of examinations which included blood and urine tests (Exhs.
A and C) which indicated she was fit for surgery.
[G.R. No. 124354. December 29, 1999]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK
RAMOS and RON RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS,
DELOS SANTOS MEDIC AL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
DECISION
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made
accountable for his acts. A mistake, through gross negligence
or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor
plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital should
be made liable for the unfortunate comatose condition of a
patient scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the decision [3] of the
Court of Appeals, dated 29 May 1995, which overturned the
decision[4]of the Regional Trial Court, dated 30 January 1992,
finding private respondents liable for damages arising from
negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose
condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. A) robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5),
she was as normal as any other woman. Married to Rogelio E.
Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5). She underwent a series
Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be Hosaka;
see TSN, February 20, 1990, p. 3), one of the defendants in
this case, on June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant), would be
on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after examining
the documents (findings from the Capitol Medical Center,
FEU Hospital and DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka charged a fee
of P16,000.00, which was to include the anesthesiologists fee
and which was to be paid after the operation (TSN, October
19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990,
p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p.
11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital
staff. Her sister-in-law, Herminda Cruz, who was the Dean of
the College of Nursing at the Capitol Medical Center, was
also there for moral support. She reiterated her previous
request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands
were held by Herminda as they went down from her room to
the operating room (TSN, January 13, 1988, pp. 9-11). Her
husband, Rogelio, was also with her (TSN, October 19, 1989,
p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a member of
the hospital staff, Herminda introduced herself as Dean of the
College of Nursing at the Capitol Medical Center who was to
provide moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone
to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda
Cruz about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient who asked,
Mindy, wala pa ba ang Doctor? The former replied, Huwag
kang mag-alaala, darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and
informed the patients husband, Rogelio, that the doctor was
not yet around (id., p. 13). When she returned to the operating
room, the patient told her, Mindy, inip na inip na ako, ikuha
mo ako ng ibang Doctor. So, she went out again and told
Rogelio about what the patient said (id., p. 15). Thereafter,
she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying
[and] waiting for the arrival of the doctor even as he did his
best to find somebody who will allow him to pull out his wife
from the operating room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his wife, who was
inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr.
Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived
as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na
raw. Upon hearing those words, he went down to the lobby
and waited for the operation to be completed (id., pp. 16, 29-
30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that Dr.
Hosaka is already here. She then saw people inside the
operating room moving, doing this and that, [and] preparing
the patient for the operation (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard
Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of
the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard
Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon
arrived at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed became
bluish and the patient was placed in a trendelenburg position -
a position where the head of the patient is placed in a position
lower than her feet which is an indication that there is a
decrease of blood supply to the patients brain (Id., pp. 19-
20). Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos that something wrong
was x x x happening (Ibid.). Dr. Calderon was then able to
intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room,
saw a respiratory machine being rushed towards the door of
the operating room. He also saw several doctors rushing
towards the operating room.When informed by Herminda
Cruz that something wrong was happening, he told her
(Herminda) to be back with the patient inside the operating
room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk
to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told
to him, Rogelio reminded the doctor that the condition of his
wife would not have happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital
to explain what happened to the patient. The doctors
explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of
a promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part
of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of
the absence of oxygen in her brain for four to five minutes
(TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still
needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00
to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
also diagnosed to be suffering from diffuse cerebral
parenchymal damage (Exh. G; see also TSN, December 21,
1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil
[6]
case for damages with the Regional Trial Court of Quezon
City against herein private respondents alleging negligence in
the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlindas injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino
to prove that the damage sustained by Erlinda was due to lack
of oxygen in her brain caused by the faulty management of
her airway by private respondents during the anesthesia
phase. On the other hand, private respondents primarily relied
on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage
was Erlindas allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts
set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so
holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of
atropine (TSN, August 20, 1991, pp. 5-10), without due
regard to the fact that the patient was inside the operating
room for almost three (3) hours. For after she committed a
mistake in intubating [the] patient, the patient's nailbed
became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood
supply to the patient's brain. The evidence further shows that
the hapless patient suffered brain damage because of the
absence of oxygen in her (patient's) brain for approximately
four to five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is
liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of his
obligation to provide the patient a `good anesthesiologist',
and for arriving for the scheduled operation almost three (3)
hours late.
On the part of DLSMC (the hospital), this Court finds that it
is liable for the acts of negligence of the doctors in their
`practice of medicine' in the operating room. Moreover, the
hospital is liable for failing through its responsible officials,
to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by
defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the
patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after
her (the patient's) nailbed turned bluish, belie their
claim. Furthermore, the defendants should have rescheduled
the operation to a later date. This, they should have done, if
defendants acted with due care and prudence as the patient's
case was an elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is
rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly
and severally, the former the following sums of money, to
wit:
1) the sum of P8,000.00 as actual monthly expenses for the
plaintiff Erlinda Ramos reckoned from November 15, 1985 or
in the total sum of P632,000.00 as of April 15, 1992, subject
to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the
further sum of P200,000.00 by way of exemplary damages;
and,
4) the costs of the suit.
SO ORDERED.[7]
Private respondents seasonably interposed an appeal to
the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the
trial court. The decretal portion of the decision of the
appellate court reads:
WHEREFORE, for the foregoing premises the appealed
decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered
to pay the unpaid hospital bills amounting to P93,542.25, plus
legal interest for justice must be tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals was received on 9
June 1995 by petitioner Rogelio Ramos who was mistakenly
addressed as Atty. Rogelio Ramos. No copy of the decision,
however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion
for reconsideration.The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court
denied the motion for extension of time in its Resolution
dated 25 July 1995.[9] Meanwhile petitioners engaged the
services of another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the
period to file the appropriate pleading on the assailed decision
had not yet commenced to run as the Division Clerk of Court
of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate
court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15)
period for filing a motion for reconsideration had already
expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of
a Motion for Reconsideration cannot be extended; precisely,
the Motion for Extension (Rollo, p. 12) was denied. It is, on
the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion
for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
SO ORDERED.[10]
A copy of the above resolution was received by Atty.
Sillano on 11 April 1996. The next day, or on 12 April 1996,
Atty. Sillano filed before this Court a motion for extension of
time to file the present petition for certiorari under Rule
45. The Court granted the motion for extension of time and
gave petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted from the
receipt of the resolution of the Court of Appeals within which
to submit the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the extended
period given by the Court.
Petitioners assail the decision of the Court of Appeals on
the following grounds:
I petition. Based on this, the petition before us was submitted
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA
LOQUITUR.[11]
Before we discuss the merits of the case, we shall first
dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed by
petitioners with the Court of Appeals. In their Comment,
[12]
private respondents contend that the petition should not be
given due course since the motion for reconsideration of the
petitioners on the decision of the Court of Appeals was
validly dismissed by the appellate court for having been filed
beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of petitioners,
the Coronel Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein he was mistakenly
addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on
record. Thus, no copy of the decision of the appellate court
was furnished to the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by
counsel, all notices should be sent to the partys lawyer at his
given address. With a few exceptions, notice to a litigant
without notice to his counsel on record is no notice at all. In
the present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner, there
can be no sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner,
we believe that the receipt of the former should be considered
in determining the timeliness of the filing of the present
on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
the thing or the transaction speaks for itself. The phrase res
ipsa loquitur is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima
facie case, and present a question of fact for defendant to
meet with an explanation.[13] Where the thing which caused
the injury complained of is shown to be under the
management of the defendant or his servants and the accident
is such as in ordinary course of things does not happen if
those who have its management or control use proper care, it
affords reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was caused by
the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition
of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who is
charged with negligence.[15] It is grounded in the superior
logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
[16]
Hence, res ipsa loquitur isapplied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is
not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability.
[17]
Instead, it is considered as merely evidentiary or in the
nature of a procedural rule.[18] It is regarded as a mode of
proof, or a mere procedural convenience since it furnishes a
substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence.[19] In other words,
mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the
plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to
thereby place on the defendant the burden of going forward
with the proof.[20] Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily
shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.[21]
In the above requisites, the fundamental element is the
control of the instrumentality which caused the damage.
[22]
Such element of control must be shown to be within the
dominion of the defendant. In order to have the benefit of the
rule, a plaintiff, in addition to proving injury or damage, must
show a situation where it is applicable, and must establish
that the essential elements of the doctrine were present in a
particular incident.[23]
[24]
Medical malpractice cases do not escape the
application of this doctrine. Thus, res ipsa loquitur has been
applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of
negligence as the cause of that harm.[25] The application of res
ipsa loquitur in medical negligence cases presents a question
of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a
given inference.[26]
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof
of negligence.[27] 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.
[28]
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one may be
given by non-expert witnesses.[29] 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.[30] 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. [31] 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 loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,[32] injuries
sustained on a healthy part of the body which was not under,
or in the area, of treatment,[33] removal of the wrong part of
the body when another part was intended,[34] knocking out a
tooth while a patients jaw was under anesthetic for the
removal of his tonsils,[35] and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily
used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised.[37] 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 surgeon which involves the merits of a diagnosis or of a
scientific treatment.[38] The physician or surgeon is not
required at his peril to explain why any particular diagnosis
was not correct, or why any particular scientific treatment did
not produce the desired result. [39] Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not
accomplished.[40] The real question, therefore, is whether or
not in the process of the operation any extraordinary incident
or unusual event outside of the routine performance occurred
which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. [41] If
there was such extraneous interventions, the doctrine of res
ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.
[42]
We find the doctrine of res ipsa loquitur appropriate in
the case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application of res
ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell,[43] where the Kansas Supreme Court in applying
the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care, custody
and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At
the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily
occur in the process of a mastoid operation or in the absence
of negligence in the administration of an anesthetic, and in
the use and employment of an endoctracheal tube. Ordinarily
a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a
matter of common knowledge and observation, that the
consequences of professional treatment were not as such as
would ordinarily have followed if due care had been
exercised.
Here the plaintiff could not have been guilty of contributory
negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than
to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine
general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete
and exclusive control over her. At the time of submission,
Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of anesthesia and
prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain
damage, which Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder operation. In
fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia
and in the use of endotracheal tube. Normally, a person being
put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in
the administration of anesthesia, including the endotracheal
tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise,
petitioner Erlinda could not have been guilty of contributory
negligence because she was under the influence of anesthetics
which rendered her unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control
of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon
these facts and under these circumstances the Court would be
able to say, as a matter of common knowledge and
observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and
the hospital in this case is not predicated upon an alleged
failure to secure the desired results of an operation nor on an
alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus,
upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all anesthesia
cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the
Court of Appeals erred in finding that private respondents
were not negligent in the care of Erlinda during the anesthesia
phase of the operation and, if in the affirmative, whether the
alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the
Court of Appeals relied on the testimonies of Dra. Gutierrez,
Dra. Calderon and Dr. Jamora. In giving weight to the
testimony of Dra. Gutierrez, the Court of Appeals rationalized
that she was candid enough to admit that she experienced
some difficulty in the endotracheal intubation [45]of the patient
and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged faulty
intubation but was due to the allergic reaction of the patient to
the drug Thiopental Sodium (Pentothal), a short-acting
barbiturate, as testified on by their expert witness, Dr.
Jamora. On the other hand, the appellate court rejected the
testimony of Dean Herminda Cruz offered in favor of
petitioners that the cause of the brain injury was traceable to
the wrongful insertion of the tube since the latter, being a
nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of
Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the
care of Erlinda and their negligence was the proximate cause
of her piteous condition.
In the instant case, the records are helpful in furnishing
not only the logical scientific evidence of the pathogenesis of
the injury but also in providing the Court the legal nexus
upon which liability is based. As will be shown hereinafter,
private respondents own testimonies which are reflected in
the transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in
the care of Erlinda during the anesthesia phase. As borne by
the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof.
Herminda Cruz, Dean of the Capitol Medical Center School
of Nursing and petitioner's sister-in-law, who was in the
operating room right beside the patient when the tragic event
occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if
any on the patient?
A: In particular, I could see that she was intubating the
patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of
a sudden I heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was saying Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did
you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds
of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular
time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if
any?
A: He made an order to call on the anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient,
after a while the patients nailbed became bluish and I
saw the patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in
that trendelenburg position?
A: As far as I know, when a patient is in that position,
there is a decrease of blood supply to the brain. [46]
xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country
will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on the
assumption that she is fully capable of determining whether
or not a patient is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is no evidence
that she ever auscultated the patient or that she conducted any
type of examination to check if the endotracheal tube was in
its proper place, and to determine the condition of the heart,
lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient
factual bases.[47]
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman in the
process of intubation, witness Cruz is not competent to testify
on whether or not the intubation was a success.
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements and
acts of the physician and surgeon, external appearances, and
manifest conditions which are observable by any one.[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 of negligence in non-technical matters
or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so
obvious as to render expert testimony unnecessary.[49] We take
judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it
was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to
be acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of
determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in
Chicago, Illinois; staff nurse and clinical instructor in a
teaching hospital, the FEU-NRMF; Dean of the Laguna
College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. [50]Reviewing
witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail,
clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse,
the Court is satisfied that she was able to demonstrate through
her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were
intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you
referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see
right away.[51]
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered hardship in
the insertion of the tube in the trachea of Erlinda because it
was positioned more anteriorly (slightly deviated from the
normal anatomy of a person)[52] making it harder to locate
and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative
evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patients medical records and
visits with the patient, traditionally, the day before elective
surgery.[53] It includes taking the patients medical history,
review of current drug therapy, physical examination and
interpretation of laboratory data. [54] The physical examination
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 involves investigating the
following: cervical spine mobility, temporomandibular
mobility, prominent central incisors, diseased or artificial
teeth, ability to visualize uvula and the thyromental distance.
[56]
Thus, physical characteristics of the patients upper airway
that could make tracheal intubation difficult should be
studied.[57] Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck
and protruding teeth of Erlinda) a thorough examination of
the patients airway would go a long way towards decreasing
patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was
done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and
needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the
physicians centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a clear indicia of
her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre-
operative evaluation would escape unnoticed. In her
testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice
to see the patient a day before so you can introduce yourself
to establish good doctor-patient relationship and gain the trust
and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the
operative procedure of the anesthesiologist and in my case,
with elective cases and normal cardio-pulmonary clearance
like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). [58]
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks
or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to make a proper assessment,
including the time to be at the patient's bedside to do a proper
interview and clinical evaluation. There is ample time to
explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed
consent. Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the patient is
relaxed and cooperative.
Erlindas case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to make
a thorough evaluation of Erlindas case prior to the operation
and prepare her for anesthesia.However, she never saw the
patient at the bedside. She herself admitted that she had seen
petitioner only in the operating room, and only on the actual
date of the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her attempt
to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed
to perform pre-operative evaluation of the patient which, in
turn, resulted to a wrongful intubation, we now determine if
the faulty intubation is truly the proximate cause of Erlindas
comatose condition.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlindas coma was due to
bronchospasm[59] mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her
system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate
of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, [60] was due to
an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority
in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as
an expert would, of explaining to the court the pharmacologic
and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamoras testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by
his own admission that he formulated his opinions on the
drug not from the practical experience gained by a specialist
or expert in the administration and use of Sodium Pentothal
on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have
any occasion to use pentothal as a method of
management?
 DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when
they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is
based only on what you have read from books and
not by your own personal application of the medicine
pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during
my appendectomy.
Q: And because they have used it on you and on account
of your own personal experience you feel that you
can testify on pentothal here with medical authority?
A: No. That is why I used references to support my
claims.[61]
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in
which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that
the appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of Thiopental
Sodium.
The provision in the rules of evidence [62]regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of
a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience.
[63]
Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary
knowledge, skill, and training in the field of
anesthesiology.Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents intentionally
avoided providing testimony by competent and independent
experts in the proper areas.
Moreover, private respondents theory, that Thiopental
Sodium may have produced Erlinda's coma by triggering an
allergic mediated response, has no support in evidence. No
evidence of stridor, skin reactions, or wheezing - some of the
more common accompanying signs of an allergic reaction -
appears on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm happens
only very rarely. If courts were to accept private respondents'
hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy
theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to
absolve them of any and all responsibility for the patients
condition.
In view of the evidence at hand, we are inclined to
believe petitioners stand that it was the faulty intubation
which was the proximate cause of Erlindas comatose
condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the
result would not have occurred. [64] An injury or damage is
proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or omission
played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of
the act or omission.[65] It is the dominant, moving or
producing cause.
Applying the above definition in relation to the evidence
at hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
Thereafter, witness Cruz noticed abdominal distention on the
body of Erlinda. The development of abdominal distention,
together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention
indicates that air has entered the gastrointestinal tract through
the esophagus instead of the lungs through the trachea. Entry
into the esophagus would certainly cause some delay in
oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had
been observed during the first intubation suggests that the
length of time utilized in inserting the endotracheal tube (up
to the time the tube was withdrawn for the second attempt)
was fairly significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis. [66] As
stated in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds of
Erlinda were already blue. [67] However, private 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, which supports the contention that the second
intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen delivery, the
hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not
be claimed, as private respondents insist, that the second
intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was
obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to five
minutes.[68]
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible for
one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patients airway prior
to the operation.[70] As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patients
neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together
with a change in technique.[71] In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-
operative evaluation, would have had little difficulty going
around the short neck and protruding teeth. [72] Having failed
to observe common medical standards in pre-operative
management and intubation, respondent Dra. Gutierrez
negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the so-
called captain of the ship,[73] it is the surgeons responsibility
to see to it that those under him perform their task in the
proper manner. Respondent Dr. Hosakas negligence can be
found in his failure to exercise the proper authority (as the
captain of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact,
no evidence on record exists to show that respondent Dr.
Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient.Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as
Erlindas cholecystectomy, and was in fact over three hours
late for the latters operation. Because of this, he had little or
no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his
professional duties towards his patient.Thus, he shares equal
responsibility for the events which resulted in Erlindas
condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting consultants,[74] who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
consultant slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application.[75]This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for
clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities, for
the privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the
hospital. In addition to these, the physicians performance as a
specialist is generally evaluated by a peer review committee
on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly
falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting consultant
staff. While consultants are not, technically employees, a
point which respondent hospital asserts in denying all
responsibility for the patients condition, the control exercised,
the hiring, and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we
rule that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and
visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioners condition. [76]
The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article 2180 of
the Civil Code which considers a person accountable not only
for his own acts but also for those of others based on the
formers responsibility under a relationship of patria potestas.
[77]
Such responsibility ceases when the persons or entity
concerned prove that they have observed the diligence of a
good father of the family to prevent damage. [78] In other
words, while the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good father
of a family to prevent damage.
In the instant case, respondent hospital, apart from a
general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent hospital
thereby failed to discharge its burden under the last paragraph
of Article 2180. Having failed to do this, respondent hospital
is consequently solidarily responsible with its physicians for
Erlindas condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown
by the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these disquisitions
we hold that private respondents are solidarily liable for
damages under Article 2176[79] of the Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to
the plaintiff, subject to its being updated covering the period
from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated
at P8,000.00.
At current levels, the P8000/monthly amount established
by the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a
comatose individual.The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced
to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the care
of the chronically ill for the purpose of providing a proper
milieu adequate to meet minimum standards of care. In the
instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic
pneumonia. Feeding is done by nasogastric tube. Food
preparation should be normally made by a dietitian to provide
her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular
basis by a physical therapist to avoid muscle atrophy, and by
a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence should
at least reflect the correct minimum cost of proper care, not
the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.
Well-settled is the rule that actual damages which may
be claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation, one
is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case, be
made with certainty.[80] In other words, temperate damages
can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases,
no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages
cover two distinct phases.
As it would not be equitable - and certainly not in the
best interests of the administration of justice - for the victim
in such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory damages
previously awarded - temperate damages are appropriate. The
amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having
premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it
would be now much more in step with the interests of justice
if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate
damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result
of the injury (amputation), and were certain to be incurred by
the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be
deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will
be required to undergo adjustments in her prosthetic
devise due to the shrinkage of the stump from the
process of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During her
lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her
lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in
bone resulting from a precipitate decrease in calcium
levels observed in the bones of all post-menopausal
women. In other words, the damage done to her
would not only be permanent and lasting, it would
also be permanently changing and adjusting to the
physiologic changes which her body
would normally undergo through the years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been
documented, are painful.
x x x.
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the
lower limb. The sensory functions are forever
lost.The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are
inestimable.[83]
The injury suffered by Erlinda as a consequence of
private respondents negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when
the incident occurred. She has been in a comatose state for
over fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in
the intervening years have been deprived of the love of a wife
and a mother.
Meanwhile, the actual physical, emotional and financial
cost of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would
be inadequate if petitioners condition remains unchanged for
the next ten years.
We recognized, in Valenzuela that a discussion of the
victims actual injury would not even scratch the surface of
the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral
pain, psychological damage and injury suffered by the victim
or those actually affected by the victims condition. [84] The
husband and the children, all petitioners in this case, will
have to live with the day to day uncertainty of the patients
illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the
victim. The familys moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award
of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death
to their patients.However, intent is immaterial in negligence
cases because where negligence exists and is proven, the
same automatically gives the injured a right to reparation for
the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physicians experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account
for it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents
case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual
damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time
that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages,
3) P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorneys fees; and, 5) the costs of
the suit.
SO ORDERED.