances to invoke the doctrine, creating an inference or expert medical testimony is dispensed with because the injury itself
presumption of negligence, and to thereby place on the defendant provides the proof of negligence. 27 The reason is that the general
the burden of going forward with the proof. 20 Still, before resort to rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that proof to the defendant to show that he is not guilty of the ascribed
are within the common knowledge of mankind which may be testified negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
to by anyone familiar with the facts. 28 Ordinarily, only physicians and perfunctorily used but a rule to be cautiously applied, depending
surgeons of skill and experience are competent to testify as to upon the circumstances of each case. It is generally restricted to
whether a patient has been treated or operated upon with a situations in malpractice cases where a layman is able to say, as a
reasonable degree of skill and care. However, testimony as to the matter of common knowledge and observation, that the
statements and acts of physicians and surgeons, external consequences of professional care were not as such as would
appearances, and manifest conditions which are observable by any ordinarily have followed if due care had been
one may be given by non-expert witnesses. 29 Hence, in cases exercised. 37 A distinction must be made between the failure to
where the res ipsa loquitur is applicable, the court is permitted to find secure results, and the occurrence of something more unusual and
a physician negligent upon proper proof of injury to the patient, not ordinarily found if the service or treatment rendered followed the
without the aid of expert testimony, where the court from its fund of usual procedure of those skilled in that particular practice. It must be
common knowledge can determine the proper standard of conceded that the doctrine of res ipsa loquitur can have no
care. 30 Where common knowledge and experience teach that a application in a suit against a physician or surgeon which involves
resulting injury would not have occurred to the patient if due care had the merits of a diagnosis or of a scientific treatment. 38 The physician
been exercised, an inference of negligence may be drawn giving rise or surgeon is not required at his peril to explain why any particular
to an application of the doctrine of res ipsa loquitur without medical diagnosis was not correct, or why any particular scientific treatment
evidence, which is ordinarily required to show not only what occurred did not produce the desired result. 39 Thus, res ipsa loquitur is not
but how and why it occurred. 31 When the doctrine is appropriate, all available in a malpractice suit if the only showing is that the desired
that the patient must do is prove a nexus between the particular act result of an operation or treatment was not accomplished. 40The real
or omission complained of and the injury sustained while under the question, therefore, is whether or not in the process of the operation
custody and management of the defendant without need to produce any extraordinary incident or unusual event outside of the routine
expert medical testimony to establish the standard of care. Resort performance occurred which is beyond the regular scope of
to res ipsa loquitur is allowed because there is no other way, under customary professional activity in such operations, which, if
usual and ordinary conditions, by which the patient can obtain unexplained would themselves reasonably speak to the average
redress for injury suffered by him. man as the negligent cause or causes of the untoward
consequence. 41 If there was such extraneous interventions, the
Thus, courts of other jurisdictions have applied the doctrine in the doctrine of res ipsa loquitur may be utilized and the defendant is
following situations: leaving of a foreign object in the body of the called upon to explain the matter, by evidence of exculpation, if he
patient after an operation, 32 injuries sustained on a healthy part of could. 42
the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another We find the doctrine of res ipsa loquitur appropriate in the case at
part was intended, 34 knocking out a tooth while a patient's jaw was bar. As will hereinafter be explained, the damage sustained by
under anesthetic for the removal of his tonsils, 35 and loss of an eye Erlinda in her brain prior to a scheduled gall bladder operation
while the patient plaintiff was under the influence of anesthetic, presents a case for the application of res ipsa loquitur.
during or following an operation for appendicitis, 36 among others.
A case strikingly similar to the one before us is Voss
Nevertheless, despite the fact that the scope of res ipsa loquitur has vs. Bridwell, 43 where the Kansas Supreme Court in applying the res
been measurably enlarged, it does not automatically apply to all ipsa loquitur stated:
cases of medical negligence as to mechanically shift the burden of
The plaintiff herein submitted himself for a mastoid who exercised complete and exclusive control over her. At the time
operation and delivered his person over to the care, of submission, Erlinda was neurologically sound and, except for a
custody and control of his physician who had few minor discomforts, was likewise physically fit in mind and body.
complete and exclusive control over him, but the However, during the administration of anesthesia and prior to the
operation was never performed. At the time of performance of cholecystectomy she suffered irreparable damage to
submission he was neurologically sound and her brain. Thus, without undergoing surgery, she went out of the
physically fit in mind and body, but he suffered operating room already decerebrate and totally incapacitated.
irreparable damage and injury rendering him Obviously, brain damage, which Erlinda sustained, is an injury which
decerebrate and totally incapacitated. The injury was does not normally occur in the process of a gall bladder operation. In
one which does not ordinarily occur in the process of fact, this kind of situation does not in the absence of negligence of
a mastoid operation or in the absence of negligence someone in the administration of anesthesia and in the use of
in the administration of an anesthetic, and in the use endotracheal tube. Normally, a person being put under anesthesia is
and employment of an endoctracheal tube. not rendered decerebrate as a consequence of administering such
Ordinarily a person being put under anesthesia is anesthesia if the proper procedure was followed. Furthermore, the
not rendered decerebrate as a consequence of instruments used in the administration of anesthesia, including the
administering such anesthesia in the absence of endotracheal tube, were all under the exclusive control of private
negligence. Upon these facts and under these respondents, who are the physicians-in-charge. Likewise, petitioner
circumstances a layman would be able to say, as a Erlinda could not have been guilty of contributory negligence
matter of common knowledge and observation, that because she was under the influence of anesthetics which rendered
the consequences of professional treatment were her unconscious.
not as such as would ordinarily have followed if due
care had been exercised. Considering that a sound and unaffected member of the body (the
brain) is injured or destroyed while the patient is unconscious and
Here the plaintiff could not have been guilty of under the immediate and exclusive control of the physicians, we hold
contributory negligence because he was under the that a practical administration of justice dictates the application of res
influence of anesthetics and unconscious, and the ipsa loquitur. Upon these facts and under these circumstances the
circumstances are such that the true explanation of Court would be able to say, as a matter of common knowledge and
event is more accessible to the defendants than to observation, if negligence attended the management and care of the
the plaintiff for they had the exclusive control of the patient. Moreover, the liability of the physicians and the hospital in
instrumentalities of anesthesia. this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in the
Upon all the facts, conditions and circumstances diagnosis or treatment as in fact no operation or treatment was ever
alleged in Count II it is held that a cause of action is performed on Erlinda. Thus, upon all these initial determination a
stated under the doctrine of res ipsa loquitur. 44 case is made out for the application of the doctrine of res ipsa
loquitur.
Indeed, the principles enunciated in the aforequoted case apply with
equal force here. In the present case, Erlinda submitted herself for Nonetheless, in holding that res ipsa loquitur is available to the
cholecystectomy and expected a routine general surgery to be present case we are not saying that the doctrine is applicable in any
performed on her gall bladder. On that fateful day she delivered her and all cases where injury occurs to a patient while under
person over to the care, custody and control of private respondents anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res In the instant case, the records are helpful in furnishing not only the
ipsa loquitur coverage. logical scientific evidence of the pathogenesis of the injury but also in
providing the Court the legal nexus upon which liability is based. As
Having in mind the applicability of the res ipsa loquitur doctrine and will be shown hereinafter, private respondents' own testimonies
the presumption of negligence allowed therein, the Court now comes which are reflected in the transcript of stenographic notes are replete
to the issue of whether the Court of Appeals erred in finding that of signposts indicative of their negligence in the care and
private respondents were not negligent in the care of Erlinda during management of Erlinda.
the anesthesia phase of the operation and, if in the affirmative,
whether the alleged negligence was the proximate cause of Erlinda's With regard to Dra. Gutierrez, we find her negligent in the care of
comatose condition. Corollary thereto, we shall also determine if the Erlinda during the anesthesia phase. As borne by the records,
Court of Appeals erred in relying on the testimonies of the witnesses respondent Dra. Gutierrez failed to properly intubate the patient. This
for the private respondents. fact was attested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's sister-in-law, who
In sustaining the position of private respondents, the Court of was in the operating room right beside the patient when the tragic
Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon event occurred. Witness Cruz testified to this effect:
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she was candid enough to ATTY. PAJARES:
admit that she experienced some difficulty in the endotracheal
intubation 45 of the patient and thus, cannot be said to be covering Q: In particular, what did Dra.
her negligence with falsehood. The appellate court likewise opined Perfecta Gutierrez do, if any on the
that private respondents were able to show that the brain damage patient?
sustained by Erlinda was not caused by the alleged faulty intubation
but was due to the allergic reaction of the patient to the drug
A: In particular, I could see that she
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified was intubating the patient.
on by their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was Q: Do you know what happened to
traceable to the wrongful insertion of the tube since the latter, being that intubation process administered
a nurse, was allegedly not knowledgeable in the process of by Dra. Gutierrez?
intubation. In so holding, the appellate court returned a verdict in
favor of respondents physicians and hospital and absolved them of ATTY. ALCERA:
any liability towards Erlinda and her family.
She will be incompetent Your
We disagree with the findings of the Court of Appeals. We hold that Honor.
private respondents were unable to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence COURT:
was the proximate cause of her piteous condition.
Witness may answer if she knows.
A: As have said, I was with the A: He made an order to call on the
patient, I was beside the stretcher anesthesiologist in the person of Dr.
holding the left hand of the patient Calderon.
and all of a sudden heard some
remarks coming from Dra. Perfecta Q: Did Dr. Calderon, upon being
Gutierrez herself. She was saying called, arrive inside the operating
"Ang hirap ma-intubate nito, mali room?
yata ang pagkakapasok. O lumalaki
ang tiyan. A: Yes sir.

xxx xxx xxx


Q: What did [s]he do, if any?

ATTY. PAJARES: A: [S]he tried to intubate the patient.

Q: From whom did you hear those


Q: What happened to the patient?
words "lumalaki ang tiyan"?
A: When Dr. Calderon try (sic) to
A: From Dra. Perfecta Gutierrez.
intubate the patient, after a while the
patient's nailbed became bluish and
xxx xxx xxx I saw the patient was placed in
trendelenburg position.
Q: After hearing the phrase
"lumalaki ang tiyan," what did you xxx xxx xxx
notice on the person of the patient?
Q: Do you know the reason why the
A: I notice (sic) some bluish patient was placed in that
discoloration on the nailbeds of the trendelenburg position?
left hand where I was at.
A: As far as I know, when a patient
Q: Where was Dr. Orlino Ho[s]aka is in that position, there is a
then at that particular time? decrease of blood supply to the
brain. 46
A: I saw him approaching the patient
during that time. xxx xxx xxx

Q: When he approached the patient, The appellate court, however, disbelieved Dean Cruz's testimony in
what did he do, if any? the trial court by declaring that:
A perusal of the standard nursing curriculum in our observation, we believe, does not require a medical degree to be
country will show that intubation is not taught as part acceptable.
of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and At any rate, without doubt, petitioner's witness, an experienced
cannot, intubate. Even on the assumption that she is clinical nurse whose long experience and scholarship led to her
fully capable of determining whether or not a patient appointment as Dean of the Capitol Medical Center School at
is properly intubated, witness Herminda Cruz, Nursing, was fully capable of determining whether or not the
admittedly, did not peep into the throat of the patient. intubation was a success. She had extensive clinical experience
(TSN, July 25, 1991, p. 13). More importantly, there starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
is no evidence that she ever auscultated the patient instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna
or that she conducted any type of examination to College of Nursing in San Pablo City; and then Dean of the Capitol
check if the endotracheal tube was in its proper Medical Center School of Nursing. 50Reviewing witness Cruz'
place, and to determine the condition of the heart, statements, we find that the same were delivered in a straightforward
lungs, and other organs. Thus, witness Cruz's manner, with the kind of detail, clarity, consistency and spontaneity
categorical statements that appellant Dra. Gutierrez which would have been difficult to fabricate. With her clinical
failed to intubate the appellee Erlinda Ramos and background as a nurse, the Court is satisfied that she was able to
that it was Dra. Calderon who succeeded in doing so demonstrate through her testimony what truly transpired on that
clearly suffer from lack of sufficient factual bases. 47 fateful day.

In other words, what the Court of Appeals is trying to impress is that Most of all, her testimony was affirmed by no less than respondent
being a nurse, and considered a layman in the process of intubation, Dra. Gutierrez who admitted that she experienced difficulty in
witness Cruz is not competent to testify on whether or not the inserting the tube into Erlinda's trachea, to wit:
intubation was a success.
ATTY. LIGSAY:
We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
Q: In this particular case, Doctora,
testify upon matters on which she is capable of observing such as,
while you were intubating at your
the statements and acts of the physician and surgeon, external first attempt (sic), you did not
appearances, and manifest conditions which are observable by any immediately see the trachea?
one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is
the accepted rule that expert testimony is not necessary for the proof DRA. GUTIERREZ:
of negligence in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of A: Yes sir.
skill or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that anesthesia Q: Did you pull away the tube
procedures have become so common, that even an ordinary person immediately?
can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of A: You do not pull the . . .
Q: Did you or did you not? history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
A: I did not pull the tube. performed by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally
Q: When you said "mahirap yata
involves investigating the following: cervical spine mobility,
ito," what were you referring to?
temporomandibular mobility, prominent central incisors, diseased or
artificial teeth, ability to visualize uvula and the thyromental
A: "Mahirap yata itong i-intubate," distance. 56Thus, physical characteristics of the patient's upper
that was the patient. airway that could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial assessment
Q: So, you found some difficulty in indicates possible problems (such as the alleged short neck and
inserting the tube? protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity
A: Yes, because of (sic) my first and mortality.
attempt, I did not see right away. 51
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Curiously in the case at bar, respondent Dra. Gutierrez made the Erlinda for the first time on the day of the operation itself, on 17 June
haphazard defense that she encountered hardship in the insertion of 1985. Before this date, no prior consultations with, or pre-operative
the tube in the trachea of Erlinda because it was positioned more evaluation of Erlinda was done by her. Until the day of the operation,
anteriorly (slightly deviated from the normal anatomy of a respondent Dra. Gutierrez was unaware of the physiological make-
person) 52 making it harder to locate and, since Erlinda is obese and up and needs of Erlinda. She was likewise not properly informed of
has a short neck and protruding teeth, it made intubation even more the possible difficulties she would face during the administration of
difficult. anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled operative
The argument does not convince us. If this was indeed observed, procedure was, therefore, an act of exceptional negligence and
private respondents adduced no evidence demonstrating that they professional irresponsibility. The measures cautioning prudence and
proceeded to make a thorough assessment of Erlinda's airway, prior vigilance in dealing with human lives lie at the core of the physician's
to the induction of anesthesia, even if this would mean postponing centuries-old Hippocratic Oath. Her failure to follow this medical
the procedure. From their testimonies, it appears that the procedure is, therefore, a clear indicia of her negligence.
observation was made only as an afterthought, as a means of
defense. Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of clinical
The pre-operative evaluation of a patient prior to the administration procedure, hoping that she could get away with it. Respondent Dra.
of anesthesia is universally observed to lessen the possibility of Gutierrez tried to muddle the difference between an elective surgery
anesthetic accidents. Pre-operative evaluation and preparation for and an emergency surgery just so her failure to perform the required
anesthesia begins when the anesthesiologist reviews the patient's pre-operative evaluation would escape unnoticed. In her testimony
medical records and visits with the patient, traditionally, the day she asserted:
before elective surgery. 53 It includes taking the patient's medical
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it room, and only on the actual date of the cholecystectomy. She
is good medical practice to see the negligently failed to take advantage of this important opportunity. As
patient a day before so you can such, her attempt to exculpate herself must fail.
introduce yourself to establish good
doctor-patient relationship and gain Having established that respondent Dra. Gutierrez failed to perform
the trust and confidence of the pre-operative evaluation of the patient which, in turn, resulted to a
patient? wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.
DRA. GUTIERREZ:
Private respondents repeatedly hammered the view that the cerebral
A: As I said in my previous anoxia which led to Erlinda's coma was due to
statement, it depends on the bronchospasm 59 mediated by her allergic response to the drug,
operative procedure of the Thiopental Sodium, introduced into her system. Towards this end,
anesthesiologist and in my case, they presented Dr. Jamora, a Fellow of the Philippine College of
with elective cases and normal Physicians and Diplomate of the Philippine Specialty Board of
cardio-pulmonary clearance like Internal Medicine, who advanced private respondents' theory that the
that, I usually don't do it except on oxygen deprivation which led to anoxic encephalopathy, 60 was due
emergency and on cases that have to an unpredictable drug reaction to the short-acting barbiturate. We
an abnormalities (sic). 58 find the theory of private respondents unacceptable.

However, the exact opposite is true. In an emergency procedure, First of all, Dr. Jamora cannot be considered an authority in the field
there is hardly enough time available for the fastidious demands of of anesthesiology simply because he is not an anesthesiologist.
pre-operative procedure so that an anesthesiologist is able to see Since Dr. Jamora is a pulmonologist, he could not have been
the patient only a few minutes before surgery, if at all. Elective capable of properly enlightening the court about anesthesia practice
procedures, on the other hand, are operative procedures that can and procedure and their complications. Dr. Jamora is likewise not an
wait for days, weeks or even months. Hence, in these cases, the allergologist and could not therefore properly advance expert opinion
anesthesiologist possesses the luxury of time to be at the patient's on allergic-mediated processes. Moreover, he is not a
beside to do a proper interview and clinical evaluation. There is pharmacologist and, as such, could not have been capable, as an
ample time to explain the method of anesthesia, the drugs to be expert would, of explaining to the court the pharmacologic and toxic
used, and their possible hazards for purposes of informed consent. effects of the supposed culprit, Thiopental Sodium (Pentothal).
Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and The inappropriateness and absurdity of accepting Dr. Jamora's
cooperative. testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own admission
Erlinda's case was elective and this was known to respondent Dra. that he formulated his opinions on the drug not from the practical
Gutierrez. Thus, she had all the time to make a thorough evaluation experience gained by a specialist or expert in the administration and
of Erlinda's case prior to the operation and prepare her for use of Sodium Pentothal on patients, but only from reading certain
anesthesia. However, she never saw the patient at the bedside. She references, to wit:
herself admitted that she had seen petitioner only in the operating
ATTY. LIGSAY: you can testify on pentothal here
with medical authority?
Q: In your line of expertise on
pulmonology, did you have any A: No. That is why I used references
occasion to use pentothal as a to support my claims. 61
method of management?
An anesthetic accident caused by a rare drug-induced
DR. JAMORA: bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic
A: We do it in conjunction with the encephalopathy belongs to the field of neurology. While admittedly,
anesthesiologist when they have to many bronchospastic-mediated pulmonary diseases are within the
intubate our patient. expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is
within the disciplines of anesthesiology, allergology and
Q: But not in particular when you
pharmacology. On the basis of the foregoing transcript, in which the
practice pulmonology?
pulmonologist himself admitted that he could not testify about the
drug with medical authority, it is clear that the appellate court erred in
A: No. giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
Q: In other words, your knowledge
about pentothal is based only on The provision in the rules of evidence 62 regarding expert witnesses
what you have read from books and states:
not by your own personal
application of the medicine
Sec. 49. Opinion of expert witness. — The opinion of
pentothal?
a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
A: Based on my personal possess, may be received in evidence.
experience also on pentothal.
Generally, to qualify as an expert witness, one must have acquired
Q: How many times have you used special knowledge of the subject matter about which he or she is to
pentothal? testify, either by the study of recognized authorities on the subject or
by practical experience. 63Clearly, Dr. Jamora does not qualify as an
A: They used it on me. I went into expert witness based on the above standard since he lacks the
bronchospasm during my necessary knowledge, skill, and training in the field of
appendectomy. anesthesiology. Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents' intentionally
Q: And because they have used it avoided providing testimony by competent and independent experts
on you and on account of your own in the proper areas.
personal experience you feel that
Moreover, private respondents' theory, that Thiopental Sodium may "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
have produced Erlinda's coma by triggering an allergic mediated ang tiyan." Thereafter, witness Cruz noticed abdominal distention on
response, has no support in evidence. No evidence of stridor, skin the body of Erlinda. The development of abdominal distention,
reactions, or wheezing — some of the more common accompanying together with respiratory embarrassment indicates that the
signs of an allergic reaction — appears on record. No laboratory data endotracheal tube entered the esophagus instead of the respiratory
were ever presented to the court. tree. In other words, instead of the intended endotracheal intubation
what actually took place was an esophageal intubation. During
In any case, private respondents themselves admit that Thiopental intubation, such distention indicates that air has entered the
induced, allergic-mediated bronchospasm happens only very rarely. gastrointestinal tract through the esophagus instead of the lungs
If courts were to accept private respondents' hypothesis without through the trachea. Entry into the esophagus would certainly cause
supporting medical proof, and against the weight of available some delay in oxygen delivery into the lungs as the tube which
evidence, then every anesthetic accident would be an act of God. carries oxygen is in the wrong place. That abdominal distention had
Evidently, the Thiopental-allergy theory vigorously asserted by been observed during the first intubation suggests that the length of
private respondents was a mere afterthought. Such an explanation time utilized in inserting the endotracheal tube (up to the time the
was advanced in order to advanced in order to absolve them of any tube was withdrawn for the second attempt) was fairly significant.
and all responsibility for the patient's condition. Due to the delay in the delivery of oxygen in her lungs Erlinda
showed signs of cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed
In view of the evidence at hand, we are inclined to believe
that the nailbeds of Erlinda were already blue. 67 However, private
petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition. respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims,
Proximate cause has been defined as that which, in natural and which supports the contention that the second intubation was
continuous sequence, unbroken by any efficient intervening cause, successful. Assuming that the endotracheal tube finally found its way
produces injury, and without which the result would not have into the proper orifice of the trachea, the same gave no guarantee of
occurred. 64 An injury or damage is proximately caused by an act or oxygen delivery, the hallmark of a successful intubation. In fact,
a failure to act, whenever it appears from the evidence in the case, cyanosis was again observed immediately after the second
that the act or omission played a substantial part in bringing about or intubation. Proceeding from this event (cyanosis), it could not be
actually causing the injury or damage; and that the injury or damage claimed, as private respondents insist, that the second intubation
was either a direct result or a reasonably probable consequence of was accomplished. Even granting that the tube was successfully
the act or omission. 65 It is the dominant, moving or producing cause. inserted during the second attempt, it was obviously too late. As
aptly explained by the trial court, Erlinda already suffered brain
Applying the above definition in relation to the evidence at hand, damage as a result of the inadequate oxygenation of her brain for
faulty intubation is undeniably the proximate cause which triggered about four to five minutes. 68
the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition. The above conclusion is not without basis. Scientific studies point out
that intubation problems are responsible for one-third (1/3) of deaths
Private respondents themselves admitted in their testimony that the and serious injuries associated with anesthesia. 69 Nevertheless,
first intubation was a failure. This fact was likewise observed by ninety-eight percent (98%) or the vast majority of difficult intubations
witness Cruz when she heard respondent Dra. Gutierrez remarked, may be anticipated by performing a thorough evaluation of the
patient's airway prior to the operation. 70 As stated beforehand, In the first place, hospitals exercise significant control in the hiring
respondent Dra. Gutierrez failed to observe the proper pre-operative and firing of consultants and in the conduct of their work within the
protocol which could have prevented this unfortunate incident. Had hospital premises. Doctors who apply for "consultant" slots, visiting
appropriate diligence and reasonable care been used in the pre- or attending, are required to submit proof of completion of residency,
operative evaluation, respondent physician could have been much their educational qualifications; generally, evidence of accreditation
more prepared to meet the contingency brought about by the by the appropriate board (diplomate), evidence of fellowship in most
perceived anatomic variations in the patient's neck and oral area, cases, and references. These requirements are carefully scrutinized
defects which would have been easily overcome by a prior by members of the hospital administration or by a review committee
knowledge of those variations together with a change in set up by the hospital who either accept or reject the
technique. 71 In other words, an experienced anesthesiologist, application. 75 This is particularly true with respondent hospital.
adequately alerted by a thorough pre-operative evaluation, would
have had little difficulty going around the short neck and protruding After a physician is accepted, either as a visiting or attending
teeth. 72 Having failed to observe common medical standards in pre- consultant, he is normally required to attend clinico-pathological
operative management and intubation, respondent Dra. Gutierrez' conferences, conduct bedside rounds for clerks, interns and
negligence resulted in cerebral anoxia and eventual coma of Erlinda. residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to
We now determine the responsibility of respondent Dr. Orlino maintain a clinic in the hospital, and/or for the privilege of admitting
Hosaka as the head of the surgical team. As the so-called "captain of patients into the hospital. In addition to these, the physician's
the ship," 73 it is the surgeon's responsibility to see to it that those performance as a specialist is generally evaluated by a peer review
under him perform their task in the proper manner. Respondent Dr. committee on the basis of mortality and morbidity statistics, and
Hosaka's negligence can be found in his failure to exercise the feedback from patients, nurses, interns and residents. A consultant
proper authority (as the "captain" of the operative team) in not remiss in his duties, or a consultant who regularly falls short of the
determining if his anesthesiologist observed proper anesthesia minimum standards acceptable to the hospital or its peer review
protocols. In fact, no evidence on record exists to show that committee, is normally politely terminated.
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that In other words, private hospitals, hire, fire and exercise real control
respondent Dr. Hosaka had scheduled another procedure in a over their attending and visiting "consultant" staff. While
different hospital at the same time as Erlinda's cholecystectomy, and "consultants" are not, technically employees, a point which
was in fact over three hours late for the latter's operation. Because of respondent hospital asserts in denying all responsibility for the
this, he had little or no time to confer with his anesthesiologist patient's condition, the control exercised, the hiring, and the right to
regarding the anesthesia delivery. This indicates that he was remiss terminate consultants all fulfill the important hallmarks of an
in his professional duties towards his patient. Thus, he shares equal employer-employee relationship, with the exception of the payment
responsibility for the events which resulted in Erlinda's condition. of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing,
We now discuss the responsibility of the hospital in this particular we rule that for the purpose of allocating responsibility in medical
incident. The unique practice (among private hospitals) of filling up negligence cases, an employer-employee relationship in effect exists
specialist staff with attending and visiting "consultants," 74 who are between hospitals and their attending and visiting physicians. This
allegedly not hospital employees, presents problems in apportioning being the case, the question now arises as to whether or not
responsibility for negligence in medical malpractice cases. However, respondent hospital is solidarily liable with respondent doctors for
the difficulty is only more apparent than real. petitioner's condition. 76
The basis for holding an employer solidarily responsible for the At current levels, the P8000/monthly amount established by the trial
negligence of its employee is found in Article 2180 of the Civil Code court at the time of its decision would be grossly inadequate to cover
which considers a person accountable not only for his own acts but the actual costs of home-based care for a comatose individual. The
also for those of others based on the former's responsibility under a calculated amount was not even arrived at by looking at the actual
relationship of patria potestas. 77 Such responsibility ceases when cost of proper hospice care for the patient. What it reflected were the
the persons or entity concerned prove that they have observed the actual expenses incurred and proved by the petitioners after they
diligence of a good father of the family to prevent damage. 78 In other were forced to bring home the patient to avoid mounting hospital
words, while the burden of proving negligence rests on the plaintiffs, bills.
once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they And yet ideally, a comatose patient should remain in a hospital or be
observed the diligence of a good father of a family to prevent transferred to a hospice specializing in the care of the chronically ill
damage. for the purpose of providing a proper milieu adequate to meet
minimum standards of care. In the instant case for instance, Erlinda
In the instant case, respondent hospital, apart from a general denial has to be constantly turned from side to side to prevent bedsores
of its responsibility over respondent physicians, failed to adduce and hypostatic pneumonia. Feeding is done by nasogastric tube.
evidence showing that it exercised the diligence of a good father of a Food preparation should be normally made by a dietitian to provide
family in the hiring and supervision of the latter. It failed to adduce her with the correct daily caloric requirements and vitamin
evidence with regard to the degree of supervision which it exercised supplements. Furthermore, she has to be seen on a regular basis by
over its physicians. In neglecting to offer such proof, or proof of a a physical therapist to avoid muscle atrophy, and by a pulmonary
similar nature, respondent hospital thereby failed to discharge its therapist to prevent the accumulation of secretions which can lead to
burden under the last paragraph of Article 2180. Having failed to do respiratory complications.
this, respondent hospital is consequently solidarily responsible with
its physicians for Erlinda's condition. Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least reflect
Based on the foregoing, we hold that the Court of Appeals erred in the correct minimum cost of proper care, not the cost of the care the
accepting and relying on the testimonies of the witnesses for the family is usually compelled to undertake at home to avoid
private respondents. Indeed, as shown by the above discussions, bankruptcy. However, the provisions of the Civil Code on actual or
private respondents were unable to rebut the presumption of compensatory damages present us with some difficulties.
negligence. Upon these disquisitions we hold that private
respondents are solidarily liable for damages under Article 2176 79 of Well-settled is the rule that actual damages which may be claimed by
the Civil Code. the plaintiff are those suffered by him as he has duly proved. The
Civil Code provides:
We now come to the amount of damages due petitioners. The trial
court awarded a total of P632,000.00 pesos (should be P616,000.00) Art. 2199. — Except as provided by law or by
in compensatory damages to the plaintiff, "subject to its being stipulation, one is entitled to an adequate
updated" covering the period from 15 November 1985 up to 15 April compensation only for such pecuniary loss suffered
1992, based on monthly expenses for the care of the patient by him as he has duly proved. Such compensation is
estimated at P8,000.00. referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume P1,500,000.00 in temperate damages would therefore be
that at the time of litigation, the injury suffered as a consequence of reasonable. 81
an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account In Valenzuela vs. Court of Appeals, 82 this Court was confronted with
those situations, as in this case, where the resulting injury might be a situation where the injury suffered by the plaintiff would have led to
continuing and possible future complications directly arising from the expenses which were difficult to estimate because while they would
injury, while certain to occur, are difficult to predict. have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the
In these cases, the amount of damages which should be awarded, if future. We awarded P1,000,000.00 in moral damages in that case.
they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and Describing the nature of the injury, the Court therein stated:
proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of the As a result of the accident, Ma. Lourdes Valenzuela
case, be made with certainty. 80 In other words, temperate damages underwent a traumatic amputation of her left lower
can and should be awarded on top of actual or compensatory
extremity at the distal left thigh just above the knee.
damages in instances where the injury is chronic and continuing.
Because of this, Valenzuela will forever be deprived
And because of the unique nature of such cases, no incompatibility
of the full ambulatory functions of her left extremity,
arises when both actual and temperate damages are provided for.
even with the use of state of the art prosthetic
The reason is that these damages cover two distinct phases. technology. Well beyond the period of hospitalization
(which was paid for by Li), she will be required to
As it would not be equitable — and certainly not in the best interests undergo adjustments in her prosthetic devise due to
of the administration of justice — for the victim in such cases to the shrinkage of the stump from the process of
constantly come before the courts and invoke their aid in seeking healing.
adjustments to the compensatory damages previously awarded —
temperate damages are appropriate. The amount given as
These adjustments entail costs, prosthetic
temperate damages, though to a certain extent speculative, should
replacements and months of physical and
take into account the cost of proper care.
occupational rehabilitation and therapy. During the
lifetime, the prosthetic devise will have to be
In the instant case, petitioners were able to provide only home-based replaced and readjusted to changes in the size of
nursing care for a comatose patient who has remained in that her lower limb effected by the biological changes of
condition for over a decade. Having premised our award for middle-age, menopause and aging. Assuming she
compensatory damages on the amount provided by petitioners at the reaches menopause, for example, the prosthetic will
onset of litigation, it would be now much more in step with the have to be adjusted to respond to the changes in
interests of justice if the value awarded for temperate damages bone resulting from a precipitate decrease in
would allow petitioners to provide optimal care for their loved one in calcium levels observed in the bones of all post-
a facility which generally specializes in such care. They should not menopausal women. In other words, the damage
be compelled by dire circumstances to provide substandard care at done to her would not only be permanent and
home without the aid of professionals, for anything less would be lasting, it would also be permanently changing and
grossly inadequate. Under the circumstances, an award of adjusting to the physiologic changes which her body
would normally undergo through the years. The altering their long term goals to take into account their life with a
replacements, changes, and adjustments will require comatose patient. They, not the respondents, are charged with the
corresponding adjustive physical and occupational moral responsibility of the care of the victim. The family's moral injury
therapy. All of these adjustments, it has been and suffering in this case is clearly a real one. For the foregoing
documented, are painful. reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
xxx xxx xxx
Finally, by way of example, exemplary damages in the amount of
A prosthetic devise, however technologically P100,000.00 are hereby awarded. Considering the length and nature
advanced, will only allow a reasonable amount of of the instant suit we are of the opinion that attorney's fees valued at
functional restoration of the motor functions of the P100,000.00 are likewise proper.
lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological Our courts face unique difficulty in adjudicating medical negligence
injury, mental and physical pain are inestimable. 83 cases because physicians are not insurers of life and, they rarely set
out to intentionally cause injury or death to their patients. However,
The injury suffered by Erlinda as a consequence of private intent is immaterial in negligence cases because where negligence
respondents' negligence is certainly much more serious than the exists and is proven, the same automatically gives the injured a right
amputation in the Valenzuela case. to reparation for the damage caused.

Petitioner Erlinda Ramos was in her mid-forties when the incident Established medical procedures and practices, though in constant
occurred. She has been in a comatose state for over fourteen years flux are devised for the purpose of preventing complications. A
now. The burden of care has so far been heroically shouldered by physician's experience with his patients would sometimes tempt him
her husband and children, who, in the intervening years have been to deviate from established community practices, and he may end a
deprived of the love of a wife and a mother. distinguished career using unorthodox methods without incident.
However, when failure to follow established procedure results in the
evil precisely sought to be averted by observance of the procedure
Meanwhile, the actual physical, emotional and financial cost of the
and a nexus is made between the deviation and the injury or
care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if damage, the physician would necessarily be called to account for it.
petitioner's condition remains unchanged for the next ten years. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way
was fatal to private respondents' case.
We recognized, in Valenzuela that a discussion of the victim's actual
injury would not even scratch the surface of the resulting moral
damage because it would be highly speculative to estimate the WHEREFORE, the decision and resolution of the appellate court
amount of emotional and moral pain, psychological damage and appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
injury suffered by the victim or those actually affected by the victim's
1) P1,352,000.00 as actual damages computed as of the date of
condition. 84 The husband and the children, all petitioners in this
promulgation of this decision plus a monthly payment of P8,000.00
case, will have to live with the day to day uncertainty of the patient's
up to the time that petitioner Erlinda Ramos expires or miraculously
illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner, survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages
and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.