2 - Ramos vs. Court of Appeals 321 SCRA 584

G.R. No. 124354. December 29, 1999.
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs. COURT OF
APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ,
respondents.
Remedial Law; Pleadings and Practice; When a party is represented by counsel, all notices should be
sent to the party’s lawyer at his given address.—It is elementary that when a party is represented by
counsel, all notices should be sent to the party’s lawyer at his given address. With a few exceptions,
notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can
be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration
cannot be taken against petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.—Res ipsa loquitur is a Latin phrase
which literally means “the thing or the transaction speaks for itself.” The phrase “res ipsa loquitur” is a
maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for defendant to meet with an explanation. Where the
thing which caused the injury complained of is shown to be under the management of the defen-
________________
* FIRST DIVISION.
585
VOL. 321, DECEMBER 29, 1999
585
Ramos vs. Court of Appeals

dant or his servants and the accident is such as in ordinary course of things does not happen if those
who have its management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the defendant’s want of
care.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction with the doctrine of common
knowledge.—The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter
of common knowledge and experience, the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common knowledge.
Same; Same; Same; Same; Mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence; Requisites before resort to the doctrine may be allowed.—Much
has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural
convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to
thereby place on the defendant the burden of going forward with the proof. Still, before resort to the
doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a
kind which ordinarily does not occur in the absence of someone’s negligence; 2. It is caused by an
instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of
contributing conduct which would make the plaintiff responsible is eliminated.
586
586
SUPREME COURT REPORTS ANNOTATED

Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury itself provides the proof of negligence.—
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses.
Same; Same; Same; Same; Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used
but a rule to be cautiously applied depending upon the circumstances of each case.—Despite the fact
that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all
cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that
he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It
is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as
would ordinarily have followed if due care had been exercised.
Same; Same; Same; Same; Res ipsa loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not accomplished.—It must be conceded that
the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at
his peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce
587

587
the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that
the desired result of an operation or treatment was not accomplished.
Hospitals; Damages; Proximate Cause Defined.—Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. An injury or damage is proximately caused by an act
or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable consequence of the act or omission. It is the
dominant, moving or producing cause.
Same; Same; For the purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and visiting physicians.—
Private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff.
While “consultants” are not, technically employees, a point which respondent hospital asserts in
denying all responsibility for the patient’s condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s
condition.
Same; Same; The basis for holding an employer solidarily responsible for the negligence of its employee
is found in Article 2180 of the Civil Code.—The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the former’s responsibility
under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of the family to prevent damage. In other
words, while the burden of proving negligence rests
588
588
on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.
Same; Same; Amount of damages awarded may be a continuing one where the injury is chronic and
continuing, as when the patient is comatose.—In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with
certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De los Santos Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for DLSMC.

Antonio H. Abad & Associates for respondent doctors.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference
589
589
between life and death. In this sense, the doctor plays God on his patient’s fate.1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy.2
Petitioners seek the reversal of the decision3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. “A”) robust woman
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly
caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal
as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are
________________
1 In the United States alone, a great number of people die every year as a result of medical mishaps. The
13 December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled “Doctors’
Deadly Mistakes” which is quoted in part: “It is hardly news that medical professionals make mistakes—
even dumb, deadly mistakes. What is shocking is how often it happens. Depending on which statistics
you believe, the number of Americans killed by medical screw-ups is somewhere between 44,000 and
98,000 every year—the eighth leading cause of death even by the more conservative figure, ahead of
car crashes, breast cancer and AIDS. More astonishing than the huge numbers themselves, though, is
the fact that public health officials had known about the problem for years and hadn’t made a concerted
effort to do something about it.”
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
590
590
Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional advice. She
was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. “A” and
“C”) which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990,
p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating
table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M. Dr. Hosaka decided
that she should undergo a “cholecystectomy” operation after examining the documents (findings from
the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however,
asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get
a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist’s fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15,
22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by
the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the
Capitol Medical Center, was also there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After praying, she was given injections. Her hands
were held by Herminda as they went down from her room to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who
was to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself
as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral
591
591

support to the patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect
of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, “Mindy, wala
pa ba ang Doctor”? The former replied, “Huwag kang mag-alaala, darating na iyon” (ibid.).
Thereafter, Herminda went out of the operating room and informed the patient’s husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told
her, “Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor.” So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was “already dying [and] waiting for the arrival of the doctor”
even as he did his best to find somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
“Nandiyan na si Dr. Hosaka, dumating na raw.” Upon hearing those words, he went down to the lobby
and waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that “Dr. Hosaka is already here.” She then saw people inside the operating room
“moving, doing this and that, [and] preparing the patient for the operation” (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient.
She thereafter heard Dr. Gutierrez say, “ang hirap maintubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan” (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand
of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
oper-
592
592
ating room, she saw this anesthesiologist trying to intubate the patient. The patient’s nailbed became
bluish and the patient was placed in a trendelenburg position—a position where the head of the patient
is placed in a position lower than her feet which is an indication that there is a decrease of blood supply
to the patient’s brain (id., pp. 19-20). Immediately thereafter, she went out of the operating room, and
she told Rogelio E. Ramos “that something wrong was x x x happening” (ibid.). Dr. Calderon was then
able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating
room. When informed by Herminda Cruz that something wrong was happening, he told her (Herminda)
to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka)
looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient.
The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985,
the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which
is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot
do anything. She cannot move any part of her body. She cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been
staying in their residence, still needing constant
593
593
medical attention, with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from “diffuse
cerebral parenchymal damage” (Exh. “G”; see also TSN, December 21, 1989, p. 6).5
Thus, on 8 January 1986, petitioners filed a civil case6 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 Erlinda’s injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage
sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase. On the other hand, private respondents
primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlinda’s allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not
only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for
almost three (3) hours. For
________________
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
594
594
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,
595
595
4) the costs of the suit.

SO ORDERED.7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint
below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos
Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus legal interest for justice must be tempered with mercy.
SO ORDERED.8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as “Atty. Rogelio Ramos.” No copy of the decision, however, was sent nor
received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision
of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the
expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration.
The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied the
motion for extension of time in its Resolution dated 25 July 1995.9 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
plead-
________________
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
596
596
ing on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand,
admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9,
1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion
for Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-
day period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of
the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May
1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court Of Appeals on the following grounds:
________________
10 Id. at 195.
597
597
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 fur-
________________
11 Rollo, p. 19.
12 Id. at 91-98.
598
598
nished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period
for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party’s
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was not
sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the
delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since
the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the
earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believe that the receipt of the former should be considered in determining the timeliness of the filing of
the present petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in
relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means “the thing or the transaction speaks for itself.”
The phrase “res ipsa loquitur” is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an
explanation.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 man-
________________
13 57B Am Jur 2d, 493 (1989).
599
599
agement or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant’s want of care.14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence
of some explanation by the defendant who is charged with negligence.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
is applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does
not create or constitute 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
________________
14 Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.
600
600
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 someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.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
Medical malpractice24 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
________________
20 Id. at 503.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 324
P.2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan.
443, 249 P.2d 647.
22 St. John’s Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her to redress a wrong committed by a
medical professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778
[1997]).
25 Voss vs. Bridwell, supra note 21.
601
601
a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit
a given inference.26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence.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
________________
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P. 237.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423.
30 SOLIS, supra note 27, at 239.
602
602
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 patient’s 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
________________
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
603
603
be made between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa 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:
________________
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).

40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
604
604
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the
operation was never performed. At the time of submission he was neurologically sound and physically
fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and
totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid
operation or in the absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon
these facts and under these circumstances a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur.44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she
________________
44 Id. at 971.
605
605
went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive control of private respondents, who are
the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory
negligence because she was under the influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while
the patient is unconscious and under the immediate and exclusive control of the physicians, we hold
that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say, as a matter of common knowledge and
observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case
is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein,
606
606
the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and,
if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation45 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
________________
45 It is the method of intubating a patient through the oral cavity. Under this procedure, after the
patient has been preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist
inserts an instrument called a laryngoscope into the patient’s oral pharynx. The patient’s neck is
hyperextended, that is, bent back as far as possible so that the anesthetist can see or “visualize” the
patient’s epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube between the
patient’s vocal cords into the trachea, and then hook the tube to the breathing bag and anesthetic
machine.
607
607
and hospital and absolved them of any liability towards Er-linda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based.
As will be shown hereinafter, private respondents’ own testimonies which are reflected in the transcript
of stenographic notes are replete of signposts indicative of their negligence in the care and management
of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase.
As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
petitioner’s sister-in-law, who was in the operating room right beside the patient when the tragic event
occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q:
In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A:
In particular, I could see that she was intubating the patient.
Q:
Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.

COURT:
Witness may answer if she knows.
A:
As I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and
all of a sudden I heard some remarks coming from Dra. Perfecta
608
608
Gutierrez herself. She was saying “Ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.”
xxx
ATTY. PAJARES:
Q:
From whom did you hear those words “lumalaki ang tiyan?
A:
From Dra. Perfecta Gutierrez.
xxx
Q.
After hearing the phrase “lumalaki ang tiyan,” what did you notice on the person of the patient?
A:
I notice (sic) some bluish discoloration on the nailbeds ofthe left hand where I was at.
Q:
Where was Dr. Orlino Ho[s]aka then at that particulartime?
A:
I saw him approaching the patient during that time.

Q:
When he approached the patient, what did he do, if any?
A:
He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q:
Did Dr. Calderon, upon being called, arrive inside the operating room?
A:
Yes sir.
Q:
What did [s]he do, if any?
A:
[S]he tried to intubate the patient.
Q:
What happened to the patient?
A:
When Dr. Calderon try (sic) to intubate the patient, after a while the patient’s nailbed became bluish
and I saw thepatient was placed in trendelenburg position.
xxx
Q:
Do you know the reason why the patient was placed in that trendelenburg position?
A:
As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain.46
xxx
________________
46 TSN, January 13, 1988, pp. 16-20.
609
609
The appellate court, however, disbelieved Dean Cruz’s testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not taught as
part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not,
and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a
patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the
patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if the endotracheal tube was in its
proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz’s
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual
bases.47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external appearances, and manifest conditions
which are observable by any one.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 nontechnical matters or those of which an ordinary person
may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony
________________
47 CA Rollo, pp. 134-135.
48 Stockham vs. Hall, supra note 29.

610
610
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 Erlinda’s trachea, to wit:
ATTY. LIGSAY:
Q:
In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A:
Yes sir.
Q:
Did you pull away the tube immediately?
A:
You do not pull the . . .
________________
49 61 Am Jur 2d, 513 (1989).
50 TSN, January 13, 1988, p. 3.
611
611
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 patient’s medical records and visits with the
patient, traditionally, the day before elective surgery.53 It includes taking the patient’s medical history,
review of current drug therapy, physical examination and interpretation of laboratory data.54 The
physical examination performed by the
________________
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54 Ibid.
612
612
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 patient’s 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 patient’s airway would go a long way
towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day
of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician’s
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia
of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the
trial court’s ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and an emergency
________________
55 Id. at 105 (Italics supplied).
56 Id. at 106.
57 Id.
613

613
surgery just so her failure to perform the required pre-operative evaluation would escape unnoticed. In
her testimony she asserted:
ATTY. LIGSAY:
Q:
Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient relationship and gainthe trust and confidence of the
patient?
DRA. GUTIERREZ:
A:
As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in
my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don’t do it
except on emergency and on cases that have an abnormalities (sic).58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available
for the fastidious demands of preoperative procedure so that an anesthesiologist is able to see the
patient only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to make a proper assessment, including the time to be at the patient’s
bedside to do a proper interview and clinical evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually,
the pre-operative assessment is conducted at least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda’s case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time
to make a thorough evaluation of Erlinda’s case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted that she had seen
________________
58 TSN, November 15, 1990, p. 6.
614
614
petitioner only in the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her attempt
to exculpate herself must fail. Having established that respondent Dra. Gutierrez failed to perform pre-
operative evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine
if the faulty intubation is truly the proximate cause of Erlinda’s comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda’s coma
was due to bronchospasm59 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 re-spondents’ 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. Jamora’s testimony as an expert witness in the
anesthetic
________________
59 Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as in
asthma).
60 Permanent damage to the brain caused by inadequate oxygenation.
615
615
practice of Pentothal administration is further supported by his own admission that he formulated his
opinions on the drug not from the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:
ATTY. LIGSAY:
Q:
In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of
management?
DR. JAMORA:
A:
We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q:
But not in particular when you practice pulmonology?
A:
No.
Q:
In other words, your knowledge about pentothal is based only on what you have read from books and
not by your own personal application of the medicine pentothal?
A:
Based on my personal experience also on pentothal.
Q:
How many times have you used pentothal?
A:
They used it on me. I went into bronchospasm during my appendectomy.
Q:
And because they have used it on you and on account of your own personal experience you feel that
you can testify on pentothal here with medical authority?
A:
No. That is why I used references to support my claims.61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamoras field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of
________________
61 TSN, February 28, 1991, pp. 10-11.
616
616

the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the
drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora’s
testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence62 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
________________
62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.

617
617
would be an act of God. Evidently, the Thiopentalallergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to absolve them of
any and all responsibility for the patient’s condition.
In view of the evidence at hand, we are inclined to believe petitioners’ stand that it was the faulty
intubation which was the proximate cause of Erlinda’s comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred.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
________________
64 BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
618
618
intubation what actually took place was an esophageal intubation. During intubation, such distention
indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into
the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly
significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis.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 anes-
________________
66 It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal
hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
619
619
thesia.69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be
anticipated by performing a thorough evaluation of the patient’s 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 patient’s neck and oral
area, defects which would have been easily overcome by a prior knowledge of those variations together
with a change in technique.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 surgeon’s responsibility to see to it that those under
him perform their task in the proper manner. Respondent Dr. Hosaka’s negligence can be found in his
failure to exercise the proper authority (as the “captain” of
________________
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71 Id., The book provides a thorough discussion on the management of difficult intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the
safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for
everything that goes wrong within the four corners of the operating room. It enunciates the liability of
the surgeon not only for the wrongful acts of those who are under his physical control but also those
wherein he has extension of control.
620
620
the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In
fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas
cholecystectomy, and was in fact over three hours late for the latter’s operation. Because of this, he had
little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that
he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the
events which resulted in Erlinda’s condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting “consultants,”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
________________
74 The term “consultant” is loosely used by hospitals to distinguish their attending and visiting
physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or
attending physician, not consultant, is used.
621
621
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 physician’s performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
“consultant” staff. While “consultants” are not, technically employees, a point which respondent
hospital asserts in denying all responsibility for the patient’s condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether such a relationship in
fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for
the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors
for petitioner’s condition.76
________________
75 These requirements are in fact found in the standard application forms for visiting and attending
physicians of respondent hospital.
76 The hospital’s control over respondent physicians is all the more significant when one considers the
fact that it controls every-
622
622

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for
those of others based on the former’s responsibility under a relationship of patria potestas.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 supervi-
________________
thing which occurs in an operating room, through its nursing supervisors and charge nurses. No
operations can be undertaken without the hospital’s direct or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides: The obligation imposed by Article 2176 is demandable not only
for one’s own acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused
by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
623
623
sion of the latter. It failed to adduce evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to
do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda’s
condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 217679 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 P8,000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual.
The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for
the patient. What it reflected were the actual expenses incurred and proved by the petitioners after
they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to
meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia.
________________
79 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done.
624
624
Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide
her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be
seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:
Art. 2199.—Except as provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made
625
625
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
________________
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for another ten years, the amount awarded in the
form of temperate damages would in fact, be inadequate.
82 253 SCRA 303 (1996).
626
626
estimate because while they would have been a direct result of the injury (amputation), and were
certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all postmenopausal women. In other words, the damage done to her would
not only be permanent and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the years. The replacements,
changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.83
________________
83 Id. at 327-328.
627

627
The injury suffered by Erlinda as a consequence of private respondents’ negligence is certainly much
more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if
petitioner’s condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim’s actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim’s condition.84 The husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patient’s illness, knowing any hope of recovery is close to
nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term
goals to take into account their life with a comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The family’s moral injury and suffering in this case
is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney’s fees valued at
P100,000.00 are likewise proper.
________________
84 Id. at 328.
628
628
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician’s experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using unorthodox
methods without incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be called to account for it. In the
case at bar, the failure to observe preoperative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents’ case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages; 3) P1,500,000.00 as temperate damages; 4) P100,000.00
each as exemplary damages and attorney’s fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.
Judgment modified.
629
629
Land Bank of the Philippines vs. Court of Appeals
Note.—Proximate cause is determined on the facts of each case upon mixed considerations of logic,
common sense, policy and precedent. (Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA 695
[1997])
——o0o—— Ramos vs. Court of Appeals, 321 SCRA 584, G.R. No. 124354 December 29, 1999

2 - Ramos vs. Court of Appeals 321 SCRA 584

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2 - Ramos vs. Court of Appeals 321 SCRA 584

Uploaded by

Copyright:

Available Formats

G.R. No. 124354. December 29, 1999.

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

SUPREME COURT REPORTS ANNOTATED

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

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

The facts are stated in the opinion of the Court.

Luis C.A. Sillano for petitioners.

Macarius S. Galutera for private respondent De los Santos Medical Center.

Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for DLSMC.

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

2 Cholecystectomy is the surgical excision of the gall bladder.

3 CA Rollo, pp. 129-140.

4 Records, pp. 270-279.

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

Ramos vs. Court of Appeals

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

6 Docketed as Civil Case No. Q-46885.

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

2) the sum of P100,000.00 as reasonable attorney’s fees;

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

4) the costs of the suit.

7 Records, pp. 276-278.

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.11

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

13 57B Am Jur 2d, 493 (1989).

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

15 57B Am Jur 2d, supra note 13 at 499.

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

25 Voss vs. Bridwell, supra note 21.

VOL. 321, DECEMBER 29, 1999

Ramos vs. Court of Appeals

26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

30 SOLIS, supra note 27, at 239.

SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

31 Voss vs. Bridwell, supra note 21 at 970-971.

32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).

33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).

34 Griffin vs. Norman, 192 NYS 322 (1922).

35 Brown vs. Shortilledge, 277 P. 134 (1929).

36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).

37 Voss vs. Bridwell, supra note 21, at 969.

Ramos vs. Court of Appeals