FIRST DIVISION

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.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life
and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series 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 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 ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The 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 . . .
happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25,
1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful
day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not have
happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 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 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 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 xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the latter are ordered to pay, jointly and
severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;

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

 3) the sum of P800,000.00 by way of moral damages and the further
sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,
and the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received
by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with
the appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration
had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is,
on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the 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:

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 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 believed
that the receipt of the former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa loquiturto the instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquiturdoctrine.

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 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. 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
of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the

absence of 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 instrumentality" which caused the
damage. 22Such 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 malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the domain of medical science,
and not to matters that are within the common knowledge of mankind which may be testified to by anyone
familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent
to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the proper standard of care. 30 Where
common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must
do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body
which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another
part was intended, 34 knocking out a tooth while a 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 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. 40The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in
such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained,
the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case
for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission he
was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in the use and
 employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff for
they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause
of action is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and
control of private respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation,
if negligence attended the management and care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's
sister-in-law, who was in the operating room right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the

patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered

by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

 ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx 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 of the left hand
where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr.

Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

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

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

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.

xxx xxx 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 xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of
 the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).
More importantly, there is no evidence that she ever auscultated the patient or that she
conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may
be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at 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. 50Reviewing 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 . . .

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 Erlinda's 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 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. 56Thus,
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 surgery just so her failure
to perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:
 Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative

procedure of the anesthesiologist and in my case, with elective cases
and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for
the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient
only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside 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 petitioner
only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to
take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he
is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:

ATTY. LIGSAY:
 Q: In your line of expertise on pulmonology, did you have any occasion
to use pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to

intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what

you have read from books and not by your own personal application of
the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my

appendectomy.

Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that
he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving
weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience. 63Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing — some of the more common accompanying signs of an allergic reaction —
appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to 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 Erlinda's brain damage and, ultimately,
her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the
esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first intubation
suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her
lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully
done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery,
the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the
second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five
minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the 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 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 Erlinda's 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 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

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 supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care
of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would
be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were
forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing
in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation
should be normally made by a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid
muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to
respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty. 80 In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the injury is chronic
and continuing. And because of the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that these damages cover two distinct
phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for
the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments
to the compensatory damages previously awarded — temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take into account the cost of
proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient
who has remained in that condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it would be now much more in
step with the interests of justice if the value awarded for temperate damages would allow petitioners to
provide optimal care for their loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were
likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of

her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have
to be replaced and readjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical
and occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

 A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if 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.

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 pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00
each as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.
 THIRD DIVISION

G.R. No. 136722 April 12, 2000

INDUSTRIAL INSURANCE COMPANY, Inc., petitioner,

vs.
PABLO BONDAD and LIGORIO BONDAD, respondents.

PANGANIBAN, J.:

No person should be penalized for the exercise of the right to litigate. This right, however, must be
exercised in good faith. Absence of good faith in the present case is shown by the fact that petitioner
clearly has no cause of action against respondents but it recklessly filed suit anyway and wantonly
pursued pointless appeals, thereby causing the latter to spend valuable time, money and effort in
unnecessarily defending themselves, incurring damages in the process.

The Case

Before us is a Petition for Review under Rule 45 assailing the July 29, 1998 Decision 1 of the Court of
Appeals2 (CA), as well as its December 4, 1998 Resolution in CA-GR CR CV No. 50573. In its Decision,
the CA ruled:3

WHEREFORE, the Decision appealed from is AFFIRMED with the MODIFICATION that the
award for attending hearings in the amount of P10,500.00 is deleted; and the award for moral and
exemplary damages is reduced to P50,000.00 and P10,000.00, respectively.

The trial court ruling4 modified by the CA reads as follows:

WHEREFORE, from all the foregoing findings, the Court hereby renders judgment as follows:

1. Ordering the defendants D.M. Transit Corporation, D.M. Consortium Inc. and Eduardo Diaz y
Mendoza jointly and severally, to pay plaintiff Industrial Insurance Co., Inc.:

(a) The sum of P29,800.00 representing the amount it had to pay to Grace Ladaw
Morales under its Insurance Policy No. 00857, with interest thereon at the legal rate from
April 12, 1985 until fully paid;

(b) The sum of P2,000 as litigation and adjustment expenses; and

(c) The sum of P15,000.00 as and for attorney's fees;

2. Ordering the plaintiff Industrial Insurance Co., Inc., to pay to the defendants-counterclaimants
Pablo Bondad and Ligorio Bondad jointly and severally:

(a) The sum of P15,000.00 representing their attorney's fees, and P6,300.00 as
appearance fees;

(b) The sum of P10,500.00 representing their expenses for the twenty-one hearings
consisting of jeepney hire and meals;
 (c) The sum of P75,000.00 in the concept of moral damages for their having been
recklessly and without basis being impleaded by the plaintiff inspite of the clear language
in the Traffic Investigation Report (Exhibit "1-A") submitted by Pfc. Agapito Domingo; and

(d) The sum of P25,000.00 by way of exemplary damages.

3. Ordering the cross-defendants jointly and severally to pay the cross-claimants Bondads the
sum of P8,000.00 representing the cost of repairs of the jeepney, with interest at the legal rate
from April 2, 1985 until fully paid.

4. Dismissed for lack of merit are:

(a) the cross-claim against the Bondads;

(b) the third party complaint against the GSIS;

(c) the cross-claims against the GSIS; and

(d) the counterclaim interposed by the defendants except that of the Bondads.

5. The claim made by plaintiff Grace Ladaw Morales is likewise dismissed for lack of evidence in
support thereof. She is not held liable in favor of Pablo Bondad and Ligorio Bondad for lack of
proof that she authorized the filing of this suit. 5

The December 4, 1998 CA Resolution denied petitioner's Motion for Reconsideration.

The Facts

The present Petition finds its roots in an incident which involved three vehicles: a Galant Sigma car driven
by Grace Ladaw Morales, a packed passenger jeepney originally driven by Ligorio Bondad, and a DM
Transit Bus driven by Eduardo Mendoza.

Pfc. Agapito L. Domingo of the Southern Police District investigated the accident and filed the following
report:

Investigation disclosed that shortly before the accident took place, V-3 (D.M. Transit Bus) was
traveling along South Expressway coming from Alabang towards the general direction of Makati.
When upon reaching a place at KM Post 14 [in front] of Merville Subd., said V-3 hit and bumped
the rear left side portion of V-1 [Bondads' jeepney] which was then at [stop] position due to flat
tire[;] due to the severe impact cause by V-3 it swerved to the left and collided with the right side
portion of V-2 [Morales' car] which was travelling [in] the same direction taking the innermost
lane[;] V-2 was dragged to its left side and hit the concrete wall. All vehicles incurred damages
and sustaining injuries to the occupant of V-1 and the passengers of V-3. Victims were brought to
the hospital for treatment.6

Before the Regional Trial Court of Makati on April 12, 1985, Petitioner Industrial Insurance Company, Inc.
and Grace Ladaw Morales filed a Complaint for damages7 against DM Transit Corporation, Eduardo Diaz,
Pablo Bondad and Ligorio Bondad. Petitioner contended that it had paid Morales P29,800 for the
damages to her insured car. It also asserted that the December 17, 1984 accident had been caused
"solely and proximately" by the "joint gross and wanton negligence, carelessness and imprudence of both
defendant drivers Eduardo Diaz y Mendoza and Ligorio Bondad y Hernandez, who failed to exercise and
observe the diligence required by law in the management and operation of their respective vehicles and
by their defendant employers; D.M. Transit Corporation and Pablo Bondad, respectively, for their failure
to exercise the diligence required of them by law in the selection and supervision of their employees
including their aforementioned involved drivers.8

On June 6, 1985, Respondents Pablo and Ligorio Bondad filed their Answer 9 denying any responsibility or
liability to petitioner and Morales. They asserted that their vehicle was on full stop because of a flat tire.
Thus, it was the bus which hit Morales' car. 10 In their Counterclaim, they contended that petitioner had
acted in bad faith in impleading them and that, contrary to its allegation, no prior demand had been made
upon them. 11

In its October 14, 1991 Decision, the trial court exculpated the Bondads and ordered petitioner to pay
them actual, moral and exemplary damages, as well as attorney's fees.

Petitioner appealed to the Court of Appeals, which affirmed the ruling of the trial court with modification.

Hence, this Petition for Review. 12

The CA Ruling

The appellate court debunked petitioner's assertion that it had a cause of action against the Bondads,
whose negligence was allegedly the proximate cause of the damage to the insured vehicle.

The records are clear, however, that soon after the D.M. Transit Bus hit the jeepney of the
defendant Bondad, the bus swerved to the left hitting the car of plaintiff Morales. This fact was
supported by the investigation report made by Pfc. Agapito L. Domingo of the Southern Police
District (Exh. "A") as well as the testimony of defendant Ligorio Bondad which was supported by
photographs of defendant Bondad's jeepney which were taken immediately after the incident.
(Exh. "3") It was shown that the jeepney remained at the right shoulder of the expressway
(northbound) even after it had been hit forward from its position as a result of the impact.
According to Ligorio Bondad, when he noticed that his tire was flat, he slowed down and drove
towards the rightmost lane of the expressway with great difficulty until he was able to stop at the
right shoulder of the road. (TSN, pp. 55-62, March 21, 1989) This was consistent with the affidavit
he had made at the Traffic Bureau Station in Fort Bonifacio on the same day of the accident,
December 17, 1984. (Exh. "2-A")

Proximate cause is that which, in natural and continuous sequence, unbroken by an efficient
intervening cause, produces injury without which the result would not have occurred. (Sabena
Belgian World Airline, 255 SCRA 38; Pilipinas Bank vs. Court of Appeals, 234 SCRA 435) As
borne out by the evidence in this case, the proximate cause of the damage to the car of plaintiff
Morales was the negligence of the driver of the DM Transit bus. Plaintiff-appellant had no valid
cause of action against defendants Bondad.

The CA, however, reduced the lower court's award of damages to the Bondads, ratiocinating as follows:

We agree with the trial court when it granted the counter-claim of defendants Bondad. The
plaintiff-appellant insurance company did not verify the facts before impleading the Bondads in
this action for damages. The trial court noted that plaintiff-appellant failed to even make a formal
demand from the defendants Bondad before it filed the present case. As stated by the trial court
in the aforequoted decision, had a formal demand been made by the plaintiffs on the Bondads,
matters could have been clarified. As it were, the Bondads had to come to Makati from Alaminos
every time this case was set for hearing and not only suffered inconvenience but incurred
expenses, particularly for attorney's fees.
 We, however, believe that the expenses for attending the hearings should be deleted, the same
not having been sufficiently proven. Likewise, moral and exemplary damages should be reduced
to the more reasonable amounts of P50,000.00 and P10,000.00, respectively.

Issues

In its Memorandum, 13 petitioner presents the following issues for resolution:

A) Whether or not the assailed decision and resolution of the Honorable Court of Appeals were
scrutinized closely with the legal aspect of law, Articles 2202, 2203, 2219 and 2220 of the Civil
Code, in light of the evidence presented in making its decision and its resolution.

B) Whether or not the Honorable Court of Appeals with due respect, went out of the "path of law"
and disregarded past precedents applicable to the case at bar.

In the main, the core issue is the propriety of the award of moral and exemplary damages, as well as
attorney's fees, to the respondents. We shall also discuss a preliminary matter: the cause of the accident.

The Court's Ruling

The Petition is not meritorious.

Preliminary Issue:

Cause of Accident

Petitioner insists that the negligence of Ligorio and Pablo Bondad was the proximate cause of the
accident that damaged the insured vehicle of Grace Ladaw Morales.

This argument deserves scant consideration. Questions regarding the cause of the accident and the
persons responsible for it are factual issues which we cannot pass upon. It is jurisprudentially settled that,
as a rule, the jurisdiction of this Court is limited to a review of errors of law allegedly committed by the
appellate court. It is not bound to analyze and weigh all over again the evidence already considered in the
proceedings below. 14

True, there are instances when this Court may review factual issues, 15 but petitioner has failed to
demonstrate why his case falls under any of them. There is no contrariety between the findings of the trial
court and those of the CA as to what and who had caused the December 17, 1984 accident. We find no
reason to modify or reverse both courts' finding that the mishap was caused by the negligence of Eduardo
Diaz, the bus driver.

Main Issue:

Award of Damages and Attorney's Fees

In justifying the award of attorney's fees and other litigation expenses, the appellate court held that
respondents were compelled to litigate an unfounded suit because of petitioner's negligence and lack of
prudence in not verifying the facts before filing this action. In affirming the award of moral damages, it
accepted the trial court's justification that respondents had "been recklessly and without basis . . .
impleaded by the plaintiff in spite of the clear language in the Traffic Investigation Report . . . submitted by
Pfc. Agapito Domingo." 16
We agree.

Attorney's fees may be awarded by a court if one who claims it is compelled to litigate with third persons
or to incur expenses to protect one's interests by reason of an unjustified act or omission on the part of
the party from whom it is sought. 17

In this case, the records show that petitioner's suit against respondents was manifestly unjustified. In the
first place, the contact between the vehicles of respondents and of Morales was completely due to the
impact of the onrushing bus. This fact is manifest in the police investigation report and, significantly, in the
findings of facts of both lower courts.

Moreover, even a cursory examination of the events would show that respondents were not even
remotely the cause of the accident. Their vehicle was on the shoulder of the road because of a flat tire. In
view of their emergency situation, they could not have done anything to avoid getting hit by the bus.
Verily, an ordinary person has no reason to think that respondents could have caused the accident. It is
difficult to imagine how petitioner could have thought so.

More significantly, petitioner knew that respondents were not the cause of the accident. This is evident
from its failure to even make a prior formal demand on them before initiating the suit. Indeed, the cause of
the accident was the negligence of the DM Transit bus driver. In this light, we agree with the following
findings of the trial court:

It is the Court's findings that the D.M. Transit Bus in question was recklessly engaged in a race
with a Baliuag Transit Bus and tried to outrun the former by using the shoulder of the road, a
tactic that is very common along the South Expressway. Unfortunately for the D.M. Transit Bus,
defendant Pablo Bondad's jeepney was at a stop at the shoulder along the path to be taken by
the erring bus[;] it was not parked, but was at an emergency stop, the emergency being a flat tire.
The consequence of this rash action was the accident to the Bondad jeepney and subsequently
to the Lancer car owned and operated by one Grace Morales Ladaw which vehicle was pinned by
the D.M. Transit to the concrete island dividing the road. There can be no question that the driver
of the D.M. Transit Bus was at fault for the accident.

It is further the Court's finding that the plaintiffs have absolutely no cause of action against the
Bondads.1âwphi1 The latter's jeepney never got into contact with Ms. Morales' car. While it is
true that before the D.M. Transit Bus hit Ms. Morales car, it had gotten involved in an accident
with the Bondad jeepney[;] it is equally true that at the time of the accident the Bondad jeepney
was at an emergency stop. This fact was obvious not only from the scene of the accident but also
from the police investigation report. There was no need to implead the Bondads as defendants,
and if the jeepney had in any way caused, or contributed to, the accident, it could very well be
impleaded by the D.M. Transit Bus operator. Worse, no demand for payment was ever made by
the plaintiffs on the Bondads. Had a formal demand been made by the plaintiffs on the Bondads,
the latter's role could have been clarified. As it is, they had to face a lawsuit and were constrained
to come all the way to Makati from Alaminos for not to do so could place them in a situation
where judgment may be rendered against them. 18

In impleading respondents, petitioner clearly acted in wanton disregard of facts that were as obvious then
as they are now. To repeat, even a cursory examination of the police investigation report and other
pertinent data at the time would show that there was no reason to implead respondents. The
carelessness and lack of diligence of petitioner destroy its claim of good faith. Accordingly, the award of
attorney's fees should be sustained.

In the same vein, we affirm the award of moral damages. To sustain this award, it must be shown that (1)
the claimant suffered injury, and (2) such injury sprung from any of the cases listed in Articles 2219 and
2220 of the Civil Code. It is not enough that the claimant alleges mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like as a result of the acts of the other party. It is necessary
that such acts be shown to have been tainted with bad faith or ill motive. 19

In the case at bar, it has been shown that the petitioner acted in bad faith in compelling respondents to
litigate an unfounded claim. As a result, Respondent Ligorio Bondad "could no longer concentrate on his
job." Moreover, Pablo Bondad became sick and even suffered a mild stroke. Indeed, respondents' anxiety
is not difficult to understand. They were innocently attending to a flat tire on the shoulder of the road; the
next thing they knew, they were already being blamed for an accident. Worse, they were forced to
commute all the way from Laguna to Makati in order to attend the hearings. Under the circumstances of
this case, the award of moral damages is justified.

Likewise, we affirm the award of exemplary damages because petitioner's conduct needlessly dragged
innocent bystanders into an unfounded litigation. Indeed, exemplary damages are imposed by way of
example or correction for the public good, in addition to moral, temperate, liquidated or compensatory
damages. 20

In sum, the Court affirms the award of moral damages, exemplary damages, attorney's fees and litigation
expenses. The facts of this case clearly show that petitioner was motivated by bad faith in impleading
respondents. Indeed, a person's right to litigate, as a rule, should not be penalized. This right, however,
must be exercised in good faith. 21

One final note. Respondents pray that the amount of actual, moral and exemplary damages awarded by
the trial court be reinstated. 22 We cannot do so in this case because they did not appeal the CA Decision.
Jurisprudentially, they are deemed to be satisfied with it and thus cannot be allowed to attack it belatedly
in their Memorandum.1âwphi1.nêt

WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. Double costs
against petitioner.

SO ORDERED.