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LEGAL MEDICINE BASED ON ATTY. RODEL V. CAPULE S COURSE OUTLINE First Semester 2013-2014

1ST WEEK INTRODUCTION

Mandatory subject in law school Rule 138 Attorneys and Admission to Bar, Section 5A provides:
Additional requirements for other applicants. All applicants for admission other than those referred to in the two preceding section shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics.

Definitions/ Concept Medical Jurisprudence:

Forensic Medicine:

Legal medicine:

Cases: 1. G.R. No. 86890 January 21, 1994 LEANDRO CARILLO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

FELICIANO, J.: Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the Court of Appeals dated 28 November 1988, which affirmed his conviction by the Regional Trial Court of the crime of simple negligence resulting in homicide, for the death of his thirteen (13) year old patient Catherine Acosta. The trial court had sentenced him to suffer the penalty of arresto mayor in its medium period (four [4] months' imprisonment), as well as to pay the heirs of his patient an indemnity of P30,000.00 for her death, P10,000.00 as reimbursement for 1 actual expenses incurred, P50,000.00 as moral damages and to pay the costs of the suit. The information filed against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the following: That on or about the 31st of May 1981, in the municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding with one another, without taking the necessary care and precaution to avoid injury to

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person, did then and there willfully, unlawfully and feloniously operate, in a reckless, careless and imprudent manner and neglected to exercise their respective medical knowhow and tasks and/or departed from the recognized standard in their treatment, diagnosis of the condition, and operation of the patient, one Catherine 2 Acosta, 13 years old, which negligence caused the death of the said Catherine Acosta. Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the case proceeded to trail with Judge Job B. 3 Madayag presiding. The prosecution presented as its principal evidence the testimony of four (4) witnesses, namely: 1) Yolanda Acosta, Catherine's mother, who was able to observe the conduct of the accused outside the operating theater before, during and after the 4 appendectomy procedure carried out on her daughter; 2) Domingo Acosta, Catherine's father, who corroborated some parts of his wife's 5 testimony; 3) Dr. Horacio Buendia, an expert witness who described before the trial court the relationship between a surgeon and an anesthetist in the course of a surgical operation, as well as define the likelihood of cardiac arrest as a post operative 6 complication; and 4) Dr. Nieto Salvador, an expert witness who analyzed and explained the significance of the results of the 7 pathological study and autopsy conducted on Catherine's body by one Dr. Alberto Reyes. After the prosecution had rested its case, the defense was granted leave to file a demurrer to the evidence. After failing to file the demurrer within the reglementary period, Judge Manuel Yuzon, who had in the meantime taken over as presiding judge of the sala where this case was pending, denied the defense motion for extension of time to file demurrer and declared the case submitted for 9 decision. On 19 September 1985, the trial court promulgated its decision convicting both the accused of the crime charged.
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On appeal, the Court of Appeals affirmed the judgment of conviction, and specified that the civil liability of the two (2) accused was 11 solidary in nature. Petitioner Dr. Carillo alone filed the present Petition for Review with the Court, seeking reversal of his conviction, or in the alternative, the grant of a new trial. Dr. Madrid did not try to appeal further the Court of Appeals Decision. Accordingly, the judgment of conviction became final insofar as the accused surgeon Dr. Madrid is concerned. The facts of the case as established by the Court of Appeals are as follows: The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and Yolanda Acosta, complained to her father at about 10:30 o'clock in the morning of May 31, 1981 of pains in the lower part of her abdomen. Catherine was then brought to Dr. Elva Pea. Dra. Pea called for Dr. Emilio Madrid and the latter examined Catherine Acosta. According to Dr. Madrid, his findings might be appendicitis. Then Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so that the child will be observed. At the Baclaran General Hospital, a nurse took blood sample form the child. The findings became known at around 3:00 o'clock in the afternoon and the child was scheduled for operation at 5:00 o'clock in the afternoon. The operation took place at 5:45 p.m. because Dr. Madrid arrived only at that time. When brought inside the operating room, the child was feeling very well and they did not subject the child to ECG (electrocardiogram) and X-ray. The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was assisted by appellant, Dr. Leandro Carillo, an anesthesiologists. During the operation, while Yolanda Acosta, Catherine's mother, was staying outside the operating room, she "noticed something very unfamiliar." The three nurses who assisted in the operation were going in and out of the operating room, they were not carrying anything, but in going out of the operating room, they were already holding something. Yolanda asked one of the nurses if she could enter the operating room but she was refused. At around 6:30 p.m., Dr. Emilio Madrid went outside the operating room and Yolanda Acosta was allowed to enter the first door. The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr. Madrid, they might be wondering because he was going to install drainage near the operating (sic) portion of the child. When asked, the doctor told them the child was already out of danger but the operation was not yet finished. It has also been established that the deceased was not weighed before the administration of anesthesia on her.

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The operation was finished at 7:00 o'clock in the evening and when the child was brought out from the operating room, she was observed to be shivering (nanginginig); her heart beat was not normal; she was asleep and did not wake up; she was pale; and as if she had difficulty in breathing and Dr. Emilio Madrid suggested that she placed under oxygen tank; that oxygen was administered to the child when she was already in the room. Witness Yolanda Acosta further testified that shortly before the child was transferred from the operating room to her room, she (witness) was requested by the anesthesiologist to go home and get a blanket. A portion of Yolanda Acosta's testimony on what happened when she returned to the hospital are reproduced hereunder as follows: Q What happened afterward? A When I arrived in the hospital, my child was being transferred to her bed. Q What else happened? Q I noticed that the heartbeat of my daughter was not normal. And I noticed that her hospital gown is rising up and down. Q What transpired after that? A I asked Dr. Madrid why it was like that, that the heartbeat of my daughter is not normal. Q And did the doctor make any reply? A The doctor said because of the lesion of the child. Q What else happened? A After they have revived the heartbeat of the child, Dr. Carillo and Dr.Madrid left. Q Now do you remember what time was it when Dr. Carillo stepped out? A Only a minute after they have transferred the child to the bed. Q What happened later on after Dr. Carillo and Dr. Madrid stepped out of the hospital? A After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child had developed convulsion and stiffening of the body. Q When you observed convulsion and stiffening of the body, did you do anything? A We requested the nurse who was attending to her to call for a doctor. Q And the nurse who was attending to the patient called for a doctor? A They called for Dra. Pea, their family physician. Q What transpired afterwards? A What Dra. Pea did was call for Dr. Madrid and the cardiologist. Q Did this doctor arrived? A Yes. Q What transpired after the doctor arrived? A They examined the child.

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Q After they examined the child, did they inform you of the result of the examination? A The cardiologist was the one whom informed us after he stepped out of the room when we followed him. The doctor told us that she suffered severe infection which went up to her head. Q After you were informed of the result of his examination, what transpired next? A According to them, they will do their best for the child and that they will call for Dr. Carillo. Q Did Dr. Carillo arrived? A At around 10:30 in the evening. Q Did Dr. Carillo do anything when he arrived on 31 May 1981? A When he arrived, he noticed that there were two small bottles and big bottles of dextrose which were hanging above the bed of the child. Then he said, "What is this? Christmas tree or what?" He told us that one bottle of dextrose be removed. And the big one will remain. Q What happened after that? A After that we talked to Dr. Carillo and asked him how did this happen to the child. Q What did Dr. Carillo reply (sic) to you? A He answered "that is nothing, the child will regain consciousness and if the 12 child will not regain consciousness, I will resign (sic) as a doctor." (Emphasis supplied) When Catherine remained unconscious until noontime the next day, a neurologist examined her and she was diagnosed as 13 14 comatose. Three (3) days later, Catherine died without regaining consciousness. The Court of Appeals held that Catherine had suffered from an overdose of, or an adverse reaction to, anesthesia, particularly the arbitrary administration of Nubain, a pain killer, without benefit of prior weighing of the patient's body mass, which weight 15 determines the dosage of Nubain which can safely be given to a patient. The Court of Appeals held that this condition triggered off 16 a heart attack as a post-operative complication, depriving Catherine's brain of oxygen, leading to the brain's hemorrhage. The 17 Court of Appeals identified such cardiac arrest as the immediate cause of Catherine's death. The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo and his co-accused Dr. Madrid, holding that both had failed to observe the required standard of diligence in the examination of Catherine prior to the actual administration of 18 anesthesia; that it was "a bit rash" on the part of the accused Dr. Carillo "to have administered Nubain without first weighing 19 Catherine"; and that it was an act of negligence on the part of both doctors when, (a) they failed to monitor Catherine's heartbeat after the operation and (b) they left the hospital immediately after reviving Catherine's heartbeat, depriving the latter of immediate andexpert medical 20 assistance when she suffered a heart attack approximately fifteen (15) to thirty (30) minutes later. Since neither petitioner nor his co-accused presented evidence in their own behalf, the present Petition seeks to question the soundness of the factual conclusions drawn by the Court of Appeals, upon which the affirmance of petitioner's conviction was based. Close examination of the instant Petition for Review shows that petitioner's main arguments are two-fold: (1) the Court of Appeals "completely brushed aside" and "misapprehended" Catherine's death certificate and biopsy report which allegedly showed that the 21 cause of death was a ruptured appendix, which led to blood poisoning, rather than faulty anesthetic treatment; and (2) there was no direct evidence of record showing that Nubain was administered to Catherine either duringthe appendectomy 22 procedure or after such operation. Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and resolve question(s) of fact which would have a decisive significance for the disposition of the case. The rule is too firmly settled to require much documentation that only questions of law may be raised before this Court in a petition for review on certiorari, subject to certain well-known

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exceptions. After careful scrutiny of petitioner's contentions before us and the record of this case, we do not believe that petitioner has shown "misapprehension of facts" on the part of the Court of Appeals which would require this Court to overturn the judgment reached by the former. The second issue is whether or not the findings of fact of the Court of Appeals adequately support the conclusion that petitioner Dr. Carillo was, along with Dr. Madrid, guilty of simple negligence which resulted in homicide. Our review of the record leads us to an affirmative answer. Petitioner contends that the Court of Appeals seriously erred in finding that an overdose of, or an allergic reaction to, the anesthetic drug Nubain had led to the death of Catherine Acosta and that the true cause of Catherine's death was that set out in the death 24 certificate of Catherine: "Septicemia (or blood poisoning) due to perforated appendix with peritonitis." The concept of causation in general, and the cause of death in human beings in particular, are complex and difficult notions. What is fairly clear is that death, understood as a physical condition involving cessation of vital signs in the brain and heart, is preceded by a series of physiological events, any one of which events can, with equal cogency, be described as a "cause of death". The Court of Appeals found that an overdose of, or an adverse reaction to, Nubain, an anesthetic or pain-killing drug the appropriate dose of which depends on the body weight or mass of the patient, had generated or triggered off cardiac arrest, which in turn led to lack of oxygen in Catherine's brain, which then brought about hemorrhaging in the brain. Vital activity in the brain thereupon ceased. The medical evidence presented at the trial was quite consistent with the findings of the Court of Appeals which 25 concluded that cardiac arrest was the cause of Catherine's death. For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-starvation of the brain, that septicemia with peritonitis or severe infection which had "gone up to the head" of Catherine was an equally efficient cause of deprivation of the brain of oxygen and hence of brain hemorrhage. The medical testimony of the expert witnesses for the prosecution on which petitioner relies is also consistent with petitioner's theory that septicemia with peritonitis was, or at least could have been, the 26 cause of Catherine's death. Indeed, it appears to the Court that there was no medical proof submitted to the trial court to show that one or the other "cause" was necessarily an exclusive cause of death in the case of Catherine Acosta; that an overdose or allergic reaction to Nubain could not have combined with septicemia and peritonitis in bringing about Catherine's death. What is of critical importance for present purposes is not so much the identification of the "true cause" or "real cause" of Catherine's death but rather the set of circumstances which both the trial court and the Court of Appeals found constituted simple (as distinguished from reckless) negligence on the part of the two accused Dr. Madrid and Dr. Carillo leading to the death of Catherine. When the patient was wheeled out of the operating room after completion of surgery, she manifested signs of medical instability 27 (i.e., shivering, paleness, irregular breathing and weak heart beat). She was not brought to a properly equipped recovery room, or 28 intensive care until which the hospital lacked. Such facilities and their professional staffs, of which an anesthetist is commonly a part, are essential for providing close observation and patient care while a post-surgery patient is recovering from the effects of 29 anesthesia and while the normal protective mechanisms are still dull or obtunded. Instead, the patient was merely brought to her 30 assigned hospital bed and was provided oxygen on the instructions of Dr. Madrid then "revived" her heartbeat. Both doctors then 31 left their patient and the hospital; approximately fifteen minutes later, she suffered convulsions and cardiac arrest. The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their patient in view of her vulnerable condition. Both doctors failed to appreciate the serious condition of their patient whose adverse physical signs were quite manifest right after surgery. And after reviving her heartbeat, both doctors failed to monitor their patient closely or extend further medical care to her; such conduct was especially necessary in view of the inadequate, post-operative facilities of the hospital. We do not, of course, seek to hold petitioner responsible for the inadequate facilities of the Baclaran General Hospital. We consider, however, that the inadequate nature of those facilities did impose a somewhat higher standard of professional diligence upon the accused surgeon and anesthetist personally than would have been called for in a modern fully-equipped hospital. While Dr. Madrid and a cardiologist were containing the patient's convulsions, and after the latter had diagnosed that infection had 32 reached the patient's head, these two (2) apparently after consultation, decided to call-in the petitioner. There is here a strong implication that the patient's post-operative condition must have been considered by the two (2) doctors as in some way related to the anesthetic treatment she had received from the petitioner either during or after the surgical procedure. Once summoned, petitioner anesthesiologist could not be readily found. When he finally appeared at 10:30 in the evening, he was 33 evidently in a bad temper, commenting critically on the dextrose bottles before ordering their removal. This circumstance indicated he was not disposed to attend to this unexpected call, in violation of the canons of his profession that as a physician, he 34 should serve the interest of his patient "with the greatest of solicitude, giving them always his best talent and skill." Indeed, when petitioner finally saw his patient, he offered the unprofessional bluster to the parents of Catherine that he would resign if the 35 patient will not regain consciousness. The canons of medical ethics require a physician to "attend to his patients faithfully and conscientiously." He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physician's failure to fulfill his obligation to his patient is, in most cases, his own conscience, violation of this 36 rule on his part is "discreditable and inexcusable".
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Nubain was an experimental drug for anesthesia and post-operative pain and the medical literature required that a patient be weighed first before it is administered and warned that there was no (or inadequate) experience relating to the administration 37 thereof to a patient less that eighteen (18) ears of age. Yet, the doctor's order sheet (Exhibit "C") did not contain this precaution 38 but instead directed a reader to apply the drug only when warranted by the circumstances. During the offer of Exhibit "C" by the 39 prosecution, Dr. Madrid admitted that this prescription, which was unsigned, was made in his own handwriting. It must be observed that the instruction was open-ended in that some other individual still had to determine if circumstances existed warranting administration of the drug to the patient. The document thus indicated the abdication of medical responsibility on an extremely critical matter. Since petitioner anesthesiologist entered subsequent prescriptions or orders in the same order sheet, which were signed by him, at 7:15 p.m. on the same evening of 31 May 1981, he was in a position to appreciate the dangers inherent in the prior prescription, which was within his (petitioner's) area of specialization , and to order measures to correct this anomaly and protect his patient's well-being. So far as the condition of the evidence shows, he failed to do so. In sum, only a low level of diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication for their patient. As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-examination of the expert witnesses for the prosecution to show that blood poisoning resulting from a ruptured appendix could also be responsible for the patient's death. No suggestion has been made that the rupture of the patient's occurred prior to surgery. After her blood sample was examined, the 40 patient was merely diagnosed as a case of appendicitis, without further elaboration. Nointensive preoperative preparations, like the immediate administration of antibiotics, was thereafter undertaken on the patient. This is a standard procedure for patients who 41 are, after being diagnosed, suspected of suffering from a perforated appendix and consequent peritonitis. The mother also testified that petitioner anesthesiologist merely injected a drug, "pre-anesthesia" intended to put the patient to sleep, into the 42 container of fluids being administered to her daughter intravenously at her room, prior to surgery. We note further that the 43 surgeon Dr. Madrid was forty-five minutes late in arriving at the operating theater. Considering that delay in treatment of 44 appendicitis increases the morbidity of the patient, Dr. Madrid's conduct can only be explained by a pre-operative diagnosis on his part that the condition of appendicitis was not yet attended by complications (i.e., a ruptured appendix and peritonitis). The above circumstances do strongly indicate that the rupture of the patient's appendix occurred during the appendectomy procedure, that is, at a time and place the operating room where the two (2) accused were in full control of the situation and 45 could determine decisively what needed to be done in respect of the patient. This circumstance must be considered in conjunction with other related circumstances which the prosecution had proven: that the patient was ambulatory when brought to the 46 operating room; that she left the operating room two (2) hours later in obviously serious condition; and that an appendectomy accompanied or followed by sustained antibiotic treatment is a fairly common and generally accepted medical procedure for dealing 47 with ruptured appendix and peritonitis, a fact of which judicial note may be taken. As early as in People v. Vistan, the Court defined simple negligence, penalized under what is now Article 365 of the Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of simple negligence is the failure to exercise the diligence necessitated or called for the situation which was not immediately life-destructive but which culminated, in the present case, in the death of a human being three (3) days later. Such failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense charged. The rule in such cases is that while the prosecution must prove the negative ingredient of the offense, it needs only to present the best evidence procurable under the circumstances, in order to shift the burden of disproving or countering the proof of the negative ingredient to the accused, provided 49 that such initial evidence establishes at least on a prima facie basis the guilt of the accused. This rule is particularly applicable where the negative ingredient of the offense is of such a nature or character as, under the circumstances, to be specially within the 50 knowledge or control of the accused. In the instant case, the Court is bound to observe that the events which occurred during the surgical procedure (including whether or not Nubain had in fact been administered as an anesthesia immediately before or during the surgery) were peculiarly within the knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2) accused to overturn the prima facie case which the prosecution had established, by reciting the measures which they had actually taken to prevent or to counter the obviously serious condition of Catherine Acosta which was evident right after surgery. This they failed or refused to do so. Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform the parents of their minor patient of the nature of her illness, or to explain to them either during the surgery (if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her condition immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation to the parents was a duty imposed upon 51 them by the canons of their profession. Petitioner should have explained to Catherine's parents the actual circumstances surrounding Catherine's death, how, in other words, a simple appendectomy procedure upon an ambulatory patient could have led to such fatal consequences. By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the failure of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to monitor her condition and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist after the patient's heart attack on the very evening that the surgery was completed; (3) the low level of care and diligence exhibited by petitioner in failing to correct Dr. Madrid's prescription of Nubain for post-operative pain; (4) the extraordinary failure or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of her true condition after surgery, in disregard of the requirements of the Code of Medical Ethics; and (5) the failure of petitioner and Dr. Madrid to prove that they had in fact exercised the necessary and appropriate degree of care and diligence to prevent the sudden decline in the condition of Catherine Acosta and her death three (3) days later, leads the Court to the conclusion, with moral certainty, that petitioner and Dr. Madrid were guilty of simple negligence resulting in homicide.
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In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of denial of due process. He contends that he was deprived of his right to have competent representation at trial, and to have his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was "incompetent" and exhibited "gross negligence" by manifesting an intent to file a demurrer to the evidence, in failing to present evidence in his behalf and in omitting to file a defense memorandum for the benefit of 52 Judge Yuzon, after the latter took over the case at the end of trial and before the Judge rendered his decision. Petitioner submits 53 he is entitled to a new trial. These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented petitioner during trial with reasonable competence. Except for the two hearing sessions when witnesses Domingo Acosta was cross-examined and recrossexamined by Atty. Puerto, petitioner was present during all the sessions when the other prosecution witnesses were presented and during which Atty. Puerto extensively cross-examined them in behalf of petitioner and Dr. Madrid. This counsel elicited from the two (2) expert witnesses for the prosecution testimony favorable to petitioner and which was relied upon by the latter in this 54 proceeding. The record further indicates that if petitioner indeed entertained substantial doubts about the capability of Atty. Puerto, he could have easily terminated the services of that counsel and retained a new one, or sought from the trial court the appointment of counsel de oficio, during the ample opportunity given from the time Atty. Puerto manifested his intent to file a demurrer on 16 October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation of judgment on 19 September 55 1986. During all this time, petitioner could have obtained leave of court to present evidence in his behalf in lieu of a demurrer, or to submit a memorandum for the defense. After promulgation of the judgment of conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial court to continue on bail during the pendency of the proceedings before the 56 Court of Appeals. Indeed, petitioner replaced 57 Atty. Puerto as counsel only upon institution of the present petition. Petitioner's constitutional objection is plainly an afterthought. WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is hereby AFFIRMED, subject only to the modification 58 that the indemnity for the death of Catherine Acosta is hereby increased to P50,000.00, in line with current jurisprudence. SO ORDERED. Bidin, Romero, Melo and Vitug, JJ., concur.

#Footnotes 1 Rollo, pp. 60-61. 2 Record, p. 1. 3 Id., pp. 29 and 59. 4 TSN, 15 November 1983 and 18 January 1984. 5 TSN, 26 November 1984, 11 January and 27 March 1985. 6 TSN, 25 July 1984. 7 TSN, 7 August 1985. 8 Record, p. 185. 9 Id., pp. 188, 190, 192 and 198. 10 Id., pp. 213-214. 11 Decision, pp. 14-15; Rollo, pp. 60-61. 12 Id., pp. 3-6; Rollo, pp. 49-52. 13 TSN, 15 November 1983, pp. 31-35. 14 Exhibit "B", Record, p. 61; TSN, 5 January 1984, p. 25. 15 Decision, p. 10; Rollo, p. 56. 16 Id., p. 14; Rollo, p. 60.

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17 Id. 18 Id. 19 Id., p. 10; Rollo, p. 56. 20 Id. 21 Petition, p. 22; Rollo, p. 27. 22 Petitioner's Memorandum, pp. 6-8; Rollo, pp. 223-225. 23 Caina v. People, 213 SCRA 309, 313-314 (1992); Lukban-Ang v. Court of Appeals, 160 SCRA 138, 149 (1988). 24 Exhibit "B", Record, p. 61. 25 TSN, 25 July 1984, pp. 16-17; TSN, 7 August 1985, pp. 19-21 and 24-26. 26 TSN, 25 July 1984, pp. 27-28; TSN, 7 August 1985, pp. 38-42. 27 TSN, 15 November 1983, p. 25; TSN, 26 November 1984, pp. 20-21. 28 TSN, 15 November 1983, pp. 39-40. 29 Davis-Christopher (Ed.), Textbook of Surgery, volume 1, (hereafter referred to as "Davis-Christopher") p. 216 (1981); See also Katzung (Ed.), Basic and Clinical Pharmacology, p. 297 (1984). 30 TSN, 15 November 1983, pp. 23, 25-26. 31 Id., pp. 26-27. 32 TSN, 15 November 1983, pp. 28-29. 33 TSN, 15 November 1983, p. 29. 34 Article 1, Section 3, 1960 Code of Ethics of the Medical Profession in the Philippines. 35 TSN, 15 November 1983, pp. 29-30. 36 Article 2, Section 1, 1960 Code of Ethics of the Medical Profession in the Philippines. 37 Exhibits "D" and "E" for the Prosecution; Record, pp. 63-64. 38 Record, p. 62. 39 TSN, 7 August 1985, pp. 47-49. 40 TSN, 26 November 1984, pp. 11-12. 41 Davis-Christopher, at pp. 1055-1056; see also Schwartz (Ed.), Principles of Surgery, Vol. 2 (hereafter referred to as "Schwartz"), pp. 1252 & 1401 (1984). 42 TSN, 15 November 1983, pp. 48-54; TSN, 18 January 1984, pp. 13 and 19. 43 TSN, 26 November 1984, pp. 12-13. 44 Davis-Christopher, at p. 1051; Schwartz at p. 1398. 45 See Ybarra v. Spangard, 208 P 2d 445 (1949); Anderson v. Somberg, 338 A 2d 1 (1975). 46 TSN, 26 November 1984, p. 14. 47 Davis-Christopher, at pp. 1055-1056 and 1061-62; Schwartz at p. 1404. 48 42 Phil. 112-113 (1921). 49 See U.S. v. Tria, 17 Phil. 303 (1910); People v. Quebral, 68 Phil. 564 (1939). 50 In People v. Pajenado (31 SCRA 812 [1970]), the Court quoted with approval former Chief Justice Moran: "The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired

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some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation.Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him. (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)." (31 SCRA at 817; emphasis supplied) This doctrine has been reiterated more recently in People v. Tiozon (198 SCRA 368 [1991]). 51 Article I, Section 5 of the 1960 Code of Ethics of the Medical Profession in the Philippines read as follows: "Sec. 5. A physician must exercise good faith and strict honesty in expressing his opinion as to the diagnosis, prognosis, and treatment of the cases under his care. Timely notice of the serious tendency of the disease should be given to the family or friends of the patients, and even to the patient himself if such information will serve the best interest of the patient and his family. It is highly unprofessional to conceal the gravity of the patient's condition, or to pretend to cure or alleviate a disease for the purpose of persuading the patient to take or continue the course of treatment, knowing that such assurance is without accepted basis. It is also unprofessional to exaggerate the condition of the patient." (See also Article II, paragraph 3, 1993 Code of Ethics of the Medical Profession). 52 Petition, pp. 13-15; Petitioner's Memorandum, pp. 24-27; Rollo, pp. 18-20 and 242-244. 53 Id., p. 16; Rollo, p. 21. 54 Minutes of the hearing sessions in Criminal Case No. 3840 for 18 January and 25 July 1984, 11 January, 27 March and 7 August 1985; Record, pp. 72, 110, 137, 154 and 179; transcript of stenographic notes of witnesses Yolanda Acosta, Domingo Acosta, Dr. Horacio Buendia and Dr. Nieto Salvador. 55 People v. Luvendino, 211 SCRA 36, 53-54 (1992); Record, pp. 185, 198, 201, 202, 209, 211 and 232. 56 See people v. Martinez, 205 SCRA 666, 675 (1992). 57 Rollo, p. 70. 58 People v. Jumanoy, G.R. No. 101584, 7 April 1993; People v. Chanas, 212 SCRA 65, 74 (1992).

2. G.R. No. 118231 July 5, 1996 DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have 1 been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze 2 3 lancet and destroy the man's eyes, they shall cut off his hand." Subsequently, Hippocrates wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession if the preservation of life and maintenance of the 4 health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. The petitioners appeal from the decision of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the 6 decision of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492. The facts, as found by the trial court, are as follows: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.
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Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee". . . . Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines. . . which she had been taking up to December, 1988. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental. The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989. The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of 7 all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and although Dr. 8 Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, it was not mentioned in the pathologist's 9 Surgical Pathology Report. Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, a Progress 11 12 13 14 Record, an Anesthesia Record, a Nurse's Record, and a Physician's Discharge Summary. The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her 15 agreement thereto. . . ." The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as 16 Dr. Kho "may not have had first-hand knowledge" thereof, as could be gleaned from her statement, thus: A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the 1 tissues but unluckily I don't know where the rubber was. 7 The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. 18 Kho answered that there was rubber indeed but that she threw it away." This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude: There are now two different versions on the whereabouts of that offending "rubber" (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim 19 against Defendant Batiquin. All told, the trial court held in favor of the petitioners herein.
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The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding: 4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the same. . . Had she exercised due diligence, appellee Dr. 20 Batiquin would have found the rubber and removed it before closing the operating area. The appellate court then ruled: Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life. For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00. The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and caused appellant fear, worry and anxiety. . . . WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of litigation. SO ORDERED.
21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities. The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by 22 the evidence on record, or when the appellate court misapprehended the facts. After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony: Q What is the purpose of the examination? A Just in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign bodythat goes with the tissues but unluckily I don't know where the rubber was. It was 23 not in the Lab, it was not in Cebu. (emphasis supplied) The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony, especially the following: Q So you did actually conduct the operation on her? A Yes, I did. Q And what was the result?

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A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece of] rubber on the right 24 side. We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a 25 pathologist. Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first-hand knowledge for, as she asserted before the trial court: Q But you are sure you have seen [the piece of rubber]? A Oh yes. I was not the only one who saw it.
26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but 2 that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible 7 but it carries 28 no probative value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated 29 testimony be rejected, but such portions thereof deemed worthy of belief may be credited. It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was 30 used in the operation, and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her 31 hands upon removing her gloves. Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. 32 Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger 33 than negative testimony. Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. 34 Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness: This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of 35 what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen in those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer. . . . Under [this] doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces

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substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [ sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx xxx xxx The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, 36 under the circumstances involved, direct evidence is absent and not readily available. In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body, which, needless to say, does not occur unless through the intersection of negligence. Second, since aside from the caesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, 7 and the State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and 38 ignorance in those who would undertake to treat our bodies and minds for disease or trauma." Indeed, a physician is bound to 39 serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill." Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention 40 41 of the legal standards set forth for professionals, in general, and members of the medical profession, in particular. WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
Footnotes 1 Implemented in Babylon, ca. 2250 B.C. 2 See L.J. REGAN, DOCTOR AND PATIENT AND THE LAW, 2d. ed. [1949], 34. 3 460-377 B.C. 4 P. SOLIS, MEDICAL JURISPRUDENCE [1988 ed.], 5. 5 Appendix "A" of Petition; Rollo, 12-22. Per Austria-Martinez, M.A., J., with Marigomen, A., and Reyes, R.JJ., concurring. 6 Original Records (OR), 260-272. Per Judge Enrique C. Garrovillo. 7 OR, 261-264. 8 TSN, 12 July 1990, 49. 9 Id., 50-51. 10 OR, 132. 11 Id., 135-137. 12 Id., 138. 13 Id., 139-140.
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14 Id., 141. 15 Id., 268. 16 Id., 266. 17 TSN, 12 July 1990, 49. 18 OR, 269. 19 Id. 20 Rollo, 20. 21 Id., 21. 22 Remalante vs. Tibe, 158 SCRA 138, 145 [1988]; Medina vs. Asistio, 191 SCRA 218, 223-224 [1990]; Borillo vs. Court of Appeals, 209 SCRA 130, 140-141 [1992]; Director of Lands vs. Intermediate Appellate Court, 209 SCRA 214, 221 [1992]; Margolles vs. Court of Appeals, 230 SCRA 97, 106 [1994]. 23 TSN, 12 July 1990, 49. 24 TSN, 12 July 1990, 9. 25 Id., 10-49. 26 TSN, 12 July 1990, 10. 27 RICARDO J. FRANCISCO, Evidence, 255 [1993]. 28 People vs. Laurente, G.R. No. 116734, 29 March 1996, at 24, citations omitted. 29 People vs. Ducay, 225 SCRA 1, 14 [1993]; People vs. Caeja, 235 SCRA 328, 337 [1994]. 30 TSN, 31 August 1990, 20. 31 Id., 21. 32 TSN, 10 September 1990, 5. 33 People vs. Antonio, 233 SCRA 283, 299 [1994]. 34 See People vs. De Leon, 245 SCRA 538, 545 [1995]; People vs. Malunes, 247 SCRA 317, 326-327 [1995]. 35 OR, 267. 36 Layugan vs. Intermediate Appellate Court, 167 SCRA 363, 376-377 [1988]. See discussions in Martinez vs. Van Buskirk, 18 Phil. 79, 85-86 [1910]; Africa vs. Caltex (Phil.) Inc., 16 SCRA 448, 454-456 [1966]; F.F. Cruz and Co., Inc. vs. Court of Appeals, 164 SCRA 731, 736 [1988]. 37 Department of Education, Culture, and Sports vs. San Diego, 180 SCRA 533, 538 [1989]. 38 Tablarin vs. Gutierrez, 152 SCRA 730, 743, [1987]. 39 Section 3, Article 1, 1960 Code of Ethics of the Medical Profession in the Philippines, as cited in Carillo vs. People, 229 SCRA 386, 396 [1994]. 40 Culion Ice, Fish & Elec. Co. vs. Phil. Motors Corporation, 55 Phil. 129-133 [1930]. 41 Stevenson vs. Yates, 208 SW 820 [1919]; Kennedy vs. Parrott, 90 SE 2d 754 [1956]; DeLaughter vs. Womack, 164 So 2d 762 [1994]; Hill vs. Stewart, 209 So 2d 809 [1968].

3. G.R. No. 118141 September 5, 1997 LEONILA GARCIA-RUEDA, petitioner, vs. WILFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City Prosecutor, Manila, respondents.

ROMERO, J.:

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May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated in Ocampo 1 v. Ombudsman which states: In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form. Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a preliminary investigation to each other with contradictory recommendations, "ping-pong" style, perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her complaint against said City Prosecutors on the ground of lack of evidence. Much as we sympathize with the bereaved widow, however, this Court is of the opinion that the general rule still finds application in instant case. In other words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against filing the necessary information against public respondents of the Office of the City Prosecutor. The following facts are borne out by the records. Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of "unknown cause," according to 2 officials of the UST Hospital. Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy on her husband's body. Consequently, the NBI ruled that Florencio's death was due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor. During the preliminary investigation, what transpired was a confounding series of events which we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed. The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the "interest of justice and peace of mind of the parties," recommended that the case be re-raffled on the ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba. Pending the resolution of petitioner's motion for reconsideration regarding Prosecutor Dimagiba's resolution, the investigative "pingpong" continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero. Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack of evidence. In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019. Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following: investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain information, and function to adopt, institute 4 and implement preventive measures.
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As protector of the people, the Office of the Ombudsman has the power, function and duty "to act promptly on complaints filed in any form or manner against public officials" and "to investigate any act or omission of any public official when such act or omission 5 appears to be illegal, unjust, improper or inefficient." While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this Court is not precluded from reviewing the Ombudsman's action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court may 6 exceptionally be invoked pursuant to Section I, Article VIII of the 1987 Constitution. In this regard, "grave abuse of discretion" has been defined as "where a power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a 7 duty enjoined by, or in contemplation of law. From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsmans should have been more vigilant and assiduous in determining the reasons behind the "buckpassing" to ensure that no irregularity took place. Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would have expected the Ombudsman, however, to inquire into what could hardly qualify as "standard operating procedure," given the surrounding circumstances of the case. While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover who may be 8 charged with a crime, its function is merely to determine the existence of probable cause. Probable cause has been defined as "the existence of such fact and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge 9 of the prosecution, that the person charged was guilty of the crime for which he was prosecuted." "Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so." The term does not meanactual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. 10 Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed negligence on the part of the 11 attending physicians in administering the anaesthesia. The fact of want of competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not in a competent position to pass judgment on such a technical matter, especially when there are conflicting evidence and findings. The bases of a party's accusation and defenses are better ventilated at the trial proper than at the preliminary investigation. A word on medical malpractice or negligence cases. In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action 12 caused injury to the patient. Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their 13 patients. They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance, 14 by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held 15 answerable in damages for negligence. Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff; have been applied in actions against anaesthesiologists to hold the 16 defendant liable for the death or injury of a patient under excessive or improper anaesthesia. Essentially, it requires two-pronged

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evidence: evidence as to the recognized standards of the medical community in the particular kind of case, and a showing that the 17 physician in question negligently departed from this standard in his treatment. Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctor's actions in fact caused the harm to the patient and whether these were the proximate cause of the patient's 18 injury. Indeed here, a causal connection is discernible from the occurrence of the victim's death after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot ignore 19 the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. Why these precautionary measures were disregarded must be sufficiently explained. The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act which requires the following facts: 1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted 20 benefit, advantage or preference to such parties. Why did the complainant, petitioner in instant case, elect to charge respondents under the above law? While a party who feels himself aggrieved is at liberty to choose the appropriate "weapon from the armory," it is with no little surprise that this Court views the choice made by the complainant widow. To our mind, the better and more logical remedy under the circumstances would have been to appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justice's Order No. 21 223, otherwise known as the "1993 Revised Rules on Appeals From Resolutions In Preliminary Investigations/Reinvestigations," as amended by Department Order No. 359, Section 1 of which provides: Sec. 1. What May Be Appealed. Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: "The Secretary of Justice may reverse, affirm or modify the appealed resolution." On the other hand, "He may motu proprio or on motion of the appellee, dismiss 22 outright the appeal on specified grounds." In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in dismissing the complaint against the Prosecutors and this Court will not interfere with the same. WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the respondent City Prosecutors. No costs. SO ORDERED. Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.
Footnotes 1 225 SCRA 725 (1993). 2 Rollo, p. 186. 3 Sec. 3(e). Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. 4 Concerned Officials of the Metropolitan Waterworks and Sewerage System (MWSS) v. Vasquez, 240 SCRA 502 (1995).

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5 Deloso v. Domingo, 191 SCRA 54 (1990). 6 Yabut v. Office of the Ombudsman, 233 SCRA 310 (1994); Young v. Office of the Ombudsman, 228 SCRA 718 (1993). 7 Commission on Internal Revenue v. Court of Appeals, 257 SCRA 200 (1996). 8 Pangandaman v. Casar, 159 SCRA 599 (1988). 9 Cruz v. People, 233 SCRA 439 (1994). 10 Pilapil v. Sandiganbayan, 221 SCRA 349 (1993). 11 Rollo, p. 187. 12 Internet-http://www.medicalmal.com/neglig.html. 13 Hirschberg v. State, 91 Misc 2d 590 (1977). 14 Hoover v. Williamson, 236 Md 250. 15 Gore v. Board of Medical Quality, 110 Cal App 3d 184 (1980). 16 61 Am Jur 2nd (1972). 17 Davis v. Virginian R. Co, 361 US 354. 18 Internet, supra; see footnote 12. 19 NBI Disposition Form, pp. 238-254. 20 Villanueva v. Sandiganbayan, 223 SCRA 543 (1993). 21 Order No. 223 took effect on August 1, 1993. 22 Sec. 9. Disposition of Appeal. The Secretary of Justice may reverse, affirm or modify the appealed resolution. He may, motu proprio or on motion of the appellee, dismiss outright the appeal on any of the following grounds: a) That the offense has prescribed; b) That there is no showing of any reversible error; c) That the procedure or requirements herein prescribed have not been complied with; d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings based on the alleged existence of a prejudicial question; or e) That other legal or factual grounds exist to warrant a dismissal.

4. G.R. No. 122445 November 18, 1997 DR. NINEVETCH CRUZ, petitioner, vs.COURT OF APPEALS and LYDIA UMALI, respondents.

FRANCISCO, J.: Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not 1 insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment . . . The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type of claim which a 2 victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In this 3 jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in 4 some instances, as a criminal case under Article 365 of the Revised Penal Code with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information which reads:

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That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above named, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely 5 death of said Lydia Umali on the day following said surgical operation. Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion of which is hereunder quoted as follows: WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to 6 suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs. The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the 7 MTCC prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity 8 for her death. In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on record. First the antecedent facts. On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon 9 of the same day. Prior to 10 March 22, 1991, Lydia was examined by the petitioner who found a "myoma" in her uterus, and scheduled her for a hysterectomy operation on March 23, 11 1991. Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next 12 day at 1:00 o'clock in the afternoon. According to Rowena, she noticed that the clinic was untidy and the window and the floor 13 were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. Because of the untidy state 14 of the clinic, Rowena tried to persuade her mother not to proceed with the operation. The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as 15 scheduled. Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it 16 arrived. But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition 17 necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. The transfer to the San Pablo District Hospital was without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other 18 relatives then boarded a tricycle and followed the ambulance. Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr. Ercillo re19 operated on her because there was blood oozing from the abdominal incision. The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. 20 Ercillo that there was nothing he could do to help save the patient. While the petitioner was closing the abdominal wall, the 21 patient died. Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate 22 states "shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause.

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In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation: . . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was ( sic) said in medical parlance that the "the abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for any eventuality thereof. The patient ( sic) chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly 23 liable with Dra. Cruz who actually did the operation. The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence and 24 lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation." And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus: . . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted. Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply. Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted a postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart with instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of recklessness and 25 imprudence. This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances 26 bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the 27 recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the 28 physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually 29 necessary to support the conclusion as to causation.

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Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised. All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality 30 of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently 31 evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to 32 his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench. Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence. In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such 33 34 breach and the resulting death of his patient . In Chan Lugay v. St. Luke's Hospital, Inc., where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby, this Court held that: In order that there may be a recovery for an injury, however, it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes." In other words, the negligence must be the proximate cause of the injury . For, "negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of ." And "the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, 35 produces the injury, and without which the result would not have occurred." (Emphasis supplied.) Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows: Atty. Cachero: Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a signature above the typewritten name Floresto Arizala, Jr., whose signature is that? A. That is my signature, sir. Q. Do you affirm the truth of all the contents of Exh. "A-1-b"? A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir. Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline, will you please explain that in your own language? A. There was incision wound (sic) the area just below the navel, sir. Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with some surface nodulation of the fundic area posteriorly. Cutsection shows diffusely pale myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted blood. Surgical sutures were noted on the operative site.

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Intestines and mesenteries are pale with blood clots noted between the mesentric folds. Hemoperitoneum: 300 s.s., right paracolic gutter, 50 c.c., left paracolic gutter 200 c.c., mesentric area, 100 c.c., right pelvic gutter stomach empty. Other visceral organs, pale., will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . . A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and also sign of previous surgical operation and there were ( sic) clotted blood, sir. Q. How about the ovaries and adnexal structures? A. They are missing, sir. Q. You mean to say there are no ovaries? A. During that time there are no ovaries, sir. Q. And there were likewise sign of surgical sutures? A. Yes, sir. Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds, will you please explain on (sic) this? A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . . Q. And what could have caused this blood? A. Well, ordinarily blood is found inside the blood vessel. Blood were ( sic) outside as a result of the injuries which destroyed the integrity of the vessel allowing blood to sip ( sic) out, sir. Q. By the nature of the postmortem findings indicated in Exh . A-1-B, can you tell the court the cause of death? A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock . Q. Can you tell the us what could have caused this hemorrhagic shock? A. Well hemorrhagic shock is the result of blood loss. Q. What could have the effect of that loss of blood ? A. Unattended hemorrhage, sir. The foregoing was corroborated by Dr. Nieto Salvador: Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by Dr. Arizala? A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir. Q. Have you also examined the post mortem of Dr. Arizala? A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report. Q. What could have caused the death of the victim ?
36

(Emphasis supplied.)

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A. This pathologic examination are (sic) compatible with the person who died, sir . Q. Will you explain to us the meaning of hemorrhagic compatible ? A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the victim before she died there was shock of diminish of blood of the circulation . She died most probably before the actual complete blood loss, sir. Court: Is it possible doctor that the loss of the blood was due on (sic) operation ? A. Based on my pathologist finding, sir. Q. What could have caused this loss of blood? A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation and this cause (sic) bleeding, or may be set in the course of operation, or may be (sic) he died after the operation. Of course there are other cause (sic). Atty. Cachero: Q. Especially so doctor when there was no blood replacement? A. Yes, sir.
37

(Emphasis supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter: Atty. Pascual: Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of control of the cut vessel? A. Yes, sir. Q. Or there is a failure to ligate a vessel of considerable size? A. Yes, sir. Q. Or even if the vessel were ligated the knot may have slipped later on? A. Yes, sir. Q. And you also mentioned that it may be possible also to some clotting defect, is that correct ? A. May be (sic).
38

(Emphasis supplied).

Defense witness, Dr. Bu C. Castro also gave the following expert opinion: Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such hemorrage (sic)? A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir. COURT: What do you think of the cause of the bleeding, the cutting or the operations done in the body? A. Not related to this one, the bleeding here is not related to any cutting or operation that I ( sic) have done.

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Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in a patient by an operations ( sic)? A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.. xxx xxx xxx Q. If the person who performed an autopsy does not find any untight ( sic) clot (sic) blood vessel or any suture that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject? A. Definitely, sir.
39

(Emphasis supplied.)

According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut blood vessel nor was there any indication that the tie or 40 suture of a cut blood vessel had become loose thereby causing the hemorrhage. Hence the following pertinent portion of Dr. Arizala's testimony: Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature A: Ligature, sir. Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a knot or the tie was merely placed around the cut structure and tied? A: I cannot recall, sir. Q: As a matter of fact, you cannot recall because you did not even bothered ( sic) to examine, is that correct? A: Well, I bothered enough to know that they were sutured, sir. Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither were you able to determine whether any loose suture was found in the peritoneal cavity? A: I could not recall any loose sutured (sic), sir.
41

On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a 42 complication of surgery leaving raw surface, major hemorrhage occurs. And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, 43 anytime." He testified further: Q. Now, under that circumstance one of the possibility as you mentioned in ( sic) DIC? A. Yes, sir. Q. And you mentioned that this cannot be prevented? A. Yes, sir. Q. Can you even predict if it really happen (sic)? A. Possible, sir. Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as DIC? A. Well, I did reserve because of the condition of the patient.

P a g e | 25
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the operated (sic) records, the post mortem findings on the histophanic ( sic) examination based on your examination of record, doctor, can you more or less says ( sic) what part are (sic) concerned could have been the caused (sic) of death of this Lydia Umali? A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to hemorrhage or bleedings, sir. Q. Doctor based on your findings then there is knowing ( sic) the doctor would say whether the doctor her (sic) has been (sic) fault? ATTY. MALVEDA: We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record. ATTY. PASCUAL: Precisely based on this examination. ATTY. MALVEDA: Not finding, there was no finding made. COURT: He is only reading the record. ATTY. PASCUAL: Yes, sir. A. No, sir, there is no fault on the part of the surgeon, sir.
44

This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil 45 liability. The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. The heirs of 46 the deceased continue to feel the loss of their mother up to the present time and this Court is aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case. WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages. Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action. SO ORDERED. Romero, Melo and Panganiban, JJ., concur. Narvasa, C.J., is on leave.
Footnotes

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1 "THE PHYSICIAN'S LIABILITY AND THE LAW ON NEGLIGENCE" by Constantino Nuez, p. 1 citingLouis Nizer, My Life in Court, New York: Double Day & Co., 1961 in Tolentino, Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issues Common to Medicine and Law U.P. I.aw Center, 1980. 2 Leonila Garcia-Rueda vs. Wifred L. Pascasio, et al., G.R. No. 118141, September 5, 1997. 3 ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. 4 Art. 365. Imprudence and Negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arrestomayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty, of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the courts shall impose the penalty next lower in degree than that which should be imposed, in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished byprision correccional in its medium and the maximum periods. Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his hands to give. 5 INFORMATION, 6 DECISION in Criminal Case No. 25534, March 4, 1994, p. 12; Rollo, p. 65. 7 DECISION in Criminal Case No. 9273-SP, July 26, 1994, p. 4; Rollo, p. 53. 8 DECISION in CA-G.R. CR No. 16388, October 24, 1995, p. 10; Rollo, p. 49. 9 TSN, Rowena Umali De Ocampo, November 10, 1992, pp. 5-6. 10 TSN, Edna Pujanes, September 30, 1992, p. 5. 11 Record of Exhibits, p. 15. 12 TSN, supra, p. 8. 13 Ibid., p. 6. 14 Ibid., p. 8. 15 Ibid., pp. 27-28. 16 Ibid., pp. 10-14. 17 Record of Exhibits, supra. 18 TSN, supra, pp. 15-16.

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19 Record of Exhibits, supra. 20 TSN, Dr. Bartolome Angeles, October 7, 1992, pp. 10-12. 21 Record of Exhibits, supra. 22 Record of Exhibits, p. 5. 23 DECISION, supra, pp. 11-12; Rollo, pp. 64-65. 24 DECISION, supra, p. 4; Rollo, p. 53.1. 25 DECISION, supra, p. 7; Rollo, pp. 47. 26 MEDICINE and LAW, supra, p. 24. 27 Supra. 28 MEDICINE and LAW, supra, p. 25; Willard vs. Hutson, 1 ALR 3d 1092, 1102 [1963]; Snyder vs. Pantaleo, 122 A. 2d 21, 23 [1956]. 29 American Jurisprudence 2d, Vol . 61, p. 510. 30 Willard vs. Hutson, supra. 31 MEDICINE and LAW, supra. 32 Abaya, et al. vs. Favis, 3 CA Reports 450, 454-455 [1963]. 33 Ibid. 34 10 CA Reports 415 [1966]. 35 Ibid., pp. 427-428. 36 TSN, Dr. Floresto Arizala, January 20, 1993, pp. 43-46. 37 TSN, Dr. Nieto Salvador, Jr., pp. 10-11. 38 TSN, Dr. Nieto Salvador, Ibid., pp. 20-21. 39 TSN, Dr. Bu C. Castro, September 28, 1993, pp. 10-13. 41 TSN, Dr. Floresto Arizala, supra, pp. 27-28. 42 Robert Berkow, The Merck Manual of Diagnosis and Therapy, 1987, p. 1170. 43 TSN, Dr. Bu Castro, supra. 44 TSN, Dr. Bu C. Castro, supra, pp. 13-15. 45 Padilla vs. Court of Appeals, 129 SCRA 558, 565 [1984]; People vs. Jalandoni, 131 SCRA 454 [1984]. 46 Q. When you came to know that your mother was already dead there in the operating room of the San Pablo District Hospital, how did you feel being the daughter? A. I was crying and crying hysterically. And I asked why it happened to my mother, sir. Q. And up to the present time do you still feel about the loss of your mother? A. Yes, sir. Q. How about your sister and brother? A. Same with me, sir. Q. Estimated to money value, how much I cost you and your sister and brother the lost of your mother? A. There is no equivalent, sir. (TSN, Rowena Umali De Ocampo, supra, p. 18.)

P a g e | 28 5. 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 1 human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 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 2 the unfortunate comatose condition of a patient scheduled for cholecystectomy. Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which overturned the decision 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. 34, 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.
3 4

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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, 5 p. 6). Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of Quezon City against herein private respondents alleging negligence in the management and care of Erlinda Ramos. During the trial, both parties presented evidence as to the possible cause of 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
6

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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 9 1995. Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

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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: I 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 12 Comment, 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 loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase " res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima faciecase, and present a question of fact for 13 defendant to meet with an explanation. 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, 14 that the accident arose from or was caused by the defendant's want of care.

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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 15 instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence 16 may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. 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 17 independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural 18 rule. It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a 19 plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an 20 inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is 21 eliminated. In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the 23 doctrine were present in a particular incident. Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of 25 that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function 26 to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 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 27 for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the 28 facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert 29 witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can 30 determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why 31 it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa 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 32 patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of 33 34 treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient's jaw 35 was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of 36 anesthetic, during or following an operation for appendicitis, 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 37 exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which
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involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why 39 any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not 40 accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the 41 untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the 42 defendant is called upon to explain the matter, by evidence of exculpation, if he could. 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, loquitur stated:
43 38

where the Kansas Supreme Court in applying the res ipsa

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 44 the doctrine of res ipsa loquitur. Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for 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 45 admit that she experienced some difficulty in the endotracheal intubation of the patient and thus, cannot be said to be covering

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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?

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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 46 brain. 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 47 lack of sufficient factual bases. 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 48 appearances, and manifest conditions which are observable by any one. 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 49 where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 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 50 Capitol Medical Center School of Nursing. Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day. Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty in inserting the tube into Erlinda's trachea, to wit: ATTY. LIGSAY: Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the trachea? DRA. GUTIERREZ: A: Yes sir.

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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 52 person) 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 53 patient's medical records and visits with the patient, traditionally, the day before elective surgery. It includes taking the patient's 54 medical history, review of current drug therapy, physical examination and interpretation of laboratory data. The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, 55 lungs and upper airway. 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 56 thyromental distance. Thus, physical characteristics of the patient's upper airway that could make tracheal intubation difficult 57 should be studied. 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

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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 59 bronchospasm 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 60 encephalopathy, 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 medicineallergy, 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.

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The provision in the rules of evidence
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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 63 to testify, either by the study of recognized authorities on the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally avoided providing testimony by competent and independent experts in the proper areas. Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an allergic reaction appears on record. No laboratory data were ever presented to the court. In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to 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, 64 produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable 65 consequence of the act or omission. 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) 66 was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 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 67 blue. 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 68 inadequate oxygenation of her brain for about four to five minutes. The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of 69 deaths and serious injuries associated with anesthesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult 70 intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 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 71 a change in technique. In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative 72 evaluation, would have had little difficulty going around the short neck and protruding teeth. 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 73 the ship," 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

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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 74 up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is 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 75 by a review committee set up by the hospital who either accept or reject the application. 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 employeremployee 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 76 doctors for petitioner's condition. 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 77 under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have 78 observed the diligence of a good father of the family to prevent damage. 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 79 negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 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.

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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 80 pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. 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 81 reasonable. In Valenzuela vs. Court of Appeals, 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, 83 sleeplessness, psychological injury, mental and physical pain are inestimable. The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the amputation in the Valenzuela case.
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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 84 injury suffered by the victim or those actually affected by the victim's condition. 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. Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes 1 In the United States alone, a great number of people die every year as a result of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled "Doctors' Deadly Mistakes" which is quoted in part: "It is hardly news that medical professionals make mistakes even dumb, deadly mistakes. What is shocking is how often it happens. Depending on which statistics you believe, the number of American killed by medical screw-ups is somewhere between 44,000 and 98,000 every year the eighth leading cause of death even by the more conservative figure, ahead of car crashes, breast cancer and AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health officials had known about the problem for years and hadn't made a concerted effort to do something about it." 2 Cholecystectomy is the surgical excision of the gall bladder. 3 CA Rollo, pp. 129-140. 4 Records, pp. 270-279. 5 Id. at 270-275. 6 Docketed as Civil Case No. Q-46885. 7 Records, pp. 276-278. 8 CA Rollo, p. 166. 9 Id. at 145. 10 Id. at 195. 11 Rollo, p. 19. 12 Id. at 91-98.

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13 57B Am Jur 2d, 493 (1989). 14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966). 15 57B Am Jur 2d, supra note 13 at 499. 16 Ibid. 17 Id. at 502. 18 Ibid. 19 Id. 20 Id. at 503. 21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P.2d 647. 22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967). 23 57B Am Jur 2d, supra note 13, at 513. 24 It is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 788 [1997]). 25 Voss vs. Bridwell, supra note 21. 26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978). 27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988). 28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P.237. 29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423. 30 SOLIS, supra note 27, at 239. 31 Voss vs. Bridwell, supra note 21 at 970-971. 32 Armstrong vs. Wallace, 47 P. 2d 740 (1935). 33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938). 34 Griffin vs. Norman, 192 NYS 322 (1922). 35 Brown vs. Shortilledge, 277 P. 134 (1929). 36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937). 37 Voss vs. Bridwell, supra note 21, at 969. 38 Id. at 968. 39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959). 40 Voss vs. Bridwell, supra note 21, at 968. 41 Sanders vs. Smith, 27 So.2d 889, 893 (1946). 42 Ibid. 43 Voss vs. Bridwell, supra note 21. 44 Id. at 971. 45 It is the method of intubating a patient through the oral cavity. Under this procedure, after the patient has been preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist inserts an instrument called a laryngoscope into the patient's oral pharynx. The patient's neck is hyperextended, that is, bent back as far as possible so that the anesthetist can see or "visualize" the patient's epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube between the patient's vocal cords into the trachea, and then hook the tube to the breathing bag and anesthetic machine.

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46 TSN, January 13, 1988, pp. 16-20. 47 CA Rollo, pp. 134-135. 48 Stockham vs. Hall, supra note 29. 49 61 Am Jur 2d, 513 (1989). 50 TSN, January 13, 1988, p. 3. 51 TSN, November 15, 1990, p. 11. 52 TSN, October 9, 1990, p. 13. 53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994). 54 Ibid. 55 Id. at 105 (Emphasis supplied). 56 id. at 106. 57 Id. 58 TSN, November 15, 1990, p. 6. 59 Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as in asthma). 60 Permanent damage to the brain caused by inadequate oxygenation. 61 TSN, February 28, 1991, pp. 10-11. 62 Rule 130, RULES OF COURT. 63 61 Am Jur 2d, supra note 49, 516. 64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979). 65 Ibid. 66 It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood. 67 TSN, March 27, 1990, p. 22. 68 Records, p. 274. 69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990). 70 Ibid. 71 Id. The book provides a thorough discussion on the management of difficult intubations. 72 Id. 73 Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control. 74 The term "consultant" is loosely used by hospitals to distinguish their attending and visiting physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is used. 75 These requirements are in fact found in the standard application forms for visiting and attending physicians of respondent hospital. 76 The hospital's control over respondent physicians is all the more significant when one considers the fact that it controls everything which occurs in an operating room, through its nursing supervisors and charge nurses. No operations can be undertaken without the hospital's direct or indirect consent. 77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993). 78 Art. 2180 of the Civil Code provides: 79 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.

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80 Art. 2224, CIVIL CODE. 81 Should petitioner remain in the same condition for another ten years, the amount awarded in the form of temperate damages would in fact, be inadequate. 82 253 SCRA 303 (1996). 83 Id. at 327-328. 84 Id. at 328.

6. G.R. No. 130547

October 3, 2000

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES, represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO,respondents.
DECISION MENDOZA, J.: This is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against respondents. The facts are as follows: Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987, Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home medication he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor. On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history. She noted 2 that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory distress. Typhoid fever 3 was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month. Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge. 4 Blood count, routine urinalysis, stool examination, and malarial smear were also made. After about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes. Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a physical examin ation. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight. At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions. When he regained consciousness, the patient was asked 5 by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he did not. After about 15 minutes, however, Jorge again started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was "Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever." On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their principal contention was that 7 Jorge did not die of typhoid fever. Instead, his death was due to the wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting
6 1

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sufficient tests on the patients compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio, 8 with negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses. Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were presented. Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine the cause of his death. However, 9 he did not open the skull to examine the brain. His findings showed that the gastro-intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease. For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical Center and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history and positive Widal Test result s ratio of 1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation regarding the absence of ulcerati on in Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an 10 examination of the brain. The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was already the maximum by which a conclusion of typhoid fever ma y be 11 made. No additional information may be deduced from a higher dilution. He said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive. On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim, holding that, in seeking damag es from respondents, petitioners were impelled by the honest belief that Jorges death was due to the latters negligence. Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the trial court. Hence this petition. Petitioners raise the following assignment of errors: I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE*D+ NO DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES. Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of a ph ysician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, 12 under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action 13 caused injury to the patient. There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a 14 condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it 15 has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

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Res Ipsa Loquitur There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held in Ramos v. 16 Court of Appeals: Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during or 17 following an operation for appendicitis, among others. Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission. This contention was rejected by the appellate court. Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or 18 contribution of the person injured. The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for 19 cholecystectomy. In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him. Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico.As held in Ramos: . . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the 20 desired result. Specific Acts of Negligence

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We turn to the question whether petitioners have established specific acts of negligence allegedly committed by respondent doctors. Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges illness as typhoid 21 fever, and immediately prescribed the administration of the antibiotic chloromycetin; and (2) Dr. Marvie Blanes erred in ordering 22 the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was given. Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded. First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive experience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is 23 also plain from his testimony that he has treated only about three cases of typhoid fever. Thus, he testified that: ATTY. PASCUAL: Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever? A In autopsy. But, that was when I was a resident physician yet. Q But you have not performed an autopsy of a patient who died of typhoid fever? A I have not seen one. Q And you testified that you have never seen a patient who died of typhoid fever within five days? A I have not seen one. Q How many typhoid fever cases had you seen while you were in the general practice of medicine? A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the widal test does not specify the time of the typhoid fever. Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you practice? A I had only seen three cases. Q And that was way back in 1964? A Way back after my training in UP. Q Clinically? A Way back before my training. He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in discarding his testimony, which is really inadmissible. In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen deprivation after 24 25 the patient had bronchospasms triggered by her allergic response to a drug, and not due to faulty intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms. Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is in fectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of Medicine, 26 testified that he has already treated over a thousand cases of typhoid fever. According to him, when a case of typhoid fever is 27 suspected, the Widal test is normally used, and if the 1:320 results of the Widal test on Jorge Reyes had been presented to him 28 along with the patients history, his impression would also be that the patient was suffering from typhoid fever. As to the 29 treatment of the disease, he stated that chloromycetin was the drug of choice. He also explained that despite the measures taken

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by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not be 30 discounted. His testimony is as follows: ATTY. PASCUAL: Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given? A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever. Q And presently what are the treatments commonly used? A Drug of choice of chloramphenical. Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient associated o with chills, temperature - 41 C, what could possibly come to your mind? A Well, when it is change in the clinical finding, you have to think of complication. Q And what will you consider on the complication of typhoid? A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium. Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to o o 41 C, and then about 40 minutes later the temperature rose to 100 F, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes? A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac rate. Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you attach to this development? A We are probably dealing with typhoid to meningitis. Q In such case, Doctor, what finding if any could you expect on the post-mortem examination? A No, the finding would be more on the meninges or covering of the brain. Q And in order to see those changes would it require opening the skull? A Yes. As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico explained that, 31 while hyperplasia in the payers patches or layers of the small intestines is present in typhoid fever, the same may not always be 32 grossly visible and a microscope was needed to see the texture of the cells. Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a single test would only give a presumption 33 necessitating that the test be repeated, becoming more conclusive at the second and third weeks of the disease. He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really th e possible complications which could develop like perforation, 34 hemorrhage, as well as liver and cerebral complications. As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio 35 stated that no additional information could be obtained from a higher ratio. He also agreed with Dr. Gotiong that hyperplasia in 36 the payers patches may be microscopic. Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the 37 worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians. Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care required under the circumstances. Though the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever with chills for five days, taken with the fact that typhoid fever was

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then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly absent. Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners claim 38 that Jorge Reyes died of anaphylactic shock or possibly from overdose as the second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however: That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., inHarrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. "Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc." (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) a t around nine oclock in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. ( Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this regard. .... As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of which, however, it has been observed: "Skin testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug." (Terr, "Anaphylaxis and Urticaria" in Basic and Clinical Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and perform standard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered medication with recklessness and 39 exhibited an absence of the competence and skills expected of general practitioners similarly situated. Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing extraordinary 40 diligence in the vigilance over the goods and for the safety of the passengers, physicians and surgeons should have the same duty 41 toward their patients. They also contend that the Court of Appeals erred when it allegedly assumed that the level of medical practice is lower in Iligan City, thereby reducing the standard of care and degree of diligence required from physicians and surgeons in Iligan City. The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides: Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of each case. . . . The practice of medicine is a profession engaged in only by qualified individuals.1wphi1 It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of "extraordinary" diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable "skill and competence . . . that a physician in the same or similar locality . . . should apply." WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
Footnotes

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1

Per Associate Justice Hilarion L. Aquino, with concurrence of Associate Justice (now Supreme Court Justice) Minerva P. Gonzaga-Reyes and Associate Justice Eubulo G. Verzola.
2

TSN, p. 18, Aug. 14, 1990. TSN, p. 18, Oct. 19, 1990. TSN, p. 19, Aug. 14, 1990. TSN, pp. 42-43, Oct. 19, 1990. Records, p. 1. Amended complaint, p. 6; Records, p. 61. Id. at 7. Exh. A. TSN, pp. 4-14, Dec. 17, 1990. TSN, p. 18, March 8, 1991. 61 Am. Jur. 2d 337, 205 on Physicians, Surgeons, etc. Garcia-Rueda v. Pascasio, 278 SCRA 769, 778 (1997). Id. at 778-779. Id. at 200, citing 61 Am. Jur. 2d, 510. G.R. No. 124354, Dec. 29, 1999. Id. (Citations omitted; emphasis added) Petition, p. 9; Rollo, p. 12. The surgical excision of the gallbladder. Ramos v. Court of Appeals, supra. Petition, p. 10; Rollo, p. 13. Id. at p. 17. TSN, pp. 33-35, Sept. 20, 1989. The constriction of air passages in the lungs by spasmodic contraction of the bronchial muscles. Thiopental Sodium. TSN, p.6, Dec. 17, 1990. Id. Id. at 9. Id. Id. at 9-12. An abnormal or unusual increase in the component cells. TSN, p. 12, Dec. 17, 1990. TSN, p 37-40, March 8, 1991. Id. at 27-30. Id. at 18.

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36

Id. at 30. 61 Am. Jur. 2d 338.

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A state of shock resulting from injection or more rarely ingestion of sensitizing antigen or hapten and due mainly to contraction of smooth muscle and increased capillary permeability caused by release in the tissues and circulation of histamine, heparin, and perhaps acetylcholin and serotonin.
39

CA Decision, pp. 5-7; Rollo, pp. 31-33. (Italics supplied) THE CIVIL CODE, ART. 1733. Petition, pp. 19- 20; Rollo, pp. 22-23.

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41

7. G.R. No. 124354

April 11, 2002

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, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA GUTIERREZ, respondents.
RESOLUTION KAPUNAN, J.: Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose condition after she delivered herself to them for their professional care and management. For better understanding of the issues raised in private respondents respective motions, we will briefly restate the facts o f the case as follows: Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room. At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation. Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival. While she held the hand of Erlinda, Cru z saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position a position where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlindas operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on 1 November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were negligent in

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the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial courts decision and directed petitioners to pay their "unpaid medical bills" to private respondents. Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private respondents now seek to be reconsidered. The dispositive portion of said Decision states: 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) 2 P100,000.00 each exemplary damages and attorneys fees; and 5) the costs of the suit. In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor: I THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-SHIP" DOCTRINE. II THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM. III ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN 3 AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS. Private respondent Dr. Gutierrez, for her part, avers that: A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE COU RT OF APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT PETITION; B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE; B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION. B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT 4 THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR. Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following grounds: I THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY II

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THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ III THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS IV THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS.
5

In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for reconsideration. The Philippine College of Surgeons filed its Petitionin-Intervention contending in the main that this Court erred in holding private respondent Dr. Hosaka liable under the captain of the ship doctrine. According to the intervenor, said doctrine had long been abandoned in the United States in recognition of the 6 7 developments in modern medical and hospital practice. The Court noted these pleadings in the Resolution of July 17, 2000. On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the Philippine General Hospital and former Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and Vice-Chair for Academics, Department of Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines. The Court enumerated the issues to be resolved in this case as follows: 1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE; 2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND 3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE 8 COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST. We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the Court erred in finding her negligent and in holding that it was the faulty intubation which was the proximate cause of Erlindas comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the procedure was a comatose 9 patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from that cardiac arrest. In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the intubation she performed on Erlinda was successful. Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by the records of the case. It has been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Egay enlightened the Court on what these standards are: x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and establishing consent to proceed with the plan. And lastly, once this has been agreed upon by all parties concerned the ordering of pre-operative medications. And following this line at the end of the evaluation we usually come up on writing, documentation is very important as far as when we train an anesthesiologist we always emphasize this because we need records for our protection, well, records. And it entails having brief summary of patient history and physical findings pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia technique, the plan post operative, pain management if appropriate, special issues for this particular patient. There are needs for special care after surgery and if it so it must be written down there and a request must be made known to proper authorities that such and such care is necessary. And the request for medical evaluation if there is an indication. When we ask for a cardio-pulmonary clearance it is not in fact to tell them if this patient is going to be fit for anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the functional capacity of certain systems which maybe affected by the anesthetic agent or the technique that we are going to 10 use. But the burden of responsibility in terms of selection of agent and how to administer it rest on the anesthesiologist. The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or emergency, cannot be dispensed 11 with. Such evaluation is necessary for the formulation of a plan of anesthesia care suited to the needs of the patient concerned.

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Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his current drug therapy, conducting physi cal examination, interpreting laboratory data, and determining the appropriate prescription of preoperative medications as necessary 12 to the conduct of anesthesia. Physical examination of the patient entails not only evaluating the patients central nervous system, cardiovascular system and lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the patients cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the thyromental 13 distance. Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself admitted, she saw 14 Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. She auscultated the patients 15 heart and lungs and checked the latters blood pressure to determine if Erlinda was indeed fit for operation. However, she did not proceed to examine the patients airway. Had she been able to check petitioner Erlindas airway prior to the operation, Dr. G utierrez would most probably not have experienced difficulty in intubating the former, and thus the resultant injury could have been avoided. As we have stated in our Decision: In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries -old 16 Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence. Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments: CHIEF JUSTICE: Mr. Counsel, you started your argument saying that this involves a comatose patient? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or comatose before any act was done by her? ATTY. GANA: No, we meant comatose as a final outcome of the procedure. CHIEF JUSTICE: Meaning to say, the patient became comatose after some intervention, professional acts have been done by Dr. Gutierrez? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: In other words, the comatose status was a consequence of some acts performed by D. Gutierrez? ATTY. GANA: It was a consequence of the well, (interrupted) CHIEF JUSTICE: An acts performed by her, is that not correct?

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ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: Thank you.
17

What is left to be determined therefore is whether Erlindas hapless condition was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patients comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium 18 (pentothal). In the Decision, we explained why we found Dr. Gutierrez theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an 19 authority on anesthesia practice and procedure and their complications. Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise: DR. CAMAGAY: All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is not usual response and it is further qualified by the release of a hormone called histamine and histamine has an effect on all the organs of the body generally release because the substance that entered the body reacts with the particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is some form of response to take away that which is not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of the effects as you will see you will have redness, if you have an allergy you will have tearing of the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and you could also have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this way, we brought some visual aids but unfortunately we do not have a projector. And then you have the smaller airways, the bronchi and then eventually into the mass of the lungs you have the bronchus. The difference is that these tubes have also in their walls muscles and this particular kind of muscles is smooth muscle so, when histamine is released they close up like this and that phenomenon is known as bronco spasm. However, the effects of histamine also on blood vessels are different. They dilate blood vessel open up and the patient or whoever has this histamine release has hypertension or low blood pressure to a point that the patient may have decrease blood supply to the brain and may collapse so, 20 you may have people who have this. These symptoms of an allergic reaction were not shown to have been extant in Erlindas case. As we held in our Decision, "no evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an allergic reaction appears on 21 record. No laboratory data were ever presented to the court." Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas intubation: 12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight difficulty (short neck & slightly prominent upper teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min. 12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis disappeared. Blood pressure and heart beats stable. 12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline was given and solu cortef was given. 12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted positive pressure. Laboratory exams done (see results in chart). Patient was transferred to ICU for further management.
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From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly placed. The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not account for at least ten (10) minutes of what happened during the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive: DR. ESTRELLA Q You mentioned that there were two (2) attempts in the intubation period?

DR. GUTIERREZ Yes. Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was inserted? A All the laryngoscope.

Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that you did a first attempt and the question was did you withdraw the tube? And you said you never withdrew the tube, is that right? A Yes.

Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that first attempt. Now, the other thing that we have to settle here is when cyanosis occurred, is it recorded in the anesthesia record when the cyanosis, in your recording when did the cyanosis occur? A (sic)

Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to the time that you probably get the patient out of the operating room that every single action that you do is so recorded in your anesthesia record? A I was not able to record everything I did not have time anymore because I did that after the, when the patient was about to leave the operating room. When there was second cyanosis already that was the (interrupted) Q A Q A Q A Q A Q When was the first cyanosis? The first cyanosis when I was (interrupted) What time, more or less? I think it was 12:15 or 12:16. Well, if the record will show you started induction at 12:15? Yes, Your Honor. And the first medication you gave was what? The first medication, no, first the patient was oxygenated for around one to two minutes. Yes, so, that is about 12:13?

A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one minute. Q A So, that is about 12:13 no, 12:15, 12:17? Yes, and then, after one minute another oxygenation was given and after (interrupted)

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Q A Q A Q A Q 12:18? Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted) After that relaxant, how long do you wait before you do any manipulation? Usually you wait for two minutes or three minutes. So, if our estimate of the time is accurate we are now more or less 12:19, is that right? Maybe. 12:19. And at that time, what would have been done to this patient?

A After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw that the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask "mahirap ata ito ah." So, I removed the laryngoscope and oxygenated again the patient. Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the laryngoscope that was inserted. A Q A Q A Q A Q A Yes. And in the second attempt you inserted the laryngoscope and now possible intubation? Yes. And at that point, you made a remark, what remark did you make? I said "mahirap ata ito" when the first attempt I did not see the trachea right away. That was when I (interrupted) That was the first attempt? Yes. What about the second attempt? On the second attempt I was able to intubate right away within two to three seconds.

Q At what point, for purposes of discussion without accepting it, at what point did you make the comment " na mahirap ata to intubate, mali ata ang pinasukan" A I did not say "mali ata ang pinasukan" I never said that.

Q Well, just for the information of the group here the remarks I am making is based on the documents that were forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for the sake of enlightenment. So, at what point did you ever make that comment? A Q A Q A Q A Which one, sir? The "mahirap intubate ito" assuming that you (interrupted) Iyon lang, that is what I only said "mahirap intubate (interrupted) At what point? When the first attempt when I inserted the laryngoscope for the first time. So, when you claim that at the first attempt you inserted the laryngoscope, right? Yes.

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Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of the other party try to inquire from you during the first attempt that was the time when " mayroon ba kayong hinugot sa tube, I do not remember the page now, but it seems to me it is there. So, that it was on the second attempt that (interrupted) A Q A I was able to intubate. And this is more or less about what time 12:21? Maybe, I cannot remember the time, Sir.

Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there was no recording of the vital signs. And can we presume that at this stage there was already some problems in handling the patient? A Q A Q A Not yet. But why are there no recordings in the anesthesia record? I did not have time. Ah, you did not have time, why did you not have time? Because it was so fast, I really (at this juncture the witness is laughing)

Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify certainty more ore less on the record. A Yes, Sir.

Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and going over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that right? A Q A Q A Yes. And that is after induction 12:15 that is 12:25 that was the first cyanosis? Yes. And that the 12:25 is after the 12:20? We cannot (interrupted)

Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so, I am just wondering why there were no recordings during the period and then of course the second cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka came in? A No, the first cyanosis (interrupted).
23

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that it does not fully reflect the eve nts that transpired during the administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is partic ularly significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to five (5) minutes that caused Erlindas comatose condition. On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician and surgeon, external 24 appearances and manifest conditions which are observable by any one. Cruz, Erlindas sister-in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark, " Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in 25 26 trendelenburg position. Cruz further averred that she noticed that the abdomen of Erlinda became distended. The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported by

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the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decr ease of blood supply to the patients brain. The brain was thus temporarily deprived of oxygen supply causing Erlinda to go into coma. The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia, including 27 the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka. In Voss vs. 28 Bridwell, which involved a patient who suffered brain damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that "[o]rdinarily 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 29 been exercised." Considering the application of the doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar. For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon by applying the Captain-of-the30 Ship doctrine. Dr. Hosaka argues that the trend in United States jurisprudence has been to reject said doctrine in light of the developments in medical practice. He points out that anesthesiology and surgery are two distinct and specialized fields in medicine and as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in 31 her field and has acquired skills and knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not possess. He states further that current American jurisprudence on the matter recognizes that the trend towards specialization in medicine has 32 created situations where surgeons do not always have the right to control all personnel within the operating room, especially a 33 fellow specialist. Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, which involved a suit filed by a patient who lost his voice due to the wrongful insertion of the endotracheal tube preparatory to the administration of anesthesia in connection with the laparotomy to be conducted on him. The patient sued both the anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of Appeals of West Virginia held that the surgeon could not be held liable for the loss of the patients voice, conside ring that the surgeon did not have a hand in the intubation of the patient. The court rejected the application of the "Captain-of-the-Ship Doctrine," citing the fact that the field of medicine has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the operating room. It held that "[a]n assignment of liability based on actual control more 35 realistically reflects the actual relationship which exists in a modern operating room." Hence, only the anesthesiologist who inserted the endotracheal tube into the patients throat was held liable for the injury suffered by the latter. This contention fails to persuade. That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda. First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever 36 Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient. Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed signs of cyanosis, it 37 was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help resuscitate Erlinda. Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a team. Their work 38 cannot be placed in separate watertight compartments because their duties intersect with each other. While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of acts within their respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise control over the other, they were certainly not completely independent of each other so as to absolve one from the negligent acts of the other physician. That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the patients nails had become dusky and had to call Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also 39 have to observe the surgeons acts during the surgical process and calls the attention of the surgeon whenever necessary in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility necessitates that they call each others attention to the condition of the patient while th e other physician is performing the necessary medical procedures. It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he
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arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patients well being, Dr. Hosaka scheduled two proce dures on the same day, just thirty minutes apart from each other, at different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC. The unreasonable delay in petitioner Erlindas scheduled operation subjected her to c ontinued starvation and consequently, to the 40 risk of acidosis, or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea 41 and vomiting, and visual disturbances. The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely affected the administration of anesthesia on her. As explained by Dr. Camagay, the patients anxiety usually causes the outpouring of adrenaline which in tu rn results in high blood pressure or disturbances in the heart rhythm: DR. CAMAGAY: x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have adverse implications. So, we would like to alleviate patients anxiety mainly because he will not be in control of his body there could be adverse 42 results to surgery and he will be opened up; a knife is going to open up his body. x x x Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda: CHIEF JUSTICE: Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his or her anxiety? DR. CAMAGAY: Yes. CHIEF JUSTICE: In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on the operating table (interrupted) DR. CAMAGAY: Yes. CHIEF JUSTICE: Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of the patient? DR. CAMAGAY: That this operation did not take place as scheduled is already a source of anxiety and most operating tables are very narrow and that patients are usually at risk of falling on the floor so there are restraints that are placed on them and they are never, never left alone in the operating room by themselves specially if they are already premedicated because they may not be aware of some of their movement that they make which would contribute to their injury. CHIEF JUSTICE: In other words due diligence would require a surgeon to come on time? DR. CAMAGAY: I think it is not even due diligence it is courtesy. CHIEF JUSTICE: Courtesy.

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DR. CAMAGAY: And care. CHIEF JUSTICE: Duty as a matter of fact? DR. CAMAGAY: Yes, Your Honor.
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Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician "to serve the interest of his patients with the greatest solicitude, giving them always his best talent and 44 skill," but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and give everyone his due. Anent private respondent DLSMCs liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is solidarily 45 liable with respondent doctors therefor under Article 2180 of the Civil Code since there exists an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka: In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, x x x the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of 46 wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors. It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; 47 and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end. DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and 48 49 references. Second, it is not the hospital but the patient who pays the consultants fee for services rendered by the latter . Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the 50 hospital. Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospitals obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctors 51 orders are carried out strictly. After a careful consideration of the argument s raised by DLSMC, the Court finds that respondent hospitals position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. As explained by respondent hospital, that the admission of a physician to membership in DLSMCs medical staff as active or vi siting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's 52 recommendation. Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee. Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda.

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Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening event of petitioner Erlindas death. In the assailed Decision, the Court awarded actual damag es of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlindas treatment and care from the date of promulgatio n of 53 the Decision up to the time the patient expires or survives. In addition thereto, the Court awarded temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlind as injury and the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner: 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. 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 equitableand certainly not in the best interests of the administration of justicefor the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awardedtemperate 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 54 P1,500,000.00 in temperate damages would therefore be reasonable. However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda died 55 on August 3, 1999. In view of this supervening event, the award of temperate damages in addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exe mplary damages, attorneys fees and costs of suit should be awarded to petitioners. WHEREFORE, the assailed Decision is hereby modified as follows: (1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985; (2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners (a) P1,352,000.00 as actual damages; (b) P2,000,000.00 as moral damages; (c) P100,000.00 as exemplary damages; (d) P100,000.00 as attorneys fees; and (e) the costs of the suit. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

Footnotes

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1

See Decision, pp. 2-5. Rollo, p. 217. Id., at 226. Id., at 252-253. Id., at 469. Id., at 440. Id., at 454-455. Resolution, dated March 19, 2001, pp. 1-2; Rollo, pp. 543-544. TSN, March 19, 2001, p. 51. Id., at 182-184. Memorandum of Amicus Curiae Dr. Iluminada M. Camagay, Rollo, p. 620 Decision, p. 28, Id., at 197, citing Stoelting and Miller, Basics of Anesthesia, p. 103 (1994); Memorandum of Dr. Camagay, Id., at 616. Decision, Id.

10

11

12

13

14

To "auscultate" means to listen to the sounds arising within organs as an aid to diagnosis and treatment, the examination being made either by use of the stethoscope or by direct application of the ear to the body. (Websters Third New International Dictionary, p. 145 *1976+).
15

Decision, p. 29, Rollo, p. 198; see also Motion for Reconsideration of Dr. Gutierrez, Id., at 266. Id., at 28-29; Id., at 197-198. TSN, March 19, 2001, pp. 77-78. Motion for Reconsideration, p. 54; Rollo, p. 305. Decision, p. 31; Id. at 200. TSN, March 19, 2001, pp. 211-212. Decision, p. 34, Rollo, p. 203. Second Motion for Reconsideration, pp. 6-7; Id., at 421-422. TSN, March 19, 2001, pp. 136-144. Decision, p. 25 citing Stockholm v. Hall, 65 P. 348 (1937); Rollo, p.194. Id., at 23-24; Rollo, pp. 192-193. Id., at 4. Decision, p. 20; Id., at 189. 364 P2d 955 (1961). Id., at 971.

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25

26

27

28

29

30

The Captain-of-the-Ship Doctrine was discussed in McConnell v. Williams (65 A 2d 243 [1949]), where the Supreme Court of Pennsylvania stated that under this doctrine, a surgeon is likened to a captain of the ship, in that it is his duty to control everything going on in the operating room.
31

Motion for Reconsideration of Dr. Hosaka, Rollo, p. 231. Id., at. 229. Id., at 231, citing i, 358 SE 2d 222 (1987). Supra. Id., at 225.

32

33

34

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36

TSN, March 19, 2001, pp. 11-12. Id., at 7. The following exchange between Justice Puno and Dr. Hosakas counsel is instructive: JUSTICE REYNATO S. PUNO: Counsel. RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: Well, your thesis is that Dr. Hosaka did not have complete control of the anesthesiologist in this case and therefore whatever is the negligent act of the anesthesiologist cannot be attributed to Dr. Hosaka, is that a correct appreciation of your thesis? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: But would you agree that even if Dr. Hosaka did not have that complete control nevertheless he had a degree of supervision over the anesthesiologist? RET. JUSTICE HOFILEA: If Your Honor please, I think that neither the evidence in this case nor the developments in the field of medicine, the usual practice in these days, would lead to that conclusion that he had a degree of supervision over the anesthesiologist. JUSTICE REYNATO S. PUNO: You are saying that the surgeon is completely independent of the anesthesiologist in the discharge of their respective functions and vice versa? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: But the record of the case will show that it was Dr. Hosaka who got the services of Dr. Gutierrez, isnt it? RET. JUSTICE HOFILEA: Yes, Your Honor, when he was given the authority to secure, I understand. JUSTICE REYNATO S. PUNO: And in fact the patient here did not know of any anesthesiologist that is why, she gave the authority to Dr. Hosaka to get the anesthesiologist who will assist him? RET. JUSTICE HOFILEA: That is correct, Your Honor. JUSTICE REYNATO S. PUNO: Now, in the course of the proceedings in the hospital the records would show that it was Dr. Hosaka who observed the dusky nails of the patient? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: At a certain juncture and this means that cyanosis was setting in, lack of oxygen on the part of the patient? RET. JUSTICE HOFILEA:

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Yes, Your Honor. JUSTICE REYNATO S. PUNO: Now, if the two, Dra. Gutierrez and Dr. Hosaka, are completely independent of each other, why is it that Dr. Hosaka has to call the attention of Dra. Gutierrez on this development about this cyanosis of the patient? RET. JUSTICE HOFILEA: In the first place, Your Honor, I was informed that according to Dr. Hosaka in his testimony, he said that it is his habit to take a look at the hands of the patient while they are undergoing anesthesia and when he noticed the duskiness of the nailbeds he informed Dr. Gutierrez about it. But he left her entirely free to do whatever steps she would like to take, as in this case, I understand that she stopped the administration [of the anesthesia and (interrupted) JUSTICE REYNATO S. PUNO: Yes, but that does show that the surgeon, Dr. Hosaka should not be completely indifferent to what is happening to the patient while in the hands of the anesthesiologist, isnt it? RET. JUSTICE HOFILEA: In a sense, Your Honor, yes, they coordinate in that sense, Your Honor, but not, I would not say that one is under the control of the other. JUSTICE REYNATO S. PUNO: Yes, not under the control, now, you used the word "coordinate", so you are now conceding that there is that degree of supervision on the part of the surgeon over the anesthesiologist, as a matter of defining that degree of supervision, they are not completely independent of each other? RET. JUSTICE HOFILEA: Your Honor, I would not use the word supervision but working together, perhaps is a better term. JUSTICE REYNATO S. PUNO: Working together. RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: Which means that somehow their duties intersect with each other? RET. JUSTICE HOFILEA: As I said before (interrupted) JUSTICE REYNATO S. PUNO: There is an area where both of them have to work together in order that the life of the patient would be protected? RET. JUSTICE HOFILEA: Yes, Your Honor. As I said before if on the other hand it is the anesthesiologist who notices because he monitors the condition of the patient during the surgery and he calls the attention of the surgeon also. JUSTICE REYNATO S. PUNO: And in accord with the concept of teamwork, is it not true also that it was Dr. Hosaka who called for a second anesthesiologist? RET. JUSTICE HOFILEA: Your Honor, that is not so, Your Honor, I was told that the second anesthesiologist was just nearby and it is their habit to look in some operations taking place. In this particular case the second anesthesiologist was passing by and she noticed that there was some kind of a, not really a commotion but some kind of, increased activity and so she decided to take a look. JUSTICE REYNATO S. PUNO: Who gave the order for Dra. Calderon to help in the intubation of the patient? RET. JUSTICE HOFILEA:

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I understand, Your Honor that she did it voluntarily, she just happened to pass by. JUSTICE REYNATO S. PUNO: And Dr. Hosaka did not object? RET. JUSTICE HOFILEA: No, Your Honor, because his position is that this is outside of his expertise, Dr. Calderon is also an anesthesiologist so, he just left them alone. JUSTICE REYNATO S. PUNO: How long have Dr. Hosaka and Dr. Gutierrez worked together as a team? RET. JUSTICE HOFILEA: They started their association way back in 1977, Your Honor, at the time of this incident about eight years, Your Honor. JUSTICE REYNATO S. PUNO: Would you know how the relationship of Dr. Hosaka and Dr. Gutierrez is defined by any kind of agreement, oral or written, or is it defined by the standard practice of the profession? RET. JUSTICE HOFILEA: I would say it would be in accordance of the standard practice of the profession, Your Honor. There is no particular agreement between them. JUSTICE REYNATO S. PUNO: What do you say is the standard practice, how would the practice vary from case to case? RET. JUSTICE HOFILEA: I believe, Your Honor, that the, in the first place if the patient would have his own anesthesiologist, would prefer his own anesthesiologist, he can retain the services of another anesthesiologist but of his own but if he does not know of anybody and he asks the surgeon to provide one, then this surgeon can recommend. But I would like to emphasize, Your Honor, that the relationship is between the patient and the anesthesiologist. It is not that the anesthesiologist is the employee of the surgeon. JUSTICE REYNATO S. PUNO: But is there an agreement, expressed or implied, between the two (2), to the effect that, you know the anesthesiologist could say to the surgeon that you have no business interfering with my work as anesthesiologist. Is that how the relationship is defined? RET. JUSTICE HOFILEA: Once the start the (interrupted) JUSTICE REYNATO S. PUNO: Right from the very beginning? RET. JUSTICE HOFILEA: I believe Your Honor that on the matter of retaining the services of the anesthesiologist in the sense that the surgeon reposes confidence on the ability of the anesthesiologist, he hires him if he is authorized, he hires him on behalf of the patient if he is authorized to do that but once they are already performing their own task, then there should be no interference. JUSTICE REYNATO S. PUNO: But the work of the two cannot be separated in watertight compartments, do you agree? RET. JUSTICE HOFILEA: I agree, Your Honor (TSN, March 19, 2001, pp. 14-23).
39

Id., at 19. Memorandum of Amicus Curiae Dr. Iluminada Camagay, Rollo, p. 616. Websters Third New International Dictionary, p. 17 (1976). TSN, March 19, 2001, pp. 196.

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43

Id., at 205-206. Batiquin vs. Court of Appeals, 258 SCRA 334, 346 (1996); Carillo vs. People, 229 SCRA 386, 396 (1994). Article 2180 states: The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

44

45

46

Decision, p. 40; Rollo, p. 209. Traders Royal Bank vs. National Labor Relations Commission, 321 SCRA 467 (1999). Motion for Reconsideration of DLSMC, p. 10; Rollo, p. 477. Ibid. Id., at 478. Id., at 480. TSN, March 19, 2001, pp. 113-116. Decision, p. 48, Rollo, p. 217. Id., at 43-45; Id., at 212-214. See letter dated November 4, 2000 of petitioner Rogelio E. Ramos addressed to Mr. Justice Santiago M. Kapunan, Id., at 489.

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48

49

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51

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55

8. A.M. No. 2005-08-SC December 9, 2005 SAMUEL R. RUEZ, JR., Complainant, vs.MARYBETH V. JURADO, Respondent. DECISION EN BANC

AZCUNA, J.: It is unfortunate that this administrative case involves co-workers in this Court. Complainant, Samuel R. Ruez, Jr. (Ruez, Jr.), is Chief of the Clearance Section, Checks Disbursement Division of the FMO-OCA and is the son of the aggrieved party, Samuel V. Ruez, Sr. (Ruez, Sr.), Driver I for the Motorpool, Property Division of the OCA. Respondent is Dr. Marybeth V. Jurado (Dr. Jurado), Medical Officer IV of the Medical and Dental Services. All three were working for the Court at the time of the incident in issue. The parties agree that on January 12, 2005, at around 4:20 p.m., Ruez, Sr. arrived by himself at this Courts clini c complaining of dizziness. His blood pressure and pulse rate were taken by the reception nurse and were registered at 210/100 mmHg and 112 beats a minute, respectively. What transpired next is disputed. Ruez, Jr. alleged that despite his fathers medical condition, he was merely advised to go to a hospital and then allowed to walk out of the clinic on his own. Dr. Jurado, on the other hand, maintained that after being informed of Ruez, Sr.s blood pressure and heart rate, she instructed the nurse to admi nister one tablet of Capoten 25mg, an emergency drug that quickly lowers a patients blood pressure. She then informed Ruez, Sr. that he will be taken to the hospital, after which she immediately instructed the ambulance driver, Mr. Jacinto, to stand by for hospital conduction. Minutes later, after having taken Capoten and being given a chance to rest, Ruez, Sr. stood up and walked out saying, " Doktora, hanap lang ho ako ng kasama." Dr. Jurado said she waited for him to return but he failed to show up. She asked Mr. Almarza, a nurse at the clinic, to look for Ruez, Sr. but he was unable to locate him.

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According to Ruez, Jr., after being informed of his fathers condition, he rushed him to the Manila Doctors Hospital. There, Ruez, Sr. was treated in the emergency room for approximately four hours before he was discharged at around 8:30 p.m. and allowed to go home. However, prior to reaching their house in Balintawak, Caloocan City, Ruez, Sr. began experiencing nausea, abnormal palpitation and uneasiness and had to be brought back to the hospital. Ruez, Sr. and Ruez, Jr. arrived at the emergency room of the Manila Doctors Hospital at around 10:00 p.m. after which Ruez, Sr. underwent a C.T. Scan. The C.T. Scan revealed a blood clot necessitating him to be admitted for treatment and observation. The following morning he suffered a stroke and for a moment was on flat line. The doctors were able to revive him and thereafter he was transferred to the intensive care unit. Unfortunately, Ruez Sr. never recovered from his ailment and, on September 12, 2005, 2 he passed away due to medical complications. On February 15, 2005, Ruez, Jr. filed a letter-complaint with the Office of the Chief Justice regarding the alleged lack of attention given to his father by Dr. Jurado. Specifically, he claims that Dr. Jurado merely advised his father to go to the hospital and then allowed him to travel to Manila Doctors Hospital despite the availability of an ambulance at the disposal of the clinic. Ruez, Jr. submits that his father would not have suffered a stroke if not for the neglect of Dr. Jurado. The letter-complaint was referred to Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief of Administrative Services, for investigation. Atty. Candelaria required Dr. Jurado to submit her comment to the letter-complaint. The comment was submitted on March 18, 2005, together with supporting affidavits from respondents witnesses. This was followed by Ruez, Jr.s reply to t he 3 comment on April 12, 2005 and Dr. Jurados rejoinder on April 22, 2005. Atty. Candelaria submitted her report on June 17, 2005. The report gave credence to the account of Dr. Jurado that Ruez, Sr. was given Capoten, informed that he should be hospitalized and that the ambulance was placed on standby to take him there. These factual findings of Atty. Candelaria appear to be supported by the affidavits of the clinics personnel, including the ambula nce driver, who witnessed the events that happened between Ruez, Sr. and Dr. Jurado. The issue now for the Court to resolve is whether, given the accepted facts, there is cause to hold Dr. Jurado administratively liable. Atty. Candelaria is satisfied that Dr. Jurado provided Ruez, Sr. proper treatment inside the clinic. However, in her opinion, Dr. Jurados actions after Ruez, Sr. had left were less than the required diligence of a good father of a family. We quote below the analysis of Atty. Candelaria: . . . Records will clearly show that minutes after Mr. Ruez, Sr. left the clinic, Dr. Jurado also left the clinic to go home. This is shown by her time out registered in the Chronolog Machine on the said date which was 4:31 p.m. and her inclusion in the list of passengers of Shuttle Bus No. 6. As an efficient and intelligent doctor, Dr. Jurado should have at least personally exerted all her efforts to determine the whereabouts of Mr. Ruez, Sr. because of his condition and again at the very least informed his relatives in the Court in order that they too take the necessary action that very moment. Or in the alternative, if indeed, Dr. Jurado may have been in a hurry at that time to do some errands, she should have at least[,] again, turned Mr. Ruez over the a [d]octor who was willing to be left behind after office hours. These however never happened. All that she relied on was the fact that there was an emergency treatment and an order for hospital conduction but *the same+ didnt materialize and *she+ put *the+ blame on Mr. Ruez, Sr. As admitted by complainant, Mr. Ruez, Sr., is a mere "driver" and perhaps may have no knowledge at all of the consequences of his 210/100 blood pressure and since he sought refuge from the [c]linic, the clinic, particularly Dr. Jurado[,] should have made him feel safe and secure in the said place. . . . Atty. Candelaria recommends that Dr. Jurado be held liable for simple neglect of duty and suspended for one (1) month and (1) day. She further recommends that, in light of what happened, Dr. Prudencio Banzon, SC Senior Staff Officer, Medical and Dental Services, be directed to prepare a flexi-time schedule (until 5:30 p.m.) for all doctors and nurses in the clinic to enable it to provide immediate and proper attention in case of any emergency medical situation. The Court does not agree that the acts or omission of Dr. Jurado amount to simple neglect of duty. Simple neglect of duty is defined 4 as failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference or signifies a 5 6 disregard of duty resulting from carelessness or indifference. InPhilippine Retirement Authority, it was stated, "The Court has decided the following, inter alia, as constituting theless grave offense of Simple Neglect of Duty: delay in the transmittal of court records, delay in responding to written queries, and delay of more than one (1) year and seven (7) months in furnishing a party with a copy of the courts decision." In all the instances cited by the Court, respondents had the duty or were expected to do certain acts which they failed to do. How do we determine what acts are expected of Dr. Jurado? Atty. Candelarias report cites the applic able yardstick: a physician or surgeon is expected to apply in his practice of medicine that degree of care and skill which is ordinarily 7 employed by the profession, generally, and under similar conditions. Therefore, to find Dr. Jurado liable for simple neglect of duty the Court has to be convinced that those in the medical profession were also expected to act in the manner illustrated by Atty. Candelaria, i.e., to exert all efforts to determine the whereabouts of Ruez, Sr., inform his relatives or turn his case over to a doctor who was available after office hours. Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states: "A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligatio n to his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable."
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A doctors duty to his patient is not required to be extraordinary. The standard contemplated for doctors is simply the reasonable 9 average merit among ordinarily good physicians, i.e. reasonable skill and competence. We are persuaded that Dr. Jurado fulfilled such a standard when she treated Ruez, Sr. inside the clinic. But what of Dr. Jurados conduct after Ruez, Sr. left the clini c and failed to return? It has been held that a patient cannot attribute to a physician damages resulting from his own failure to follow his advice, even 10 though he was ignorant of the consequences which would result from his failure. If a patient leaves the hospital contrary to 11 instructions, the physician is not liable for subsequent events. There is no expectation from doctors that they track down each patient who apparently missed their appointments or force them to comply with their directives. After all, a person is still the master 12 of his own body. Dr. Jurado may have allowed Ruez, Sr. to walk out of the clinic despite her earlier diagnosis of his condition. By that time Ruez, Sr.s condition had temporarily stabilized and she did not have the authority to stop him just as other doctors have no power , save in 13 certain instances (such as when the law makes treatment compulsory due to some communicable disease or when consent is withheld by a minor but non-treatment would be detrimental or when the court of competent jurisdiction orders the treatment), to force patients into staying under their care. Dr. Jurado relied on Ruez, Sr.s representation that he would return in order to be brought to the hospital but made no undertaking to wait for him beyond the clinic hours or to look for him if he did not return. Thus, when Ruez, Sr. failed to show up as of closing time, and could not be found by the male nurse who looked for him at her instructions, Dr. Jurado had reason to think that he had decided to disregard her medical advice, which he in fact did when he and Ruez, Jr. decided to go to the hospital on their own. Ruez, Sr., still of sound mind, had the right to accept or ignore his doctors recommendation. Dr. Jurado was obligated to care for Ruez, Sr. when the latter asked for medical treatment, which she did, but when he left on his own accord Dr. Jurado was not expected, much less duty-bound, to seek out her patient and continue being his doctor. Some people may interpret Dr. Jurados inaction as indifference, while others may view the same as just proper. Some would applaud Dr. Jurados dedication had she done all the things mentioned by Atty. Candelaria and yet others would see them as st ill insufficient. There will always be a divergence of opinions as to how Dr. Jurado should have conducted herself but the Court must distinguish between acts that deserve to be emulated or disdained and those that deserve sanctions. The former is largely a matter of opinion while the latter can only be imposed if there was a failure to perform a clear duty, expectation or obligation. People may frown upon certain behaviors and chastise others for having less compassion, but it does not necessarily follow that those acts translate to neglect of duty, misconduct or negligence. Dr. Jurado could have exerted greater efforts by searching all over the compound for Ruez, Sr. but the fact remains that these were not part of her duties nor were they expected from her. Simple neglect of duty presupposes a task expected of an employee. Thus, it cannot be present if there was no expected task on her part. That said, the Court wishes to exhort Dr. Jurado, and all personnel in its clinic, not to be satisfied with merely fulfilling the minimum, but to go for the magis, the best service they can render by way of being exemplars for their fellow workers in the Court. WHEREFORE, the Court finds no reason to hold Dr. Jurado liable for simple neglect of duty, and, therefore, DISMISSES the complaint for lack of merit. As recommended by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief of Administrative Services, Dr. Prudencio Banzon, Senior Staff Officer, Medical and Dental Services, is DIRECTED to prepare a flexi-time schedule for all doctors and nurses in the clinic to further develop its capability to provide immediate and proper attention in emergency medical situations, and to submit the same to Atty. Candelaria in 30 days from receipt of a copy of this decision which should be served upon him forthwith. SO ORDERED.
8

Footnotes
1

They were accompanied by complainants brother and sister. Per Manifestation of complainant in his Motion for Early Resolution dated October 10, 2005.

Much of what was included by both parties in their papers concerned events that transpired after the January 12, 2005 incident. It appears unnecessary to include and discuss these matters as these would only unnecessarily exacerbate the relations of the parties who in the end are still employees of the Court.
4

Aonuevo v. Rubio, A.M. No. P-04-1782, July 30, 2004, 435 SCRA 430. Philippine Retirement Authority v. Thelma Rupa, G.R. No. 140519, August 21, 2001, 363 SCRA 480, 487. Id. Citing Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, October 3, 2000, 341 SCRA 760. Cooper v. McMurry, 149 Pac. (2d) 330. Reyes v. Sisters of Mercy Hospital, Supra, Note 7.

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10

Carey v. Mercer, 132 N.E. 353. Feltman v. Dunn, 217 N.W. 198. Natanson v. Klien, 350 Pac. (2d) 1093. R.A. 3573.

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9. G.R. No. 142625

December 19, 2006

ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY, ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all surnamed NOGALES, petitioners, vs.CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J. DUMLAO, respondents.

CARPIO, J.: The Case This petition for review assails the 6 February 1998 Decision and 21 March 2000 Resolution of the Court of Appeals in CA-G.R. CV 4 No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision of the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners' motion for reconsideration. The Facts Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as early as December 1975. While Corazon was on 5 her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of leg edema indicating 6 7 preeclampsia, which is a dangerous complication of pregnancy. Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical Center ("CMC"). On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission request of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the "Consent on Admission and 9 10 Agreement" and "Admission Agreement." Corazon was then brought to the labor room of the CMC. Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings. Based on the Doctor's Order Sheet, around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon admixed with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-drops per minute. According to the Nurse's Observation Notes, Dr. Joel Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was notified at 4:15 a.m. of Corazon's admission. Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's condition. At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water ruptured spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to experience convulsions. At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate. At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazon's baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition. Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo. At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazon's blood pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of dextrose.
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At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver the blood. At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology Department of the CMC, was apprised of Corazon's condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate 13 hysterectomy. Rogelio was made to sign a "Consent to Operation." Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be administered. Despite Dr. 14 Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was "hemorrhage, post partum." On 14 May 1980, petitioners filed a complaint for damages with the Regional Trial Court of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment and management of Corazon's condition. Petitioners charged CMC with negligence in the selection and supervision of defendant physicians and hospital staff. For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada, Dr. Enriquez, and 17 Nurse Dumlao in default. CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying and opposing the allegations in the complaint. Subsequently, trial ensued. After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows: The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the profuse bleeding which he also failed to control with the application of inadequate injection of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior obstetrician at an early stage of the problem. On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification to find them civilly liable. On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose the true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the cervical area of the patient's internal organ. On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what was probably the orders of Dr. Estrada. While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was not with Dr. Estrada when the patient was brought to the hospital at 2:30 o'clock a.m. So, whatever errors that Dr. Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event. On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them. Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the Court to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell on conjectures and speculations. On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse of 30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs would want the Court to believe. Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical Center, had knowledge of the
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mismanagement of the patient Corazon Nogales, and that notwithstanding such knowledge, she tolerated the same to happen. In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased. In other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency case and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground to apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment of the deceased on the part of the attending physicians who were employed by the family of the deceased, such civil liability should be borne by the attending physicians under the principle of "respondeat superior". WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in the amount of P100,000.00 and to pay the costs of suit. For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience and slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the remaining defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason defendants' counterclaims are hereby ordered dismissed. SO ORDERED.
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Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondent's alleged liability. On 6 February 1998, the Court of Appeals affirmed the decision of the trial court. Petitioners filed a motion for reconsideration 20 which the Court of Appeals denied in its Resolution of 21 March 2000. Hence, this petition. Meanwhile, petitioners filed a Manifestation dated 12 April 2002 stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are absolutely not involved in the issue raised before the 22 [Court], regarding the liability of [CMC]." Petitioners stressed that the subject matter of this petition is the liability of CMC for the 23 negligence of Dr. Estrada. The Court issued a Resolution dated 9 September 2002 dispensing with the requirement to submit the correct and present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of petitioners' Manifestation, it should be understood that they are claiming only against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's judgment, is already final as against Dr. Oscar Estrada. Petitioners filed a motion for reconsideration of the Court's 9 September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses. Petitioners reiterated their imputation of 26 negligence on these respondents. The Court denied petitioners' Motion for Reconsideration in its 18 February 2004 Resolution. The Court of Appeals' Ruling In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals rejected petitioners' view 27 that the doctrine in Darling v. Charleston Community Memorial Hospital applies to this case. According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractor-physician whereas the Darling case involved a physician and a nurse who were employees of the hospital. Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician to practice 28 medicine and use its facilities is not sufficient to render the hospital liable for the physician's negligence. A hospital is not 29 responsible for the negligence of a physician who is an independent contractor. The Court of Appeals found the cases of Davidson v. Conole and Campbell v. Emma Laing Stevens Hospital applicable to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was an employee of defendant
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hospital or that defendant hospital had reason to know that any acts of malpractice would take place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient between defendant physician and plaintiff. On the liability of the other respondents, the Court of Appeals applied the "borrowed servant" doctrine considering that Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence 32 associated with such acts or omissions, are imputable to the surgeon. While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat 33 superior. The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any liability for malpractice must be Dr. Estrada's sole responsibility. While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be imposed on unliquidated claims or damages. The Issue Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court also believes that a determination of the extent of liability of the other respondents is inevitable to finally and completely dispose of the present controversy. The Ruling of the Court The petition is partly meritorious. On the Liability of CMC Dr. Estrada's negligence in handling the treatment and management of Corazon's condition which ultimately resulted in Corazon's death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr. Estrada's negligence is already final. Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in relation to Article 2176 of the Civil Code. These provisions pertinently state: Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant, or agent, may 34 be held liable for the physician's negligence under the doctrine of respondeat superior. In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should be liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though he discovered later 35 that Dr. Estrada was not a salaried employee of the CMC. Rogelio further claims that he was dealing with CMC, whose primary concern was the treatment and management of his wife's condition. Dr. Estrada just happened to be the specific person he talked to 36 37 representing CMC. Moreover, the fact that CMC made Rogelio sign a Consent on Admission and Admission Agreement and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr. Estrada as a member of its medical staff. On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted Corazon 38 because her physical condition then was classified an emergency obstetrics case.

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CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC would be a total stranger." CMC maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession. The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and the liability 39 of such hospital for that physician's negligence in Ramos v. Court of Appeals, to wit: 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. 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 clinicopathological 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. 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 40 responsibility under a relationship of patria potestas. x x x (Emphasis supplied) While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment relationship exists between a physician and a hospital based on the exercise of control over the physician as to details. Specifically, the employer (or the hospital) must have the right to control both the means and the details of the process by which the employee (or the 41 physician) is to accomplish his task. After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to CMC's exercise of control over Dr. Estrada's treatment and management of Corazon's condition. It is undisputed that throughout Corazon's pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazon's admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There was no showing that CMC had a part in diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of 42 43 CMC. CMC merely allowed Dr. Estrada to use its facilities when Corazon was about to give birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but an independent contractor. The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractorphysician. In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this 44 principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital. This exception is also known as the 45 46 "doctrine of apparent authority." In Gilbert v. Sycamore Municipal Hospital, the Illinois Supreme Court explained the doctrine of apparent authority in this wise: [U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows: "For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence."

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The element of "holding out" on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors. The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician. The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor physician. The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or 47 agent of the hospital. In this regard, the hospital need not make express representations to the patient that the treating 48 physician is an employee of the hospital; rather a representation may be general and implied. The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that "[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon." Estoppel rests on this rule: "Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation 49 arising out of such declaration, act or omission, be permitted to falsify it." In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority. First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's admission, CMC, through its personnel, readily accommodated Corazon and updated Dr. Estrada of her condition. Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon's admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio's belief that Dr. Estrada was a 50 member of CMC's medical staff. The Consent on Admission and Agreement explicitly provides: KNOW ALL MEN BY THESE PRESENTS: I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt, or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules, regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or intervention of said physician, the Capitol Medical Center and/or its staff. x x x x (Emphasis supplied) While the Consent to Operation pertinently reads, thus: I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical Center and/or whatever succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or emergency measures, or intervention of the Surgeon, his assistants, 52 anesthesiologists, the Capitol Medical Center and/or its staff. (Emphasis supplied) Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a member of CMC Board of Directors, 53 testified that Dr. Estrada was part of CMC's surgical staff. Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola, who was then the Head of the Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMC's medical staff was collaborating with other CMC-employed specialists in treating Corazon.
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The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in 54 reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr. Estrada's services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only because of their 55 friend's recommendation, but more importantly because of Dr. Estrada's "connection with a reputable hospital, the [CMC]." In other words, Dr. Estrada's relationship with CMC played a significant role in the Spouses Nogales' decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for Corazon's delivery. Moreover, as earlier stated, there is no showing that before and during Corazon's confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was not an employee of CMC. Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazon's delivery. The Court notes that prior to Corazon's fourth pregnancy, she used to give birth inside a clinic. Considering Corazon's age then, the Spouses 56 Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the best hospitals at the time. This is precisely because the Spouses Nogales feared that Corazon might experience complications during her delivery which would be better addressed and treated in a modern and big hospital such as CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelio's confidence in CMC's surgical staff. CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the observation made by the Court of 57 Appeals of North Carolina in Diggs v. Novant Health, Inc., to wit: "The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility." x x x (Emphasis supplied) Likewise unconvincing is CMC's argument that petitioners are estopped from claiming damages based on the Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The second part of the documents, which may properly be described as the releasing part, releases CMC and its employees "from any and all claims" arising from or by reason of the treatment and operation. The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazon's death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals "from any and all claims," which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void. Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate liability 58 depending on the circumstances. When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon. On the Liability of the Other Respondents Despite this Court's pronouncement in its 9 September 2002 Resolution that the filing of petitioners' Manifestation confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more than two-decade old controversy. a) Dr. Ely Villaflor Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's bleeding and to suggest the correct remedy to Dr. 60 Estrada. Petitioners assert that it was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the administration of hemacel. The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this was after 61 informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a dangerous level. At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's act of administering a lower dosage of magnesium sulfate was not out of her own volition or was in contravention of Dr. Estrada's order. b) Dr. Rosa Uy
59

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Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlao's wrong method of hemacel administration. The Court believes Dr. Uy's claim that as a second year resident physician then at CMC, she was merely authorized to take the 62 clinical history and physical examination of Corazon. However, that routine internal examination did not ipso facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners' imputation of negligence rests on their baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in delivering Corazon's baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of a more experienced specialist, if ever she was present at the delivery room. c) Dr. Joel Enriquez Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their 63 errors. Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify such errors. The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estrada's errors. Besides, there was no evidence of Dr. Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act upon such observation. d) Dr. Perpetua Lacson Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed. Petitioners claim that Dr. Lacson was remiss in her duty of supervising the blood bank staff. As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until the 65 transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be given to the patient. Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take approximately 45-60 minutes 66 before blood could be ready for transfusion. Further, no evidence exists that Dr. Lacson neglected her duties as head of the blood bank. e) Dr. Noe Espinola Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying cause of Corazon's bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a thorough examination of the cervix, instead of believing outright Dr. Estrada's diagnosis that the cause of bleeding was uterine atony. Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not negligence. The Court agrees with the trial court's observation that Dr. Espinola, upon hearing such information about Corazon's condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push through because upon Dr. Espinola's arrival, it was already too late. At the time, Corazon was practically dead. f) Nurse J. Dumlao In Moore v. Guthrie Hospital Inc., the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2) the nurse injected medicine intravenously; and (3) such injection was the proximate cause of his injury. In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow Dr. Estrada's specific instructions. Even assuming Nurse Dumlao defied Dr. Estrada's order, there is no showing that side-drip administration of hemacel proximately caused Corazon's death. No evidence linking Corazon's death and the alleged wrongful hemacel administration was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence. On the Award of Interest on Damages The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes and quasi68 delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court. WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages andP700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641. SO ORDERED.
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Quisumbing, J., Chairperson, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

Footnotes
1

Under Rule 45 of the Rules of Court.

Penned by Associate Justice Artemio G. Tuquero, with Associate Justices Jorge S. Imperial and Eubulo G. Verzola, concurring. Rollo, pp. 42-48.
3

Penned by Associate Justice Eubulo G. Verzola, with Associate Justices Roberto A. Barrios and Eriberto U. Rosario, Jr., concurring. Id. at 49.
4

Penned by Judge Rodolfo G. Palattao.

Edema is the accumulation of excess fluid. It is manifested by the swelling of the extremities. (http://www.preeclampsia.org/symptoms.asp)
6

A syndrome occurring in late pregnancy marked by an increase in blood pressure, swelling of the ankles by fluid, and the appearance of albumin in the urine, associated with reduced blood flow to the placenta, therefore putting the fetus at risk of death, or stillbirth, and putting the mother at risk of complications from high blood pressure, convulsions ( eclampsia), kidney failure, liver failure and death. Treated with drugs to lower the blood pressure and to prevent convulsions, while expediting the delivery of the baby. (http://www.jansen.com.au/Dictionary_PR.html)
7

Rollo, p. 42. Exh. "A-4," Folder of Exhibits. Exh. "A-1," Folder of Exhibits. Exh. "A-2," Folder of Exhibits. Exh. "A-5," Folder of Exhibits. Exh. "A-8," Folder of Exhibits. Exh. "A-20," Folder of Exhibits. Rollo, p. 43. Docketed as Civil Case No. 131873. Then Court of First Instance. Records, pp. 92, 93. Records, pp. 639-644. Rollo, pp. 42-48. Id. at 49. Id. at 237-240. Id. at 238. Id. at 207. Id. at 258. Id. at 283-285. Id. at 312.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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27

33 Ill.2d 326, 211 N.E.2d 253 (1965). Citing Clary v. Hospital Authority of City of Marietta, 106 Ga.App. 134, 126 S.E.2d 470 (1962).

28

29

Citing Cramer v. Hoffman, 390 F.2d 19, 23 (1968); Holzberg v. Flower and Fifth Ave. Hospitals, 39 A.D.2d 526, 330 N.Y.S.2d 682, 684 (1972); Snelson v. Margaretville Hospital, 49 A.D.2d 991, 374 N.Y.S.2d 579, 581 (1975).
30

79 A.D.2d 43, 436 N.Y.S.2d 109 (1981). 118 A.D.2d 988, 499 N.Y.S.2d 993 (1986). Citing Davis v. Glaze, 182 Ga.App. 18, 354 S.E.2d 845, 849 (1987). Citing Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944). 40A Am.Jur.2d Hospitals and Asylums 46, 40A Am.Jur.2d Hospitals and Asylums 44. TSN, 26 July 1984, pp. 31-32 (Rogelio Nogales). Id. at 43-44. TSN, 4 April 1983, pp. 48-49 (Rogelio Nogales). Records, pp. 43-44. 378 Phil. 1198 (1999). Id. at 1240-1241. See Diggs v. Novant Health, Inc., 628 S.E.2d 851 (2006) citing Hylton v. Koontz, 138 N.C.App. 629 (2000). See Jones v. Tallahassee Memorial Regional Healthcare, Inc. , 923 So.2d 1245 (2006).

31

32

33

34

35

36

37

38

39

40

41

42

43

See Hale v. Sheikholeslam, 724 F.2d 1205 (1984) where the US Court of Appeals, Fifth Circuit, found the physician an independent contractor since there is no evidence or pleading that the doctor received compensation from the hospital or that the hospital exercised any control over his treatment of patients. The doctor was merely allowed to use the facilities of the hospital when, in the doctor's judgment, hospital care was necessary.
44

Jones v. Philpott, 702 F.Supp. 1210 (1988).

45

Sometimes referred to as the apparent, or ostensible, agency theory. ( King v. Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d 169 [2006]).
46

156 Ill.2d 511, 622 N.E.2d 788 (1993). Diggs v. Novant Health, Inc., supra note 41. Id.

47

48

49

De Castro v. Ginete, 137 Phil. 453 (1969), citing Sec. 3, par. a, Rule 131 of the Rules of Court. See also King v. Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d 169 (2006) where the New York Supreme Court, Appellate Division, Third Department, stated as follows: As a general proposition, "[a] hospital may not be held for the acts of an anesthetist who was not an employee of the hospital, but one of a group of independent contractors." Vicarious liability for medical malpractice may be imposed, however, under an apparent, or ostensible, agency theory, "or, as it is sometimes called, agency by estoppel or by holding out." "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to act on behalf of the principal." Also, the third party must reasonably rely upon the appearance of authority created by the principal. Finally, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal. (emphasis supplied and internal citations omitted)
50

In Gilbert v. Sycamore Municipal Hospital, supra note 46, cited in York v. Rush-Presbyterian-St. Luke's Medical Center (222 Ill.2d 147, 854 N.E.2d 635 [2006]), the Illinois Supreme Court made a similar observation, thus:

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x x x the language employed in the hospital's treatment consent form could have led plaintiff to reasonably believe that he would be treated by physicians and employees of the hospital. We concluded that, upon the record before us, the plaintiff adduced sufficient evidence to create a genuine issue of material fact with respect to the reliance element of the plaintiffs apparent agency claim against the hospital.
51

Exh. "A-1," Folder of Exhibits. Exh. "A-20," Folder of Exhibits. TSN, 17 February 1992, p. 69 (Dr. Franklin Atencio). Diggs v. Novant Health, Inc., supra note 41. TSN, 26 July 1984, pp. 12-13 (Rogelio Nogales). Id. at 37. Supra note 41, citing Rabon v. Rowan Memorial Hospital, Inc., 269 N.C.1, 152 S.E.2d 485 (1967). Article 1172 of the Civil Code provides:

52

53

54

55

56

57

58

"Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances."
59

Rollo, p. 258. CA rollo, pp. 78-79. Records, p. 76. Id. at 59. CA rollo, p. 89. Id. at 90. TSN, 11 November 1991, pp. 9-12. Id. at 14. 403 F.2d 366 (1968).

60

61

62

63

64

65

66

67

68

People v. Ocampo, G.R. No. 171731, 11 August 2006, citing People v. Torellos, 448 Phil. 287, 301 (2003). See also People v. Duban, G.R. No. 141217, 26 September 2003, 412 SCRA 131 and People v. De Vera, 371 Phil. 563 (1999).

10. G.R. No. 126297

January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner, vs.NATIVIDAD and ENRIQUE AGANA, Respondents.

G.R. No. 126467 January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, vs.JUAN FUENTES, Respondent. G.R. No. 127590 January 31, 2007

MIGUEL AMPIL, Petitioner, vs.NATIVIDAD AGANA and ENRIQUE AGANA, Respondents. DECISION SANDOVAL-GUTIERREZ, J.:

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Hospitals, having undertaken one of mankinds most important and delicate endeavors, must assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and protect the health, 1 and indeed, the very lives of those placed in the hospitals keeping. Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals Decision dated September 6, 1996 in 3 CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993. The facts, as culled from the records, are: On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid." On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividads husband, Enrique Agana, to perm it Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her. After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision. However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks: "sponge count lacking 2 "announced to surgeon searched (sic) done but to no avail continue for closure." On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors fees, amounted to P60,000.00. After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation. On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines. On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish. Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymed ic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foulsmelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery. On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividads body and malpract ice for concealing their acts of negligence. Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the United States. On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named children (the Aganas). On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:
4 2

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WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows: 1. As actual damages, the following amounts: a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of America; b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter; c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the saline solution; 2. As moral damages, the sum of P2,000,000.00; 3. As exemplary damages, the sum of P300,000.00; 4. As attorneys fees, the sum of P250,000.00; 5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment; and 6. Costs of suit. SO ORDERED. Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062. Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the Aganas. Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer for preliminary 5 injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a Resolution dated October 29, 1993 granting Dr. Fuentes prayer for injunctive relief. On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062. Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision in Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside Natividads body; and that he concealed such fact from Natividad. On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus: WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED. Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes in CAG.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled. Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc. SO ORDERED. Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution dated December 19, 1996. Hence, the instant consolidated petitions.
7 6

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In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor. As such, he alone should answer for his negligence. In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent. Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and malpractice sans evidence that he left the two pieces of gauze in Natividads vagina. He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses failure to properly count the gau zes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of America. For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil. I - G.R. No. 127590 Whether the Court of Appeals Erred in Holding Dr. Ampil Liable for Negligence and Malpractice. Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to other possible causes of Natividads detriment. H e argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividads body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividads body. Dr. Ampils arguments are purely conjectural and without basis. Records show that he did not present any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividads body. Neither did he submit evidence to rebut th e correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes) work and found it in order. The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus: First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the surgical operation. Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the sponge count (was) lacking 2; that such anomaly was announced to surgeon and that a search was done but to no avail prompting Dr. Ampil to continue for closure x x x. Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the surgery was performed. An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie 8 negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference 9 of negligence. There are even legions of authorities to the effect that such act is negligence per se. Of course, the Court is not blind to the reality that there are times when danger to a patients life precludes a surgeon fro m further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patients abdomen, because o f the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the foreign object left in her body as 10 her condition might permit. The ruling in Smith v. Zeagler is explicit, thus: The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has placed in his patients body that should be removed as part of the operation, he thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his patients attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom. Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate

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and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient. This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action 11 caused injury to the patient. Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividads body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampils negligence is the proximate 12 cause of Natividads injury could be traced from his act of closing the incision d espite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividads vagina established the causal link between Dr. Ampils negligence and the injury. And what further aggravat ed such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family. II - G.R. No. 126467 Whether the Court of Appeals Erred in Absolving Dr. Fuentes of any Liability The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividads body is a prima faci e evidence of Dr. Fuentes negligence. We are not convinced. Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, 13 and present a question of fact for defendant to meet with an explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendants want of care, and the burden of proof is shifted to him to establish that he has observed due care and 14 diligence. From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the "control 15 and management of the thing which caused the injury." We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie. It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital. Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel 16 connected with the operation. Their duty is to obey his orders. As stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes pe rmission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividads body. Clearly, the co ntrol and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes. In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or 17 separate ground of liability, being a mere evidentiary rule. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes. III - G.R. No. 126297

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Whether PSI Is Liable for the Negligence of Dr. Ampil The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their liability for the negligence of physicians. Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest classes of 18 society, without regard for a patients ability to pay. Those who could afford medical treatment were usually treated at home by 19 their doctors. However, the days of house calls and philanthropic health care are over. The modern health care industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-related changes in the hospital industry. One important legal change is an increase in hospital liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or agency by 20 estoppel. In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior, thus: ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry. x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are not "employees" under this article because the manner in which they perform their work is not within the control of the latter (employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present case, "a hospital 21 cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients." The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physicians calling 22 preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity. It has been 23 said that medical practice strictly involves highly developed and specialized knowledge, such that physicians are generally free to 24 exercise their own skill and judgment in rendering medical services sans interference. Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the patient and his actions are 25 of his own responsibility. The case of Schloendorff v. Society of New York Hospital was then considered an authority for this view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondeat superior principle for fault or negligence committed by physicians in the discharge of their profession. However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts came to realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to patients. No longer were a hospitals functions limited to furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in 27 Bing v. Thunig, the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment, even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the universal rule of respondeat superior. In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our 28 categorical pronouncement in Ramos v. Court of Appeals that for purposes of apportioning responsibility in medical negligence
26

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cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This Court held: "We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to su bmit proof of completion of residency, their educational qualifications, generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. x x x. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a pee r review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultant s all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. " But the Ramos pronouncement is not our only basis in sustaining PSIs liability. Its liability is al so anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in the determination of a hospitals liability for negligent acts of health professionals. The present c ase serves as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence. Apparent authority, or what is sometimes referred to as the "holding out" theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow 30 misleading the public into believing that the relationship or the authority exists. The concept is essentially one of estoppel and has been explained in this manner: "The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the 31 particular business, is justified in presuming that such agent has authority to perform the particular act in question. The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital of Lake 32 Worth, Inc. There, it was explicitly stated that "there does not appear to be any rational basis for excluding the concept of apparent authority from the field of hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physicians negl igence. Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads: ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority. In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals conclusion that it "i s now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence." Indeed, PSIs act is tantamount to holding out to the public that Me dical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants. The trial court correctly pointed out: x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of employer-employee relationship between the hospital and the independent physician whose name and competence are certainly
29

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certified to the general public by the hospitals act of listing him and his specialty in its lobby directory, as in the case he rein. The high costs of todays medical and health care should at least exact on the hospital greater, if not broader, legal respon sibility for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of whether he is independent 33 or employed." The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the hospital should not be allowed to escape liability for the acts of its ostensible agents. We now proceed to the doctrine of corporate negligence or corporate responsibility. One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and manager of Medical City Hospital, "did not perform the necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their 34 duties as surgeons." Premised on the doctrine of corporate negligence, the trial court held that PSI is directly liable for such breach of duty. We agree with the trial court. Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospitals liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. Its formulation proceeds from the judiciarys acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals 35 commensurate with their inherent responsibility to provide quality medical care. The doctrine has its genesis in Darling v. Charleston Community Hospital. There, the Supreme Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the treatment rendered to the patient." On the basis of Darling, other jurisdictions held that a hospitals corporate negligence extends to permitting a ph ysician 37 known to be incompetent to practice at the hospital. With the passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who practice medicine within its walls; and (4) 38 the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients. Thus, in Tucson 39 Medical Center, Inc. v. Misevich, it was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty includes the proper supervision of the members of 40 its medical staff. And in Bost v. Riley, the court concluded that a patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus: x x x PSIs liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count nurse. Such failure established PSIs part in the dark conspiracy of silence and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the healing professions, through their members like defendant surgeons, and their institutions like PSIs hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate a report of such seriousness as the one in Natividads case. It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospitals staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that the two pieces of 41 gauze were missing. In Fridena v. Evans, it was held that a corporation is bound by the knowledge acquired by or notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses report, to investigate and inform Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona held: x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
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Among the cases indicative of the emerging trend is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell , the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a method of treatment or care which fell below the recognized standard of care. Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its staff. x x x. x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of the patients injuries. We find that such general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the hospital s liability based on the theory of negligent supervision." Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas. One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment. WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CAG.R. SP No. 32198. Costs against petitioners PSI and Dr. Miguel Ampil. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice

Footnotes
*

No part. Ponente of the assailed Decision in the Court of Appeals. Beeck v. Tucson General Hospital, 500 P. 2d 1153 (1972), citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E. 2d 253.

Penned by Associate Justice Cancio C. Garcia (now a member of the Supreme Court) and concurred in by Associate Justices Eugenio S. Labitoria and Artemio G. Tuquero (both retired), Rollo, G.R. Nos. 126297, pp. 36-51; 126467, pp. 27-42; 127590, pp. 23-38.
3

Penned by Judge Lucas P. Bersamin (now Justice of the Court of Appeals), Rollo, G.R. No. 126647, pp. 69-83. The medical staff was composed of physicians, both residents and interns, as well as nurses. The dispositive portion reads: "WHEREFORE, let a writ of preliminary injunction be issued upon petitioners posting of bond in the amount of P20,000.00, ENJOINING public respondents from implementing the questioned order dated September 21, 1993 and from further taking any action in Civil Case No. Q-43322 entitled Natividad G. Agana, et al., plaintiffs, versus Professional Services, Inc., et al., defendants pending resolution of the instant petition. SO ORDERED." See Rollo, G.R. No. 126297, p. 42.

Rollo of G.R. No. 126467, pp. 84-89. Rollo of G.R. No. 127590, p. 40. Rule v. Cheeseman, 317 P. 2d 472 (1957), citing Russel v. Newman, 116 Kan. 268 P. 752; Bernsden v. Johnson, 174 Kan. 230, 255 P. 2d 1033.

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9

Smith v. Zeagler, 157 So. 328 Fla. (1934), citing Ruth v. Johnson, (C.C.A.) 172 F. 191; Reeves v. Lutz, 179 Mo. App. 61, 162 S.W. 280; Rayburn v. Day, 126 Or. 135,268 P. 1002, 59 A.L.R. 1062; Wynne v. Harvey, 96 Wash. 379, 165 P. 67; Harris v. Fall (C.C.A.) 177 F. 79, 27 L.R.A. (N.S.) 1174; Moore v. Ivey, (Tex. Civ. App.) 264 S.W. 283; 21 R.C. L. 388.
10

157 So. 328 Fla. (1934) Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769.

11

12

In the leading case of Vda. de Bataclan v. Medina, (102 Phil. 181 [1957]), this Court laid down the following definition of proximate cause in this jurisdiction as follows: [T]hat cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. And more comprehensively, the proximate cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with the immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under which circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.
13

Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584. Africa v. Caltex (Phils.) Inc., 123 Phil. 280 (1966).

14

15

Ranos v. Court of Appeals, supra. In Ramos, the phrase used is "control of the instrumentality which caused the damage," citing St. Johns Hospital and School of Nursing v. Chapman, 434 P2d 160 (1967).
16

Rural Educational Assn v. Bush, 42 Tenn. App. 34, 298 S.W. 2d 761 (1956). Ramos v. Court of Appeals, supra at footnote 13. Levin, Hospital Vicarious Liability for Negligence by Independent Contractor Physicians: A New Rule for New Times, October 17, 2005. Id. Id. Tolentino, The Civil Code of the Philippines, Volume V, 1992 Ed., p. 616.

17

18

19

20

21

22

Arkansas M.R. Co. v. Pearson, 98 Ark. 442, 153 SW 595 (1911); Runyan v. Goodrum, 147 Ark. 281, 228 SW 397, 13 ALR 1403 (1921); Rosane v. Senger, 112 Colo. 363, 149 P. 2d 372 (superseded by statute on other grounds); Moon v. Mercy Hosp., 150 Col. 430, 373 P. 2d 944 (1962); Austin v. Litvak, 682 P. 2d 41, 50 ALR 4th 225 (1984); Western Ins. Co. v. Brochner, 682 P. 2d 1213 (1983); Rodriguez v. Denver, 702 P. 2d 1349 (1984).
23

Arkansas M.R. Co. v. Pearson, id.; Nieto v. State, 952 P. 2d 834 (1997). But see Beeck v. Tucson General Hosp., 18 Ariz. App. 165, 500 P. 2d 1153 (1972); Paintsville Hosp. Co., 683 SW 2d 255 (1985); Kelley v. Rossi, 395 Mass. 659, 481 NE 2d 1340 (1985) which held that a physicians professional status does not prevent him or her from being a servant or agent of the hospital.
24

Fridena v. Evans, 127 Ariz. 516, 522 P. 2d 463 (1980). Kitto v. Gilbert, 39 Colo App 374, 570 P. 2d 544 (1977).

25

26

211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (1914). The court in Schloendorff opined that a hospital does not act through physicians but merely procures them to act on their own initiative and responsibility. For subsequent application of the doctrine, see for instance, Hendrickson v. Hodkin, 250 App. Div 649, 294 NYS 982, revd on other grounds, 276 NY 252, 11 NE 2d 899 (1937); Necolayff v. Genesee Hosp., 270 App. Div. 648, 61 NYS 2d 832, affd 296 NY 936, 73 NE2d 117 (1946); Davie v. Lenox Hill Hosp., Inc., 81 NYS 2d 583 (1948); Roth v. Beth El Hosp., Inc., 279 App. Div 917, 110 NYS 2d 583 (1952); Rufino v. US, 126 F. Supp. 132 (1954); Mrachek v. Sunshine Biscuit, Inc., 308 NY 116, 123 N.E. 2d 801 (1954).
27

2 NY 2d 656, 163 NYS 2d 3, 143 N.E. 2d 3 (1957). Supra at footnote 13.

28

29

Blacks Law Dictionary (6th Ed. 1990) 1100. The terms "ostensible agency," "agency by estoppel," "apparent authority," and "holding out" tend to be used interchangeably by the courts to refer to this theory of liability. See for instance, Baker v. Werner, 654 P2d 263 (1982) and Adamski v. Tacoma Gen. Hosp., 20 Wash App. 98, 579 P2d 970 (1978). Agency by estoppel is defined as "one created by operation of law and established by proof of such acts of the principal as reasonably lead third persons to the conclusion of its existence. Arises where principal by negligence in failing to supervise agents affairs, allows agent to exercise powers not granted to him, thus justifying others in believing the agent possesses requisite authority." Blacks, supra, p. 62. An ostensible agency is "an implied or presumptive agency which exists where one, either intentionally or from want of ordinary care, induces another to believe that a third person is his agent, though he never in fact, employed him. It is, strictly speaking, no agency at all, but is in reality based entirely upon estoppel." Apparent authority refers to "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the others manifestations to such third persons." Supra, p. 96.
30

Irving v. Doctors Hospital of Lake Worth, Inc., 415 So. 2d 55 (1982), quoting Arthur v. St. Peters Hospital, 169 N.J. 575, 405 A. 2d 443 (1979). Id., citing Hudson v. C., Loan Assn., Inc. v. Horowytz, 116 N.J.L. 605, 608, 186 A 437 (Sup. Ct. 1936). Supra.

31

32

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33

RTC Decision, p. 9, Rollo of G.R. No. 126467, p. 127. RTC Decision, p. 2, Rollo of G.R. No. 126467, p. 120. Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P2d 335 (1972). Supra at footnote 1.

34

35

36

37

Corleto v. Hospital, 138 N.J. Super. 302, 350 A. 2d 534 (Super. Ct. Law Div.1975); Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972); Hospital Authority v. Joiner, 229 Ga. 140,189 S.E. 2d 412 (1972).
38

Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997). 115 Ariz. 34, 545 P2d 958 (1976). 262 S.E. 2d 391, cert denied 300 NC 194, 269 S.E. 2d 621 (1980). 127 Ariz. 516, 622 P. 2d 463 (1980).

39

40

41

11. G.R. No. 160889

April 27, 2007

DR. MILAGROS L. CANTRE, Petitioner, vs.SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.
DECISION QUISUMBING, J.: For review on certiorari are the Decision dated October 3, 2002 and Resolution dated November 19, 2003 of the Court of Appeals 3 in CA-G.R. CV No. 58184, which affirmed with modification the Decision dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562. The facts, culled from the records, are as follows: Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992. At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner and the assisting resident physician performed various medical proc edures to stop the bleeding and to restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a sphygmomanometer. While petitioner was massaging Noras uterus for it 4 to contract and stop bleeding, she ordered a droplight to warm Nora and her baby. Nora remained unconscious until she recovered. While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ) by three 5 and a half (3 ) inches in the inner portion of her left arm, close to the armpit. He asked the nurses what caused the injury. He was 6 informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for investigation. In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the injury. On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, which was conducted 7 by medico-legal officer Dr. Floresto Arizala, Jr. The medico-legal officer later testified that Noras injury appeared to be a burn and 8 that a droplight when placed near the skin for about 10 minutes could cause such burn. He dismissed the likelihood that the wound 9 was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the arm. On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin grafting. Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as well. About a year after, on April 30, 11 1993, scar revision had to be performed at the same hospital. The surgical operation left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the surface of the skin. The costs of 12 the skin grafting and the scar revision were shouldered by the hospital. Unfortunately, Noras arm would never be the same. 1a\^/phi1.net Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch. Thus, on June 21, 1993, respondent spouses filed a complaint for damages against petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed:
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In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and against the defendants, directing the latters, (sic) jointly and severally (a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages; (b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary damages; (c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages; (d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and (e) to pay Six Thousand Pesos (P6,000.00) litigation expenses. SO ORDERED.
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Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the trial court decision, thus: WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the following MODIFICATIONS: 1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages; 2. Deleting the award *of+ exemplary damages, attorneys fees and expenses of litigation; 1awphi1.nt 3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.; 4. Dismissing the counterclaims of defendants-appellants for lack of merit; and 5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs. SO ORDERED.
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Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning the followi ng as errors and issues: I. WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; II. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; III. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT; IV. WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESEN T AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO; V.

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WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO; VI. WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF; VII. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE; VIII. WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, 16 ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION. Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists the droplight could not have touched Noras body. She maintains the injury was due to the constant taking of Noras blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic surgery was not intended to restore respondents injury to its original state but rather to prevent further complication. Respondents, however, counter that the genuineness and due execution of the additional documentary exhibits were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory is highly improbable, being unprecedented in medical history and that the injury was definitely caused by the droplight. At any rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Noras attending physician. Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether the appellate court committed grave abuse of discretion in its assailed issuances. As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they were formally offered for admission by the trial court. I n any case, given the particular circumstances of this case, a ruling on the negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits. Petitioners contention that the medico-legal officer who conducted Noras physical examination never saw her original injury before plastic surgery was performed is without basis and contradicted by the records. Records show that the medico-legal officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar revision were performed on Nora on May 22, 1992 and April 30, 1993, respectively. Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go? The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a 17 right to reparation for the damage caused. In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
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As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened unless negligence had set in somewhere. Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the "captain of the ship" doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the 19 surgeons control. In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioners exclusive control. Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be cau sed by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury. Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her blood pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this case. Thus, if Noras wound was caused by the blood pressur e cuff, 20 then the taking of Noras blood pressure must have been done so negligently as to have inflicted a gaping wound on her arm, for which petitioner cannot escape liability under the "captain of the ship" doctrine. Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but rather as a meas ure to prevent complication does not help her case. It does not negate negligence on her part. Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession stands unrebutted. In this connection, the Civil Code provides: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate result of p etitioners negligence. We note, however, that petitioner has served well as Noras obstetrician for her past three successful deliveries. This is th e first time petitioner is being held liable for damages due to negligence in the practice of her profession. The fact that petitioner promptly took care of Noras wound before infection and other complications set in is also indicative of petitioners good intentions. We a lso take note of the fact that Nora was suffering from a critical condition when the injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner. Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the assailed decision and resolution of the Court of Appeals. Further, we rule that the Court of Appeals award of Two Hundred Thousand Pesos ( P200,000) as 21 moral damages in favor of respondents and against petitioner is just and equitable. WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice
Footnotes
1

Rollo, pp. 43-68. Id. at 40-41. Records, pp. 218-227.

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4

TSN, December 5, 1995, pp. 54-55. TSN, June 25, 1996, p. 9. Exhibit "A," folder of exhibits, p. 1. TSN, September 16, 1994, p. 6; Exhibit "D," folder of exhibits, p. 7. TSN, September 12, 1995, pp. 13-16. Id. at 23. Exhibit "L," folder of exhibits, p. 42. TSN, January 31, 1994, pp. 35-36. TSN, April 29, 1994, p. 16; TSN, June 25, 1996, p. 23. Records, pp. 1-6. Id. at 227. Rollo, p. 67. Id. at 169-171. Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584, 628. Id. at 600. Blacks Law Dictionary 192, (5th ed., 1979). TSN, September 16, 1994, pp. 27-28. See Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236, 240.

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12. G.R. No. 172406

October 11, 2007

CONCEPCION ILAO-ORETA, Petitioner, vs SPOUSES EVA MARIE and BENEDICTO NOEL RONQUILLO, Respondents.
DECISION CARPIO MORALES, J.: Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the St. Lukes Medical Center where she was, at the time material to the case, the chief of the Reproductive Endocrinology and Infertility Section. Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby a laparascope would be inserted through the patients abdominal wall to get a direct view of her internal reproductive organ in order to determine the real cause of her infertility. The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St. Lukes Medical Center and underwent pre -operative procedures including the administration of intravenous fluid and enema. Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila. On May 18, 1999, the Ronquillo spouses filed a complaint against Dr. Ilao-Oreta and the St. Lukes Medical Center for breach of professional and service contract and for damages before the Regional Trial Court (RTC) of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while accompanying his wife to the hospital, moral damages, exemplary 2 damages, the costs of litigation, attorneys fees, and other available reliefs and rem edies.
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In her Answer, Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith that she would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to consider the time difference between Hawaii and the Philippines, however. In its Answer, the St. Lukes Medical Center contended that the spouses have no cause of action against it since it performed the pre-operative procedures without delay, and any cause of action they have would be against Dr. Ilao-Oreta. By Decision of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive on time was not intentional, awarded Eva Marie only actual damages in the total amount of P9,939 and costs of suit. It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the hospital. On appeal by the spouses, the Court of Appeals, by Decision of April 21, 2006, finding Dr. Ilao-Oreta grossly negligent, modified the trial courts decision as follows: WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the modification that the amount of actual damages, for which both defendants-appellees are jointly and severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following: (a) P50,000.00 as moral damages; (b) P25,000.00 as exemplary damages; and (c) P20,000.00 as attorneys fees. SO ORDERED. (Underscoring supplied) Hence, the present Petition for Review of Dr. Ilao-Oreta raising the following arguments: The court a quo erred in finding petitioner to have acted with gross negligence and awarding moral damages to respondents. The court a quo erred in awarding Exemplary Damages to respondents. The court a quo *erred+ in awarding Attorneys Fees to respondents.
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The court a quo erred in increasing the award of actual damages in favor of respondents.

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"Gross negligence" implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces 14 a thoughtless disregard of consequences without exerting any effort to avoid them. It is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious 15 indifference to consequences in so far as other persons may be affected. The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and instructed the hospital staff to perform pre16 operative treatments. These acts of the doctor reflect an earnest intention to perform the procedure on the day and time scheduled. The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately sought to rectify the same, thus: [ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation? [DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours of travel including stop -over, then probably I would be in Manila early morning of April 5, then I have so much time and I can easily do the case at 2:00 oclock, you know it skipped my mind the change in time. Q: So when you arrived at 10:00 [PM] in Manila, what did you do? A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs. Ronquillo, and they told me that she has already left at around 7:00. Q: And after calling the hospital, what happened?

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A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I went to my office early at 8:00 and looked for her chart, because her telephone number was written in the chart. So, I called them right away. Q: Were you able to contact them? A: I was able to reach Mr. Ronquillo. Q: In the course of your conversation, what did you tell Mr. Ronquillo? A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that I can do the case right that same day without Mrs. Ronquillo having to undergo another [b]arium enema. Q: What else did you tell him, if any? A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally. Q: And what did he say? A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want to talk to me, and that she didnt want re-scheduling of the surgery . . . ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay. COURT: Remain on the record. WITNESS [DR. ILAO-ORETA+: . . . and then Mr. Ronquillo told me "Im sorry, Dra., we cannot re -schedule the 17 surgery." (Underscoring supplied) Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her.
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The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where she obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled to perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between the Philippines and Hawaii. The doctors act did not, however, reflect gross negligence as defined above. Her argument that Although petitioner failed to take into consideration the time difference between the Philippines and Hawaii, the situation then did not present any clear and apparent harm or injury that even a careless person may perceive. Unlike in situations where the Supreme Court had found gross negligence to exist, petitioner could not have been conscious of any foreseeable danger that may occur since she actually believed that she would make it to theoperation that was elective in nature, the only purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening disease. Thus, in merely fixing the date of her appointment with respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct which any ordinary 19 person may deem to probably and naturally result in injury, (Underscoring in original) thus persuades. It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-Oreta had just gotten married 20 and was preparing for her honeymoon, and it is of common human knowledge that excitement attends its preparations. Her negligence could then be partly attributed to human frailty which rules out its characterization as gross. The doctors negligence not being gross, the spouses are not entitled to recover moral damages. Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-Oreta acted in a wanton, 21 fraudulent, reckless, oppressive or malevolent manner, nor to award of attorneys fees as, contrary to the finding of the Court of 22 Appeals that the spouses "were compelled to litigate and incur expenses to protect their interest," the records show that they did not exert enough efforts to settle the matter before going to court. Eva Marie herself testified: ATTY. SINJIAN: Q: Isnt it true that before instituting this present case, you did not make any demand on Dr. Ilao -Oreta regarding the claims which you have allegedly incurred, because of the failed laparoscopic surgery operation? A *EVA MARIE+: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . . Q: But did you demand?

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A: No, I did not demand because ATTY. SINJIAN: That will be all, your Honor. ATTY. LONTOK: The witness is still explaining. WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr. Oreta to settle things and reimburse all the money that I spent from the hospital, and he even suggested Dr. Oreta to personally talk to me. ATTY. SINJIAN: Q: So it was to Dr. Augusto Reyes that you talked? A: Yes. Q: But you did not demand anything or write to Dr. Oreta? A: No. Q: Before instituting this case? A: No. (Underscoring supplied) Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well -taken. Article 2201 of the Civil Code provides: In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those which are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the spouses 24 incurred prior to April 5, 1999 when the breach of contract complained of occurred. The Court of Appeals also included the alleged P300 spent on fuel consumption from the spouses residence at San Pascual, Batangas to the St. Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which are unsubstantiated by independent or 25 26 competent proof. The only piece of documentary evidence supporting the food and fuel expenses is an unsigned listing. As the fuel and food expenses are not adequately substantiated, they cannot be included in the computation of the amount of actual 27 damages. SoPremiere Development Bank v. Court of Appeals instructs: In the instant case, the actual damages were proven through the sole testimony of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony, the witness affirmed that Panacor incurred losses, specifically, in terms of training and seminars, leasehold acquisition, procurement of vehicles and office equipment without, however, adducing receipts to substantiate the same. The documentary evidence marked as Exhibit "W," which was an ordinary private writing allegedly itemizing the capital expenditures and losses from the failed operation of Panacor, was not testified to by any witness to ascertain the veracity of its content. Although the lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show how and in what manner the same were substantiated by the claimant with reasonable certainty. Hence, the claim for actual damages should be received with extreme caution since it is only based on bare assertion without support from independent evidence. Premieres failure to prove actual expenditure consequently conduces to a failure of its claim. In determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof 28 and on the best evidence obtainable regarding the actual amount of loss. (Underscoring supplied) The list of expenses cannot replace receipts when they should have been issued as a matter of course in business transactions as in the case of purchase of gasoline and of food.1wphi1 The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of Account issued by the hospital, the pertinent entries of which read: xxxx GROSS HOSPITAL CHARGES 4/5/1999 1699460 DEPOSITOFFICIAL RECEIPT (5,000.00) (5,000.00) 2,416.50
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4/5/1999 SECOND 0284893 UNUSED MED

0439534

(65.55)

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FLOOR HINOX 500 MG CAP 0439893 (62.25)

SECOND 0284894 UNUSED MED FLOOR PHENERGAN 2 ML 50MG BALANCE DUE

________ (127.80) (2,711.30) ==========

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As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross hospital charges of P2,416.50 less 31 the unused medicine in the amount of P127.80) was debited from the P5,000 deposit to thus leave a balance of the deposit in the amount of P2,711.30, which the trial court erroneously denominated as "confinement fee." The remaining balance of P2,711.30 was the amount refundable to the spouses. Following Eastern Shipping Lines, Inc. v. Court of Appeals, this Court awards interest on the actual damages to be paid by Dr. IlaoOreta at the rate of 6% per annum from the time of the filing of the complaint on May 18, 1999, and at 12% per annum from the finality of this judgment until its satisfaction. WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that 1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages is REDUCED toP2,288.70, to bear interest at a rate of 6% per annum from the time of the filing of the complaint on May 18, 1999 and, upon finality of this judgment, at the rate of 12% per annum until satisfaction; and 2) The award of moral and exemplary damages and attorneys fees is DEL ETED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice
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Footnotes
1

Records, pp. 1-8. Id. at 6. Id. at 28-32. Id. at 58-62. Id. at 263-264.

Penned by Court of Appeals Associate Justice Fernanda Lampas Peralta, with the concurrence of Associate Justices Josefina Guevarra-Salonga and Sesinando E. Villon. CA rollo, pp. 202-212.
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Id. at 208-210. Id. at 211. Rollo, pp. 8-23. Id. at 11. Id. at 18. Ibid. Id. at 20. Phil. Aeolus Automotive United Corporation v. NLRC, 387 Phil. 250, 263 (2000). De la Victoria v. Mongaya, 404 Phil. 609, 619-620 (2001). TSN, April 10, 2000, p. 25; TSN, June 26, 2000, p. 20; Records, pp. 229, 232-253, 262.

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TSN, June 26, 2000, pp. 21-23. TSN, February 7, 2000, pp. 11-12; TSN, April 10, 2000, pp. 40-41. Rollo, pp. 13-14. TSN, February 7, 2000, pp. 2-5; TSN, April 10, 2000, pp. 17-21; TSN, June 26, 2000, pp. 16-20; TSN, July 12, 2000, pp. 4-6, 21.

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Civil Code, Article 2232: "In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner."
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CA rollo, p. 211. TSN, May 16, 2000, pp. 9-10. Rollo, pp. 21-22; CA rollo, p. 210; Records, pp. 162-166, 171, 198, 205, 264; TSN, December 6, 1999, pp. 18-21; TSN, June 26, 2000, pp. 7-16.

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Records, p. 190. Vide Article 2199, Civil Code: "Except as provided by law or stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. x x x"
26

Id. at 190. G.R. No. 159352, April 14, 2004, 427 SCRA 686. Id. at 698-699. People v. Matore, 436 Phil. 421, 433 (2002). Records, p. 175. Id. at 176. G.R. No. 97412, July 12, 1994, 234 SCRA 78, 95-97.

27

28

29

30

31

32

13. G.R. No. 158996

November 14, 2008

SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES, petitioners, vs.SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC., respondents.
DECISION BRION, J.: This petition involves a medical negligence case that was elevated to this Court through an appeal by certiorari under Rule 45 of the 1 Rules of Court. The petition assails the Decision of the Court of Appeals (CA) in CA G.R. CV No. 63234, which affirmed with 2 modification the Decision of the Regional Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states: WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows: 1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees - heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral damages; 2) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiffappellees the sum of P100,000.00 by way of exemplary damages; 3) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiffappellees the sum of P36,000.00 by way of actual and compensatory damages; and 4) Deleting the award of attorney's fees and costs of suit. SO ORDERED.

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While this case essentially involves questions of facts, we opted for the requested review in light of questions we have on the 3 findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on medical practice. BACKGROUND FACTS Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected 4 that Teresita might be suffering from diabetes and told her to continue her medications. Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresita's 5 admission to the hospital. In the admission slip, he directed the hospital staff to prepare the patient for an "on call" D&C operation to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the 6 hospital staff forthwith took her blood and urine samples for the laboratory tests which Dr. Fredelicto ordered. At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors - Dr. Felicisima and Dr. Fredelicto, conferred on the patient's medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood sugar ( BS), uric acid determination, cholesterol determination, and 7 8 complete blood count (CBC) were available. Teresita's BS count was 10.67mmol/l and her CBC was 109g/l. Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room. A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as a confirmatory procedure. 9 The results showed that she had an enlarged uterus and myoma uteri. Dr. Felicisima, however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for hospital confinement. Teresita's complete laboratory examination results came only on that day (April 29, 1987). Teresita's urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed under the care of Dr. Amado Jorge, an internist. By April 30, 1987, Teresita's condition had worsened. She experienced difficulty in breathing and was rushed to the intensive care 10 unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II. Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 11 1987. Believing that Teresita's death resulted from the negligent handling of her medical needs, her family ( respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to as the petitioner spouses) before the RTC of Nueva Ecija. The RTC ruled in favor of Teresita's family and awarded actual, moral, and exemplary damages, plus attorney's fees and costs. The CA affirmed the judgment, but modified the amount of damages awarded and deleted the award for attorney's fees and costs of 13 suit. Through this petition for review on certiorari, the petitioner spouses -Dr. Fredelicto (now deceased) and Dr. Felicisima Flores - allege that the RTC and CA committed a reversible error in finding them liable through negligence for the death of Teresita Pineda. ASSIGNMENT OF ERRORS The petitioner spouses contend that they exercised due care and prudence in the performance of their duties as medical professionals. They had attended to the patient to the best of their abilities and undertook the management of her case based on her complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on record shows that the death of Teresita could have been averted had they employed means other than what they had adopted in the ministration of the patient. THE COURT'S RULING We do not find the petition meritorious. The respondents' claim for damages is predicated on their allegation that the decision of the petitioner spouses to proceed with the D&C operation, notwithstanding Teresita's condition and the laboratory test results, amounted to negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted procedure to address vaginal bleeding - the medical
12

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problem presented to them. Given that the patient died after the D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or one amounting to negligence. Elements of a Medical Negligence Case A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty, breach, injury, and proximate 14 causation. Duty refers to the standard of behavior which imposes restrictions on one's conduct. The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable 16 for negligence. As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff. To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not 18 have done; and two, the failure or action caused injury to the patient. Expert testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a 19 matter of expert opinion. Standard of Care and Breach of Duty D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal bleeding. That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents: DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C for diagnostic purposes. xxx xxx xxx Q: So are you trying to tell the Court that D&C can be a diagnostic treatment? A: Yes, sir. Any doctor knows this.
21 20 17 15

Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in Teresita's case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been addressed first: Q: Why do you consider the time of performance of the D&C not appropriate? A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the urine, and blood sugar was 10.67 Q: What is the significance of the spillage in the urine? A: It is a sign that the blood sugar is very high. Q: Does it indicate sickness? A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67. xxx xxx xxx COURT: In other words, the operation conducted on the patient, your opinion, that it is inappropriate? A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion, that D&C should be postponed a 22 day or two. The petitioner spouses countered that, at the time of the operation, there was nothing to indicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic considering that this was random 23 blood sugar; there were other factors that might have caused Teresita's blood sugar to rise such as the taking of blood samples 24 during lunchtime and while patient was being given intra-venous dextrose. Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal bleeding. The petitioner spouses' contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita was already suspected 25 to be suffering from diabetes. This suspicion again arose right beforethe D&C operation on April 28, 1987 when the laboratory

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result revealed Teresita's increased blood sugar level. Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst 27 - all of which are classic symptoms of diabetes. When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the suspected disease:
Expert testimony for the plaintiff showed that] tests should have been ordered immediately on admission to the hospital in view of the symptoms presented, and that failure to recognize the existence of diabetes constitutes negligence.28 26

Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not therefore be held accountable for complications coming from other sources. This is a very narrow and self-serving view that even reflects on their competence. Taken together, we find that reasonable prudence would have shown that diabetes and its complications were foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must be taken into account so long as it is or should have been known to the 29 physician. And when the patient is exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequate precautions. Taking into account Teresita's high blood sugar, Dr. Mendoza opined that the attending physician should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patient's 31 diabetes should have been managed by an internist prior to, during, and after the operation. Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-threatening that urgent first-aid 32 measures are required. Indeed, the expert witnesses declared that a D&C operation on a hyperglycemic patient may be justified only when it is an emergency case - when there is profuse vaginal bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse bleeding, not only because the statements were self-serving, but also because the petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the 33 34 bleeding, but later on said that he did not see it and relied only on Teresita's statement that she was bleeding. He went on to state that he scheduled the D&C operation without conducting any physical examination on the patient. The likely story is that although Teresita experienced vaginal bleeding on April 28, it was not sufficiently profuse to necessitate an 35 36 immediate emergency D&C operation. Dr. Tan and Dr. Mendoza both testified that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal bleeding. A medical record is the only document that maintains a long-term transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal 37 record-keeping includes all patient inter-actions. The records should always be clear, objective, and up-to-date. Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearly of what it does not contain. That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician must conduct a thorough preoperative evaluation of the patient in order to adequately prepare her for the operation and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation of all medical problems during the pre38 operative evaluation. The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven by findings on history and physical examination suggestive of organ system dysfunctionThe goal is to uncover problem areas that may require further investigation or be amenable to preoperative optimization. If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of an underlying disease process, consultation with an internist or medical specialist may be required to facilitate the work-up and direct management. In this process, communication between the surgeons and the consultants is essential to define realistic goals 39 for this optimization process and to expedite surgical management. [Emphasis supplied.] Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the laboratory results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a telephone report of the preliminary 40 laboratory result prior to the D&C. This preliminary report did not include the 3+ status of sugar in the patient's urine - a result highly confirmatory of diabetes. Because the D&C was merely an elective procedure, the patient's uncontrolled hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The presence of hyperglycemia in a surgical patient is associated with poor clinical outcomes, and 41 aggressive glycemic control positively impacts on morbidity and mortality. Elective surgery in people with uncontrolled 42 diabetes should preferably be scheduled after acceptable glycemic control has been achieved. According to Dr. Mercado, this is 43 done by administering insulin on the patient.
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The management approach in this kind of patients always includes insulin therapy in combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the muscle and fat cells while decreasing glucose production by 44 the liver xxx. The net effect is to lower blood glucose levels. The prudent move is to address the patient's hyperglycemic state immediately and promptly before any other procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or during the D&C operation. Insulin was only administered two days after the operation. As Dr. Tan testified, the patient's hyperglycemic condition should have been managed not only before and during the operation, but also immediately after. Despite the possibility that Teresita was afflicted with diabetes, the possibility was casually ignored even in the post-operative evaluation of the patient; the concern, as the petitioner spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma in her uterus, she was advised that she could be discharged a day after the operation and that her recovery could take place at home. This advice implied that a day after the operation and even after the complete laboratory results were submitted, the petitioner spouses still did not recognize any post-operative concern that would require the monitoring of Teresita's condition in the hospital. The above facts, point only to one conclusion - that the petitioner spouses failed, as medical professionals, to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of duty was the proximate cause of Teresita's death is a matter we shall next determine. Injury and Causation As previously mentioned, the critical and clinching factor in a medical negligence case is proof of thecausal connection between the 45 negligence which the evidence established and the plaintiff's injuries; the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendant's fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon 46 competent expert testimony. The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately preparing her, aggravated her hyperglycemic state and caused her untimely demise. The death certificate of Teresita lists down the following causes of death: Immediate cause: Antecedent cause: Underlying cause: Other significant conditions contributing to death: Renal Failure - Acute
47

Cardiorespiratory arrest Septicemic shock,ketoacidocis Diabetes Mellitus II

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patient's hyperglycemia: when stress occurs, the diabetic's body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory; she can have prolonged 48 hyperglycemia which, if unchecked, could lead to death. Medical literature further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a 49 medical emergency with a significant mortality). This was apparently what happened in Teresita's case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death was the diabetic complication that could have been prevented with the observance of standard medical precautions. The D&C operation and Teresita's death due to aggravated diabetic condition is therefore sufficiently established. The trial court and the appellate court pinned the liability for Teresita's death on both the petitioner spouses and this Court finds no reason to rule otherwise. However, we clarify that Dr. Fredelicto's negligence is not solely the act of ordering an "on call" D&C operation when he was mainly ananaesthesiologist who had made a very cursory examination of the patient's vaginal bleeding complaint. Rather, it was his failure from the very start to identify and confirm, despite the patient's complaints and his own suspicions, that diabetes was a risk factor that should be guarded against, and his participation in the imprudent decision to proceed with the D&C operation despite his early suspicion and the confirmatory early laboratory results. The latter point comes out clearly from the following exchange during the trial: Q: On what aspect did you and your wife consult [with] each other? A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal, the blood sugar was elevated, so that we have to evaluate these laboratory results - what it means. Q: So it was you and your wife who made the evaluation when it was phoned in?

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A: Yes, sir. Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed? A: Yes, anyway, she asked me whether we can do D&C based on my experience. Q: And your answer was in the positive notwithstanding the elevation of blood sugar? A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.]
50

If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for which reason 51 he referred Teresita to Dr. Jorge), he should have likewise refrained from making a decision to proceed with the D&C operation since he was niether an obstetrician nor a gynecologist. These findings lead us to the conclusion that the decision to proceed with the D&C operation, notwithstanding Teresita's hyperglycemia and without adequately preparing her for the procedure, was contrary to the standards observed by the medical profession. Deviation from this standard amounted to a breach of duty which resulted in the patient's death. Due to this negligent conduct, liability must attach to the petitioner spouses. Liability of the Hospital In the proceedings below, UDMC was the spouses Flores' co-defendant. The RTC found the hospital jointly and severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however denied UDMC's petition for review on certiorari. Since UDMC's appeal has been denied and they are not parties to this case, we find it unnecessary to delve on the matter. Consequently, the RTC's decision, as affirmed by the CA, stands. Award of Damages Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on account of Teresita's confinement 52 and death. The settled rule is that a plaintiff is entitled to be compensated for proven pecuniary loss. This proof the respondents successfully presented. Thus, we affirm the award of actual damages of P36,000.00 representing the hospital expenses the patient incurred. In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled toP50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code, which states that "the amount of damages for death caused by a xxx quasi53 delict shall be at least three thousand pesos, even though there may have been mitigating circumstances xxx." This is a question of law that the CA missed in its decision and which we now decide in the respondents' favor . The same article allows the recovery of moral damages in case of death caused by a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral damages are designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious anxiety, wounded feelings which the respondents herein must have surely felt with the unexpected loss of their daughter. We affirm the appellate court's award of P400,000.00 by way of moral damages to the respondents. We similarly affirm the grant of exemplary damages. Exemplary damages are imposed by way of example or correction for the public 54 good. Because of the petitioner spouses' negligence in subjecting Teresita to an operation without first recognizing and addressing her diabetic condition, the appellate court awarded exemplary damages to the respondents in the amount of P100,000.00. Public 55 policy requires such imposition to suppress the wanton acts of an offender. We therefore affirm the CA's award as an example to the medical profession and to stress that the public good requires stricter measures to avoid the repetition of the type of medical malpractice that happened in this case. With the award of exemplary damages, the grant of attorney's fees is legally in order. We therefore reverse the CA decision deleting these awards, and grant the respondents the amount of P100,000.00 as attorney's fees taking into consideration the legal route this case has taken. WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00. We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by reversing the deletion of the award of attorney's fees and costs and restoring the award ofP100,000.00 as attorney's fees. Costs of litigation are adjudged against petitioner spouses. To summarize, the following awards shall be paid to the family of the late Teresita Pineda:
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1. The sum of P36,000.00 by way of actual and compensatory damages; 2. The sum of P50,000.00 by way of death indemnity; 3. The sum of P400,000.00 by way of moral damages; 4. The sum of P100,000.00 by way of exemplary damages; 5. The sum of P100,000.00 by way of attorney's fees; and 6. Costs. SO ORDERED.

Footnotes
1

Dated June 30, 2003 and penned by Justice Bienvenido Reyes, Jr., with Associate Justice Salvador Valdez and Associate Justice Danilo Pine, concurring; rollo, pp. 43-65.
2

Dated September 21, 1998, and penned by Judge Lauro Sandoval; id., pp. 66-97.

See: Dela Cruz v. CA and People of the Philippines,| G.R. NO. 105213, December 4, 1996, 265 SCRA 299; Valenzuela v. CA, G.R. No. 115024, February 7, 1996, 253 SCRA 303.
4

TSN, January 14, 1992, pp. 5-8.

"D&C" refers to dilatation and curettage, an operation in which the cervix of the uterus is expanded, using an instrument called dilator, and the lining (endometrium) of the uterus is lightly scraped with a curet (The Bantam Medical Dictionary, 5th ed., p. 192).
6

The laboratory tests conducted were for complete blood count, urinalysis, stool examination, blood sugar examination, BUN determination, uric acid determination, and cholesterol determination; rollo, p. 12.
7

"mmol/l" refers to millimoles per liter of blood; the normal fasting blood sugar is between 3.9 to 6.05mmol/l; infra note 19. "g/l" refers to grams per liter of blood; the normal CBC count is 120 to 170 g/l. Myoma of the uterus; myoma is a benign tumor of muscle (The Bantam Medical Dictionary, 5thed., p. 437).

10

Diabetes is a condition where the cells of the body cannot metabolize sugar properly due to a total or relative lack of insulin. The body then breaks down its own fat, proteins, and glycogen to produce sugar, resulting in high sugar levels in the blood (otherwise known as hyperglycemia,infra note 26), with excess by-products called ketones being produced by the liver. (Dr. Gordon French, Clinical Management of Diabetes Mellitus During Anesthesia and Surgery,http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.htm, last visited September 21, 2008).
11

Records, Volume II, Exhibit"B" (Death Certificate); TSN, July 12, 1988, pp. 5-8.

12

The amount of P36,000.00 by way of actual and compensatory damages; P1,000,000.00 by way of moral damages; P500,000.00 by way of exemplary damages; P30,000.00 by way of attorney's fees, plus P1,000.00 fee per appearance; rollo, p. 97
13

Supra note 1. Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, October 3, 2000, 341 SCRA 760. Martin, C.R.A., Law Relating to Medical Malpractice (2nd ed.), p. 361. 61 Am. Jur. 2d 200. REVISED RULES OF COURT, Rule 133, Section 1. Professional Services, Inc. v. Agana, G.R. No. 126297, January 31, 2007, 513 SCRA 478. Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, October 3, 2000, 341 SCRA 760. Sabiston Textbook of Surgery (17th ed.), pp. 2255-2256. TSN, June 23, 1989, p. 31. TSN, September 18, 1990, pp. 2-4.

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17

18

19

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[23] Random blood sugar is defined without regard as to last meal, as distinguished from fasting blood sugar where the blood sample has been taken after patient has fasted for at least 8 hours. The current criteria for the diagnosis of diabetes mellitus emphasize that fasting blood glucose is the most reliable and convenient test for identifying diabetes in asymptomatic individual. (Harrison's Principles of Internal Medicine, 17th ed., p. 2277)
24

TSN, March 5, 1992, p. 5; TSN, February 16, 1993, pp. 17-18. TSN, February 28, 1989, p. 20; TSN, March 5, 1992, pp. 17, 20. TSN, September 27, 1994, p. 26; TSN, December 10, 1992, p. 8; TSN, February 28, 1989, p. 36. TSN, September 18, 1990, p. 6; Harrison's Principles of Internal Medicine (17th ed.), p. 2277. Solis, P., Medical Jurisprudence (1980 ed.), p. 141, citing Hill v. Stewart, 209 So 2d 809 Miss 1968. Winfield and Jolowicz, On Tort (15th ed.), p. 181.

25

26

27

28

29

30

High blood sugar is also known as hyperglycemia. It refers to a condition where there is excessive glucose in the bloodstream (that is, fasting blood sugar level > 6 mmol/l) due to insufficient insulin in blood and excessive carbohydrate intake; untreated, it may lead to diabetic coma. (The Bantam Medical Dictionary, 5th ed., p. 322)
31

TSN, August 14, 1991, pp. 81-82. Oxford Textbook of Surgery (2nd ed.), Section 36.1 on Acute Vaginal Bleeding. TSN, January 14, 1992, p 33. TSN, December 10, 1992, p. 3. TSN, August 14, 1991, pp. 57-58. TSN, October 18, 1990, p. 23. Schwartz's Manual of Surgery (8th ed.), pp. 246-147. Kelly's Textbook of Internal Medicine (4th ed.), Chapter 25 on Pre-operative Medical Evaluation. Sabiston Textbook of Surgery (17th ed.), p. 222, supra note 20. TSN, January 14, 1992, p. 19.

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33

34

35

36

37

38

39

40

41

Gordon French, MD, Clinical Management of Diabetes Mellitus During Anesthesia and Surgery, http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.htm, last visited September 21, 2008.
42

Samuel Dagogo-Jack, MD and K. George M.M. Alberti, Management of Diabetes Mellitus in Surgical Patients, http://spectrum.diabetesjournals.org/cgi/content/full/15/1/44, last visited September 21, 2008.
43

TSN, September 18, 1990, pp. 5-6.

44

Raymond A. Plodkowski, MD and Steven V. Edelman, MD, Pre-Surgical Evaluation of Diabetic Patients, http://clinical.diabetesjournals.org/cgi/content/full/19/2/92, last visited September 21, 2008.
45

61 Am. Jur. 359, p. 527. 61 Am. Jur. 2d 359. Records, Volume II, Exh. "B." TSN, August 7, 1990, pp. 6-8.

46

47

48

49

Gordon French, MD, Clinical Management of Diabetes Mellitus During Anesthesia and Surgery, http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.htm, last visited September 21, 2008; Diabetic ketoacidosis is acute, life-threatening, metabolic acidosis that represents the most extreme result of uncontrolled diabetes mellitus, Kelly's Textbook on Internal Medicine (4th ed.), Chapter 411 on Diabetic Ketoacidosis, etc.
50

TSN, February 16, 1993, pp. 41-42. TSN, March 5, 1992, p. 9. CIVIL CODE, Article 2199. The amount has been increased to P50,000.00 according to jurisprudence. CIVIL CODE, Article 2229.

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55

Civil Aeronautics Administration v. CA, G.R. L-51806, November 8, 1988, 167 SCRA 28. CIVIL CODE, Article 2208 (2).

56

14. G.R. No. 159132

December 18, 2008

FE CAYAO-LASAM, petitioner, vs.SPOUSES CLARO and EDITHA RAMOLETE, respondents.*

DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) 1 seeking to annul the Decision dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206. The antecedent facts: On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the LMC 2 3 on the same day. A pelvic sonogram was then conducted on Editha revealing the fetus weak cardiac pulsation. The following day, 4 Edithas repeat pelvic sonogram showed that aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa." On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day. On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that 5 there was a dead fetus in the latters womb. After, Editha underwent laparotomy, she was found to have a massive intra-abdominal 6 hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for hysterectomy and as a result, she has no more chance to bear a child. On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint for Gross Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC). Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional incompetence 8 in conducting the D&C procedure and the petitioners failure to remove the fetus inside Edithas womb. Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication on Editha during her first day of confinement at 9 the LMC; second, petitioner recommended that a D&C procedure be performed on Editha without conducting any internal 10 examination prior to the procedure; third, petitioner immediately suggested a D&C procedure instead of closely monitoring the 11 state of pregnancy of Editha. In her Answer, petitioner denied the allegations of negligence and incompetence with the following explanations: upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleed ing become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo D&C procedure which the respondents consented to; 13 petitioner was very vocal in the operating room about not being able to see an abortus; taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for checkup on August 5, 1994, which the latter failed to do. Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994 aga inst doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the same. On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision, exonerating petitioner from the charges filed against her. The Board held:
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Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases. When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the 15 uterus. Therefore, a more extensive operation needed in this case of pregnancy in order to remove the fetus. Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a Decision reversing the 17 findings of the Board and revoking petitioners authority or license to practice her profession as a physician. Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also dubbed her 18 petition as one for certiorari under Rule 65 of the Rules of Court. In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper 19 remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive. PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition for certiorari under Rule 65, the same would 20 still be dismissed for being improper and premature. Citing Section 26 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner should have availed 21 herself of was to appeal to the Office of the President. Hence, herein petition, assailing the decision of the CA on the following grounds: 1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE; 2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY; 3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION; 4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER; 5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID; 6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS; 7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT *SIC+ RAMOLETES INJURY; 8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;*and+ 9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY 22 UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD. The Court will first deal with the procedural issues. Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides:
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Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied) Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only when so 23 allowed by law. Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit: Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari. Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the revocation 24 of license to practice a profession is penal in nature. The Court does not agree. For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant 25 was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused. These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were 26 administrative and not criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases. Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read: Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be 27 appealable to the Commission. (Amended by Res. 174, Series of 1990). (Emphasis supplied) Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner prescribed by 28 law. In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents. Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on 29 appeal, and paying the appeal and legal research fees. x x x The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in 30 clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation. Words 31 and phrases used in the statute should be given their plain, ordinary, and common usage or meaning. Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43 of the Rules of Court was 33 precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. Petitioner 34 further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it is not mentioned therein. On this point, the Court agrees with the petitioner. Sec. 1, Rule 43 of the Rules of Court provides: Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasijudicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil
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Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied) Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said 35 Rule. The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase "among these agencies" confirms that the 36 enumeration made in the Rule is not exclusive to the agencies therein listed. Specifically, the Court, in Yang v. Court of Appeals, ruled that Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held: The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP 129, appeals from the Professional 39 Regulations Commission are now exclusively cognizable by the Court of Appeals. (Emphasis supplied) Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure, lodged with the CA such jurisdiction over the appeals of decisions made by the PRC. Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert testi mony is 41 necessary to support the conclusion as to the cause of the injury. Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in 42 like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action 43 caused injury to the patient. There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.
44 40 37 38

A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under 45 the same circumstances. The breach of these professional duties of skill and care, or their improper performance by a physician 46 surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice. As to this aspect of medical 47 malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it 48 has been recognized that expert testimony is usually necessary to support the conclusion as to causation. In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done. Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is 49 to testify, either by the study of recognized authorities on the subject or by practical experience. Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a 50 professor at the University of the Philippines. According to him, his diagnosis of Edithas case was "Ectopic Pregnancy Interstitial 51 (also referred to as Cornual), Ruptured." In stating that the D&C procedure was not the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows: Atty. Hidalgo: Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not? A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about another

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reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C. Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance? A: I dont think so for the two reasons that I have just mentioned - that it would not be possible for the instrument to 52 reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred earlier. (Emphases supplied) Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not the proximate cause of the rupture of Edithas uterus. During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be placed in a similar circumstance as the petitioner. He stated: Atty. Ragonton: Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation and curettage procedure? A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time. Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed? A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way. Q: A: Q: There was [sic] some portions of the fetal parts that were removed? No, it was described as scanty scraping if I remember it rightscanty. And you would not mind checking those scant or those little parts that were removed?

A: Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and the color also, I think was described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely. Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?

A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is. Q: But, doctor, do you discharge patients without seeing them?

A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when I make th is telephone orders. And, of course before giving that 53 order I ask about how she feels. (Emphases supplied) From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha.

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Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 of the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are: Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, 55 produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable 56 consequence of the act or omission. In the present case, the Court notes the findings of the Board of Medicine: When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was 57 interrupted. Had she returned, the respondent could have examined her thoroughly. x x x (Emphases supplied) Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would have been rectified if Editha followed the petitioners order to return for a check -up on August 4, 1994. Dr. Manalo stated: Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 58 months, including the emergence of suggestive ones. It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petition er could have conducted the proper medical tests and procedure necessary to determine Edithas health condition and applied the corresponding treatment which could have prevented the rupture of Edithas uterus. The D&C procedure having been conducted in ac cordance with the standard medical practice, it is clear that Edithas omission was the proximate cause of her own injury and not merely a cont ributory negligence on her part. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, 59 concurring with the defendants negligence, is the proximate cause of the injury. Difficulty seems to be apprehended in deciding 60 which acts of the injured party shall be considered immediate causes of the accident. Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he 61 cannot recover damages for the injury. Again, based on the evidence presented in the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from the injury. Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or by the 62 PRC that an appeal was pending before the PRC. Petitioner claims that a verification with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach the actual registry receipt 63 but was merely indicated therein. Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal, PRC 64 would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other party. Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the registry receipt was already 65 appended to the original copy of the Memorandum of Appeal filed with PRC. It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must 66 prove the fact of service. The burden of proving notice rests upon the party asserting its existence. In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC. In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission , in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.
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All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps or 68 unusual consequences specially so if the patient herself did not exercise the proper diligence required to avoid the injury. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs. SO ORDERED.

Footnotes
*

The Court of Appeals is deleted from the title pursuant to Section 4, Rule 45 of the Rules of Court. Penned by Justice Hakim S. Abdulwahid and concurred in by Justices B.A. Adefuin-Dela Cruz and Jose L. Sabio, Jr; rollo, pp. 51-56. CA rollo, p. 307. Id. Id. at 111.

Laparotomy, or abdominal exploration, is a surgical procedure that allows a surgeon to look and to make needed repairs or changes inside the abdominal cavity. <http://uimc.discovery hospital.com/main.php?id=813>(visited May 28, 2008).
6

Hysterectomy is a surgical removal of the uterus, resulting in the inability to become pregnant (sterility). It may be done through the abdomen or the vagina. <http://www.nlm.nih.gov/ medlineplus/ency/article/002915.htm> (visited May 28, 2008).
7

Rollo, pp. 57-61. Rollo, p. 59. Id. at 57. Id. at 57-58. Id. at 58. Id. at 62-74.

10

11

12

13

Abortus is an aborted fetus, specifically a human fetus less than 12 weeks old or weighing at birth less than 17 ounces. <http://medical.meriamwebster.com/medical/abortus> (visited May 28, 2008).
14

Rollo, pp. 103-107. Id. at 106. Id. at 123-126. Id. at 126. Rollo, pp. 129-159. Id. at 54.

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16

17

18

19

20

Section 26 of R.A. No. 2382 provides: "Section 26. Appeal for Judgment. - The decision of the Board of Medical Examiners shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari."
21

Rollo, pp. 54-55. Rollo, pp. 17-18. Rollo, pp. 23-24. Id. at 25. Tecson v. Sandiganbayan, 376 Phil. 191, 200 (1999). De Vera v. Layague, 395 Phil. 253, 261 (2000), citing Tecson v. Sandiganbayan, 376 Phil. 191 (1999).

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27

PRC Yearbook, series of 1998.

28

Remulla v. Manlongat, G.R. No. 148189, November 11, 2004, 442 SCRA 226, 232; Philippine National Bank v. Garcia, Jr., 437 Phil. 289, 293 (2002); Republic of the Philippines v. Court of Appeals, 372 Phil. 259, 265 (1999).
29

Article IV, Section 1 of Resolution No. 06-342(A). Domingo v. Commission on Audit, 357 Phil. 842, 848 (1998). Id., citing Mustang Lumber Inc. v. Court of Appeals, 327 Phil. 214, 235 (1996). Entitled "Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals. Memorandum for the Petitioner, rollo, p. 345. Id. Orosa v. Roa, G.R. No. 140423, July 14, 2006, 495 SCRA 22, 27. Id. G.R. No. 48113, June 6, 1990, 186 SCRA 287. Entitled, "The Judiciary Reorganization Act of 1980" effective August 14, 1981. Supra note 37, at 293. Effective July 1, 1997. Rollo, p. 357. Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 95 (2000), citing 61 Am.Jur.2d 337, 205 on Physicians, Surgeons, etc. Id. at 95-96, citing Garcia-Rueda v. Pascasio, 344 Phil. 323 (1997). Id. at 96. Id. Garcia-Rueda v. Pascasio, supra note 43, at 332. Reyes v. Sisters of Mercy Hospital, supra note 42, at 96. Cruz v. Court of Appeals, 346 Phil. 872, 884 (1997). Ramos v. Court of Appeals, 378 Phil. 1198, 1236 (1999). Rollo, pp. 92-101. Id. at 89. CA rollo, pp. 149-151 CA rollo, pp. 175-179.

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Art. 2176 of the Civil Code provides: "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter."
55

Ramos v. Court of Appeals, supra note 49, at 1237. Ramos v. Court of Appeals, id. Rollo, p. 106. Id. at 80-81. Ma-ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, August 27, 1990, 189 SCRA 88, 93. Rakes v. Atlantic Gulf and Pacific Co., 7 Phil 359, 374 (1907). Taylor v. Manila Electric Railroad and Light Co., 16 Phil 8 (1910).

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62

Rollo, p. 25. Id. at 350. Rollo, p. 318. Id. Petition for Habeas Corpus of Benjamin Vergara v. Judge Gedorio, Jr., 450 Phil. 623, 634 (2003). G.R. No. 145587, October 26, 2007, 537 SCRA 409.

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Id., citing "The Physicians Liability and the Law on Negligence" by Constantine Nunez, p. 1, citing Louis Nizer, My Life in Court, New York: Double Day & Co., 1961 in Tolentino, Jr., Medicine and Law, Proceedings of the Symposium on Current Issues Common to Medicine and Law, U.P Law Center, 1980.

15. G.R. No. 178763

April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS,Petitioners, vs. DR. PROSPERO MA. C. TUAO, Respondent.
DECISION CHICO-NAZARIO, J.: In this petition for review on certiorari under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima 2 Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision and 3 July 2007 3 Resolution, both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao." In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao," docketed as Civil Case No. 92-2482. From the record of the case, the established factual antecedents of the present petition are: Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right eye. On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Lukes Medical Center, for an eye consult. Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuao, he performed "ocular routine examination" on Peters eyes, wherein: (1) a gross examination of Peters eyes and their surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes were palpated to check the intraocular pressure of each; (4) the motility of Peters eyes 4 was observed; and (5) the ophthalmoscopy on Peters eyes was used. On that particular consultation, Dr. Tuao diagnosed that 5 6 Peter was suffering from conjunctivitis or "sore eyes." Dr. Tuao then prescribed Spersacet-C eye drops for Peter and told the latter to return for follow-up after one week. As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter that the "sore eyes" in the latters right eye had already cleared up and he could disco ntinue the Spersacet-C. However, the same eye developed Epidemic 7 Kerato Conjunctivitis (EKC), a viral infection. To address the new problem with Peters right eye, Dr. Tuao prescribed to the former 8 9 a steroid-based eye drop called Maxitrol, a dosage of six (6) drops per day. To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao. On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both of Peters eyes, Dr. Tuao instructed 10 the former to taper down the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao specifically 11 cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur. Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao examined Peters eyes and found that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter to resume the use of Maxitrol at six (6) drops per day.
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On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was told by Dr. Tuano to 12 take, instead, Blephamide another steroid-based medication, but with a lower concentration, as substitute for the unavailable 13 Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then just once a day. Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain, feeling as if his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuao examined Peters eyes and discovered that the EKC was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of Blephamide. Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos examinat ion showed that only the periphery of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide. It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the accompanying literature of Maxit rol and found therein the following warning against the prolonged use of such steroids: WARNING: Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known to occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored even though it may be difficult in children and uncooperative patients. Employment of steroid medication in the treatment of herpes simplex requires great caution. xxxx ADVERSE REACTIONS: Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid component, the anti-infective component, or the combination. Exact incidence figures are not available since no denominator of treated patients is available. Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound healing. Secondary infection: The development of secondary has occurred after use of combination containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications of steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has been used. Secondary bacterial ocular infection following suppression of host responses also occurs. On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of "feeling worse." It appeared that the EKC had spread to the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuao during said visit of the above-quoted warning against the prolonged use of steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere paran oia, even assuring him that the former was taking care of him (Peter). Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain in his rig ht eye, which seemed to "progress," with the ache intensifying and becoming more frequent. Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that Peters right eye 15 appeared to be bloody and swollen. Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering from constant headache in the afternoon and blurring of vision. Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a tonometer to verify the exact intraocular 17 pressure (IOP) of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye was 39.0 Hg, while that of his left was 17.0 18 19 Hg. Since the tension in Peters right eye was way over the normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg, Dr. Tuao 20 21 ordered him to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox and Normoglaucon, 22 instead. Dr. Tuao also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latters eyes. On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue using Diamox and Normoglaucon. But upon Peters complaint of "stomach pains and tingling sensa tion in his 23 24 fingers," Dr. Tuao discontinued Peters use of Diamox.
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Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly 25 26 conducted a complete ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis was Glaucoma O.D. He 27 recommended Laser Trabeculoplasty for Peters right eye. When Peter returned to Dr. Tuao on 23 December 1988, the tonometer measured the IOP of Peters right eye to be 41.0 29 Hg, again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume taking Diamox along with Normoglaucon. During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season with his 30 family because of the debilitating effects of Diamox. On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor conducted another ocular routine examination of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye. Considering, however, that the IOP of Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of Peters EKC vis --vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another 31 ophthalmologist specializing in the treatment of glaucoma. Dr. Tuaos letter of referral to Dr. Agulto stated that: Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic) been treating him medically. It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and Im in a fix wheth er to 32 resume the steroid or not considering that the IOP is still uncontrolled. On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were conducted thereat to evaluate th e extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and recommendations: Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox tab every 6h po. Slit lamp evaluation disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy, OD. The lenses were clear. Funduscopy showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L. Zeiss gonioscopy revealed basically open angles both eyes with occasional PAS, OD. Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual fields and push 37 38 medication to lowest possible levels. If I may suggest further, I think we should prescribe Timolol BID OD in lieu of Normoglaucon. 39 40 If the IOP is still inadequate, we may try Depifrin BID OD (despite low PAS). Im in favor of retaining Diamox or similar CAI. If fields show further loss in say 3 mos. then we should consider trabeculoplasty. I trust that this approach will prove reasonable for you and Peter.
41 35 36 34 33 28

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter. Though Peters right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in the meantime. Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at 21.0 Hg, as he had been without Diamox for the past three (3) days. On 4 January 1989, Dr. Tuao conducted a visual field study of Peters eyes, which revealed that the latter had tubular vision in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again, Dr. Tuao advised Peter to come for regular check -up so his IOP could be monitored. Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January 1989 for check-up and IOP monitoring. In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr.
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Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of Peters eyes. According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the said doctor inform ed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latters condition would require lifetime medication and follow-ups. In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of his right eye. Claiming to have steroid-induced glaucoma and blaming Dr. Tuao for the same, Peter, joined by: (1) Fatima, his spouse ; (2) 47 48 Abbeygail, his natural child ; and (3) Gillian, his legitimate child with Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No. 92-2482. In their Complaint, petitioners specifically averred that as the "direct consequence of *Peters+ prolonged use of Maxitrol, *he+ suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the intra-ocular pressure of *Peters right eye] caused the impairment of his vision which impairment is not curable and may even lead to total 49 blindness." Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his family so much grief. Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the future; his career in sports casting had suffered and was continuing to 50 suffer; his anticipated income had been greatly reduced as a result of his "limited" capacity; he continually suffered from 51 "headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis," etc.; Peters relationships with his spouse and children continued to be strained, as his condition made him highly irritable and sensitive; his mobility and social life had suffered; 52 his spouse, Fatima, became the breadwinner in the family; and his two children had been deprived of the opportunity for a better 53 life and educational prospects. Collectively, petitioners lived in constant fear of Peter becoming completely blind. In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about by Dr. Tuaos grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months, without monitoring Peters IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peters constant complaint of intens e eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable for the following amounts: 1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision. 2. The amount of P300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts that may be proven during trial. 3. The amount of P1,000,000.00 as and by way of moral damages. 4. The amount of P500,000.00 as and by way of exemplary damages. 5. The amount of P200,000.00 as and by way of attorneys fees plus costs of suit.
54 45 46

In rebutting petitioners complaint, Dr. Tuao asserted that the "treatment made by *him+ more than three years ago has no causal 55 connection to *Peters+ present glaucoma or condition." Dr. Tuao explained that "[d]rug-induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to treat Epidemic Kerato 56 Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes." Dr. Tuao also clarified that (1) "*c+ontrary to *petitioners+ fallacious claim, *he+ did NOT continually prescribe the drug Maxitrol which contained steroids for any 57 prolonged period" and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed only 58 when EKC reappeared" ; (2) the entire time he was treating Peter, he "continually monitored the intraocular pressure of *Peters eyes] by palpating the eyes and by putting pressure on the eyeballs," and no hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first time that the IOP of the right eye had an elevated value. But granting for the sake of argument that the "steroid treatment of *Peters+ EKC caused the steroid induced glaucoma," Dr. Tuao argued that: [S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the intraocular pressure automatically is reduced. Thus, *Peters+ glaucoma can only be due to other causes not attributable to steroids, cer tainly not attributable to [his] treatment of more than three years ago x x x. From a medical point of view, as revealed by more current examination of *Peter+, the latters glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as
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[Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact beneficial to [Peter] as it 60 revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same. In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of evidence." The decretal part of said Decision reads: Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic) is likewise 62 dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit. The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in his treatment of Peters condition. In particular, the record of the case was bereft of any evidence to establish that the steroid medication and its dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned that the "recognized standards of the m edical 63 community has not been established in this case, much less has causation been established to render [Tuao] liable." According to the RTC: [Petitioners] failed to establish the duty required of a medical practitioner against which Peter Pauls treatment by defendant can be compared with. They did not present any medical expert or even a medical doctor to convince and expertly explain to the court the established norm or duty required of a p hysician treating a patient, or whether the non taking (sic) by Dr. Tuao of Peter Pauls pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important and indispensable to establish such a standard because once it is established, a medical practitioner who departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician against which defendants conduct can be 64 compared with to determine negligence. The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept *petitioners+ claim that the 65 use of steroid is the proximate cause of the damage sustained by *Peters+ eye." Correspondingly, the RTC accepted Dr. Tuaos medical opinion that "Peter Paul must have been suffering from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit S even tends to support them." Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666. On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states: WHEREFORE, the Decision appealed from is AFFIRMED.
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The Court of Appeals faulted petitioners because they *D+id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and Blephamide for the treatment of EKC on Peters right eye was not proper and that his palpation of Peters right eye was not enough to detect adv erse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not presented by *petitioners+ as a witness to confirm what he allegedly told Peter and, therefore, the latters testimony is hearsay. Under R ule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal knowledge, x x x. 67 Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment, specifically the latters explanation that: [W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the population 68 who reacts adversely to steroids. Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007. Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following assignment of errors: I. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;

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II. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND III. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS 69 NEGLIGENCE. A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence on record is insufficient to establish petitioners entitlement to any kind of damage. Therefore, it could b e said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the judgment of the RTC that petitioners failed to prove, by preponderance of evidence, their claim for damages against Dr. Tuao. Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon whether there is sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye condition. This question clearly involves a factual inquiry, the determination of which is not within the ambit of this Courts power of review under Ru le 45 of the 1997 Rules Civil Procedure, as 70 amended. Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review on 71 certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained. Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition. 1avvphi1.zw+ Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to establish that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication with recklessness, and exhibited 72 an absence of competence and skills expected from him." Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treat ment of the disorder affecting Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment of Peter, because, in their words That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple case of cause and effect. With mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held liable for damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court and the Court of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuao] Dr. Tuao himself. [Emphasis supplied.] They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that ultimately caused the impairment of 73 the vision of Peters right eye, i.e., that "*d+espite *Dr. Tuaos+ knowledge that 5% of the population reacts a dversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining whether or not the (sic) Peter belongs 74 to the 5%." We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record, and we are accordingly bound by the findings of fact made therein. Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper administration of 75 the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered and to be suffered by [petitioners]." Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latters professi onal negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages. For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

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In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) 76 proximate causation, must be established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages. When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons 77 practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the 78 same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the duty to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances. This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care 79 in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when 80 the patient is injured in body or in health [and this] constitutes the actionable malpractice. Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening 81 efficient causes"; that is, the negligence must be theproximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without 82 which the result would not have occurred. Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the question of whether the alleged professional negligence caused *the patients+ injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role is to 83 present to the *court+ a realistic assessment of the likelihood that *the physicians+ alleged negligence caused *the patients+ injury. From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians *or surgeons+ stems from the formers realization that the latter possess unusual technical 84 skills which laymen in most instances are incapable of intelligently evaluating; hence, the indispensability of expert testimonies. In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile form for topical 85 application. It is the drug which petitioners claim to have caused Peters glaucoma. However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure, prescribed and administered medication with recklessness and 86 exhibited an absence of the competence and skills expected of general practitioners similarly situated." Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be implemented by competent physicians in treating the same condition as Peters under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of care that any other competent physician would use in treating the same condition as Peters under similar circumstances; and (3) that the injury or damage to Peters right e ye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element alone is already fatal to their cause. Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the prolonged use of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is the standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of risk? Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation.

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Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first whether Peter was a "steroid 87 responder." Yet again, petitioners did not present any convincing proof that such determination is actually part of the standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications. In contrast, Dr. Tuao was able to clearly explain that what is on ly required of ophthalmologists, in cases such as Peters, is the 88 conduct of standard tests/procedures known as "ocular routine examination," composed of five (5) tests/procedures specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the p atients eye and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up. We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due 89 90 care. The result is not determinative of the performance [of the physician] and he is not required to be infallible. Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using the same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction to that 91 particular drug. Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he palpated Peters eyes every t ime the latter came for a check-up as part of the doctors ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and tests to ascer tain the state of Peters eyes negate the very basis of petitioners complaint for damages. As to whether Dr. Tuaos actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to have so conformed in the absence of evidence to the contrary. Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the causal connection between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs 92 injuries. The plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causatio n must 93 be proven within a reasonable medical probability based upon competent expert testimony. The causation between the physicians negligence and the patients injury may only be established by the presentation of proof that Peters glaucoma would not have occurred but for Dr. Tuaos supposed negligent conduct. Once more, petitioners failed in thi s regard. Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, thi s was the reason why he made it a point to palpate Peters eyes every time the latter went to see him -- so he could monitor the tension of Peters eyes. But to say that said medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed with open-angle 94 glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic, insidious course. In open-angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a sudden increase in the 95 96 intraocular vision. Visual acuity remains good until late in the course of the disease. Hence, Dr. Tuao claims that Peters 97 glaucoma "can only be long standing x x x because of the large C:D ratio," and that "[t]he steroids provoked the latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter] remained asymptomatic prior to steroid application." Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of using Maxitrol to cure Peters EKC vis--vis the attendant risks of using the same? That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaos qualifications that he has been a physician for close to a decade and a half at the time Peter first came to see him; that he has had various medical training; that he has authored numerous papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching posts (at the time of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the University of the PhilippinesPhilippine General Hospital and St. Lukes Medical Center, respectively); and that he held an assortment of positions in nume rous medical organizations like the Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et al. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to 98 his clients, unless the contrary is sufficiently established. In making the judgment call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time the latter went for a check -up, and he employed the best of his knowledge and skill earned from years of training and practice.

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In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant credit. Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to establish their theory respecting Dr. Tuaos so-called negligence. In fact, the record of the case reveals that petitioners counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was made.1avvphi1 The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert 99 plaintiffs prima facie case; otherwise, a verdict must be returned in favor of plaintiff. The party having the burden of proof must 100 establish his case by a preponderance of evidence. The concept of "preponderance of evidence" refers to evidence which is of 101 greater weight or more convincing than that which is offered in opposition to it; in the last analysis, it means probability of truth. 102 It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence, thus: In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts t o which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a preponderance of evidence showing a reasonable connection between Dr. Tuaos alleged breach of duty and the damage sustained by Peters ri ght eye. This, they did not do. In reality, petitioners complaint for damages is merely anchored on a statement in the literatur e of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto another doctor not presented as witness before the RTC concerning the prolonged use of Maxitrol for the treatment of EKC. It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations. All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill generally required in medical practice. Dr. Tuaos testimony, that his treatment of Peter conformed in all respects to stand ard medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various damages prayed for in their Complaint. WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost. SO ORDERED.

Footnotes
1

Rollo, pp. 9-48.

Penned by Court of Appeals Associate Justice Marina L. Buzon with Associate Justices Regalado E. Maambong and Japar B. Dimaampao concurring; Annex "A" of the Petition; id. at 49-69.
3

Annex "B" of the Petition; id. at 70-72.

Ophthalmoscopy is a test that allows a health professional to see inside the back of the eye (called the fundus) and other structures using a magnifying instrument (ophthalmoscope) and a light source. It is done as part of an eye examination and may be done as part of a routine physical examination (http://www.webmd.com/eye-health/ophthalmoscopy).
5

Conjunctivitis, also known as pinkeye, is an inflammation of the conjunctiva, the thin, clear tissue that lies over the white part of the eye and lines the inside of the eyelid (http://www.webmd.com/eye-health/eye-health-conjunctivitis).
6

The generic name of Spersacet-C ophthalmic drops is Sulfacetamide. It is prescribed for the treatment and prophylaxis of conjunctivitis due to susceptible organisms; corneal ulcers; adjunctive treatment with systemic sulfonamides for therapy of trachoma (http://www.merck.com/mmpe/lexicomp/sulfacetamide.html).
7

Epidemic kerato conjunctivitis is a type of adenovirus ocular infection. (http://emedicine.medscape.com/article/1192751-overview).

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8

Neomycin/polymyxin B sulfates/dexamethasone is the generic name of Maxitrol Ophthalmic Ointment. It is a multiple dose anti-infective steroid combination in sterile form for topical application (http://www.druglib.com/druginfo/maxitrol/).
9

Exhibit "A"; records, p. 344. Apply 5-6 drops for 5 days; then 3 drops for 3 days; and then a minimum of 1 drop per day. TSN, 27 September 1993, pp. 18-19.

10

11

12

Blephamide Ophthalmic Suspenion contains Sulfacetamide/Prednisolone. This medication contains an antibiotic (sulfacetamide) that stops the growth of bacteria and a corticosteroid (prednisolone) that reduces inflammation (http://www.webmd.com/drugs/drug-6695Blephamide+Opht.aspx?drugid=6695&drugname=Blephamide+Opht).
13

Exhibit "H"; records, p. 346. TSN, 27 September 1993, p. 40. TSN, 3 May 1995, p. 14.

14

15

16

A tonometer is an instrument for measuring the tension or pressure, particularly intraocular pressure (http://medicaldictionary.thefreedictionary.com/tonometer).
17

Intraocular Pressure (IOP) is the pressure created by the continual renewal of fluids within the eye (http://www.medterms.com/script/main/art.asp?articlekey=4014).
18

Exhibit "1-a"; records, p. 618-A. Normal IOP is measured in millimeters of Mercury (Hg). See note 19.

19

20

21

The generic name of Diamox, for oral administration, is acetazolamide. This medication is a potent carbonic anhydrase inhibitor, effective in the control of fluid secretion (http://www.drugs.com/pro/diamox.html).
22

The active ingredient of Normoglaucon is Metipranolol hydrochloride. It is used for the reduction of intraocular pressure in patients with glaucoma (open, closed angle) in situations in which monotherapy with pilocarpine or beta-blockers are insufficient (http://www.angelini.it/public/schedepharma/normoglaucon.htm).
23

TSN, 11 October 1993, p. 7. Exhibit "1-a"; records, p. 618-A.

24

25

Glaucoma is an eye condition which develops when too much fluid pressure builds up inside of the eye. The increased pressure, called the intraocular pressure, can damage the optic nerve, which transmits images to the brain. If the damage to the optic nerve from high eye pressure continues, glaucoma will cause loss of vision (http://www.webmd.com/eye-health/glaucoma-eyes).
26

O.D. is the abbreviation for oculus dexter, a Latin phrase meaning "right eye" (http://medical-dictionary.thefreedictionary.com/O.D).

27

Laser Trabeculoplasty is a kind of surgery which uses a very focused beam of light to treat the drainage angle of the eye. This surgery makes it easier for fluid to flow out of the front part of the eye, decreasing pressure in the eye (http://www.med.nyu.edu/healthwise).
28

According to Peter, after seeing Dr. Tuao on the 15th of December 1988, he next saw him on the 17th of the same month. Per Exhibit 1-a, the patients index card, however, after the 15th of December 1988, Peters next visit was on the 23rd of the same month.
29

Exhibit "1-a"; records, p. 618-A. TSN, 11 October 1993, pp. 16-17. Id. at 18. Exhibit "C"; records, p. 352.

30

31

32

33

The slit-lamp evaluation/examination looks at structures that are at the front of the eye using a slit-lamp, a low-powered microscope combined with a high-intensity light source that can be focused to shine in a thin beam (http://www.nlm.nih.gov/medlineplus/ency/article/003880.htm).
34

Funduscopy is the examination of the back part of the eyes interior (fundus); also known as ophthalmoscopy.

35

Zeiss Gonioscopy (indirect gonioscopy) is the visualization of the anterior chamber angle of the eyes undertaken using a Zeiss lens. It is essential to determine the mechanism responsible for impeding aqueous flow (http://www.glaucomaworld.net/english/019/e019a01.html).
36

Peripheral Anterior Synechiae.

37

Timolol Maleate is a generic name of a drug in ophthalmic dosage form used in treatment of elevated intraocular pressure by reducing aqueous humor production or possibly outflow (http://www.umm.edu/altmed/drugs/timolol-125400.htm).

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38

B.I.D. is the abbreviation of the Latin phrase bis in die, meaning "twice a day" (http://medical-dictionary.thefreedictionary.com/B.I.D).

39

The generic name of the medication Depifrin is dipivefrin ophthalmic. It is used to treat open-angle glaucoma or ocular hypertension by reducing the amount of fluid in the eye thereby decreasing intraocular pressure (http://www.drugs.com/mtm/dipivefrin-ophthalmic.html).
40

Carbon Anhydrase Inhibitor. Exhibit "D"; records, pp. 356-357. Exhibit "1-a"; id at 618-A.

41

42

43

A test to determine the total area in which objects can be seen in the peripheral vision while the eye is focused on a central point (http://www.healthline.com/ adamcontent/visual-field).
44

A centrally constricted field of vision that is like what you can see through a tube (http://www.medterms.com/script/main/art.asp?articlekey=24516).

45

A form of open-angle glaucoma that usually is associated with topical steroid use, but it may develop with inhaled, oral, intravenous, periocular, or intravitreal steroid administration (http://emedicine.medscape.com/article/1205298-print).
46

As evidenced by a Marriage Contract between Peter and Fatima; records, p. 340. As evidenced by the childs Certificate of Live Birth; id. at 341. As evidenced by the childs Certificate of Live Birth; id. at 342. Amended Complaint, p. 4; id. at 79.

47

48

49

50

Peter alleged that due to is impaired vision, he was forced to decline several opportunities to cover international and regional sports events, i.e., the 1988 and 1992 Olympics as well as various Asian Games; and he could not cover fast-paced games, i.e., basketball.
51

Amended Complaint, p. 4; records, p. 79. Id. Id. Id. at 82. Answer, p. 6; id. at 38. Id. Id. Id. Answer, p. 13; id. at 45. Id. Id. at 722-734. Id. at 734. Id. Id. at 731. Id. Rollo, p. 68. Id. at 67 Id. at 66. Id. at 23. Civil Service Commission v. Maala, G.R. No. 165253, 18 August 2005, 467 SCRA 390, 398. Alfaro v. Court of Appeals, 416 Phil. 310, 317 (2001).

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

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72

Petition, p. 16; rollo, p. 24. Id. Id. at 26. Amended Complaint, p. 6; records, p. 81. Garcia-Rueda v. Pascasio, et al., 278 SCRA 769, 778 (1997). Id. Snyder v. Pantaleo (1956), 143 Conn 290, 122 A2d 21. Johnson v. Superior Court, 49 Cal. Rptr. 3d 52 (Cal. App. 3d Dist. 2006). Garcia-Rueda v. Pascasio, supra note 76 at 779. Chan Lugay v. St. Lukes Hospital, Inc., 10 CA Reports 415 (1966). Calimutan v. People of the Philippines, G.R. No. 152133, 9 February 2006, 482 SCRA 44, 60, citing Vda. de Bataclan v. Medina, 102 Phil. 181, 186 (1957). Barngrover v. Hins, 657 S.E.2d 14 (Ga. Ct. App. 2008). Dr. Cruz v. Court of Appeals, 346 Phil. 872, 884-885 (1997). http://www.druglib.com/druginfo/maxitrol/. Court of Appeals Decision, p. 17; rollo, p. 66.

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

Steroid responders are people whose intraocular pressure (IOP) goes up very high when they use steroids (http://www.willsglaucoma.org/supportgroup/20030827.php).
88

TSN, 7 February 1997, p. 17; rollo, p. 66. Solis, Pedro P., Medical Jurisprudence, 1988, Garcia Publishing, Co., Philippines. Domina v. Pratt, 13 A 2d 198 Vt. 1940. TSN, 7 February 1997, pp. 18-19. 61 Am. Jur. 2d. 359, p. 527. Id. Newell, Frank W., Ophthalmology, Principles and Concepts, 6th ed., 1986, C.V. Mosby Company, Missouri. Id. Id. Cup to Disc ratio. Dr. Cruz v. Court of Appeals, supra note 84 at 884-885. Prudential Guarantee and Assurance Inc. v. Trans-Asia Shipping Lines, Inc., G.R. No. 151890, 20 June 2006, 491 SCRA 411, 433. Bank of the Philippine Islands v. Royeca, G.R. No. 176664, 21 July 2008, 559 SCRA 207, 215.

89

90

91

92

93

94

95

96

97

98

99

100

101

Jison v. Court of Appeals, 350 Phil. 138, 173 (1998), citing Vicente J. Francisco, Revised Rules of Court in the Philippines, Evidence (Part II, Rules 131134).
102

Go v. Court of Appeals, 403 Phil. 883, 890-891 (2001), citing 20 Am. Jur. 1100-1101 as cited in Francisco, Revised Rules of Court.

16. G.R. No. 126297

February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner, vs.THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents.

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x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 126467 NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners, vs. THE COURT OF APPEALS and JUAN FUENTES, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 127590 MIGUEL AMPIL, Petitioner, vs. NATIVIDAD and ENRIQUE AGANA, Respondents. R E S O L U T I O N EN BANC

CORONA, J.: With prior leave of court, petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration urging referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and resolution dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana and the heirs of Natividad Agana (Aganas). Manila Medical Services, Inc. (MMSI), Asian Hospital, Inc. (AHI), and Private Hospital Association of the Philippines (PHAP) all sought to intervene in these cases invoking the common ground that, unless modified, the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of health care. The Special First Division of the Court granted the motions for intervention of MMSI, AHI and PHAP (hereafter intervenors), and 7 referred en consulta to the Court en banc the motion for prior leave of court and the second motion for reconsideration of PSI. Due to paramount public interest, the Court en banc accepted the referral and heard the parties on oral arguments on one particular issue: whether a hospital may be held liable for the negligence of physicians-consultants allowed to practice in its 9 premises. To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was impleaded by 10 Enrique Agana and Natividad Agana (later substituted by her heirs), in a complaint for damages filed in the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her 11 body two gauzes which were used in the surgery they performed on her on April 11, 1984 at the Medical City General Hospital. PSI was impleaded as owner, operator and manager of the hospital. In a decision dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for damages. On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to claim 14 reimbursement from Dr. Ampil. 1avvphi1 On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision. PSI filed a motion for 16 17 reconsideration but the Court denied it in a resolution dated February 11, 2008. The Court premised the direct liability of PSI to the Aganas on the following facts and law: First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated in the December 29, 1999 18 decision in Ramos v. Court of Appeals that "for purposes of allocating responsibility in medical negligence cases, an employer19 employee relationship exists between hospitals and their consultants." Although the Court in Ramos later issued a Resolution dated 20 April 11, 2002 reversing its earlier finding on the existence of an employment relationship between hospital and doctor, a similar reversal was not warranted in the present case because the defense raised by PSI consisted of a mere general denial of control or 21 responsibility over the actions of Dr. Ampil. Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that he was its agent. Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with said doctor about his wife's (Natividad's) 23 24 condition. After his meeting with Dr. Ampil, Enrique asked Natividad to personally consult Dr. Ampil. In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at the back of their minds was that the latter was a staff member of a prestigious
22 15 12 13 8 6 3 4 5 1 2

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hospital. Thus, under the doctrine of apparent authority applied in Nogales, et al. v. Capitol Medical Center, et al., PSI was liable for the negligence of Dr. Ampil. Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide comprehensive medical 26 services to Natividad Agana, to exercise reasonable care to protect her from harm, to oversee or supervise all persons who 27 practiced medicine within its walls, and to take active steps in fixing any form of negligence committed within its premises. PSI committed a serious breach of its corporate duty when it failed to conduct an immediate investigation into the reported missing 28 gauzes. PSI is now asking this Court to reconsider the foregoing rulings for these reasons: I The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that "an employer-employee relations exists between hospital and their consultants" stays should be set aside for being inconsistent with or contrary to the import of the resolution granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an employer-employee relationship between PSI and Dr. Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found that there is no employer-employee relationship in this case and that the doctor's are independent contractors. II Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically look to the Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents Aganas did not select Medical City Hospital (PSI) to provide medical care because of any apparent authority of Dr. Miguel Ampil as its agent since the latter was chosen primarily and specifically based on his qualifications and being friend and neighbor. III PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was the negligence of 29 Dr. Ampil, which is an element of the principle of corporate negligence. In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the existence of an employeremployee relationship between private hospitals and consultants will force a drastic and complex alteration in the long-established and currently prevailing relationships among patient, physician and hospital, with burdensome operational and financial 30 consequences and adverse effects on all three parties. The Aganas comment that the arguments of PSI need no longer be entertained for they have all been traversed in the assailed 31 decision and resolution. After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital. While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical 33 practitioners in the conduct of its business of facilitating medical and surgical treatment. Within that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2) between the hospital and the patient being treated or examined within its premises and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 35 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in 36 37 38 relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow 39 established standard of conduct to which it should conform as a corporation. This Court still employs the "control test" to determine the existence of an employer-employee relationship between hospital and 40 doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al. it held: Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task. xxx xxx xxx
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As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be observed under pain of administrative sanctions. That petitioner exercised control over respondents gains light from the undisputed fact that in the emergency room, the operating room, or any department or ward for that matter, respondents' work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it being enough that it has the right to wield the power. (emphasis supplied) Even in its December 29, 1999 decision and April 11, 2002 resolution in Ramos, the Court found the control test decisive. In the present case, it appears to have escaped the Court's attention that both the RTC and the CA found no employment relationship between PSI and Dr. Ampil, and that the Aganas did not question such finding. In its March 17, 1993 decision, the RTC found "that defendant doctors were not employees of PSI in its hospital, they being merely consultants without any employer43 employee relationship and in the capacity of independent contractors." The Aganas never questioned such finding. PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC decision but only on the issues of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its 45 discussion on the matter that it viewed their relationship as one of mere apparent agency. The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes. PSI also appealed from the CA decision, and it was then that the issue of employment, though long settled, was unwittingly resurrected. In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee relationship, such finding 47 became final and conclusive even to this Court. There was no reason for PSI to have raised it as an issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely academic. Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employeremployee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior. There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) that the doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patients reliance upon the conduct of t he 49 hospital and the doctor, consistent with ordinary care and prudence. Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that after the meeting and as advised by Dr. Ampil, he "asked [his] wife to go to Medical City to be examined by [Dr. Ampil]"; and that the next day, April 3, he told 50 his daughter to take her mother to Dr. Ampil. This timeline indicates that it was Enrique who actually made the decision on whom Natividad should consult and where, and that the latter merely acceded to it. It explains the testimony of Natividad that she 51 consulted Dr. Ampil at the instigation of her daughter. Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified: Atty. Agcaoili On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact with in connection with your wife's illness? A. First, before that, I have known him to be a specialist on that part of the body as a surgeon, second, I have known him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a neighbor, I expect more 52 than the usual medical service to be given to us, than his ordinary patients. (emphasis supplied) Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City. PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that PSI required a "consent for hospital 53 care" to be signed preparatory to the surgery of Natividad. The form reads:
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Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied) By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather than one independently practicing in it; that the medications and treatments he prescribed were necessary and desirable; and that the hospital staff was prepared to carry them out.1avvphi1 PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas decision t o have Natividad treated in Medical City General Hospital, meaning that, had Dr. Ampil been affiliated with another hospital, he would still 54 have been chosen by the Aganas as Natividad's surgeon. The Court cannot speculate on what could have been behind the Aganas decision but would rather adhere strictly to the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a way that fortified Enrique's belief. This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent. Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for Reconsideration: 51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was personally engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain of the Ship", and as the Agana's doctor to advise her on what to do with her situation vis-a-vis the two missing gauzes. In addition to noting the missing gauzes, regular check-ups were made and no signs of complications were exhibited during her stay at the hospital, which could have alerted petitioner PSI's hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her discharge is borne by the finding of facts in this case. Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's attention, could have alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's attention. But this was not the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI possibly do something to fix the negligence committed by Dr. Ampil when it was not 55 informed about it at all. (emphasis supplied) PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital of her discomfort and pain, the hospital 56 would have been obliged to act on it." The significance of the foregoing statements is critical. First, they constitute judicial admission by PSI that while it had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients. Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence in the hospital industry, it assumed a duty to "tread on" the "captain of the ship" role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities. Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence. And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept of corporate 58 responsibility was not yet in existence at the time Natividad underwent treatment; and that if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include "taking an active step in fixing the negligence 59 committed." An admission made in the pleading cannot be controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or not objection is 60 interposed by a party. Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital measured up to it. PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing 61 Natividad about the two missing gauzes. Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would 62 personally notify the patient about it. Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her 63 discomfort.
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The excuses proffered by PSI are totally unacceptable. To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to Natividads recovery. Certainly, PSI coul d not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSI's duty to initiate the review was non-delegable. While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility. Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, PSI had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should not have waited for Natividad to complain. As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividads operation. Rather, it shirked its responsibility and passed it on to others to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence. It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil. All this notwithstanding, we make it clear that PSIs hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The ruling is unique to this case, for the liability of 64 PSI arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad. Other circumstances peculiar to this case warrant this ruling, not the least of which being that the agony wrought upon the Aganas has gone on for 26 long years, with Natividad coming to the end of her days racked in pain and agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the report of a guaze count discrepancy, initiate a review of what went wrong and take corrective measures to ensure the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such responsibility to its patient. Meanwhile, the options left to the Aganas have all but dwindled, for the status 66 of Dr. Ampil can no longer be ascertained. Therefore, taking all the equities of this case into consideration, this Court believes P15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED. Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. No further pleadings by any party shall be entertained in this case. Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this resolution. SO ORDERED.
65

Footnotes
*

No part. On leave.

**

Rollo (G.R. No. 126297), p. 468.

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2

Id., p. 489. Filed a motion for leave of court to intervene (by way of attached memorandum), id., p. 512. Filed a motion to intervene and for leave to file memorandum-in-intervention, id., p. 534. AHI did not file any memorandum. Filed a motion for intervention (by way of attached brief/memorandum), id., p. 602. Resolution dated June 16, 2008, id., p. 647. Resolution dated June 12, 2008, id., p. 645. Resolution dated August 12, 2008, id., p. 649.

As per Advisory dated March 4, 2009. It should be borne in mind that the issues in G.R. No. 126467 on the exculpation of Dr. Juan Fuentes from liability, and in G.R. No. 127590 on the culpability of Dr. Miguel Ampil for negligence and medical malpractice, are deemed finally decided, no motion for reconsideration having been filed by the Heirs of Agana in G.R. No. 126467 nor by Dr. Miguel Ampil in G.R. No. 127467 from the January 31, 2007 Decision of the First Division of the Court.
10

Docketed as Civil Case No. Q-43322, record, p. 6. Also referred to in the records as "sponges." Penned by then Presiding Judge and now Associate Justice of the Supreme Court Lucas Bersamin. RTC Decision, record, p. 133.

11

12

13

14

CA decision dated September 6, 1996, penned by then Court of Appeals Associate Justice and later Supreme Court Associate Justice Cancio Garcia (Ret.); CA rollo, pp. 136-137.
15

G.R. Nos. 126297/126467/127590, 31 January 2007, 513 SCRA 478. Rollo, p. 403. G.R. Nos. 126297/126467/127590, 11 February 2008, 544 SCRA 170. G.R. No. 124354, 29 December 1999, 321 SCRA 548. Supra at 15, p. 499. G.R. No. 124354, 11 April 2002, 380 SCRA 467. Supra at 17, p. 179. Supra at 15, p. 502. Supra at 17, p. 181, citing TSN, April 12, 1985, pp. 25-26. Id. G.R. No. 142625, 19 December 2006, 511 SCRA 204. Supra at 15, p. 505. Supra at 17, p. 182. Id. Rollo (G.R. No. 126297), pp. 489-490. Id., pp. 518-527, 605-613. Id., p. 659. Section 8, Republic Act No. 2382 (RA 2382) or The Medical Act of 1959. See Acebedo Optical Co. Inc. v. CA, G.R. No. 100152, 31 March 2000, 314 SCRA 315.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called a quasi-delict and is governed by the provisions of this Chapter.

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35

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.
36

Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.
37

Art. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.
38

Nogales v. Capitol Medical Center, et al., supra at 25.

39

Pedro Solis, Medical Jurisprudence (The Practice of Medicine and the Law), Quezon City: R.P. Garcia Publishing Co., 1988, p. 321, citing U.S. district and appellate cases. See also Darling v. Charleston Community Memorial Hospital, 14 A.L.R. 3D 860 (Ill. September 29, 1965).
40

G.R. No. 176484, 25 November 2008, 571 SCRA 585. Supra at 18. Supra at 20. Supra at 13, p. 126.

41

42

43

44

Dr. Fuentes filed with the CA a petition for certiorari docketed as CA-G.R. SP No. 32198 (CA rollo, p. 1) while Dr. Ampil and PSI jointly filed an appeal docketed as CA-G.R. CV No. 42062 (CA rollo, pp. 40 and 152).
45

Supra at 14, p. 135. Rollo (G.R. No. 126467), p. 8. Elsie Ang v. Dr. Erniefel Grageda, G.R. No. 166239, 8 June 2006, 490 SCRA 424. Through the patient's husband Enrique. Nogales v. Capitol Medical Center, et al., supra at 25. TSN, April 12, 1985, pp. 26-27. Second Motion for Reconsideration, rollo, pp. 495-496. Supra at 50, pp. 25-26. Exh. "D-1," Exhibit Folder for Plaintiffs, p. 92. Petitioner's Memorandum with Compliance, pp. 57-58. Motion for Reconsideration, rollo, pp. 429-430. Id., p. 434.

46

47

48

49

50

51

52

53

54

55

56

57

PSI has not denied its prominent place in the hospital industry but has in fact asserted such role in its 1967 brochure (Annex "K" to its Manifestation filed on May 14, 2009).
58

Rollo, p. 505-506.

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59

Id., pp. 506-507.

60

Luciano Tan v. Rodil Enterprises, G. R. No. 168071, 18 December 2006, 511 SCRA 162; Heirs of Pedro Clemena Y Zurbano v. Heirs of Irene B. Bien, G.R. No. 155508, 11 September 2006, 501 SCRA 405.
61

Second Motion for Reconsideration, rollo, pp. 502-503. Id., p. 503, citing TSN, February 26, 1987, p. 36. Supra at 55.

62

63

64

In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v. Comelec (G.R. No. 164702, March 15, 2006, 484 SCRA 671), a ruling expressly qualified as pro hac vice is limited in application to one particular case only; it cannot be relied upon as a precedent to govern other cases.
65

See Sps. Chua v. Hon. Jacinto Ang, et al., G.R. No. 156164, 4 September 2009. His last pleading was filed on May 13, 2001, rollo (G.R. No. 127590), p. 217.

66

17. G.R. No. 165279

June 7, 2011

DR. RUBI LI, Petitioner, vs.SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents.
D E C I S I O N EN BANC

VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is the Decision dated June 15, 2004 as well as the Resolution dated September 1, 3 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904. The factual antecedents: On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic 4 type, a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatm ent to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to ano ther doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist. On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said institution indicated the cause of 5 death as "Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation." On the other hand, the Certificate of Death issued by SLMC stated the cause of death as follows: Immediate cause : a. Osteosarcoma, Status Post AKA Antecedent cause : b. (above knee amputation) Underlying cause : c. Status Post Chemotherapy On February 21, 1994, respondents filed a damage suit against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelica s untimely demise. Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing") and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina"). Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.
7 6 1 2

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In her answer, petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica. Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was gathered: On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 9 to P150,000.00 a year from his jewelry and watch repairing business. Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used. Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after the surgery, twice at her clinic 10 and the fourth time when Angelicas mother called her through long distance. This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the 11 only side effects were nausea, vomiting and hair loss. Those were the only side-effects of chemotherapy treatment mentioned by 12 petitioner. On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy. On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests 13 requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function tests. Petitioner 14 proceeded with the chemotherapy by first administering hydration fluids to Angelica. The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin, Doxorubicin and 17 18 19 Cosmegen intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella and Dr. Grace Arriete. In his 20 testimony, Dr. Marbella denied having any participation in administering the said chemotherapy drugs. On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas face. They asked 22 petitioner about it, but she merely quipped, "Wala yan. Epekto ng gamot." Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. 23 Victoria Abesamis on the matter. On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her neck, but petitioner dismissed it agai n as 24 merely the effect of medicines. Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice any 25 difficulty in the childs breathing. She claimed that Angelica merely complained of nausea and was given ice chips. 1avvphi1 On August 22, 1993, at around ten oclock in the morning, u pon seeing that their child could not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked petitioners permission to bring their child home. 26 Later in the evening, Angelica passed black stool and reddish urine. Petitioner countered that there was no record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpopedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium determination and stopped the chemotherapy. When Angelica was given 27 calcium gluconate, the spasm and numbness subsided. The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging Ange lica, petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching and serum calcium level. Take -home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate 28 problem arises.
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However, Angelica remained in confinement because while still in the premises of SLMC, her "convulsions" returned and she also 29 had LBM. Angelica was given oxygen and administration of calcium continued. The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a fever 30 and had difficulty breathing. Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and 31 infused calcium gluconate on the patient at a "stat dose." She further ordered that Angelica be given Bactrim, a synthetic 32 33 antibacterial combination drug, to combat any infection on the childs body. By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high a nd her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were gadgets attached 34 to Angelica at that time. On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening, w hich petitioner likewise denied. On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to 35 remove the endotracheal tube because this may induce further bleeding. She was also transferred to the intensive care unit to avoid infection. The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelica s skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying "Ayaw ko na"; there were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, 36 Lina asked for a doctor but the latter could not answer her anymore. At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were down and respondents should pray for the ir daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told him to pray for his da ughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynal do claimed that Angelica already experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three oclock in the morning of September 1, a pri est came and they prayed before Angelica expired. 37 Petitioner finally came back and supposedly told respondents that there was "malfunction" or bogged-down machine. By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelicas skin was 38 39 indeed sloughing off. She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube. On September 1, 40 exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died. The cause of death, according to petitioner, was 41 septicemia, or overwhelming infection, which caused Angelicas other organs to fail. Petitioner attributed this to the patients poor 42 defense mechanism brought about by the cancer itself. While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and calle d him 43 names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill. Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services. Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of "hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular coagulation." Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of Angelica (from th e time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the hospital staff could 44 have detected it.

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On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives eve ry known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects based on studies and observations, even if such will 45 aggravate the patients condition. Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He explai ned that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them died within six months from amputation because he 46 did not see them anymore after follow-up; it is either they died or had seen another doctor. In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer necessitating 47 chemotherapy as adjuvant treatment. Using the standard of negligence laid down in Picart v. Smith, the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong 48 decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount ofP139,064.43. Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a different course of action which could have delayed or prevented the early death of their child. The CA thus declared: Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the chemotherapy treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival afte r chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica. The appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelicas condition (like an unexpected side effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering. On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to their claim for damages. xxxx WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts: 1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses; 2. Moral damages of P200,000.00; 3. Exemplary damages of P50,000.00; 4. Attorneys fee of P30,000.00. SO ORDERED. (Emphasis supplied.)
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Petitioner filed a motion for partial reconsideration which the appellate court denied. Hence, this petition. Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees. Petitione r emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica. On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly predict how a particular patients ge netic make-up, state of mind, general health and body constitution would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did everything within her professional competence to attend to the medical needs of Angelica. Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica. As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her "quality of life" surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the damages suffered by 50 the respondents. The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment. The petition is meritorious. The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably 51 prudent provider would not have done; and that that failure or action caused injury to the patient. This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical skills w hich 52 laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies. In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioners lack of skill, knowledge and profess ional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patients death. Furthermore, respondents case was not at all helped by the non -production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment. The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was 53 Schoendorff v. Society of New York Hospital which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who 54 performs an operation without his patients consent, commits an assault, for which he is liable in damages." From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of

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injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his 55 judgment by reasonably balancing the probable risks against the probable benefits. Subsequently, in Canterbury v. Spence the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician a lone. Thus, respect for the patients right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon 57 themselves. The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibil ity. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patient s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with 58 armslength transactions. The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or 59 no treatment. As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal 60 relationship between the physicians failure to divulge and damage to the patient. Reiterating the foregoing considerations, Cobbs v. Grant deemed it as integral part of physicians overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot 62 evaluate data, and where the patient is a child or incompetent. The court thus concluded that the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the patients need, and that ne ed is whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its 63 materiality to the patients decision. Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physicians failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given. There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen in an informed consent case requires the plaintiff to "point to 64 significant undisclosed information relating to the treatment which would have altered her decision to undergo it. Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed. As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemoth erapys success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical 65 data, may not be legally necessary. The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, "the plaintiff must 66 prove both the duty and the breach of that duty through expert testimony. Such expert testimony must show the customary 67 standard of care of physicians in the same practice as that of the defendant doctor. In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels
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hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one. As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining "adequate" disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This change in pers pective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution. As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumer"a reasonable person in the patients position when deciding to accept or rejec t a recommended medical 68 procedure." (Emphasis supplied.) WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE. The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD. No costs. SO ORDERED.

Footnotes
*

No part.

Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this Court) and concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De Leon.
2

Id. at 65. Id. at 119-162. Penned by Judge Salvador D. Silerio. Records, p. 174. Id. at 175. Id. at 254. Rollo, pp. 80-89. Id. at 95-108. TSN, January 26, 1995, p. 3. TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5. Rollo, p. 35. Id. at 35 and 81. TSN, October 6, 1995, pp. 39-40; rollo, p. 123. Id. at 40.

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Cisplatin is in a class of drugs known as platinum-containing compounds. It slows or stops the growth of cancer cells inside the body. Source: http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684036.html. (Site visited on August 21, 2010.)
16

Doxorubicin is an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug. It is classified as an "anthracycline antibiotic." Source: http://www.chemocare.com/bio/doxorubicin.asp (Site visited on August 21, 2010.)

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17

Cosmegen is the trade name for Dactinomycin, an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug classified as an "alkylating agent." Source: http://www.chemocare.com/bio/cosmegen.asp (Site visited on August 21, 2010.)
18

TSN, January 27, 1997, p. 9. Rollo, p. 124. TSN, April 22, 1996, pp. 11-12. Rollo, p. 35. Id. at 120. TSN, October 6, 1995, pp. 27-28. TSN, September 19, 1994, p. 18. Par. 11 of Answer, rollo, p. 100. TSN, September 19, 1994, p. 19; paragraph 16 of Complaint, rollo, p. 82. TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14 of Answer, rollo, pp. 100-101. Rollo, p. 101. TSN, September 19, 1994, p. 22. Rollo, p. 36. Id. at 125-126. http://www.rxlist.com/bactrim-drug.htm (Site visited September 2, 2010.) Paragraph 14 of Answer, rollo, pp. 101-102. Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs 15-17 of Answer, pp. 102-103. Paragraph 17 of Answer, rollo, p. 103. Paragraph 23 of Complaint, rollo, p. 83; TSN, September 19, 1994, pp. 24-25. TSN, December 15, 1994, pp. 13-21. Paragraph 17 of Answer, rollo, p. 103. Id. Rollo, p. 37. TSN, October 6, 1995, p. 33. Id. TSN, December 15, 1994, p. 22. TSN, December 14, 1994, pp. 15-38. TSN, April 28, 1995, pp. 23-25. TSN, May 26, 1996, pp. 5, 8-13, 23. 37 Phil. 809 (1918). Rollo, pp. 160-162. Id. at 58-59, 62-63. Id. at 18-23. Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769, 778.

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Lucas v. Tuao, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v. Court of Appeals, 346 Phil. 872, 884-885 (1997). 105 N.E. 92, 93 (N.Y. 1914). Id. Blacks Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1, 8. 464 F.2d 772 C.A.D.C., 1972. Id. at 784. Id. at 780-782. Id. at 782. Id. at 790, 791-792. 8 Cal.3d 229, 502 P.2d 1 Cal. 1972. Id. Id. Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d 543, 210 Ill.Dec. 855, 653 N.E.2d 1317 (1995). Arato v. Avedon, 858 P.2d 598 (Cal. 1993). Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326 (1991). Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d 829 (1987).

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"Informed Consent: From the Ambivalence of Arato to the Thunder of Thor" Issues in Law & Medicine, Winter, 1994 by Armand Arabian. Sourced at Internet -http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?tag=content;col1

18. G.R. No. 187926

February 15, 2012

Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION MENDOZA, J.: Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This Court, as this case 1 would show, cannot and will not let the act go unpunished. This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision of the Court of 3 Appeals (CA), and its May 19, 2009 Resolution in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June 14, 4 2005 Decision of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries. THE FACTS Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victims ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the bone.
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The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. 5 Pamittan, before the RTC, docketed as Criminal Case No. 01-196646. On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads: WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount of P 3,850.00 representing medical expenses without subsidiary imprisonment in case of insolvency and to pay the costs. It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension. SO ORDERED.
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The RTC explained: After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr. However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows. 1. that there is lack of precaution on the part of the offender; and 2. that the damage impending to be caused is not immediate of the danger is not clearly manifest. Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical injuries. Under 7 Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period. Dissatisfied, the petitioners appealed to the CA. As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads: This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of precaution" in the treatment of their patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy. We are not convinced.

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The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the accusedappellants to correctly diagnose the extent of the injury sustained by Roy. For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself. 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 accused-appellant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the hospital. She testified as follows: Fiscal Formoso: Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or not? A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the wounds of my son. Q: And what did she [tell] you? A: They told me they will call a resident doctor, sir. xxx Q: Was there a resident doctor [who] came? A: Yes, Sir. Dra. Bastan arrived. Q: Did you tell her what you want on you to be done? A: Yes, sir. Q: What did you [tell] her? A: I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my son was complaining pain from his ankle up to the middle part of the right leg. Q: And what did she tell you? A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over. Q: What did you do or tell her? A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son. Q: So you mean to say there was no treatment made at all? A: None, sir. xxx xxx xxx xxx xxx xxx xxx xxx

A: I just listened to them, sir. And I just asked if I will still return my son. xxx xxx Q: And you were present when they were called? xxx xxx xxx xxx

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A: Yes, sir. Q: And what was discussed then by Sis. Retoria? A: When they were there they admitted that they have mistakes, sir. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the "control of the instrumentality" which caused the damage. Such element of control must be shown to be within the dominion of the accused-appellants. 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. The early treatment of the leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical attention. As junior residents who only practice general surgery and without specialization with the case consulted before them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to do so. The mother would not have asked them if they had no exclusive control or prerogative to request an xray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician. The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows: Fiscal Macapagal: Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan? A: I would say at that stage, yes. Because they have presented the patient and the history. "At sabi nila, nadaanan lang po ito." And then, considering their year of residency they are still junior residents, and they are not also orthopedic residents but general surgery residents, its entirely different thing. Because if you are an orthopedic resident, I am not trying to saybut if I were an orthopedic resident, there would be more precise and accurate decision compare to a general surgery resident in so far as involved. Q: You mean to say there is no supervisor attending the emergency room? A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont *know+ why they dont.Because at that time, I think, it is the decision. Since the x-rays. 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, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur. 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. 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. The latter circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order. WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is hereby AFFIRMED in toto. SO ORDERED.
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The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution. Hence, this petition. The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION. 2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF. 3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILUR E OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD. 4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION. 5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH. 6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE CRIME 9 CHARGED." The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence. THE COURTS RULING The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case. As to the Application of The Doctrine of Res Ipsa Loquitur This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus: The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not 10 happen if reasonable care had been used. The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine,

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however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct 11 evidence is absent and not readily available. The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the 12 person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured. In this case, the circumstances that caused patient Roy Jr.s injury and the series of te sts that were supposed to be undergone by him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was established 13 that they are mere residents of the Manila Doctors Hospital at that time who attended to the victim at the emergency room. While it may be true that the circumstances pointed out by the courts below seem doubtless to constitute reckless imprudence on the part of the petitioners, this conclusion is still best achieved, not through the scholarly assumptions of a layman like the patien ts mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners have exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion. As to Dr. Jarcia and Dr. Bastans negligence The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case. Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, 14 and vigilance which the circumstances justly demand, whereby such other person suffers injury. Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by 15 reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act. The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the damage 16 impending to be caused is not immediate or the danger is not clearly manifest. In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt. The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their diagnosis or appreciation of the condition of the victim at the time they assessed him. Thus: Q: Will you please tell us, for the record, doctor, what is your specialization? A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two (2) years. Q: In June 1998, doctor, what was your position and what was your specialization at that time? A: Since 1980, I have been specialist in pediatric orthopedic. Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step? A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved le g, I dont know if that is left or right, the involved leg then was swollen and the patient could not walk, so I requested for the x-ray of [the] lower leg. Q: What part of the leg, doctor, did you request to be examined? A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-ray the entire extremity. Q: And what was the result? A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg. Q: And when you say spiral, doctor, how long was this fracture?

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A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters. Q: Mid-tibial, will you please point to us, doctor, where the tibial is? (Witness pointing to his lower leg) A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger one is the one that get fractured. Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury? A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine the patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries. Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you? A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident. Q: Who did you interview? A: The mother. Q: How about the child himself, Alfonso Santiago, Jr.? A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the mother that I interviewed. Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.? A: No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who were [on] duty at the emergency room. xxxx A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a fam ily medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont why they dont Because at that time, I think, it is the decision. Since the x -rays xxx Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist. A: They are general surgeon residents. You have to man[x] the emergency room, including neurology, orthopedic, general surgery, they see everything at the emergency room . xxxx Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same? A: I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if we think that the damaged was only the leg. Q: Not the entire body but the entire leg? A: I think, if my examination requires it, I would. Q: So, you would conduct first an examination? A: Yes, sir. Q: And do you think that with that examination that you would have conducted you would discover the necessity subjecting the entire foot for x-ray?

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A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally happens that the actual fractured bone do not get swollen. xxxx Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told to you is the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray? A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of fracture that the patient sustained would you say the exact mechanism of injury. For example spiral, "paikot yung bale nya," so it was possible that 17 the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to be fractured. [Emphases supplied] It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the patients fractured leg because of failure to immediately diagnose the specif ic injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications. Any person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt. Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently attend to Roy Jr.s medical needs when the latter w as rushed to the ER, for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. Taken into account also was the fact that there was no bad faith on their part. Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves from any liability. If this would be so, doctors would have a ready defense should they fail to do their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which the actual, direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s. In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with sufficient training and experience instead of assuring him and his mother that everything was all right. This Court cannot also stamp its imprimatur on the petitioners contention that no physician -patient relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been settled that "issues raised for the first time on appeal cannot be considered because a party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair play, 18 justice and due process." Stated differently, basic considerations of due process dictate that theories, issues and arguments not 19 brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court. Assuming again for the sake of argument that the petitioners may still raise this issue of "no physician patient relationship," the Court finds and so holds that there was a "physicianpatient" relationship in this case. In the case of Lucas v. Tuao, the Court wrote that "[w]hen a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances." Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the 21 victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER) . They obliged and examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physicianpatient relationship was established between the petitioners and the patient Roy Jr.
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To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation than he was already in. What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries. All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show. Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states: A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligatio n to his 22 patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable. Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing complications. In this case, the petitioners failed to observe the most prudent medical procedure under the circumstances to prevent the complications suffered by a child of tender age. As to the Award of Damages While no criminal negligence was found in the petitioners failure to administer the necessary medical attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory. It appears undisputed that the amount of P 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages. The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of P 100,000.00 and P 50,000.00, respectively, is proper in this case. It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the 23 award of moral damages is designed to compensate emotional injury suffered, not to impose a penalty on the wrongdoer. The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount.1wphi1 Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good. WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008 isREVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of: (1) P 3,850.00 as actual damages; (2) P 100,000.00 as moral damages; (3) P 50,000.00 as exemplary damages; and (4) Costs of the suit. with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per annum from the finality of judgment until fully paid. SO ORDERED.

Footnotes
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Designated as additional member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 1185 dated February 10, 2012. Designated as Acting Chairperson, per Special Order No. 1184 dated February 10, 2012. Designated as additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special Order No. 1192 dated February 10, 2012.

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See the case of Dr. Batiquin v. Court of Appeals, 327 Phil. 965 (1996).

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2

Rollo, pp. 50-65. Penned by Associate Justice Isaias Dicdican, with Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Marlene Gonzales-Sison, concurring.
3

Id. at 67-68. Id. at 70-79. No first name on record. Rollo, p. 79. Id. at 78. Id. at 58-65. Id. at 20-22. Also quoted in the case of Layugan v. Intermediate Appellate Court, 249 Phil. 363, 377 (1988). Dr. Batiquin v. CA, supra note 1, at 979-980. Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 98 (2000). TSN, September 20, 2004, p. 13. Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 497. Id. at 495. Id. at 497. TSN, September 20, 2004, pp. 9-24. Balitaosan v. The Secretary of Education, 457 Phil. 300, 304 (2003). Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001). G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200. TSN, September 20, 2004, p. 13. As quoted in the case of Ruez, Jr. v. Jurado, 513 Phil. 101, 106 (2005). Quezon City Govt. v. Dacara, 499 Phil. 228, 243 (2005).

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19. Dr.Aquino vs Calayag, G.R. No. 158461 August 22,2012 (cant find )

20. G.R. No. 167366

September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, vs. COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.
DECISION PEREZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the annulment and setting aside 2 of the 21 February 2005 decision of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC), Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages. Culled from the records are the following antecedent facts: At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim of a stabbing incident, was rushed to the emergency room of the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) the emergency room resident physician.
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Subsequently, the parents of Raymondthe spouses Deogenes Olavere (Deogenes) and Fe R. Serranoarrived at the BRMC. They were accompanied by one Andrew Olavere, the uncle of Raymond. After extending initial medical treatment to Raymond, Dr. Realuyo recommended that the patient undergo " emergency exploratory laparotomy." Dr. Realuyo then requested the parents of Raymond to procure 500 cc of type "O" blood needed for the operation. Complying with the request, Deogenes and Andrew Olavere went to the Philippine National Red Cross to secure the required blood. At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also happened to be the head of Anesthesiology Department of the BRMC. Just before the operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the operating room. At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however, Dr. Tatad was already working with the obstetricians who will perform surgery on Lilia Aguila. There being no other available anesthesiologist to assist them, Drs. Zafe and Cereno decided to defer the operation on Raymond. Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the latters blood pressure was normal 3 and "nothing in him was significant." Dr. Cereno reported that based on the xray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag containing the requested 500 cc type "O" blood. They handed over the bag of blood to Dr. Realuyo. After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately started their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon opening of Raymonds t horacic cavity, they found that 3,200 cc of blood was stocked therein. The blood was evacuated and petitioners found a puncture at the inferior pole of the left lung. In his testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not immediately transfuse blood 4 because he had to control the bleeders first. Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going, Raymond suffered a cardiac arrest. The operation ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M. Raymonds death certificate indicated that the immediate cause of death was "hypovolemic shock" or the cessation of the functions 6 of the organs of the body due to loss of blood. Claiming that there was negligence on the part of those who attended to their son, the parents of Raymond, on 25 October 1995, 7 filed before the RTC, Branch 22, Naga City a complaint for damages against Nurse Balares, Dr. Realuyo and attending surgeons Dr. Cereno and Dr. Zafe. During trial, the parents of Raymond testified on their own behalf. They also presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego Reposo testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad, among others. On 15 October 1999, the trial court rendered a decision the dispositive portion of which reads: WHEREFORE, premises considered, this Court hereby renders judgment: 1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of merit; 2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of Raymond Olavere, jointly and severally the following amounts: 1. P 50,000.00 for the death of the victim; 2. P 150,000.00 as moral damages; 3. P 100,000.00 as exemplary damages; 4. P 30,000.00 for attorneys fees; and 5. Cost of suit.
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x x x x. The trial court found petitioners negligent in not immediately conducting surgery on Raymond. It noted that petitioners have already finished operating on Charles Maluluy-on as early as 10:30 in the evening, and yet they only started the operation on Raymond at around 12:15 early morning of the following day. The trial court held that had the surgery been performed promptly, Raymond 10 would not have lost so much blood and, therefore, could have been saved. The trial court also held that the non-availability of Dr. Tatad after the operation on Maluluy-on was not a sufficient excuse for the petitioners to not immediately operate on Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed the possibility of calling a standby anesthesiologist in that situation. The trial court opined that the petitioners could have just requested for the standby anesthesiologist from Dr. Tatad, but they did not. Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on Raymond. On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the judgment rendered by the RTC finding herein petitioners guilty of gross negligence in the performance of their duties and awarding damages to private respondents. Hence, this petition for review on certiorari under Rule 45 of the Rules of Court assailing the CA decision on the following grounds: 1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES; 2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND LIABLE FOR DAMAGES; and 3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEYS FEES EXORBITANT OR EXCESSIVE. We grant the petition It is well-settled that under Rule 45 of the Rules of Court, only questions of law may be raised. The reason behind this is that this 11 Court is not a trier of facts and will not re-examine and re-evaluate the evidence on record. Factual findings of the CA, affirming that of the trial court, are therefore generally final and conclusive on this Court. This rule is subject to the following exceptions: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the findings of absence of fact are contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to those of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) 12 the findings of the CA are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties. In this case, We find exceptions (1) and (4) to be applicable. The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a 13 reasonably prudent provider would not have done ; and that the failure or action caused injury to the patient. Stated otherwise, the complainant must prove: (1) that the health care provider, either by his act or omission, had been negligent, and (2) that such act or omission proximately caused the injury complained of. The best way to prove these is through the opinions of expert witnesses belonging in the same neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incap able of 14 intelligently evaluating, hence, the indispensability of expert testimonies. Guided by the foregoing standards, We dissect the issues at hand. Petitioners Not Negligent The trial court first imputed negligence on the part of the petitioners by their failure to perform the operation on Raymond immediately after finishing the Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court relied on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the possibility that a standby anesthesiologist could have been called upon. The pertinent portions of the testimony of Dr. Tatad provides: Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist? A: We have a protocol at the Bicol Medical Center to have a consultant who is on call.

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Q: How many of them? A: One. Q: Who is she? A: Dra. Flores. Q: What is the first name? A: Rosalina Flores. Q: Is she residing in Naga City? A: In Camaligan. Q: She is on call anytime when there is an emergency case to be attended to in the Bicol Medical Center? A: Yes sir.
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Dr. Tatad further testified: Q: Alright (sic), considering that you said you could not attend to Raymond Olavere because another patient was coming in the person of Lilia Aguila, did you not suggest to Dr. Cereno to call the standby anesthesiologist? A: They are not ones to do that. They have no right to call for the standby anesthesiologist. Q: Then, who should call for the standby anesthesiologist? A: It is me if the surgeon requested. Q: But in this case, the surgeon did not request you? A: No. It is their prerogative. Q: I just want to know that in this case the surgeon did not request you to call for the standby anesthesiologist? A: No sir.
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From there, the trial court concluded that it was the duty of the petitioners to request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since petitioners failed to do so, their inability to promptly perform the operation on Raymond becomes negligence on their part. This Court does not agree with the aforesaid conclusion. First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the record for that matter, which shows that the petitioners were aware of the "BRMC protocol" that the hospital keeps a standby anesthesiologist available on call. Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves that any such "BRMC protocol" is being practiced by the hospitals surgeons at all. Evidence to the effect that petitioners knew of the "BRMC protocol" is essential, especially in view of the contrary assertion of the petitioners that the matter of assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology Department. Without any prior knowledge of the "BRMC protocol," We find that it is quite reasonable for the petitioners to assume that matters regarding the administration of anesthesia and the assignment of anesthesiologists are concerns of the Anesthesiology Department, while matters pertaining to the surgery itself fall under the concern of the surgeons. Certainly, We cannot hold petitioners accountable for not complying with something that they, in the first place, do not know. Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and that petitioners knew about it, We find that their failure to request for the assistance of the standby anesthesiologist to be reasonable when taken in the proper context. There is simply no competent evidence to the contrary. From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for a standby anaesthesiologist is not within the full discretion of petitioners. The "BRMC protocol" described in the testimony requires the petitioners to course such request to Dr. Tatad who, as head of the Department of Anesthesiology, has the final say of calling the standby anesthesiologist.

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As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to examine Raymond and they found that the latters blood pressure was normal and "noth ing in 17 him was significant." Dr. Cereno even concluded that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged and were unrebutted. Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not showing any symptom of suffering from major blood loss requiring an immediate operation, We find it reasonable that petitioners decided to wait for Dr. Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There is, after all, no evidence that shows that a prudent surgeon faced with similar circumstances would decide otherwise. Here, there were no expert witnesses presented to testify that the course of action taken by petitioners were not in accord with those adopted by other reasonable surgeons in similar situations. Neither was th ere any testimony given, except that of Dr. Tatads, on which it may be inferred that petitioners failed to exercise the standard of care, diligence, learning and skill expected from practitioners of their profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of surgical practices and diagnoses. Her expertise is in the administration of anesthesia and not in the determination of whether surgery ought or not ought to be performed. Another ground relied upon by the trial court in holding petitioners negligent was their failure to immediately transfuse blood on Raymond. Such failure allegedly led to the eventual death of Raymond through " hypovolemic shock." The trial court relied on the following testimony of Dr. Tatad: Q: In this case of Raymond Olavere was blood transfused to him while he was inside the operating room? A: The blood arrived at 1:40 a.m. and that was the time when this blood was hooked to the patient. xxxx Q: Prior to the arrival of the blood, you did not request for blood? A: I requested for blood. Q: From whom? A: From the attending physician, Dr. Realuyo. Q: What time was that? xxxx A: 9:30. xxxx Q: Had this blood been given to you before the operation you could have transfused the blood to the patient? A: Of course, yes. Q: And the blood was transfused only after the operation? A: Because that was the time when the blood was given to us. xxxx Q: Have you monitored the condition of Raymond Olavere? A: I monitored the condition during the time when I would administer anesthesia. Q: What time was that? A: 11:45 already. Q: What was the condition of the blood pressure at that time? A: 60/40 initial.

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Q: With that kind of blood pressure the patient must have been in critical condition? A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood was already needed. Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did not decide on transfusing blood to him? A: I was asking for blood but there was no blood available. Q: From whom did you ask? A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for cross-matching.
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From the aforesaid testimony, the trial court ruled that there was negligence on the part of petitioners for their failure to have the blood ready for transfusion. It was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by Raymonds par ents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes had passed. Yet, the blood was not ready for transfusion as it was 19 still being cross-matched. It took another two hours before blood was finally transfused to Raymond at 1:40 A.M. of 17 September 1995. Again, such is a mistaken conclusion. First, the alleged delay in the cross-matching of the blood, if there was any, cannot be attributed as the fault of the petitioners. The petitioners were never shown to be responsible for such delay. It is highly unreasonable and the height of injustice if petitioners were to be sanctioned for lapses in procedure that does not fall within their duties and beyond their control. Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in the transfusion of blood on Raymond before and during the operation. Before the operation, Dr. Cereno explained that the reason why no blood transfusion was made on Raymond was because they did not then see the need to administer such transfusion, viz: Q: Now, you stated in your affidavit that prior to the operation you were informed that there was 500 cc of blood available and was still to be cross-matched. What time was that when you were informed that 500 cc of blood was due for crossmatching? A: I am not sure of the time. Q: But certainly, you learned of that fact that there was 500 cc of blood, which was due for crossmatching immediately prior to the operation? A: Yes, sir. Q: And the operation was done at 12:15 of September 17? A: Yes, sir. Q: And that was the reason why you could not use the blood because it was being crossmatched? A: No, sir. That was done only for a few minutes. We did not transfuse at that time because there was no need.There is a necessity 20 to transfuse blood when we saw there is gross bleeding inside the body . (Emphasis supplied) During the operation, on the other hand, Dr. Cereno was already able to discover that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the puncture in the latters left lung. Even then, however, immediate blood transfusion was not feas ible because: Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not immediately transfuse blood to the patient and you waited for 45 minutes to elapse before transfusing the blood? A: I did not transfuse blood because I had to control the bleeders. If you will transfuse blood just the same the blood that you transfuse will be lost. After evacuation of blood and there is no more bleeding Q: It took you 45 minutes to evacuate the blood? A: The evacuation did not take 45 minutes. Q: So what was the cause of the delay why you only transfuse blood after 45 minutes?

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A: We have to look for some other lesions. It does not mean that when you slice the chest you will see the lesions already . (Emphasis supplied) Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted. The parents of Raymond were not able to present any expert witness to dispute the course of action taken by the petitioners. Causation Not Proven In medical negligence cases, it is settled that the complainant has the burden of establishing breach of duty on the part of the 22 doctors or surgeons. It must be proven that such breach of duty has a causal connection to the resulting death of the patient. A verdict in malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony. The parents of Raymond failed in this respect. Aside from their failure to prove negligence on the part of the petitioners, they also failed to prove that it was petitioners fault that caused the injury. Their cause stands on the mere assumption that Raymonds life would have been saved had petitioner surgeons immediately operated on him; had the blood been cross-matched immediately and had the blood been transfused immediately. There was, however, no proof pre sented that Raymonds life would have been saved had those things been done. Those are mere assumptions and cannot guarantee their desired result. Such cannot be made basis of a decision in this case, especially considering that the name, reputation and career of petitioners are at stake. The Court understands the parents grief over their sons death. 1wphi1 That notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who was a victim of a stabbing incident, had multiple wounds when brought to the hospital. Upon opening of his thoracic cavity, it was discovered that there was gross bleeding inside the body. Thus, the need for petitioners to control first what was causing the bleeding. Despite the situation that evening i.e. numerous patients being brought to the hospital for emergency treatment considering that it was the height of the Peafrancia Fiesta, it was evident that petitioners exerted earnest efforts to save the life of Raymond. It was just unfortunate that the loss of his life was not prevented. In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not liable for 23 honest mistake of judgment" This Court affirms the ruling of the CA that the BRMC is not an indispensible party. The core issue as agreed upon by the parties and stated in the pre-trial order is whether petitioners were negligent in the performance of their duties. It pertains to acts/omissions of petitioners for which they could be held liable. The cause of action against petitioners may be prosecuted fully and the determination of their liability may be arrived at without impleading the hospital where they are employed. As such, the BRMC 24 cannot be considered an indispensible party without whom no final determination can be had of an action. IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CA-G.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs. SO ORDERED.
Footnotes
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Per Special Order No. 1308 dated 21 Septembe:- 2012. Rollo, pp. 9-25. Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Rodrigo V. Cosico and Danilo B. Pine concurriug. ld. at 26-36. Cerenos affidavit, Exhibit "4." Records, p. 118. TSN, 19 May 1997, p. 31. Exhibit "B." Records, p. 59. Cerenos testimony. TSN, 19 May 1997, pp. 32-33. Records, pp. 1-6. Id. at 271-285. Id. at 285. RTC Decision. Id. at 279. Manila Electric Company v. Benamira, 501 Phil. 621, 636 (2005).

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International Container Terminal Services, Inc. v. FGU Insurance Corporation, G.R. No. 161539, 28 June 2008, 556 SCRA 194, 199. Garcia-Rueda v. Pascasio, 344 Phil. 323, 331 (1997). (Emphasis supplied) Id. at 332. TSN, 31 October 1997, pp. 15-16. Id at 21. Cerenos affidavit, Exhibit "4." Records, p. 118. TSN, 31 October 1997, pp. 16-20. RTC Decision. Records, p. 282. TSN, 19 May 1997, p. 32. Id. at 31-32. Dr. Cruz v. Court of Appeals, 346 Phil. 827, 885-886 (1997), citing Abaya v. Favis, 3 CA Reports 450, 454455 (1963).

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Id. at 875-879 citing "THE PHYSICIANS LIABILITY AND THE LAW OF NEGLIGENCE" by Constantino Nuez, p. 1, citing Louis Nizer, My Life in C ourt, New York: Double Day &n Co., 1961 in Tolentino, Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issues Common to Medicine and Law, U.P. Law Center, 1980.
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Section 7, Rule Ill, Rules of Court.

STATE REGULATION OF HOSPITAL OPERATION DEFINITION: Liscensure:

Accreditation:

Certification:

Hospital operation (applicable laws)

REPUBLIC ACT NO. 4226 - AN ACT REQUIRING THE LICENSURE OF ALL HOSPITALS IN THE PHILIPPINES AND AUTHORIZING THE BUREAU OF MEDICAL SERVICES TO SERVE AS THE LICENSING AGENCY SECTION 1. This Act shall also be known as the Hospital Licensure Act. SECTION 2. Definitions. As used in this Act (a) 'Hospital' means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and care of individuals suffering from illness, disease, injury or deformity, or in need of obstetrical or other medical and nursing care. The term 'hospital shall also be construed as any institution, building or place where there are installed beds, or cribs, or bassinets for twenty-four-hour use or longer by patients in the treatment of diseases, diseased-conditions, injuries, deformities, or abnormal physical and mental states, maternity cases, and all institutions such as those for convalescence, sanitarial or sanitarial care, infirmities, nurseries, dispensaries and such other names by which they may designated. (b) 'Government hospital' means a hospital operated and maintained either partially or wholly by the national, provincial, municipal or city government or other political subdivision, or by any department, division, board or other agency thereof.

P a g e | 159 (c) 'Private hospital' means one which is privately owned, established and operated with funds raised or contributed through donations, or by private capital or other means, by private individuals, association, corporation, religious organization, firm, company or joint stock association. (d) 'Clinic' means a place in which patients avail of medical consultations or treatments on an out-patient basis. However, any clinic or dispensary where there is at least six beds or cribs or bassinets installed for twenty-four-hour use by patients shall be construed to fall within the definition of a hospital as described in this Act. (e) 'Licensee' is the person or persons granted a license to operate and maintain a hospital according to an approved minimum standard. SECTION 3. Construction Permit. No hospital, government or private, shall be constructed unless plans have been approved and construction permit issued by the licensing agency as defined in this Act. SECTION 4. Registration and license. No hospital shall operate or be opened to the public unless it shall have been registered and a license for its operation obtained from the licensing agency provided in this Act. SECTION 5. Licensing Agency. For purposes of setting standards in hospital construction and operation, the Bureau of Medical Services in addition to its present duties shall act as the licensing agency. The Secretary of Health shall reorganize this Bureau to include a staff of hospital architects, hospital administrators, sanitary engineers and such personnel as may be necessary to carry out the purposes of this Act without necessarily increasing the present personnel strength of this Bureau. SECTION 6. Powers and duties of the licensing agency. The Bureau of Medical Services, or the licensing agency shall have the following powers and duties: a. To conduct an ocular survey of all existing hospitals in the Philippines, government or private, with a view to determine their fitness to operate considering their facilities and physical plant. b. To prescribe standard plans for government hospital plants in consultation with the Division of Architecture, Bureau of Public Works. c. To approve plans for hospital plants, government or private, and to issue permits or authority to construct hospitals in accordance with the provisions of this Act. d. To keep a permanent register of approved hospitals or those issued licenses to operate indicating the name of the hospital, address or location, type of hospital, name of the director or administrator, ownership, number of authorized beds and bassinets and such other pertinent data as may be necessary. e. To grant licenses for the operation and maintenance of hospitals or revoke the same in accordance with the provisions of this Act. f. To make periodic inspection of all hospitals so as to check compliance with rules and regulations legally promulgated or with the provisions of this Act and to make recommendations to directors or administrators of hospitals for the correction of defects found during such inspections. g. To publish yearly a list of all approved hospitals indicating the name, location, type, authorized beds, and name of the director or administrator. h. To submit yearly reports to the Secretary of Health, the Speaker of the House of Representatives, the President of the Senate and the chairmen and members of the Committees on Health of both Houses of Congress, such reports to include a list of approved hospitals indicating the name of the hospital, location, bed capacity and name of the director or administrator and make recommendations on hospital needs or requirements for hospital service in certain communities that do not enjoy such hospital services. SECTION 7. Filing of Application for Construction Permit. Application for a permit to construct a hospital shall be submitted to the Office of the Director, Bureau of Medical Services in a form prescribed by the latter and accompanied by a plan of the hospital plant proposed to be constructed. The application shall state the name of the hospital, ownership, number of beds proposed to be operated, location and type of hospital to be constructed.

P a g e | 160 SECTION 8. Minimum Standards of Construction. In order that a permit to construct a hospital can be issued the hospital plan shall provide sufficient bed space for the hospital bed capacity proposed, a laboratory room, an operating room, including work rooms for sterilization, anesthesia preparation, etc., an X-ray or radiology room, pharmacy, dispensary or out-patient department, delivery room, isolation rooms, autopsy room or morgue, sufficient quarters for residents, nurses, attendants and helpers and sufficient number of toilet facilities. Wards shall be constructed such that segregation of the sexes is observed and as far as practicable classified as to the type of cases to be confined. SECTION 9. Application for Registration and Issuance of License. Application for registration of a hospital and for the issuance of a license for its operation and maintenance shall be filed with the Bureau of Medical Services on a form prescribed by it. Registration may be made and license issued upon compliance with the provisions of Section eight hereof and the rules and regulations prescribed by the licensing agency pursuant to the provisions of this Act. SECTION 10. Inspection. Permit to construct a hospital or a major portion thereof and license to operate and maintain the same shall be issued by the licensing agency only after a representative of the licensing agency has conducted an ocular inspection and certified that the applicant has satisfactorily complied with requisites prescribed in this Act. The license to operate and maintain a hospital shall be renewed every year upon payment of the prescribed fees. SECTION 11. Revocation of License. The licensing agency may suspend or revoke a license already issued for any of the following grounds: (a) repeated violation by the licensee of any provision of this Act or of any other existing law; (b) repeated violation of rules and regulations prescribed in the implementation of this Act; or (c) repeated failure to make necessary corrections or adjustments required by the licensing agency in the improvement of facilities and services. SECTION 12. Hearing. Any person, association, corporation, or any other private entity who has been refused a license to operate and maintain a hospital or whose license for such hospital has been suspended or revoked shall be entitled to an administrative hearing to be conducted by the Secretary of Health and his two undersecretaries to determine the justifiability of such denial, suspension or revocation of the license: provided, that the licensee may resort to the courts, as in other cases provided by law. SECTION 13. Separate Licenses Required. Separate licenses shall be required for hospitals or branches thereof maintained in separate premises, even though they are operated under the same management: provided, however, that separate licenses shall not be required for separate buildings in the same compound: provided, further, that permits for construction or alteration of buildings within the same compound shall also be secured from the licensing agency to determine compliance with standards and requirements herein authorized. SECTION 14. License not transferable. License for the operation of hospitals shall not be transferable. The licensing agency shall be notified of any change in ownership, change of name of the hospital, and transfer of location and in the latter case, an application for a new license should be submitted. SECTION 15. Rules and Regulations. The Bureau of Medical Services acting as a licensing agency and subject to the approval of the Secretary of Health, shall promulgate rules and regulations to implement the provisions of this Act. SECTION 16. Classification of Hospitals. The licensing agency shall study and adopt a system of classifying hospitals in the Philippines as to: (1) general or special; (2) hospital services capabilities; (3) size or bed capacity and (4) class of hospital whether training or not. SECTION 17. Fees. Each applicant for a permit to construct a hospital shall pay the amount of five pesos as permit fee. A registration fee of five pesos and an annual license fee of ten pesos shall likewise be collected for each hospital and for each approved license: provided, that a government hospital shall be exempt from the payment of such fees. The amount herein collected shall be officially receipted by the licensing agency and shall constitute as a revolving fund for the use of the licensing agency. SECTION 18. Penalties. Any person, partnership, association, or corporation who establishes, operates, conducts, manages or maintains a hospital or hospital clinic within the meaning of this Act without first obtaining a license as provided for in this Act or violates any provision hereof shall be guilty of a misdemeanor, and upon conviction thereof shall be liable to a fine of not more than five hundred pesos for the first offense and not more than one thousand pesos

P a g e | 161 for each subsequent offense, and each day that the hospital shall operate after the first conviction shall be considered a subsequent offense. SECTION 19. Repeal. Any law or laws or parts thereof inconsistent with the provisions of this Act are hereby repealed. SECTION 20. Effectivity. This Act shall take effect upon its approval. Approved: June 19, 1965 Republic Act No. 7042 June 13, 1991

AN ACT TO PROMOTE FOREIGN INVESTMENTS, PRESCRIBE THE PROCEDURES FOR REGISTERING ENTERPRISES DOING BUSINESS IN THE PHILIPPINES, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Title. - This Act shall be known as the, "Foreign Investments Act of 1991". Section 2. Declaration of Policy. - It is the policy of the State to attract, promote and welcome productive investments from foreign individuals, partnerships, corporations, and governments, including their political subdivisions, in activities which significantly contribute to national industrialization and socioeconomic development to the extent that foreign investment is allowed in such activity by the Constitution and relevant laws. Foreign investments shall be encouraged in enterprises that significantly expand livelihood and employment opportunities for Filipinos; enhance economic value of farm products; promote the welfare of Filipino consumers; expand the scope, quality and volume of exports and their access to foreign markets; and/or transfer relevant technologies in agriculture, industry and support services. Foreign investments shall be welcome as a supplement to Filipino capital and technology in those enterprises serving mainly the domestic market. As a general rule, there are no restrictions on extent of foreign ownership of export enterprises. In domestic market enterprises, foreigners can invest as much as one hundred percent (100%) equity except in areas included in the negative list. Foreign owned firms catering mainly to the domestic market shall be encouraged to undertake measures that will gradually increase Filipino participation in their businesses by taking in Filipino partners, electing Filipinos to the board of directors, implementing transfer of technology to Filipinos, generating more employment for the economy and enhancing skills of Filipino workers. Section 3. Definitions. - As used in this Act: a) The term "Philippine national" shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty (60%) of the fund will accrue to the benefit of the Philippine nationals: Provided, That where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stocks outstanding and entitled to vote of both corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of both corporations must be citizens of the Philippines, in order that the corporations shall be considered a Philippine national; b) The term "investment" shall mean equity participation in any enterprise organized or existing under the laws of the Philippines; c) The term "foreign investment" shall mean as equity investment made by a non-Philippine national in the form of foreign exchange and/or other assets actually transferred to the Philippines and duly registered with the Central Bank which shall assess and appraise the value of such assets other than foreign exchange; d) The praise "doing business" shall include soliciting orders, service contracts, opening offices, whether called "liaison" offices or branches; appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totalling one hundred eighty (180) days or more; participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally

P a g e | 162 incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization: Provided, however, That the phrase "doing business: shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account; e) The term "export enterprise" shall mean an enterprise which produces goods for sale, or renders services to the domestic market entirely or if exporting a portion of its output fails to consistently export at least sixty percent (60%) thereof; and g) The term "Foreign Investments Negative List" or "Negative List" shall mean a list of areas of economic activity whose foreign ownership is limited to a maximum of forty ownership is limited to a maximum of forty percent (40%) of the equity capital of the enterprise engaged therein. Section 4. Scope. - This Act shall not apply to banking and other financial institutions which are governed and regulated by the General Banking Act and other laws under the supervision of the Central Bank. Section 5. Registration of Investments of Non-Philippine Nationals. - Without need of prior approval, a non-Philippine national, as that term is defined in Section 3 a), and not otherwise disqualified by law may upon registration with the Securities and Exchange Commission (SEC), or with the Bureau of Trade Regulation and Consumer Protection (BTRCP) of the Department of Trade and Industry in the case of single proprietorships, do business as defined in Section 3 (d) of this Act or invest in a domestic enterprise up to one hundred percent (100%) of its capital, unless participation of nonPhilippine nationals in the enterprise is prohibited or limited to a smaller percentage by existing law and/or limited to a smaller percentage by existing law and/or under the provisions of this Act. The SEC or BTRCP, as the case may be, shall not impose any limitations on the extent of foreign ownership in an enterprise additional to those provided in this Act: Provided, however, That any enterprise seeking to avail of incentives under the Omnibus Investment Code of 1987 must apply for registration with the Board of Investments (BOI), which shall process such application for registration in accordance with the criteria for evaluation prescribed in said Code: Provided, finally, That a non-Philippine national intending to engage in the same line of business as an existing joint venture in his application for registration with SEC. During the transitory period as provided in Section 15 hereof, SEC shall disallow registration of the applying nonPhilippine national if the existing joint venture enterprise, particularly the Filipino partners therein, can reasonably prove they are capable to make the investment needed for they are competing applicant. Upon effectivity of this Act, SEC shall effect registration of any enterprise applying under this Act within fifteen (15) days upon submission of completed requirements. Section 6. Foreign Investments in Export Enterprises. - Foreign investment in export enterprises whose products and services do not fall within Lists A and B of the Foreign Investment Negative List provided under Section 8 hereof is allowed up to one hundred percent (100%) ownership. Export enterprises which are non-Philippine nationals shall register with BOI and submit the reports that may be required to ensure continuing compliance of the export enterprise with its export requirement. BOI shall advise SEC or BTRCP, as the case may be, of any export enterprise that fails to meet the export ratio requirement. The SEC or BTRCP shall thereupon order the non-complying export enterprise to reduce its sales to the domestic market to not more than forty percent (40%) of its total production; failure to comply with such SEC or BTRCP order, without justifiable reason, shall subject the enterprise to cancellation of SEC or BTRCP registration, and/or the penalties provided in Section 14 hereof. Section 7. Foreign Investments in Domestic Market Enterprises. - Non-Philippine nationals may own up to one hundred percent (100%) of domestic market enterprises unless foreign ownership therein is prohibited or limited by existing law or the Foreign Investment Negative List under Section 8 hereof. A domestic market enterprise may change its status to export enterprise if over a three (3) year period it consistently exports in each year thereof sixty per cent (60%) or more of its output. Section 8. List of Investment Areas Reserved to Philippine Nationals (Foreign Investment Negative List). - The Foreign Investment Negative List shall have three (3) component lists: A, B, and C: a) List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of the Constitution and specific laws. b) List B shall contain the areas of activities and enterprises pursuant to law:

P a g e | 163 1) Which are defense-related activities, requiring prior clearance and authorization from Department of National Defense (DND) to engage in such activity, such as the manufacture, repair, storage and/or distribution of firearms, ammunition, lethal weapons, military ordnance, explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is specifically authorized, with a substantial export component, to a non-Philippine national by the Secretary of National Defense; or 2) Which have implications on public health and morals, such as the manufacture and distribution of dangerous drugs; all forms of gambling; nightclubs, bars, beerhouses, dance halls; sauna and steambath houses and massage clinics. Small and medium-sized domestic market enterprises with paid-in equity capital less than the equivalent of five hundred thousand US dollars (US$500,000) are reserved to Philippine nationals, unless they involve advanced technology as determined by the Department of Science and Technology. Export enterprises which utilize raw materials from depleting natural resources, with paid-in equity capital of less than the equivalent of five hundred thousand US dollars (US$500,000) are likewise reserved to Philippine nationals. Amendments to List B may be made upon recommendation of the Secretary of National Defense, or the Secretary of Health, or the Secretary of Education, Culture and Sports, indorsed by the NEDA, or upon recommendation motu propio of NEDA, approved by the President, and promulgated by Presidential Proclamation. c) List C shall contain the areas of investment in which existing enterprises already serve adequately the needs of the economy and the consumer and do not require further foreign investments, as determined by NEDA applying the criteria provided in Section 9 of this Act, approved by the President and promulgated in a Presidential Proclamation. The Transitory Foreign Investment Negative List established in Sec. 15 hereof shall be replaced at the end of the transitory period by the first Regular Negative List to the formulated and recommended by the NEDA, following the process and criteria provided in Section 8 and 9 of this Act. The first Regular Negative List shall be published not later than sixty (60) days before the end of the transitory period provided in said section, and shall become immediately effective at the end of the transitory period. Subsequent Foreign Investment Negative Lists shall become effective fifteen (15) days after publication in two (2) newspapers of general circulation in the Philippines: Provided, however, That each Foreign Investment Negative List shall be prospective in operation and shall in no way affect foreign investments existing on the date of its publication. Amendments to List B and C after promulgation and publication of the first Regular Foreign Investment Negative List at the end of the transitory period shall not be made more often than once every two (2) years. Section 9. Determination of Areas of Investment for Inclusion in List C of the Foreign Investment Negative List. - Upon petition by a Philippine national engage therein, an area of investment may be recommended by NEDA for inclusion in List C of the Foreign Investment Negative List upon determining that it complies with all the following criteria: a) The industry is controlled by firms owned at least sixty percent (60%) by Filipinos; b) Industry capacity is ample to meet domestic demand; c) Sufficient competition exists within the industry; d) Industry products comply with Philippine standards of health and safety or, in the absence of such, with international standards, and are reasonably competitive in quality with similar products in the same price range imported into the country; e) Quantitative restrictions are not applied on imports of directly competing products; f) The leading firms of the industry substantially comply with environmental standards; and g) The prices of industry products are reasonable. The petition shall be subjected to a public hearing at which affected parties will have the opportunity to show whether the petitioner industry adequately serves the economy and the consumer, in general, and meets the above stated criteria in particular. NEDA may delegate evaluation of the petition and conduct of the public hearing to any government

P a g e | 164 agency having cognizance of the petitioner industry. The delegated agency shall make its evaluation report and recommendations to NEDA which retains the right and sole responsibility to determine whether to recommend to the President to promulgate the area of investment in List C of the Negative List. An industry or area of investment included in List C of the Negative List by Presidential Proclamation shall remain in the said List C for two (2) years, without prejudice to re-inclusion upon new petition, and due process. Section 10. Strategic Industries. - Within eighteen (18) months after the effectivity of this Act, the NEDA Board shall formulate and publish a list of industries strategic to the development of the economy. The list shall specify, as a matter of policy and not as a legal requirement, the desired equity participation by Government and/or private Filipino investors in each strategic industry. Said list of strategic industries, as well as the corresponding desired equity participation of government and/or private Filipino investors, may be amended by NEDA to reflect changes in economic needs and policy directions of Government. The amended list of strategic industries shall be published concurrently with publication of the Foreign Investment Negative List. The term "strategic industries" shall mean industries that are characterized by all of the following: a) Crucial to the accelerated industrialization of the country, b) Require massive capital investments to achieve economies of scale for efficient operations; c) Require highly specialized or advanced technology which necessitates technology transfer and proven production techniques in operations; d) Characterized by strong backward and forward linkages with most industries existing in the country, and e) Generate substantial foreign exchange savings through import substitution and collateral foreign exchange earnings through export of part of the output that will result with the establishment, expansion or development of the industry. Section 11. Compliance with Environmental Standards. - All industrial enterprises regardless of nationality of ownership shall comply with existing rules and regulations to protect and conserve the environment and meet applicable environmental standards. Section 12. Consistent Government Action. - No agency, instrumentality or political subdivision of the Government shall take any action on conflict with or which will nullify the provisions of this Act, or any certificate or authority granted hereunder. Section 13. Implementing Rules and Regulations. - NEDA, in consultation with BOI, SEC and other government agencies concerned, shall issue the rules and regulations to implement this Act within one hundred and twenty (120) days after its effectivity. A copy of such rules and regulations shall be furnished the Congress of the Republic of the Philippines. Section 14. Administrative Sanctions. - A person who violates any provision of this Act or of the terms and conditions of registration or of the rules and regulations issued pursuant thereto, or aids or abets in any manner any violation shall be subject to a fine not exceeding One hundred thousand pesos (P100,000). If the offense is committed by a juridical entity, it shall be subject to a fine in an amount not exceeding of 1% of total paid-in capital but not more than Five million pesos (P5,000,000). The president and/or officials responsible therefor shall also be subject to a fine not exceeding Two hundred thousand pesos (P200,000). In addition to the foregoing, any person, firm or juridical entity involved shall be subject to forfeiture of all benefits granted under this Act. SEC shall have the power to impose administrative sanctions as provided herein for any violation of this Act or its implementing rules and regulations. Section 15. Transitory Provisions. - Prior to effectivity of the implementing rules and regulations of this Act, the provisions of Book II of Executive Order 226 and its implementing rules and regulations shall remain in force. During the initial transitory period of thirty-six (36) months after issuance of the Rules and Regulations to implement this Act, the Transitory Foreign Investment Negative List shall consist of the following: A. List A:

P a g e | 165 1. All areas of investment in which foreign ownership is limited by mandate of Constitution and specific laws. B. List B: 1. Manufacture, repair, storage and/or distribution of firearms, ammunitions, lethal weapons, military ordinance, explosives, pyrotechnics and similar materials required by law to be licensed by and under the continuing regulation of the Department of National Defense; unless such manufacturing or repair activity is specifically authorized with a substantial export component, to a non-Philippine national by the Secretary of National Defense; 2. Manufacture and distribution of dangerous drugs; all forms of gambling; nightclubs, bars, beerhouses, dance halls; sauna and steam bathhouses, massage clinic and other like activities regulated by law because of risks they may pose to public health and morals; 3. Small and medium-size domestic market enterprises with paid-in equity capital or less than the equivalent of US$500,000, unless they involve advanced technology as determined by the Department of Science and Technology, and 4. Export enterprises which utilize raw materials from depleting natural resources, and with paid-in equity capital of less than the equivalent US$500,000. C. List C: 1. Import and wholesale activities not integrated with production or manufacture of goods; 2. Services requiring a license or specific authorization, and subject to continuing regulations by national government agencies other than BOI and SEC which at the time of effectivity of this Act are restricted to Philippine nationals by existing administrative regulations and practice of the regulatory agencies concerned: Provided, That after effectivity of this Act, no other services shall be additionally subjected to such restrictions on nationality of ownership by the corresponding regulatory agencies, and such restrictions once removed shall not be reimposed; and 3. Enterprises owned in the majority by a foreign licensor and/or its affiliates for the assembly, processing or manufacture of goods for the domestic market which are being produced by a Philippine national as of the date of effectivity of this Act under a technology, know-how and/or brand name license from such licensor during the term of the license agreement: Provided, That, the license is duly registered with the Central Bank and/or the Technology Transfer Board and is operatively in force as of the date of effectivity of this Act. NEDA shall make the enumeration as appropriate of the areas of the investment covered in this Transitory Foreign Investment Negative List and publish the Negative List in full at the same time as, or prior to, the publication of the rules and regulations to implement this Act. The areas of investment contained in List C above shall be reserved to Philippine nationals only during the transitory period. The inclusion of any of them in the regular Negative List will require determination by NEDA after due public hearings that such inclusion is warranted under the criteria set forth in Section 8 and 9 hereof. Section 16. Repealing Clause. - Articles forty-four (44) to fifty-six (56) of Book II of Executive Order No. 226 are hereby repealed. All other laws or parts of laws inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 17. Separability. - If any part or section of this Act is declared unconstitutional for any reason whatsoever, such declaration shall not in any way affect the other parts or sections of this Act. Section 18. Effectivity. - This Act shall take effect fifteen (15) days after approval and publication in two (2) newspaper of general circulation in the Philippines. Approved: June 13, 1991 EO 292 REVISE ADMINISTRATIVE CODE

P a g e | 166 Title IX HEALTH Section 2. Mandate. - The Department shall be primarily responsible for the formulation, planning, implementation, and coordination of policies and programs in the field of health. The primary function of the Department is the promotion, protection, preservation or restoration of the health of the people through the provision and delivery of health services and through the regulation and encouragement of providers of health goods and services. Section 3. Powers and Functions. - The Department shall:

(1) Define the national health policy and formulate and implement a national health plan within the framework of the government's general policies and plans, and present proposals to appropriate authorities on national issues which have health implications; (2) Provide for health programs, services, facilities and other requirements as may be needed, subject to availability of funds and administrative rules and regulations; (3) Coordinate or collaborate with, and assist local communities, agencies and interested groups including international organizations in activities related to health; (4) Administer all laws, rules and regulations in the field of health, including quarantine laws and food and drug safety laws; (5) Collect, analyze and disseminate statistical and other relevant information on the country's health situation, and require the reporting of such information from appropriate sources; (6) Propagate health information and educate the population on important health, medical and environmental matters which have health implications; (7) Undertake health and medical research and conduct training in support of its priorities, programs and activities;

(8) Regulate the operation of and issue licenses and permits to government and private hospitals, clinics and dispensaries, laboratories, blood banks, drugstores and such other establishments which by the nature of their functions are required to be regulated by the Department; (9) (10) Issue orders and regulations concerning the implementation of established health policies; and Perform such other functions as may be provided by law.

Section 4. Organizational Structure. - The Department shall consist of the Department Proper, National Health Facilities, Regional Offices, Provincial Health Offices, District Health Offices and Local Health Agencies. CHAPTER 3 DEPARTMENT SERVICES Section 14. Office for Hospital and Facilities Services. - The Office for Hospital and Facilities Services, headed by an Undersecretary who shall be supported by an Assistant Secretary, shall include four (4) staff services involved in policy formulation, standards development, program monitoring and provision of specialized assistance in the operations of hospitals and the management of facilities, which are as follows: (1) Hospital Operations and Management Service which shall formulate and implement plans, programs, policies, standards and techniques related to management improvement and quality control of hospital operations; provide consultative, training and advisory services to field offices in relation to the supervision and management of hospital components; and conduct studies and research related to hospital operations and management; (2) Radiation Health Service which shall formulate and implement plans, policies, programs, standards and techniques to ensure radiation health safety; provide consultative, monitoring, training and advisory services to private and government facilities with radiation-emitting apparatus; and conduct studies and research related to radiation health;

P a g e | 167 (3) Hospital Maintenance Service which shall formulate and implement plans, programs, policies, standards and techniques related to assuring the proper maintenance of Department equipment; provide consultative, training and advisory services to implementing agencies in relation to preservation, repair and maintenance of medical and nonmedical equipment of the Department; and conduct studies and research related to equipment and facility maintenance; (4) Health Infrastructure Service which shall formulate and implement plans, policies, programs, standards and techniques related to development and preservation of health infrastructure; provide consultative, training and advisory services to implementing agencies in relation to infrastructure projects to assure economical and efficient implementation; and conduct studies and research related to infrastructure development and utilization. Section 15. Office for Standards and Regulations. - The Office for Standards and Regulations, headed by an Undersecretary and supported by an Assistant Secretary, shall include three (3) bureaus and one (1) national office that shall be responsible for the formulation of regulatory policies and standards over the various areas of concern in the health sector, whose implementation shall be the general responsibility of the Department's regional field offices. The same bureaus shall also be responsible for those areas of activity covered by regulatory policy to provide the Secretary with current information on the status of these regulated areas of activity and to provide the Secretary with a basis for preliminary evaluation of the efficiency of the Department's field offices in performing their regulatory functions. The same bureaus shall conduct studies and research pertinent to their areas of responsibility . In certain instances the bureaus may also perform consultative, training and advisory services to the practitioners and institutions in the area of regulated activity. The same bureaus and national office are the following: (1) Bureau of Research and Laboratories which shall develop and formulate plans, standards and policies for the establishment and accreditation and licensing of laboratories; blood banks and entities handling biological products, provide consultative, training and advisory services to public and private laboratories; and conduct studies and research related to laboratory procedures and operations; (2) Bureau of Food and Drugs which shall act as the policy formulation and sector monitoring arm of the Secretary on matters pertaining to foods, drugs, traditional medicines, cosmetics and household products containing hazardous substances, and the formulation of rules, regulations and standards in accordance with Republic Act 3720 (1963), as amended by Executive Order No. 175, s. 1987, and other pertinent laws for their proper enforcement; prescribe general standards and guidelines with respect to the veracity of nutritional and medicinal claims in the advertisement of food, drugs and cosmetics in the various media, to monitor such advertisements; advise the Department's field offices to call upon any erring manufacturer, distributor, or advertiser to desist from such inaccurate or misleading nutritional or medicinal claims in their advertising; should such manufacturer, distributor, or advertiser refuse or fail to obey the desistance order issued by the Bureau, he shall be subject to the applicable penalties as may be prescribed by law and regulations; the Bureau shall provide consultative, training and advisory services to all agencies and organizations involved in food and drug manufacturing and distribution with respect to assuring safety and efficacy of food and drugs; conduct studies and research related to food and drug safety; maintain a corps of specially trained food and drugs inspectors for assignment to the various field offices of the Department; while these inspectors shall be under the technical supervision and guidance of the Bureau, they shall be under the administrative supervision of the head of the field office to which they shall be assigned, the latter being responsible for regulatory program implementation within the geographic area of his jurisdiction; (3) Bureau of Licensing and Regulation which shall formulate policies and establish the standards for the licensing and regulation of hospitals, clinics and other health facilities; establish standards that shall be the basis of inspections and licensure procedures of the Department's field offices; and provide consultative, training and advisory services to field offices on the conduct of licensing and regulatory functions over hospitals, clinics and other health facilities. (4) National Quarantine Office which shall formulate and implement quarantine laws and regulations and, through its field offices, exercise supervision over rat-proof zones in designated international ports and airports and over medical examination of aliens for immigration purposes.

REPUBLIC ACT NO. 9439

April 27, 2007

P a g e | 168 AN ACT PROHIBITING THE DETENTION OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS ON GROUNDS OF NONPAYMENT OF HOSPITAL BILLS OR MEDICAL EXPENSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. It shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to or who may have died, for reasons of nonpayment in part or in full of hospital bills or medical expenses. SEC. 2. Patients who have fully or partially recovered and who already wish to leave the hospital or medical clinic but are financially incapable to settle, in part or in full, their hospitalization expenses, including professional fees and medicines, shall be allowed to leave the hospital or medical clinic, with a right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation. The promissory note shall be secured by either a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation. In the case of a deceased patient, the corresponding death certificate and other documents required for interment and other purposes shall be released to any of his surviving relatives requesting for the same: Provided, however, That patients who stayed in private rooms shall not be covered by this Act. SEC. 3. Any officer or employee of the hospital or medical clinic responsible for releasing patients, who violates the provisions of this Act shall be punished by a fine of not less than Twenty thousand pesos (P20,000.00), but not more than Fifty thousand pesos (P50,000.00), or imprisonment of not less than one month, but not more than six months, or both such fine and imprisonment, at the discretion of the proper court. SEC. 4. The Department of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act. SEC. 5. If any provision of this Act is declared void and unconstitutional the remaining provisions hereof not affected thereby shall remain in full force and effect. SEC. 6. All laws, decrees, orders, rules and regulations or part thereof inconsistent with this Act are hereby repealed or amended accordingly. SEC. 7. This Act shall take effect fifteen (15) days after its publication in two national newspapers of general circulation. Approved: April 27, 2007 Republic Act No. 8344 August 25, 1997

AN ACT PENALIZING THE REFUSAL OF HOSPITALS AND MEDICAL CLINICS TO ADMINISTER APPROPRIATE INITIAL MEDICAL TREATMENT AND SUPPORT IN EMERGENCY OR SERIOUS CASES, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 702, OTHERWISE KNOWN AS "AN ACT PROHIBITING THE DEMAND OF DEPOSITS OR ADVANCE PAYMENTS FOR THE CONFINEMENT OR TREATMENT OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS IN CERTAIN CASES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Section 1 of Batas Pambansa Bilang 702 is hereby amended to read as follows: "SECTION 1. In emergency or serious cases, it shall be unlawful for any proprietor, president, director, manager or any other officer, and/or medical practitioner or employee of a hospital or medical clinic to request, solicit, demand or accept any deposit or any other form of advance payment as a prerequisite for confinement or medical treatment of a patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good

P a g e | 169 practice of medicine to prevent death or permanent disability: Provided, That by reason of inadequacy of the medical capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a facility where the appropriate care can be given, after the patient or his next of kin consents to said transfer and after the receiving hospital or medical clinic agrees to the transfer: Provided, however, That when the patient is unconscious, incapable of giving consent and/or unaccompanied, the physician can transfer the patient even without his consent: Provided, further, That such transfer shall be done only after necessary emergency treatment and support have been administered to stabilize the patient and after it has been established that such transfer entails less risks than the patient's continued confinement: Provided, furthermore, That no hospital or clinic, after being informed of the medical indications for such transfer, shall refuse to receive the patient nor demand from the patient or his next of kin any deposit or advance payment: Provided, finally, That strict compliance with the foregoing procedure on transfer shall not be construed as a refusal made punishable by this Act." Section 2. Section 2 of Batas Pambansa Bilang 702 is hereby deleted and in place thereof, new sections 2, 3 and 4 are added, to read as follows: "SEC. 2. For purposes of this Act, the following definitions shall govern: "(a) 'Emergency' - a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient. "(b) 'Serious case' - refers to a condition of a patient characterized by gravity or danger wherein based on the objective findings of a prudent medical officer on duty for the day when left unattended to, may cause loss of life or cause permanent disability to the patient. "(c) 'Confinement' - a state of being admitted in a hospital or medical clinic for medical observation, diagnosis, testing, and treatment consistent with the capability and available facilities of the hospital or clinic. "(d) 'Hospital' - a facility devoted primarily to the diagnosis, treatment and care of individuals suffering from illness, disease, injury or deformity, or in need of obstetrical or other medical and nursing care. It shall also be construed as any institution, building or place where there are facilities and personnel for the continued and prolonged care of patients. "(e) 'Emergency treatment and support' - any medical or surgical measure within the capability of the hospital or medical clinic that is administered by qualified health care professionals to prevent the death or permanent disability of a patient. "(f) 'Medical clinic' - a place in which patients can avail of medical consultation or treatment on an outpatient basis.

"(g) 'Permanent disability' - a condition of physical disability as defined under Article 192-C and Article 193-B and C of Presidential Decree No 442; as amended, otherwise known as the Labor Code of the Philippines. "(h) 'Stabilize' - the provision of necessary care until such time that the patient may be discharged or transferred to another hospital or clinic with a reasonable probability that no physical deterioration would result from or occur during such discharge or transfer. "SEC. 3. After the hospital or medical clinic mentioned above shall have administered medical treatment and support, it may cause the transfer of the patient to an appropriate hospital consistent with the needs of the patient, preferably to a government hospital, specially in the case of poor or indigent patients. "SEC. 4. Any official, medical practitioner or employee of the hospital or medical clinic who violates the provisions of this Act shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months and one (1) day but not more than two (2) years and four (4) months, or a fine of not less than Twenty thousand pesos (P20,000.00), but not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court: Provided, however, That if such violation was committed pursuant to an established policy of the hospital or clinic or upon instruction of its management, the director or officer of such hospital or clinic responsible for the formulation and implementation of such policy shall, upon conviction by final judgment, suffer imprisonment of four (4) to six (6) years, or a fine of not less than One hundred thousand pesos (P100,000.00), but not more than Five hundred thousand pesos (P500,000.00) or both, at the discretion of the court."

P a g e | 170 Section 3. Section 3 of Batas Pambansa Bilang 702 is hereby repealed. Section 4. Section 4 of Batas Pambansa Bilang 702 shall become Section 5 thereof and shall be amended to read as follows: "SEC. 5. The Department of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act." Section 5. This Act shall take effect fifteen (15) days after its publication in two (2) national newspapers of general circulation. Approved: August 25, 1997
BATAS PAMBANSA Blg. 702 AN ACT PROHIBITING THE DEMAND OF DEPOSITS OR ADVANCE PAYMENTS FOR THE CONFINEMENT OR TREATMENT OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS IN CERTAIN CASES Section 1. It shall be unlawful for any director, manager or any other officer of a hospital or medical clinic to demand any deposit or any other form of advance payment for confinement or treatment in such hospital or medical clinic in emergency or serious cases. Section 2. Any director, manager or any other officer of a hospital or medical clinic who violates Section 1 of this Act shall be punished by a fine of not less than one thousand pesos but not more than two thousand pesos or imprisonment for not less than fifteen days but not more than thirty days, or both such fine and imprisonment. Section 3. Any person convicted under this Act shall not be entitled to probation under the provisions of Presidential Decree No. 968, as amended, otherwise known as the Probation Law of 1976. Section 4. The Ministry of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act. Section 5. This Act shall take effect upon its approval. Enacted without executive approval, April 5, 1984.

IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 8344, OTHERWISE KNOWN AS "AN ACT PENALIZING THE REFUSAL OF HOSPITALS AND MEDICAL CLINICS TO ADMINISTER APPROPRIATE INITIAL MEDICAL TREATMENT AND SUPPORT IN EMERGENCY OR SERIOUS CASES, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 702, OTHERWISE KNOWN AS AN ACT PROHIBITING THE DEMAND OF DEPOSITS OR ADVANCE PAYMENTS FOR THE CONFINEMENT OR TREATMENT OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS IN CERTAIN CASES" WHEREAS, the Tenth Congress of the Republic of the Philippines enacted Republic Act No. 8344 on June 05, 1997; WHEREAS, the President of the Republic of the Philippines signed into law R.A. 8344 on August 25, 1997; WHEREAS, under Section 5 of R.A. 8344, the Department of Health (DOH) is mandated to promulgate the necessary rules and regulations to carry out the provisions of the aforementioned law. NOW THEREFORE, pursuant to the provisions of R.A. 8344 authorizing the Department of Health to promulgate the necessary rules and regulations, the following are hereby issued: 1. Section 1 of said Act provides: "In emergency or serious cases, it shall be unlawful for any proprietor, president, director, manager or any other officer, and/or medical practitioner or employee of a hospital or medical clinic to request, solicit, demand or accept any deposit or any other form of advance payment as a prerequisite for confinement or medical treatment of a patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good practice of medicine to prevent death or permanent disability: Provided, That by reason of inadequacy of the medical capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a facility where appropriate care can be given, after the patient or his next of kin consents to said transfer: Provided, however, That when the patient is unconscious, incapable of giving consent and/or unaccompanied, the physician can transfer the patient even without his consent, Provided, further, That such transfer shall be done only after the necessary emergency treatment and support have been administered to stabilize the patient and after it has been established that

P a g e | 171 such transfer entails less risks than the patient's continued confinement: Provided, finally, That strict compliance with the foregoing procedure on transfer shall not be construed as a refusal made punishable by this Act." 2. For the purpose of implementing the above, the following definitions are provided: 2.1 Emergency - A condition or state of patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient. 2.2 Serious Case - refers to a condition of a patient characterized by gravity or danger wherein based on the objective findings of a prudent medical officer on duty for the day when left unattended to, may cause loss of life or cause permanent disability to the patient. 2.3 Confinement - a state of being admitted in a hospital or medical clinic for medical observation, diagnosis, testing, and treatment consistent with the capability and available facilities of the hospital or clinic. 2.4 Hospital - a facility devoted primarily to the diagnosis, treatment and care of individuals or other medical and nursing care. It shall also be construed as any institution, building or place where there are facilities and personnel for the continued and prolonged care of patients. The hospital shall be duly licensed by the Bureau of Licensing and Regulation of the DOH. 2.5 Emergency Treatment and Support - any medical or surgical measure within the capability of a hospital or medical clinic that is administer by qualified health care professionals to prevent the death or permanent disability of a patient. (In determining the capability of a hospital or clinic, the standards and the classification of these facilities set by the DOH Bureau of Licensing and Regulation shall be used). 2.6 Medical Clinic - a place in which patients can avail of medical consultation or treatment on an outpatient basis. 2.7 Permanent Disability - a condition of physical disability as defined under Article 192-C and Article 193-B and C of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines. 2.8 Stabilize - the provision of necessary care until such time that the patient may be discharged or transferred to another hospital or clinic with a reasonable probability that no physical deterioration would result from or occur during such discharge or transfer. 3. Transfer of Patients - Section 3 of R.A. 8344 provides: "After the hospital or medical clinic mentioned above shall have administered medical treatment and consistent with the needs of the patients preferably to a government hospital, specially in the case of poor or indigent patients." 3.1 The transferring and receiving hospital, shall be as much as practicable, be within ten (10) kilometer radius of each other. 3.2 The transfer of patients contemplated under this Act shall at all times be properly documented. 3.3 Hospitals may require a deposit or advance payment when the patient is no longer under the state of emergency and he/she refuses to be transferred. 4. All hospitals shall use a Uniform Discharge/Transfer Slip for cases covered by RA 8344 which shall include the following information: 4.1 Admission Form of transferring hospital. 4.2 Transfer Form of Transferring Hospital, to include but not necessarily limited to the following information: 4.2.1 Vital signs 4.2.2 Name of Attending Physician

P a g e | 172 4.2.3 Treatment given to patient 4.2.4 Name of receiving hospital 4.2.5 Name of contact person and approving official at receiving hospital 4.2.6 Consent of the patient or companion. In case of an unaccompanied minor or patient, they may be transferred without consent provided that the provisions of Section 1 of RA 8344 is strictly observed. The hospital shall endeavor to use all forms of media to contact the next of kin of the unaccompanied minor or patient. 4.2.7 In case of refusal of transfer, the name of the hospital, the name(s) of persons who refused and the reason(s) for the refusal. A copy of the Uniform Discharge/Transfer Slip is hereto attached as Annex A*. 5. Penal Provisions - any official, medical practitioner or employee of the hospital or medical clinic who violates the provisions of RA 8344 shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months and one (1) day but not more than two (2) years and four months, or a fine of not less than Twenty Thousand Pesos (P20,000.00) but not more than One Hundred Thousand Pesos (P100,000.00) or both at the discretion of the court: Provided, however, That if such violation was committed pursuant to an established policy of the hospital or clinic or upon instruction of its management, the director or officer of such hospital or clinic responsible for the formulation and imprisonment of four (4) to six (6) years, or a fine of not less than One Hundred Thousand Pesos (P100,000.00), but not more than Five Hundred Thousand Pesos (P500,000.00) or both, at the discretion of the court. 6. In order to demonstrate compliance with the Act's provisions, all hospitals and medical clinics are instructed to institute the following measures: 6.1 A copy of the law and this implementing rules and regulations should be displayed prominently at hospital emergency rooms, hospital admission, counters and medical clinic premises. 6.2 Hospital and clinic managers shall establish billing and collection procedure for treatment or confinement of emergency and serious cases which shall not commence until the essential appropriate treatment of such cases has been completed. 6.3 Hospital and clinic managers shall instruct their personnel to provide prompt and immediate medical attention to emergency and serious cases without any prior requirements for payment or deposit. 6.4 It is clarified that the law and this administrative order covers only the provision of medical and surgical goods and services, and do not cover the provision of non-medical amenities which have nothing to do with the treatment of the emergency or serious case. The provisions of and payment for these non-medical amenities shall be subject to appropriate institutional business practice. 6.5 Alleged violations of the Act and this Order may be reported to the Bureau of Licensing and Regulations, Office for Standards and Regulations, Department of Health, Sta. Cruz, Manila, or to the nearest Regional Health Office which shall immediately conduct a fact-finding investigation. The findings shall be referred to the appropriate fiscal for criminal prosecution. Persons convicted of violation shall be punished in accordance with the Act. 6.6 At the instance of the Bureau of Licensing and Regulation, Administrative proceedings may also be pursued against erring clinics or hospitals that could lead to either suspension or revocation of appropriate licenses. These Rules and Regulations shall take effect fifteen (15) days after publication in the Official Gazette or in a newspaper of general circulation. Adopted: February 18, 1998

P a g e | 173 (SGD.) CARMENCITA NORIEGA-REODICA, MD Secretary of Health * Text Available at Office of the National Administrative Register, U.P. Law Complex, Diliman, Q.C.

REPUBLIC ACT NO. 6615 - AN ACT REQUIRING GOVERNMENT AND PRIVATE HOSPITALS AND CLINICS TO EXTEND MEDICAL ASSISTANCE IN EMERGENCY CASES

SECTION 1. All government and private hospitals or clinic duly licensed to operate as such are hereby required to render immediate emergency medical assistance and to provide facilities and medicine within its capabilities to patients in emergency cases who are in danger of dying and/or who may have suffered serious physical injuries. SECTION 2. The expenses and losses of earnings incurred by a private hospital of clinic for medicines, facilities and services beyond first aid extended to emergency cases as required herein, and not to exceed fifty thousand pesos per year, shall be deductible expenses and losses for income tax purposes which may be carried over for a period of five years, any provision of law or regulation to the contrary notwithstanding. SECTION 3. Any hospital director, administrator, officer-in-charge or physician in the hospital, medical center or clinic, who shall refuse or fail without good cause to render the appropriate assistance pursuant to the requirements of section one after said case had been brought to his attention, or any nurse, midwife or medical attendant who shall refuse to extend the appropriate assistance, subject to existing rules, or neglect to notify or call a physician shall be punished by imprisonment of one month and one day to one year and one day, and a fine of three hundred pesos to one thousand pesos, without prejudice to the provisions of Republic Act Numbered Twenty-three hundred eighty-two in the case of physicians. In the case of Government hospitals, the imposition of the penalty upon the person or persons guilty of the violations shall be without prejudice to the administrative action that might be proper. In the case of private hospitals, aside from the imposition of penalty upon the person or persons guilty of the violations, the license of the hospital to operate shall, whenever justified, be suspended or revoked. SECTION 4. Subject to the approval of the Secretary of Health, the Bureau of Medical Services shall promulgate the necessary rules and regulations to carry out the provisions of this Act. SECTION 5. Any law or laws or parts thereof inconsistent with the provisions of this Act is hereby repealed. SECTION 6. This Act shall take effect upon its approval. Approved: October 23, 1972

Case: G.R. No. 150355 July 31, 2006

MANILA DOCTORS HOSPITAL, petitioner, vs. SO UN CHUA and VICKY TY, respondents.
DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 questioning the Decision dated October 2, 2001 promulgated by the Court of Appeals (CA) in CA-G.R. CV No. 61581, which affirmed the Decision dated September 30, 1997 of the Regional Trial Court (RTC), Branch 159, Pasig City, but which reduced the award of damages.
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This case originated from an action for damages filed with the RTC by respondents So Un Chua and Vicky Ty against petitioner 2 Manila Doctors Hospital. The complaint is premised on the alleged unwarranted actuations of the petitioner towards its patient, respondent So Un Chua (Chua), who was confined for hypertension, diabetes, and related illnesses. The antecedents of the case follow: On December 13, 1993, respondents filed a Complaint averring that on October 30, 1990, respondent Chua, the mother of respondent Vicky Ty, was admitted in petitioner's hospital for hypertension and diabetes; that while respondent Chua was confined, Judith Chua, the sister of respondent Ty, had been likewise confined for injuries suffered in a vehicular accident; that partial payments of the hospital bills were made, totaling P435,800.00; that after the discharge of Judith Chua, respondent Chua remained in confinement and the hospital bills for both patients accumulated; that respondent Chua was pressured by the petitioner, through its Credit and Collection Department, to settle the unpaid bills; that respondent Ty represented that she will settle the bills as soon as the funds become available; that respondent Ty pleaded to the management that in view of the physical condition of her mother, respondent Chua, the correspondences relating to the settlement of the unpaid hospital bills should be relayed to the former; that these pleas were unheeded by the petitioner; that petitioner threatened to implement unpleasant measures unless respondent Ty undertakes her mother's obligation as well as the obligation of her sister, Judith Chua, to pay the hospitalization expenses; that petitioner made good its threat and employed unethical, unpleasant and unlawful methods which allegedly worsened the condition of respondent Chua, particularly, by (i) cutting off the telephone line in her room and removing the air-conditioning unit, television set, and refrigerator, (ii) refusing to render medical attendance and to change the hospital gown and bed sheets, and (iii) barring the private nurses or midwives from assisting the patient. Respondents thus prayed for the award of moral damages, exemplary damages, and attorney's fees. In its Answer, Amended Answer, and Rejoinder, petitioner specifically denied the material averments of the Complaint and Reply, and interposed its counterclaims arguing that as early as one week after respondent Chua had been admitted to its hospital, Dr. Rody Sy, her attending physician, had already given instructions for her to be discharged, but respondents insisted that Chua remain in confinement; that, through its staff, petitioner accordingly administered medical examinations, all of which yielded negative results; that respondent Ty voluntarily undertook, jointly and severally, to pay the hospital bills for both patients; that although respondent Ty paid up to P435,000.00, more or less, she reneged on her commitment to pay the balance in violation of the Contract for Admission and Acknowledgment of Responsibility for Payment dated October 30, 1990 which she voluntarily executed; that she signed a Promissory Note on June 5, 1992 for the unpaid balance of P1,075,592.95 and issued postdated checks to cover the same; that no such undue pressure had been imposed upon respondent Chua to settle the bills, the truth being that, as a matter of standard procedure, the reminders to settle the bills were transmitted not to the patients but to their relatives who usually undertook to pay the same; that respondent Ty deliberately evaded the staff of the Credit and Collection Department; that the cutting-off of the telephone line and removal of the air-conditioning unit, television set, and refrigerator cannot constitute unwarranted actuations, for the same were resorted to as cost-cutting measures and to minimize respondents' charges that were already piling up, especially after respondent Ty refused to settle the balance notwithstanding frequent demands; that respondent Ty evaded the staff when the latter attempted to inform her that the room facilities will be cut off to minimize the rising charges; and that respondents instituted the present civil case purposely as leverage against the petitioner after the latter had filed criminal charges for violation of Batas Pambansa (B.P.) Blg. 22 against respondent Ty for issuing checks, later dishonored, totaling P1,075,592.95, the amount referring to the unpaid hospital bills. In its compulsory counterclaim, petitioner prayed, among other items, for the award of no less than P1,000,000.00 as compensatory damages due to the filing of a malicious and unfounded suit, and, in its permissive counterclaim, petitioner prayed for respondents to pay P1,075,592.95, the amount representing the due and demandable obligation under the Promissory Note dated June 5, 1992, including the stipulated interest therein and the 25 percent of the total amount due as attorney's fees. During pre-trial, the parties stipulated on the following issues: First, whether the respondents are liable to the petitioner to pay the hospital bills arising from the hospitalization of respondent Chua and Judith Chua; and second, whether the parties are entitled to 3 their respective claims for damages. Furthermore, the parties stipulated on the following facts: a) Judith Chua was confined from June 14, 1991 to May 2, 1992; b) respondents failed to pay the balance despite repeated reminders; c) the said reminders referred to the hospital bills of respondent Chua and Judith Chua; d) one of the attending physicians of respondent Chua was Dr. Rody Sy; and e) the petitioner ordered the removal of the facilities in question from the room of its patient, respondent Chua, with the qualification that they were constrained to discontinue the same after the representative of respondent Chua refused to update the 4 hospital bills or refused to transfer her to semi-deluxe room or ward to lessen costs. On September 30, 1997, the RTC rendered its Decision in favor of the respondents, the dispositive portion of which states: WHEREFORE, premises considered, judgment on the complaint is hereby rendered in favor of the [respondents] as against the [petitioner] as follows: [O]rdering the [petitioner] to pay the [respondents] the following, to wit: a) P200,000.00 as moral damages; b) P100,000.00 as exemplary damages; and c) P50,000.00 as attorney's fees and the amount of P50,000.00 as litigation costs.

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SO ORDERED.
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In brief, the RTC held that the removal of the facilities of the room triggered the hypertension of respondent Chua; that the petitioner acted in bad faith in removing the facilities without prior notice; that her condition was aggravated by the pressure employed by the administration upon her to pay the hospital bills; that the food always came late as compared to the other patients; that the beddings and clothes of respondent Chua were no longer changed and, as a result, bed sores emerged on her body; that there was an utter lack of medical attendance; that, because of these, respondent Chua suffered from self-pity and depression; that petitioner clearly discriminated against the respondents; that respondent Ty had no choice but to sign the promissory notes in order to secure the release of her mother, respondent Chua; that the foregoing actuations constitute an abuse of rights; that petitioner failed to establish the pecuniary loss it suffered and, hence, it is not entitled to compensatory damages; and that, since the promissory note is a contract of adhesion, the petitioner is not entitled to the award of attorney's fees as stipulated thereon. On appeal to the CA, the petitioner assigned the following errors: A. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING THE ACTUATIONS OF THE ADMINISTRATION OF DEFENDANT-APPELLANT TO BE IN BAD FAITH, OPPRESSIVE AND UNNECESSARY AS TO MAKE IT LIABLE TO PLAINTIFFSAPPELLEES FOR DAMAGES AND ATTORNEY'S FEES. B. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT RULING UPON THE PERMISSIVE COUNTERCLAIM OF DEFENDANT-APPELLANT WITH RESPECT TO THE P1,075,592.95 REPRESENTING THE HOSPITAL BILL OF PLAINTIFFSAPPELLEES, WHICH OBLIGATION IS NOT DISPUTED AND WHICH AMOUNT WAS NEVER CONTROVERTED BY PLAINTIFFS6 APPELLEES. On October 2, 2001, the CA promulgated its Decision the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, the appealed Decision is hereby AFFIRMED with the modification that the award of moral damages, exemplary damages as well as attorney's fees is reduced to Seventy Five Thousand Pesos (P75,000.00), Thirty Thousand Pesos (P30,000.00) and Twenty Thousand Pesos (P20,000.00), respectively. Litigation costs are hereby deleted. Costs against appellant. SO ORDERED.
7

Apart from the reduction in the award of damages, the CA affirmed all salient portions of the RTC Decision and declined to disturb the findings of fact. Petitioner is now before this Court raising essentially the same grounds heard by the CA. Incidentally, with respect to the related criminal case against respondent Ty, this Court, on September 27, 2004, promulgated its 8 Decision entitled Ty v. People of the Philippines, which affirmed the decisions of the lower courts finding respondent Ty guilty of violating B.P. Blg. 22 and ordering her to pay the private complainant, herein petitioner, the total amount of the dishonored checks. The petition is impressed with merit. While, as a rule, only questions of law may be raised in a petition for review on certiorari under Rule 45, under certain exceptions, the Court may re-examine the evidence presented by the parties during the trial. At least four exceptions exist in this case, namely: (a) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; (b) when the judgment is based on a misapprehension of facts; (c) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (d) when the courts a quo manifestly overlooked certain relevant facts not disputed by the parties and 9 which, if properly considered, would justify a different conclusion. The principal questions are, first, whether the actuations of the petitioner amount to actionable wrongs, and second, whether the counterclaims of the petitioner can be backed up by the measure of preponderant evidence. In brief, the courts a quo concurred in the holding that the petitioner and its staff failed to take into consideration the physical 10 condition of its patient, respondent Chua, when it removed the facilities provided in her room; that the removal of these facilities, namely, the air-conditioner, telephone lines, television, and refrigerator, aggravated the condition of the patient, triggered her 11 12 hypertension, and caused her blood pressure to fluctuate, considering that there was no proper ventilation in the room. In view 13 of the foregoing, the courts a quo concluded that the actuations of the petitioner were oppressive, unnecessary, and anti14 15 16 social, done in bad faith without proper notice, with no intention other than to harass or irritate the respondents, all of which 17 constitute an abuse of rights.

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We do not agree. The conclusions of the courts a quo are either haphazard conjectures, or founded on a misapprehension of facts. The record is replete with evidence that justifies a different conclusion. Indeed the operation of private pay hospitals and medical clinics is impressed with public interest and imbued with a heavy social responsibility. But the hospital is also a business, and, as a business, it has a right to institute all measures of efficiency commensurate to the ends for which it is designed, especially to ensure its economic viability and survival. And in the legitimate pursuit of economic considerations, the extent to which the public may be served and cured is expanded, the pulse and life of the medical sector quickens, and the regeneration of the people as a whole becomes more visibly attainable. In the institution of costcutting measures, the hospital has a right to reduce the facilities and services that are deemed to be non-essential, such that their 18 reduction or removal would not be detrimental to the medical condition of the patient. For the moment, the question to be considered is whether the subject facilities are indeed non-essential the air-conditioner, telephone, television, and refrigerator the removal of which would cause the adverse health effects and emotional trauma the respondents so claimed. Corollary to this 19 question is whether the petitioner observed the diligence of a good father of the family in the course of ascertaining the possible repercussions of the removal of the facilities prior to the removal itself and for a reasonable time thereafter, with a view to prevent 20 damage. After an extensive analysis of the record, it becomes rather worrisome to this Court that the courts a quounreservedly drew their conclusions from the self-serving and uncorroborated testimonies of the respondents the probative value of which is highly 21 questionable. We hold that the respondents failed to prove the damages so claimed. The evidence in the record firmly establishes that the staff of the petitioner took proactive steps to inform the relatives of respondent Chua of the removal of facilities prior thereto, and to carry out the necessary precautionary measures to ensure that her health and well-being would not be adversely affected: as early as around two weeks after her admission on October 30, 1990, to 22 the time when the facilities had been removed sometime in the middle of May 1992, and even up to the point when she actually 23 left the premises of the hospital three weeks later, or during the first week of June 1992, the medical condition of respondent Chua, as consistently and indisputably confirmed by her attending physician, Dr. Rody Sy, a cardiologist, who was called as witness 24 25 for both parties, whom even respondent Chua repeatedly praised to be "my doctor" and "a very good doctor" at that, and whose statements at times had been corroborated as well by Sister Mary Philip Galeno, SPC, the Administrator of the hospital and who also 26 27 28 happens to be a registered nurse, had been "relatively well," "ambulatory," "walking around in the room," and that she was 29 "able to leave the hospital on her own without any assistance;" that although she complained of symptoms such as dizziness, 30 31 weakness, and abdominal discomfort, Dr. Sy requested several medical examinations, such as the laboratory tests, renal tests, 32 33 MRI, ultrasound, and CT scan, all of which were administered after procuring the consent of respondent Chua's family as 34 admitted by respondent Ty herself, and even called on other specialists, such as a neurologist, endocrinologist, and 35 36 gastroenterologist, to look into her condition and conduct other tests as well according to their fields of specialty, all of which 37 38 yielded no serious finding; that her illnesses were "lifelong illnesses" at a stage where they cannot be totally removed or 39 abolished, making it clear to her family that "one hundred percent recovery is not possible" despite being given daily medication in 40 41 the hospital; but that her condition, nonetheless, is not serious, as the blood pressure is more or less controlled and within 42 43 44 acceptable limits, "not that critical to precipitate any acute attack," nor likely to fall into any emergency, nor yet does she 45 require continuous or prolonged hospitalization since she was stable enough to be treated at home and on an "out-patient" basis, so much so that Dr. Sy encouraged her to exercise and avoid resting all the time, and recommended that "anytime she may be discharged"
48 46 47

even in just "two weeks after confinement," the propriety of his order of discharge concurred upon by the other specialists as 49 50 well, had it not been for respondents' insistence to stay in the hospital in view of their hope for absolute recovery despite the 51 admission of respondent Chua herself that she cannot anymore be totally cured. It is also undisputed that the hospital administrator, Sister Galeno, prior to the removal of the facilities, consulted the attending 52 physician, Dr. Sy. To Sister Galeno, also a registered nurse, the matter of removal and its possible repercussions on the health of the patient, as a matter of hospital policy, is a critical and sensitive maneuver, and, hence, it is carried out only after discussing with 53 54 the doctors to evaluate all important factors. The fact of prior consultation as well as the medical determination to the effect that 55 it was safe to remove the facilities and would cause no harmful effect had been amply corroborated by respondent Chua's own 56 doctor himself. When Dr. Sy testified as rebuttal witness for the respondents themselves and whose credibility respondents failed to impeach, he categorically stated that he consented to the removal since the removal of the said facilities would not by itself be 57 detrimental to the health of his patient, respondent Chua. And in this respect, he had been advising respondent Ty, the daughter of the patient, that the facilities, such as the air-conditioner, television, refrigerator, and telephone, are not absolutely necessary, and, that although they may add to the comfort of the patient, if absent, they will not cause any significant deterioration of her 58 condition, given that, in his experience as a cardiologist, and after personally attending respondent Chua on a daily basis before, 59 during, and after the removal and even up to the time of her actual discharge, he concluded that many hypertensive and diabetic 60 patients, as in her case, do not at all need in particular an air-conditioning unit, among the other facilities aforementioned. And, contrary to the findings of the courts a quo and the self-serving testimonies of respondents that the lack of ventilation, after the removal of the air-conditioner, triggered her hypertension, Dr. Sy categorically stated that during his daily rounds with the patient he was certain that, although admittedly the blood pressure in general would fluctuate daily, there had been no adverse effect on her, 61 and that her blood pressure were within acceptable limits, especially considering that he treated the patient on a daily basis up to 62 the point of actual discharge, and accordingly, as confirmed by the medical records, he made no change in the medications 63 thereafter. In support of Dr. Sy's findings, Sister Galeno, testified that she knew the condition of the ventilation of the patient's deluxe room, located at the fifth floor, even without the air-conditioning, notably in times of brownout, and that there had been enough ventilation since the grilled window of that room was large enough which, if opened, would permit sufficient

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ventilation. The Court finds that the premise of the RTC judgment refers merely to hypothetical statements which fail to establish any clear and direct link to the injury allegedly suffered by the patient: Q You found it safe to remove these facilities from the room of the patient suffering from diabetes and hypertension? A Yes, Sir. Many hypertensive, diabetic patients do not need air-conditioning, or T.V. or refrigerator. Q Do you agree with me that hypertension is triggered sometimes by excitement, anger or (sic) a person suffering from such illness? A Hypertension can be triggered by anything. Court: Q And even in other words the discomfort can also trigger? A Sometimes mental stress can trigger. xxxx Court: Q You mentioned earlier that this hypertension may be triggered mentally? A Yes, Your Honor. Court: Q Will the removal of these facilities not affect the patient including the relatives? A It may to a certain extent. And well, maybe the days after the removal would prove that fluctuation in blood pressure 65 are within acceptable limits. With respect to the findings of the courts a quo that bed sores appeared on the body of respondent Chua, that she suffered from depression after the disconnection of the said facilities, that her private midwives were barred, and that the delivery of food was delayed, this Court holds, as above, that these conclusions are bereft of sound evidentiary basis, self-serving and uncorroborated as they are. Again, Dr. Sy affirmed that during the daily rounds he would make on the patient, he did not detect any skin lesion or any 66 other abnormality up to the time she was actually discharged. Nor did he find any sign of depression, although, admittedly, he 67 observed that she had been "very angry" because of the removal of the facilities. All the while he did not receive any complaint 68 from respondent Chua indicating that she suffered from the foregoing infirmities, considering that it is the responsibility of the family of the patient to specifically inform the attending physician or the nurses during their rounds whatever they feel is important, 69 or if there were any new developments since the last visit. As corroborated by Sister Galeno, throughout respondent Chua's confinement, she never received any complaint from the latter or her relatives that she had not been attended to by the nursing 70 staff. Worth noting again is the fact that the nursing staff and the attending physicians, which included Dr. Sy, in accordance with hospital policy, would routinely make their rounds on a daily basis, or would visit the patient whenever they are called for any 71 problem, and, in the case of the specialists other than the attending physician, they would visit the patient about once a 72 week. The nurses, on the other hand, would make their rounds more frequently, that is, at least once per shift, or every eight 73 hours. Apart from the self-serving statements of respondents, which by now have become rather indicative of being mere afterthoughts, there is no clear showing from the record that the petitioner and its medical staff deviated from the foregoing policy and practice, nor had they been called upon to look into the alleged physical reactions or emotional trauma respondent Chua claims to have suffered during and after the removal of the facilities. It must be emphasized that, as stated above, respondent Chua herself 74 explicitly found Dr. Sy to be a "very good doctor" because he personally attended to her "almost every hour." And throughout her 75 confinement, Dr. Sy positively stated that her family employed a private midwife who attended to her all the time. The evidence in the record overwhelmingly demonstrates that respondent Chua had been adequately attended to, and this Court cannot understand why the courts a quo had declared that there was an "utter lack of medical attendance," or that her health suffered during the period after the removal of the facilities. The Court finds that the facilities in question are non-essential for the care of respondent Chua and, hence, they may be lessened or removed by the petitioner for the sake of economic necessity and survival. Though human experience would show that the deactivation of the air-conditioner may cause a temperature differential that may trigger some physical discomfort, or that the removal of entertainment facilities such as the television set, or the disconnection of communication devices such as the telephone, may cause some exasperation on the part of the one who benefits from these, nevertheless, all things considered, and given the degree of diligence the petitioner duly exerted, not every suppression of the things that one has grown accustomed to enjoy amounts to an actionable wrong, nor does every physical or emotional discomfort amount to the kind of anguish that warrants the award of moral damages under the general principles of tort. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be the breach of
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some duty and the imposition of liability for that breach before damages may be awarded; it is not sufficient to state that there 76 should be tort liability merely because the plaintiff suffered some pain and suffering. Moreover, this Court must reiterate the standard of tort to arrive at a proper award for damages premised on matters that suggest the application of medical knowledge, especially in the description of the causal link between external or environmental factors, on one hand, and their effect unto the physical or emotional health of the patient, on the other, expert opinion, as discussed in Cruz v. 77 Court of Appeals, is generally required: All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinions of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at 78 bench. With respect to the propriety of the notice of removal of facilities, the evidence shows that the hospital staff, accompanied by Sister 79 Gladys Lim, SPC, Finance Administrative Assistant of the hospital, through written and verbal notices as per hospital policy, forewarned the respondents, through respondent Ty and her sister, Judith Chua, of the impending removal of the facilities over a 80 81 week beforehand in view of their obstinate refusal to vacate and transfer to a lower rate room or to update the mounting 82 83 hospital bills which, by then, had swollen to approximately one million pesos. Respondent Ty refused to read many of the written notices sent by the Credit Department. After repeated attempts to contact respondent Ty and before the actual removal of the facilities, the staff of the 86 petitioner tried to personally serve the final notice dated April 23, 1992, signed by Sister Gladys Lim, addressed to respondent Ty, which adopted the tenor of the prior verbal warnings, and which expressly and sternly warned the respondents that the hospital shall be constrained to take legal action and that they shall be compelled to transfer the patient, respondent Chua, to a lower rate 87 room unless the balance could be satisfied. Respondent Ty, for no justifiable reason, and sticking to her inclination to avoid the 88 staff, refused to receive or acknowledge this letter as well. Worth noting is that Sister Galeno, testified that, as a matter of hospital 89 policy the tenor of which respondents, by virtue of the Contract for Admission dated October 30, 1990, agreed to comply with, the 90 hospital can only cut off the non-essential facilities and only in extreme cases if the patient occupies a private room all to herself; had the room been semi-private shared by other patients, or had it been the ward, the hospital cannot disconnect the facilities since this would unduly prejudice the other patients. But respondent Chua herself insisted on staying in a private room 91 despite her being fully aware of the ballooning charges, and even if she could have freely gone home anytime to her condominium 92 unit which, as admitted, was equipped with an air-conditioner. With respect to the "pressure" and "harassment" respondents allegedly suffered daily whenever the hospital staff would follow up the billing during odd hours, or at 10pm, 11pm, 12 midnight, 93 1am, or 2am, this averment had been convincingly refuted by the witnesses for the petitioner, namely, Editha L. Vecino, the Head of Credit and Collection, and Sister Galeno, in that the Credit and Collection Department would only hold office hours from 8am to 94 5pm and, hence, it is impossible to "harass" the respondents during the times they so claimed. The courts a quo found that respondent Ty had "no choice but to sign the promissory note in order for her mother to be released 95 from the hospital," thus suggesting that the hospital refused to actually discharge or bodily release its patient, respondent Chua, until arrangements had been made to settle the charges. While there are portions of the testimonies of the witnesses for the petitioner which state that although, as per standard procedure, 96 97 the patient "cannot leave" the hospital without the "discharge," "clearance" or "gate pass" issued only after arrangements on the settlement of bills had been made, still, it must be understood that these are only demonstrative of the precondition that a patient cannot step out of the premises "without the consent" of the hospital, or, in other words, that the 99 "clearance" merely indicates that the hospital expressly consented to the actual release of the patient, but, even without its consent, the patient is still free to leave "anytime" as a matter of policy, in spite of the refusal to issue a "clearance" or "gate 100 101 pass," or even in cases where the accounts have not yet been liquidated or settled, or yet even if no promissory note or post102 dated check were executed in favor of the petitioner, as testified by no less than Sister Galeno, and corroborated by Editha 103 104 Vecino; and that, petitioner, a private hospital established for profit, being also a business, by warning respondents that it shall withhold clearance, is simply exercising its right to protest against an absconding patient as a precursor to avail of other appropriate legal remedies; that, on the contrary, the respondents opted not to leave because of their own promise not to leave unless the 105 hospital bills were fully settled; that the accusations found in the Demand Letter dated May 19, 1992, and signed by the counsel 106 for the respondents, particularly, that the petitioner "refused to discharge the patient, [respondent Chua,] despite orders from the attending physician, Dr. Rody Sy," had all been refuted by Sister Galeno when she read its contents in front of the counsel for
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respondents, emphatically telling him that "we are not detaining his clients;" that "[respondent Ty] was the one who told us that 107 they are not going to leave the hospital unless they have fully paid the hospital;" and that, most importantly, no physical restraint upon the person of respondent Chua or upon the person of her relatives had been imposed by the staff. Authorities, including those of common law origin, explicitly declare that a patient cannot be detained in a hospital for non-payment of the hospital bill. If the patient cannot pay the hospital or physician's bill, the law provides a remedy for them to pursue, that is, by 108 filing the necessary suit in court for the recovery of such fee or bill. If the patient is prevented from leaving the hospital for his 109 inability to pay the bill, any person who can act on his behalf can apply in court for the issuance of the writ of habeas corpus. The form of restraint must be total; movement must be restrained in all directions. If restraint is partial, e.g., in a particular direction 110 with freedom to proceed in another, the restraint on the person's liberty is not total. However, the hospital may legally detain a patient against his will when he is a detained or convicted prisoner, or when the patient is suffering from a very contagious disease where his release will be prejudicial to public health, or when the patient is mentally ill such that his release will endanger public 111 safety, or in other exigent cases as may be provided by law. Moreover, under the common law doctrines on tort, it does not constitute a trespass to the person to momentarily prevent him from leaving the premises or any part thereof because he refuses to comply with some reasonable condition subject to which he entered them. In all cases, the condition of this kind of restraint must be 112 reasonable in the light of the circumstances. At any rate, as stated above, the patient is free to leave the premises, even in the ostensible violation of these conditions, after being momentarily interrupted by the hospital staff for purposes of informing him of those reasonable conditions, such as the assessment of whether the patient is fit to leave, insane, or suffering from a contagious disease, etc., or simply for purposes of making a demand to settle the bill. If the patient chooses to abscond or leave without the consent of the hospital in violation of any of the conditions deemed to be reasonable under the circumstances, the hospital may nonetheless register its protest and may choose to pursue the legal remedies available under law, provided that the hospital may not physically detain the patient, unless the case falls under the exceptions abovestated. Authorities are of the view that, ordinarily, a hospital, especially if it is a private pay hospital, is entitled to be compensated for its services, by either an express or an implied contract, and if no express contract exists, there is generally an implied agreement that 114 the patient will pay the reasonable value of the services rendered; when a hospital treats a patient's injuries, it has an enforceable 115 claim for full payment for its services, regardless of the patient's financial status. At this juncture, it must be noted that there is testimony, though to a degree disputable, to the effect that the execution of the promissory note and the issuance of postdated 116 checks were conditions imposed not by the petitioner but voluntarily offered by the counsel for respondents. At any rate, however, this Court holds, in view of the foregoing authorities, that the requirement to have the relative of respondent Chua to execute a promissory note as part of the arrangement to settle the unpaid obligations is a formality that converts any implied contract into written form and, moreover, amounts to a reasonable condition, the non-fulfillment of which, in itself, however, as discussed, cannot allow the hospital to detain the patient. It must also be stressed, contrary to the findings of the courts a quo, that such an agreement embodied in a promissory note, as well as the Contract for Admission and Acknowledgment of Responsibility for Payment dated October 30, 1990, do not become contracts of adhesion simply because the person signing it was under stress that 117 was not the result of the actions of the hospital, especially taking into account that there is testimony to the effect that 118 respondent Ty signed the Promissory Note dated June 5, 1992 in the presence of counsel and acting under his advise. But as to the propriety of the circumstances surrounding the issuance of the postdated checks to cover the amount stated in the Promissory Note dated June 5, 1992, this Court must refer to the discussion of the recent case of Ty v. People of the 119 Philippines where this Court affirmed the conviction of respondent Ty for the issuance of bouncing checks addressed to the petitioner herein. While the instant case is to be distinguished from the Ty case in nature, applicable law, the standards of evidence, and in the defenses available to the parties, hence, the judgment of conviction in that case should not at all prejudice the disposition of this case, even if the facts coincide, nonetheless, for purposes of convenience and instructive utility, the Court quotes the relevant portions: In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was compelled to issue the checks a condition the hospital allegedly demanded of her before her mother could be discharged for fear that her mother's health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear contemplated by law. To begin with, there was no showing that the mother's illness was so life-threatening such that her continued stay in the hospital suffering all its alleged unethical treatment would induce a well-grounded apprehension of her death. Secondly, it is not the law's intent to say that any fear exempts one from criminal liability much less petitioner's flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospital's threats or demands. Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take advantage of the many opportunities available to her to avoid committing one. By her very own words, she admitted that the collateral or security the hospital required prior to the discharge of her mother may be in the form of postdated checks or jewelry. And if indeed she was coerced to open an account with the bank and issue the checks, she had all the opportunity to leave the scene to avoid involvement. Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of B.P. 22. She even testified that her counsel advised her not to open a current account nor issue postdated checks "because the moment I will not have funds it will be a big problem." Besides, apart from petitioner's bare assertion, the record is bereft
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of any evidence to corroborate and bolster her claim that she was compelled or coerced to cooperate with and give in to the hospital's demands. Ty likewise suggests . . . that the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case. We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it. In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable. Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty's own failure to pay her mother's hospital bills. The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty been able to prove that the issuance of the bounced checks was done without her full volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance of the bounced checks. Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case for damages filed by Ty's mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings therein may establish a claim for damages which, we may add, need only be supported by a preponderance of evidence, it does not 120 necessarily engender reasonable doubt as to free Ty from liability. In view of the foregoing, the Court therefore holds that the courts a quo committed serious errors in finding that the petitioner was 121 122 123 124 "biased," "discriminated" against the respondents, and "purposely intended to irritate" or "harass" them; that it "acted in 125 126 bad faith in removing the facilities without prior notice;" and that its acts were "anti-social." The aforequoted declarations of the witnesses, significant portions of which this Court considers as expert testimony, are reliable and remain considerably trustworthy to controvert respondents' assertions as well as to reverse the conclusions of fact and law of the CA and the RTC that respondent Chua suffered the physical and emotional anguish so claimed, and so, for these reasons, the Court holds that the petitioner inflicted no actionable wrong. This Court observes that the courts a quo awarded both respondents moral damages. But it is well-settled that in case of physical 127 injuries, with some exceptions, moral damages are recoverable only by the party injured and not by her spouse, next of kin, or 128 relative who happened to sympathize with the injured party. Hence, even if the courts a quo were correct in their basis for damages, they should have declined to award damages to respondent Ty. The last issue to be resolved is the question whether the counterclaims of the petitioner are supported by a preponderance of evidence. We agree with the petitioner that the courts a quo seriously erred in mistaking the case of its compulsory counterclaim for its permissive counterclaim and for failing to consider the evidence which impressively supports the latter. First, for failure without 129 justifiable cause of respondents' counsel to comment on the Partial Formal Offer of Evidence dated February 14, 1996 filed by the petitioner, the RTC issued an order during the course of the trial, which counsel for respondents neither contested nor raised on 130 appeal, admitting Exhibits "1" to "16", together with their submarkings and the purposes for which the same were offered, all of 131 which had also been previously authenticated and their contents verified by the witnesses for the petitioner. These documents include the Contract for Admission of respondent Chua dated October 30, 1990, duly executed by respondent Ty, incorporating 132 therein the rules and regulations of the hospital, including the duty to understand the same as well as the undertaking of 133 respondent Ty to be jointly and severally liable for the payment of the hospital bills of respondent Chua; the Promissory Note dated June 5, 1992 in the amount of P1,075,592.95 duly executed by respondent Ty in favor of the petitioner agreeing to be jointly and severally liable to pay the unpaid obligations of respondent Chua and Judith Chua, including interest and attorney's fees in case 134 135 of default; the Undertakings signed by respondent Ty dated March 3, 1992 and April 7, 1992 to maintain regular deposits; and 136 the credit memos and statements of account that support the amount referring to the unpaid obligation. Second, the parties 137 stipulated during pre-trial that respondents failed to pay the balance despite repeated reminders. Andthird, respondent Ty in open court identified and admitted that she signed the Contract of Admission dated October 30, 1990 as well as the Undertakings 138 dated March 3, 1992 and April 7, 1992 but which, for no justifiable reason, she "did not bother to read," and, what is more, she 139 repeatedly admitted during the course of the trial that she failed to fully settle the foregoing hospital bills. In fact, while the Ty case cannot control the incidents of the instant case as heretofore stated, it is still worth mentioning, at least for informative purposes, the findings of this Court in Ty with respect to respondents' obligations to the petitioner:

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Ty's mother and sister availed of the services and the facilities of the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her signature on her mother's Contract of Admission acknowledging responsibility for payment, and on the promissory note she executed in 140 favor of the hospital. In view of all these findings, the Court earnestly disagrees with the sweeping conclusion of the CA that "[Petitioner] failed to present 141 any iota of evidence to prove his claim," a statement apparently referring to the permissive counterclaim of P1,075,592.95. However, with respect to the compulsory counterclaim predicated on the filing of a baseless suit and injury to its reputation, petitioner did not raise this matter on appeal and, hence, is deemed to have waived the same. But the Court in Ty made a partial finding on the civil liability of respondent Ty with respect to the amount covered by seven of the several dishonored checks she issued equivalent to P210,000.00. Since this amount forms a fraction of her total civil liability, then this amount, in deference to Ty, should be deducted therefrom. The claim for attorney's fees, as stipulated under the Promissory Note dated June 5, 1992, should be reduced for being 143 unreasonable under the circumstances, from 25 percent to 12 percent of the total amount due. As a final word, the Court takes judicial notice of the pending Senate Bill No. 337, entitled "An Act Prohibiting the Detention of Patients in Hospitals and Medical Clinics on Grounds of Non-Payment of Hospital Bills or Medical Expenses," which declares, among others, that it shall be unlawful for any hospital or medical clinic to cause directly or indirectly the detention of patients for non144 payment, in part or in full, of their hospital bills, and, furthermore, requires patients who have fully recovered and are financially incapable to settle the hospitalization expenses to execute a promissory note, co-signed by another individual, to the extent of the 145 unpaid obligation before leaving the hospital. While this Court may have touched upon these matters in the adjudication of the instant case, it must be stated that this decision should in no way preempt any constitutional challenge to the provisions of Senate 146 Bill No. 337 if passed into law, bearing in mind the standards for the exercise of the power of judicial review as well as the recognition that the tenor of the bill may adjust with the times, or that the bill itself may fail to pass, according to the dynamism of 147 the legislative process, especially in light of the objections interposed by interest groups to date. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated October 2, 2001, together with the Decision dated September 30, 1997 of the Regional Trial Court in Civil Case No. 63958, is REVERSEDand SET ASIDE. Another judgment is entered dismissing the Complaint and ordering respondents, jointly and severally, to pay the petitioner the amount of P865,592.95, with stipulated interest of 12 percent reckoned from the date of extrajudicial demand until full payment, and 12 percent of the total amount due as attorney's fees. No pronouncement as to costs. SO ORDERED. Panganiban, C.J., Ynares-Santiago, Callejo, Sr., Chico-Nazario, J.J., concur.
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Footnotes
1

Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Martin S. Villarama, Jr. and Eliezer R. De Los Santos, concurring, rollo, pp. 3850.
2

Although the Complaint impleaded the petitioner as "Manila Doctors Hospital, defendant," allegedly a domestic corporation, the petitioner specifically denied this averment and alleged that "Manila Doctors Hospital" is merely a tradename of "Manila Medical Services, Inc.," the real party in interest. This allegation was not disputed by the respondents, nor was any correction made by the courts a quo. See Answer dated February 4, 1994, item 2; Amended Answer dated February 10, 1994, item 2; Rejoinder dated March 28, 1994, item 3; records, pp. 1, 15, 25, 42; The 1997 Rules of Civil Procedure, Rule 3, 1 (1997); id. Rule 8, 4; Juasing Hardware v. Mendoza, 201 Phil. 369(1982); Chiang Kai Shek v. Court of Appeals, G.R. No. 58028, April 18, 1989, 172 SCRA 389.
3

Partial Pre-Trial Order dated May 2, 1994, rollo, p. 87. Partial Pre-Trial Order dated May 4, 1994, id. at 90-91. Id. at 107. CA rollo, p. 39. Rollo, p. 50. G.R. No. 149275, September 27, 2004, 439 SCRA 220, 238.

Heirs of Dicman v. Cario, G.R. No. 146459, June 8, 2006; Rivera v. Roman, G.R. No. 142402, September 20, 2005, 470 SCRA 276, 287; Mercury Drug Corp. v. Libunao, G.R. No. 144458, July 14, 2004, 434 SCRA 404, 413-414; The Insular Life Assurance Company, Ltd. v. Court of Appeals, G.R. No. 126850, April 28,

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2004, 428 SCRA 79, 86; Aguirre v. Court of Appeals, G.R. No. 122249, January 29, 2004, 421 SCRA 310, 319; C & S Fishfarm Corporation v. Court of Appeals, 442 Phil. 279, 288 (2002); Martinez v. Court of Appeals, G.R. No. 123547, May 21, 2001, 358 SCRA 38, 49 (2001).
10

RTC Decision, rollo, p. 99. Id. Id. at 104; CA Decision, id. at 43. Id. at 103; CA Decision, id. Id. at 46. Id. at 103-104. Id. at 42, 44. Id. at 104; CA Decision, id. at 42, 46. See The Civil Code of the Philippines, R.A. 386, as amended, Articles 19-21, 2219 (1950).

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17

18

See Pedro P. Solis, Medical Jurisprudence 322 (1988) (discussing the corporate liability of hospitals arising from the failure to furnish safe and reliable equipment).
19

See Ramos v. Court of Appeals, 378 Phil. 1198, 1241 (1999), citing Jose O. Vitug, Compendium of Civil Law and Jurisprudence 822 (1993).

20

The primary duties of a hospital are to furnish safe and well maintained premises, to provide adequate and safe equipment, and to exercise reasonable care in the selection of the members of the hospital staff. See Pedro P. Solis, Medical Jurisprudence 310-11, 321-29 (1988). A hospital conducted for private gain is under a duty to exercise ordinary care in furnishing its patients a suitable and safe place. If an unsafe condition of the hospital's premises causes an injury, there is a breach of the hospital's duty. 40A Am. Jur. 2d Hospitals and Asylums 35 (1999), citing Sharpe v. South Carolina Dept. of Mental Health, 281 S.C. 242, 315 S.E.2d 112 (1984); United Western Medical Centers v. Superior Court, 42 Cal. App. 4th 500, 49 Cal. Rptr. 2d 682 (4th Dist. 1996). Where the patient refuses to leave a private hospital inspite of the order for his discharge, he may do so and continue to stay in that hospital, provided the corresponding hospital bill is properly satisfied and with the consent of the attending physician. Pedro P. Solis, Medical Jurisprudence 336 (1988). The relationship between the hospital as a private corporate entity and the admitted patient is one principally governed by contract. This conclusion stems from the general rule that the management and operation of a private hospital are governed by the rules applied in the case of private corporations generally, except as modified by statute. See 40A Am. Jur. 2d Hospitals and Asylums 13 (1999), citing Burris v. Morton F. Plant Hospital, 204 So. 2d 521 (1967). The contract between the private hospital and the patient normally stipulates the conditions of admission. See, e.g., 9A Am. Jur. Legal Forms 2d 136:63. As the petitioner is a private hospital as opposed to a public one, it is given more leeway in making rules and regulations as regards the admission of patients, hospital facilities, selection of staff, among others, provided that such rules and regulations are not arbitrary, discriminatory, unreasonable, monopolistic, or contrary to law or public policy, Pedro P. Solis, Medical Jurisprudence 310 (1988).
21

See, e.g., Tan v. Villapaz, G.R. No. 160892, November 22, 2005, 475 SCRA 720, 727; Nautica Canning Corp. v. Yumul, G.R. No. 164588, October 19, 2005, 473 SCRA 415, 423; Jardine Davies, Inc. v. JRB Realty, Inc., G.R. No. 151438, July 15, 2005, 463 SCRA 555, 561; Lim v. Chuatoco, G.R. No. 161861, March 11, 2005, 453 SCRA 308, 316; Chico v. Court of Appeals, 348 Phil. 37, 43 (1998).
22

TSN, October 5, 1995, pp. 53-54. TSN, September 7, 1995, p. 13. The exact date when respondent Chua actually left the hospital is under dispute, which is either June 4 or June 5, 1992. See TSN, August 22, 1996, p. 1-34 (offering Dr. Rody Sy as rebuttal witness for respondents and whose credibility had not been impeached). TSN, June 24, 1994, pp. 16, 32. TSN, September 7, 1995, p. 6. Id. at 8, 13. Id. at 13. Id. at 8-9. Id. at 7, 10. TSN, August 22, 1996, p. 7 (testifying as witness for the respondents). TSN, August 15, 1996, p. 13. Supra note 31. Supra note 32. Supra note 31. Id. at 9. TSN, September 7, 1995, p. 10.

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

P a g e | 183
38

TSN, August 22, 1996, p. 22. TSN, September 7, 1995, p. 7. Id. at 15. Supra note 37. Supra note 38. TSN, September 7, 1995, pp. 12-13. Id. Id. at 14. Id. at 18. Id. at 6-7. Id. at 8. Id. at 11. Id. at 7, 10, 12; TSN, August 22, 1996, supra. TSN, June 24, 1994, p. 32. TSN, January 19, 1996, p. 12; TSN, October 5, 1995, pp. 75, 76. TSN, October 5, 1995, p. 76.

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

Although there is some inconsistency as to the exact dates when the hospital administrator, Sister Galeno, consulted with the doctors, due to memory lapse of the witnesses, it is fairly established that it was done during a reasonable time before the removal. See TSN, October 5, 1995, pp. 12, 76-77; TSN, August 22, 1996, p. 17 (Dr. Rody Sy testifying for the respondents as rebuttal witness).
55

TSN, August 22, 1996, p. 13. Id. at 12 -13. Supra note 55. Id. at 18. TSN, September 7, 1995, p. 17; TSN, August 22, 1996, p. 19. TSN, August 22, 1996, p. 14. Id. at 22. Id. at 19. Id. at 28. TSN, October 5, 1995, p. 32. Id. at pp. 14, 18-19. TSN, September 7, 1995, p. 16. Id. Id. at 21-22. Id. TSN, October 5, 1995, p. 48. TSN, September 7, 1995, p. 20; TSN, August 22, 1996, pp. 6, 8, 24; TSN, October 5, 1995, p. 13. TSN, August 22, 1996, p. 8.

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

P a g e | 184
73

Supra note 46. TSN, June 24, 1994, pp. 16, 31-32. Supra note 46.

74

75

76

Spouses Custodio v. Court of Appeals, 323 Phil. 575, 585-586 (1996). See Expertravel & Tours, Inc. v. Court of Appeals, 368 Phil. 444, 448-449 (1999) (summarizing the rules on moral damages).
77

346 Phil. 872 (1997). Id. at 884-885. TSN, October 5, 1995, p. 28. Id. at 12, 27. Id. at 26, 31-32. Id. at 12, 31, 42. Id. at 26. Id. at 5. Id. at 30-31. Exhibit "5." Id.; TSN, October 5, 1995, p. 29. TSN, October 27, 1994, p. 13; TSN, October 5, 1995, pp. 27-29. Exhibit "1". TSN, October 5, 1995, p. 17. Id. at 31, 42; Partial Pre-Trial Order dated May 4, 1994, rollo, pp. 90-91; RTC Decision, id. at 94-95. TSN, June 24, 1994, pp. 27-28; TSN, August 15, 1996, p. 14. TSN, June 24, 1994, pp. 6, 9, 36. TSN, October 27, 1994, p. 34; TSN, October 5, 1995, pp. 44-45.

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

RTC Decision, rollo, p. 106. This conclusion had been impliedly affirmed by the CA. See TSN, July 1, 1994, p. 17 (respondent Ty testifying that she was "forced to sign" the promissory notes and execute the postdated checks as a condition for the release or discharge of her mother, respondent Chua). See also id. at 21.
96

TSN, September 14, 1995, pp. 18-19, 23. Id. at 35.

97

98

Id. at 17-18, 22, 32; TSN, October 5, 1995, p. 25. It can be observed from the testimonies that the discharge order issued by the attending physician is a discharge from a medical standpoint, while the discharge or clearance issued by the Nursing Station, Accounting, Cashier, Security, or the other departments whose functions may be administrative in nature refer to matters not solely confined to medical aspects, such as the settlement of dues, deposits or breakage, all of which depend on the rules and regulations as well as hospital policy.
99

TSN, October 5, 1995, p. 26; TSN, September 14, 1995, p. 23-24. Id.; id. TSN, September 14, 1995, pp. 23-24. TSN, October 5, 1995, pp. 26-27, 48-49. Supra note 101. See Pedro P. Solis, Medical Jurisprudence 305-307 (1988) (discussing the various classifications of hospitals). TSN, October 5, 1995, pp. 49-50.

100

101

102

103

104

105

P a g e | 185
106

Exhibits "B" to "B-1." TSN, October 5, 1995, pp. 40-42.

107

108

Pedro P. Solis, Medical Jurisprudence 338 (1988), citing Gadsden General Hospital v. Hamilton, 103 So. 553 (1925). See Louis J. Regan, Doctor and Patient and the Law 113 (1949), citing Cook v. Highland Hospital, 84 S.E. 352; In re Carlsen, 130 Fed. 379; Re Baker, 29 How. Pr. (N.Y.) 485; Ollet v. Pittsburgh, C.C. & St. L. R. Co. (Pa.), 50 Atl. 1011; Lord v. Claxton (Ga.), 8 S.E.2d 657.
109

Pedro P. Solis, Medical Jurisprudence 338 (1988). C.R.A. Martin, Law Relating to Medical Practice 340-41 (1979) (citations omitted). Pedro P. Solis, Medical Jurisprudence 338 (1988). C.R.A. Martin, Law Relating to Medical Practice 41 (1979) (citations omitted). As opposed to a private charitable or eleemosynary hospital. Pedro P. Solis, Medical Jurisprudence 306-7 (1988) 40A Am. Jur. 2d Hospitals and Asylums 8 (1999), citing Porter v. McPherson, 198 W. Va. 158, 479 S.E.2d 668 (1996). Id. citing Trevino v. HHL Financial Services, Inc., 945 P.2d 1345 (Colo. 1997). TSN, October 5, 1995, pp. 43-44, 58-59, 62. See 40A Am. Jur. 2d Hospitals and Asylums 8 (1999), citing Heartland Health Systems, Inc. v. Chamberlin, 871 S.W.2d 8 (1993). TSN, October 27, 1994, p. 26-27. G.R. No. 149275, September 27, 2004, 439 SCRA 220. Id. at 230-233. Rollo, p. 44. Id. at 103. Id. at 42. Supra note 121. Supra note 122; id. at 43. Id. at 46. See The Civil Code of the Philippines, Republic Act No. 386, as amended, Article 2219 (1950).

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

See Soberano v. Manila Railroad Company, 124 Phil. 1330, 1337 (1966); Strebel v. Figueras, 96 Phil. 321, 330 (1954); Araneta v. Arreglado, 104 Phil. 529, 533 (1958).
129

Records, pp. 178-197. TSN, August 15, 1996, pp. 4-5. TSN, October 27, 1994, pp. 8, 10-11, 24-27, 32-33; TSN, October 5, 1995, pp. 18, 21, 26, 35-36, 51-53; TSN, January 25, 1996, 8-9, 12. Exhibit "1". Exhibits "1-a" and "1-b". Exhibits "2" to "2-c." Exhibits "3" to "4-b." Exhibits "11", "11-b"; Exhibits "13" to "14-a"; Exhibits "16" to "16-d." Rollo, pp. 94-95; Partial Pre-Trial Order dated May 4, 1994, id. at 90-91. TSN, July 1, 1994, pp. 5, 8, 19-22. Id. at 5, 9-10. Ty v. People of the Philippines, supra note 8, at 234.

130

131

132

133

134

135

136

137

138

139

140

P a g e | 186
141

Rollo, p. 47. The dispositive portion of Ty v. People states:\ WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors' Hospital, the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the dishonored checks. Costs against the petitioner. SO ORDERED. (emphasis supplied)

142

143

The Civil Code of the Philippines, Republic Act No. 386, as amended, Art. 2208 (1950) ("In all cases, the attorney's fees and expenses of litigation must be reasonable."). See, e.g., Pacific Mills, Inc. v. Court of Appeals, G.R. No. 87182, February 17, 1992, 206 SCRA 317.
144

Section 1 of the draft bill. Section 2 of the draft bill.

145

146

Where questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the very lis mota of the case. Allied Banking Corporation v. Quezon City Government, G.R. No, 154126, October 11, 2005, 472 SCRA 303, 317; Board of Optometry v. Colet, 328 Phil. 1187, 1205 (1996); Garcia v. Executive Secretary, G.R. No. 100883, December 2, 1991, 204 SCRA 516, 522; Santos III v. Northwest Orient Airlines, G.R. No. 101538, June 23, 1992, 210 SCRA 256, 261.
147

See Position Paper dated September 22, 2004, submitted by the Philippine Medical Association for the presentation in the public hearing for the Committee of Health and Demography, Senate, Republic of the Philippines.

2nd WEEK - STATE REGULATION OF PRCATICE OF MEDICINE

Practice of Medicine: REPUBLIC ACT No. 2382 THE MEDICAL ACT OF 1959 ARTICLE I Objectives and Implementation Section 1. Objectives. This Act provides for and shall govern (a) the standardization and regulation of medical education; (b) the examination for registration of physicians; and (c) the supervision, control and regulation of the practice of medicine in the Philippines. Section 2. Enforcement. For the purpose of implementing the provisions of this Act, there are created the following agencies: the Board of Medical Education under the Department of Education, and the Board of Medical Examiners under the Commissioner of Civil Service. ARTICLE II The Board of Medical Education Its Functions Section 3. Composition of Board of Medical Education. The Board of Medical Education shall be composed of the Secretary of Education or his duly authorized representative, as chairman, and the Secretary of Health or his duly authorized representative, the Director of the Bureau of Private Schools or his duly authorized representative, the chairman of the Board of Medical Examiners or his duly authorized representative, a representative of private practitioners, upon recommendation of an acknowledged medical association and a representative chosen by the Philippine Association of Colleges and Universities, as members. The officials acting as chairman and members of the Board of Medical Education shall hold office during their incumbency in their respective positions.

P a g e | 187 Section 4. Compensation and traveling expenses. The chairman and members of the Board of Medical Education shall not be entitled to any compensation except for traveling expenses in connection with their official duties as herein provided. For administrative purposes, the Board shall hold office in the office of its chairman, who may designate a ranking official in the Department of Education to serve as secretary of the Board. Section 5. Functions. The functions of the Board of Medical Education shall be: (a) To determine and prescribe minimum requirements for admission into a recognized college of medicine; (b) To determine and prescribe requirements for minimum physical facilities of colleges of medicine, to wit: buildings, including hospitals, equipment and supplies, apparatus, instruments, appliances, laboratories, bed capacity for instruction purposes, operating and delivery rooms, facilities for out-patient services, and others, used for didactic and practical instructions in accordance with modern trends; (c) To determine and prescribe the minimum number and the minimum qualifications of teaching personnel, including student-teacher ratio and curriculum; (d) To determine and prescribe the number of students who should be allowed to take up the preparatory course taking into account the capacity of the different recognized colleges of medicine. (e) To select, determine and approve hospitals or some departments of the hospitals for training which comply with the minimum specific physical facilities as provided in subparagraph (b) hereof: and (f) To promulgate and prescribe and enforce necessary rules and regulations for the proper implementation of the foregoing functions. Section 6. Minimum required courses. Students seeking admission to the medical course must have a bachelor of science or bachelor of arts degree or their equivalent and must have taken in four years the following subjects with their corresponding number of units: Unit English Latin Mathematics, including Accounting and Statistics Philosophy, including Psychology and Logic Zoology and Botany Physics Chemistry Library Science Humanities and Social Sciences 12 3 9 12 15 8 21 1 12

Twelve units of Spanish shall be required pursuant to Republic Act Numbered Seven hundred nine; but commencing with the academic year nineteen hundred sixty to nineteen hundred sixty-one, twenty-four units of Spanish shall be required pursuant to Republic Act Numbered Eighteen hundred and eighty-one as cultural, social and nationalistic studies. Provided, That the following students may be permitted to complete the aforesaid preparatory medical course in shorter periods as follows: (a) Students whose general average is below eighty-five per cent but without any grade of failure or condition may be allowed to pursue and finish the course in three academic years and the intervening summer sessions; and

P a g e | 188 (b) Students whose general average is eighty-five per cent or over may be permitted to finish the course in three academic years by allowing them to take each semester the overload permitted to bright students under existing regulations of the Bureau of Private Schools. Provided, That upon failure to maintain the general average of eighty-five per cent, students under (b) shall automatically revert to the category of students under (a) and those under (a), upon having any grade of failure or condition, shall automatically revert to the category of students required to pursue the preparatory course in four years mentioned above. The medical course shall be at least five years, including not less than eleven rotating internship in an approved hospital, and shall consist of the following subjects: Anatomy Physiology Biochemistry and Nutrition Pharmacology Microbiology Parasitology Medicine and Therapeutics Genycology Opthalmology, Otology, Rhinology and Laryngology Pediatrics Obstetrics Surgery Preventive Medicine and Public Health Legal Medicine, including Medical Jurisprudence and Ethics. Section 7. Admission requirements. The medical college may admit any student to its first year class who has not been convicted by any court of competent jurisdiction of any offense involving moral turpitude, and who presents (a) a certificate showing completion of a standard high school course, (b) a record showing completion of a standard preparatory medical course as herein provided, (c) a certificate of registration as medical student, (d) a certificate of good moral character issued by two former professors in the pre-medicine course, and (e) birth certificate and marriage certificate, if any. Nothing in this Act shall be construed to inhibit any college of medicine from establishing, in addition to the preceding, other entrance requirements that may be deemed admissible. For the purposes of this Act, the term "College of Medicine" shall mean to include faculty of medicine, institute of medicine, school of medicine or other similar institution offering a complete medical course leading to the degree of Doctor of Medicine or its equivalent. Every college of medicine must keep a complete record of enrollment, grades and turnover, and must publish each year a catalogue giving the following information: 1. Date of publication 2. Calendar for the academic year 3. Faculty roll indicating whether on full time part time basis 4. Requirements of admission

P a g e | 189 5. Grading system 6. Requirements for promotion 7. Requirements for graduation 8. Medical hours per academic year by departments 9. Schedule hours per academic year by departments 10. Number of students enrolled in each class. ARTICLE III THE BOARD OF MEDICAL EXAMINERS; REGISTRATION OF PHYSICIANS Section 8. Prerequisite to the practice of medicine. No person shall engage in the practice of medicine in the Philippines unless he is at least twenty-one years of age, has satisfactorily passed the corresponding Board Examination, and is a holder of a valid Certificate of Registration duly issued to him by the Board of Medical Examiners. Section 9. Candidates for board examination. Candidates for Board examinations shall have the following qualifications: (1) He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country's existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof; (2) He shall be of good moral character, showing for this purpose certificate of civil status; (3) He shall be of sound mind; (4) He shall not have been convicted by a court of competent jurisdiction of any offense involving moral turpitude; and (5) He shall be a holder of the degree of Doctor of Medicine or its equivalent, conferred by a college of medicine duly recognized by the Department of Education. Section 10. Acts constituting practice of medicine. A person shall be considered as engaged in the practice of medicine (a) who shall, for compensation, fee, salary or reward in any form, paid to him directly or through another, or even without the same, physical examine any person, and diagnose, treat, operate or prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; or (b) who shall, by means of signs, cards, advertisements, written or printed matter, or through the radio, television or any other means of communication, either offer or undertake by any means or method to diagnose, treat, operate or prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition; or (c) who shall use the title M.D. after his name. Section 11. Exemptions. The preceding section shall not be construed to affect (a) any medical student duly enrolled in an approved medical college or school under training, serving without any professional fee in any government or private hospital, provided that he renders such service under the direct supervision and control of a registered physician; (b) any legally registered dentist engaged exclusively in the practice of dentistry; (c) any duly registered masseur or physiotherapist, provided that he applies massage or other physical means upon written order or prescription of a duly registered physician, or provided that such application of massage or physical means shall be limited to physical or muscular development; (d) any duly registered optometrist who mechanically fits or sells lenses, artificial eyes, limbs or other similar appliances or who is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting eye glasses, spectacles and lenses; (e) any person who renders any service gratuitously in cases of emergency, or in places where the services of a duly registered physician, nurse or midwife are not available; (f) any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; and (g) any psychologist or mental hygienist in the performance of his duties, provided such performance is done in conjunction with a duly registered physician. Section 12. Limited practice without any certificate of registration. Certificates of registration shall not be required of the following persons:

P a g e | 190 (a) Physicians and surgeons from other countries called in consultation only and exclusively in specific and definite cases, or those attached to international bodies or organization assigned to perform certain definite work in the Philippines provided they shall limit their practice to the specific work assigned to them and provided further they shall secure a previous authorization from the Board of Medical Examiners. (b) Commissioned medical officers of the United States armed forces stationed in the Philippines while rendering service as such only for the members of the said armed forces and within the limit of their own respective territorial jurisdiction. (c) Foreign physicians employed as exchange professors in special branches of medicine or surgery whose service may in the discretion of the Board of Medical Education, be necessary. (d) Medical students who have completed the first four years of medical course, graduates of medicine and registered nurses who may be given limited and special authorization by the Secretary of Health to render medical services during epidemics or national emergencies whenever the services of duly registered physicians are not available. Such authorization shall automatically cease when the epidemic or national emergency is declared terminated by the Secretary of Health. Section 13. The Board of Medical Examiners, its composition and duties. The Board of Medical Examiners shall be composed of six members to be appointed by the President of the Philippines from a confidential list of not more than twelve names approved and submitted by the executive council of the Philippine Medical Association, after due consultation with other medical associations, during the months of April and October of each year. The chairman of the Board shall be elected from among themselves by the member at a meeting called for the purpose. The President of the Philippines shall fill any vacancy that may occur during any examination from the list of names submitted by the Philippine Medical Association in accordance with the provisions of this Act. No examiner shall handle the examinations in more than four subjects or groups of subjects as hereinafter provided. The distribution of subject to each member shall be agreed upon at a meeting called by the chairman for the purpose. The examination papers shall be under the custody of the Commissioner of Civil Service or his duly authorized representative, and shall be distributed to each member of the Board who shall correct, grade, and sign, and submit them to the said Commissioner within one hundred twenty days from the date of the termination of the examinations. A final meeting of the Board for the deliberation and approval of the grades shall be called by the Commissioner of Civil Service immediately after receipt of the records from the members of the Board of Medical Examiners. The secretary of the Board shall submit to the President of the Philippines for approval the names of the successful candidates as having been duly qualified for licensure in alphabetical order, without stating the ratings obtained by each. Section 14. Qualifications of examiners. No person shall be appointed a member of the Board of Medical Examiners unless he or she (1) is a natural-born citizen of the Philippines, (2) is a duly registered physician in the Philippines, (3) has been in the practice of medicine for at least ten years, (4) is of good moral character and of recognized standing in the medical profession, (5) is not a member of the faculty of any medical school and has no pecuniary interest, directly or indirectly, in any college of medicine or in any institution where any branch of medicine is taught, at the time of his appointment: Provided, That of the six members to be appointed, not more than two shall be graduates of the same institution and not more than three shall be government physicians. Section 15. Tenure of office and compensation of members. The members of the Board of Medical Examiners shall hold office for one year: Provided, That any member may be reappointed for not more than one year. Each member shall receive as compensation ten pesos for each candidate examined for registration as physician, and five pesos for each candidate examined in the preliminary or final physician examination. The President of the Philippines, upon the recommendation of the Commissioner of Civil Service , after due investigation, may remove any member of the Board of Medical Examiners for neglect of duty, incompetency, or unprofessional or dishonorable conduct. Section 16. Executive Officer and Secretary of the Board. The Secretary of the Boards of Examiners appointed in accordance with section ten of Act Numbered Four thousand seven, as amended, shall also be the secretary of the Board of Medical Examiners, who shall keep all the records, including examination papers, and the minutes of the deliberations of the Board. He shall also keep a register of all persons to whom certificates of registration has been granted; set forth the name, sec, age, and place of birth of each, place of business, post office address, the name of the medical college or university from which he graduated or in which he had studied, together with time spent in the study of the profession elsewhere, the name of the country where the institution is located which had granted to him the degree or certificate of attendance upon clinic and all lectures in medicine and surgery, and all other degrees granted to him from institutions

P a g e | 191 of learning. He shall keep an up-to-date registration book of all duly registered physicians in the Philippines. He shall furnish copies of all examination questions and ratings in each subject of the respective candidates in the physicians examination, one month after the release of the list of successful examinees, to the deans of the different colleges of medicine exclusively for the information and guidance of the faculties thereof. This report shall be considered as restricted information. Any school which violates this rule shall be deprived of such privilege. The secretary of the Board shall likewise keep a record of all registered medical students. He shall keep all the records and proceedings, and issue and receive all papers in connection with any and all complaints presented to the Board. Section 17. Rules and regulations. The Board of Medical Examiners, with the approval of the Commissioner of Civil Service, shall promulgate such rules and regulations as may be necessary for the proper conduct of the examinations, correction of examination papers, and registration of physicians. The Commissioner shall supervise each Board examination and enforce the said rules and regulations. These rules and regulations shall take effect fifteen days after the date of their publication in the Official Gazette and shall not be changed within sixty days immediately before any examination. Such rules and regulations shall be printed and distributed for the information and guidance of all concerned. Section 18. Dates of examinations. The Board of Medical Examiners shall give examinations for the registration of physicians, one in May and one in November every year, in the City of Manila or any of its suburbs after giving not less than ten days' notice to each candidate who had filed his name and address with the secretary of the Board. Section 19. Fees. The secretary of the Board, under the supervision of the Commissioner of Civil Service, shall collect from each candidate the following fees: For registration as medical student For complete physician examination For preliminary or final examination For registration as physician P 5.00 75.00 40.00 20.00

All fees paid as provided herein shall accrue to the funds of the Board of Medical Examiners and be expended for the payment of the compensation of the members thereof. No fees other than those provided herein shall be paid to the Board. Section 20. Issuance of Certificate of Registration, grounds for refusal of same. The Commissioner of Civil Service and the secretary of the Board of Medical Examiners shall sign jointly and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. They shall not issue a certificate of registration to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude, or has been found guilty of immoral or dishonorable conduct after he due investigation by the Board of Medical Examiners, or has been declared to be of unsound mind. Section 21. Scope of examination. The examination for the registration of physicians shall consist of the following subjects: (1) Anatomy and Histology, (2) Physiology, (3) Biochemistry, (4) Microbiology and Parasitology, (5) Pharcology and Therapeutics, (6) Pathology, (7) Medicine, (8) Obstetrics and Gynecology, (9) Pediatrics and Nutrition, (10) Surgery and Opthalmology, Otolaryngology and Rhinology, (11) Preventive Medicine and Public Health, and (12) Legal Medicine, Ethics and Medical Jurisprudence: Provided, however, That the examination questions in each subject or group of subject shall at least be ten in number: Provided, further, That the examination questions in Medicine shall include at least three from the following branches: Infectious diseases, Neurology, Dermatology, Allergy, Endocrinology and Cardio-Vascular diseases: Provided, finally, That the examination questions in Surgery shall include at least four questions from the following: Opthalmology, Otology, Rhinology, Laryngology, Orthopedic Surgery and Anesthesiology. The questions shall be the same for all applicants. All answers must be written either in English or Spanish. No name of the examinee shall appear in the examination paper but the examiners shall devise a system whereby each applicant can be identified by number only. In order that a candidate may be deemed to have passed his examination successfully he must have obtained a general average of seventy-five per cent without a grade lower than sixty-five per cent in Medicine, Pediatrics and Nutrition, Obstetrics and Gynecology, and Preventive Medicine and Public Health, and no grade lower than fifty per cent in the rest of the subjects. The preliminary examinations shall comprise of the following subjects:

P a g e | 192 (1) Gross Anatomy and Histology (2) Physiology (3) Biochemistry (4) Microbiology and Parasitology Section 22. Administrative investigations. In addition to the functions provided for in the preceding sections, the Board of Medical Examiners shall perform the following duties: (1) to administer oath to physicians who qualified in the examination; (2) to study the conditions affecting the practice of medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession; (4) to subpoena or subpoena duces tecum witnesses for all purposes required in the discharge of its duties; and (5) to promulgate, with the approval of the Commissioner of Civil Service, such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the proper practice of medicine in the Philippines. Administrative investigations may be conducted by not less than four members of the Board of Medical Examiners; otherwise the proceedings shall be considered void. The existing rules of evidence shall be observed during all administrative investigations. The Board may disapprove applications for examination or registration, reprimand erring physicians, or suspend or revoke registration certificates, if the respondents are found guilty after due investigations. Section 23. Procedure and rules. Within five days after the filling of written charges under oath, the respondent physician shall be furnished a copy thereof, without requiring him or her to answer the same, and the Board shall conduct the investigation within five days after the receipt of such copy by the respondent. The investigation shall be completed as soon as practicable. Section 24. Grounds for reprimand, suspension or revocation of registration certificate. Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician: (1) Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) Immoral or dishonorable conduct; (3) Insanity; (4) Fraud in the acquisition of the certificate of registration; (5) Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury to or death of the patient; (6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her incompetent to practice his or her profession, or to any form of gambling; (7) False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned. (8) Performance of or aiding in any criminal abortion; (9) Knowingly issuing any false medical certificate; (10) Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justifiable motive; (11) Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine; (12) Violation of any provision of the Code of Ethics as approved by the Philippine Medical Association. Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation or suspension of his registration certificate if there is a risk to the physician's life.

P a g e | 193 Section 25. Rights of respondents. The respondent physician shall be entitled to be represented by counsel or be heard by himself or herself, to have a speedy and public hearing, to confront and to cross-examine witnesses against him or her, and to all other rights guaranteed by the Constitution and provided for in the Rules of Court. Section 26. Appeal from judgment. The decision of the Board of Medical Examiners shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari. Section 27. Reinstatement. After two years, the Board may order the reinstatement of any physicians whose certificate of registration has been revoked, if the respondent has acted in an exemplary manner in the community wherein he resides and has not committed any illegal, immoral or dishonorable act. ARTICLE IV PENAL AND OTHER PROVISIONS Section 28. Penalties. Any person found guilty of "illegal practice of medicine" shall be punished by a fine of not less than one thousand pesos nor more than ten thousand pesos with subsidiary imprisonment in case of insolvency, or by imprisonment of not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court. Section 29. Injunctions. The Board of Medical Examiners may file an action to enjoin any person illegally practicing medicine from the performance of any act constituting practice of medicine if the case so warrants until the necessary certificate therefore is secured. Any such person who, after having been so enjoined, continues in the illegal practice of medicine shall be punished for contempt of court. The said injunction shall not relieve the person practicing medicine without certificate of registration from criminal prosecution and punishment as provided in the preceding section. Section 30. Appropriation. To carry out the provisions of this Act, there is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, the sum of twenty thousand pesos. Section 31. Repealing clause. All Acts, executive orders, administrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. Section 32. Effectivity. This Act shall take effect upon its approval: Provided, That if it is approved during the time when examinations for physicians are held, it shall take effect immediately after the said examinations: Provided, further, That section six of this Act shall take effect at the beginning of the academic year nineteen hundred sixty to nineteen hundred sixty-one, and the first paragraph of section seven shall take effect four years thereafter. Approved: June 20, 1959 REPUBLIC ACT NO. 8981 AN ACT MODERNIZING THE PROFESSIONAL REGULATION COMMISSION, REPEALING FOR THE PURPOSE PRESIDENTIAL DECREE NUMBERED TWO HUNDRED AND TWENTY-THREE, ENTITLED "CREATING THE PROFESSIONAL REGULATION COMMISSION AND PRESCRIBING ITS POWERS AND FUNCTIONS," AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines Congress assembled: Section 1. Title This Act shall be called the "PRC Modernization Act of 2000." Section 2. Statement of Policy The State recognizes the important role of professionals in nation-building and, towards this end, promotes the sustained development of a reservoir of professionals whose competence has been determined by honest and credible licensure examinations and whose standards of professional service and practice are internationally recognized and considered world-class brought about the regulatory measures, programs and activities that foster professional growth and advancement. Section 3. Professional Regulation Commission There is hereby created a three-man commission to be known as the Professional Regulation Commission, hereinafter referred to as the Commission, which shall be attached to the office of the President for general direction and coordination. Section 4. Composition The Commission shall be headed by one (1) full-time Chairperson and two (2) full-time Commissioners, all to be appointed by the President for a term of seven (7) years without reappointment to start from

P a g e | 194 the time they assume office. Appointments to a vacancy that occurs before the expiration of the term of a Commissioner shall cover only the unexpired term of the immediate predecessor. At the expiration of the Chairperson, the most senior of the Commissioners shall temporarily assume and perform the duties and functions of the Chairperson until a permanent Chairperson is appointed by the President. The Chairperson or Commissioner shall be at least forty (40) years of age, holding a valid certificate of registration/professional license and a valid professional identification card or a valid certificate of competency issued by the Commission or a valid professional license issued by any government agency, familiar with the principles and methods of professional regulation and/or licensing and has had at least five (5) years of executive or management experience: Provided, That, one (1) of the Commissioners must be a past Chairperson/member of a Professional Regulatory Board. Section 5. Exercise of Powers and Functions of the Commission The Chairperson of the Commission, and the Commissioners as members thereof shall sit and act as a body to exercise general administrative, executive and policymaking functions of the Commission. The Commission shall establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the integrity of all licensure examinations. The Chairperson shall act as the presiding and chief executive officer of the Commission. As presiding officer, he/she shall preside over the meetings of the Commission sitting as a collegial body. As chief executive officer of the Commission, he/she shall be responsible for the implementation of the policies and the programs adopted by the Commission for the general administration of the Commission. He/she shall perform such other activities which are necessary for the effective exercise of the powers, functions and responsibilities of the Commission. Section 6. Compensation and Other Benefits The Chairperson shall receive compensation and allowances equivalent to that of a Department Secretary while the Commissioners shall receive compensation and allowances equivalent to that of an Undersecretary. The Chairperson and the members of the Commission shall be entitled to retirement benefits provided under Republic Act Numbered Fifteen Hundred and Sixty Eight, as amended by Republic Act Numbered Three Thousand Five Hundred and Ninety Five. Section 7. Powers, Functions and Responsibilities of the Commission The powers, functions, and responsibilities of the Commission are as follows: (a) To administer, implement and enforce the regulatory policies of the national government with respect to the regulation and licensing of the various professions and occupations under its jurisdiction including the enhancement and maintenance of professional and occupational standards and ethics and the enforcement of the rules and regulations relative thereto: (b) To perform any and all acts, enter into contracts, make such rules and regulations and issue such orders and other administrative issuance as may be necessary in the execution and implementation of its functions and the improvement of its services; (c) To review, revise, and approve resolutions, embodying policies promulgated by the Professional Regulatory Boards in the exercise of their powers and functions or in implementing the laws regulating their respective professions and other official actions on non-ministerial matters within their respective jurisdictions; (d) To administer and conduct the licensure examinations of the various regulatory boards in accordance with the rules and regulations promulgated by the Commission; determine and fix the places and dates of examinations; use publicly or privately owned buildings and facilities for examination purposes; conduct more than one (1) licensure examination: Provided, That, when there are two (2) or more examinations given in a year, at least one (1) examinations shall be held on weekdays (Monday to Friday): Provided, further, That, if only one (1) examination is given in a year, this shall be held only on weekdays: Provided, finally, That, the Commission is also authorized to require the completion of a refresher course where the examinee has failed to pass three (3) times, except as otherwise provided by law; approve the results of examinations and the release of the same; adopt measures to preserve the integrity and inviolability of licensure examinations; appoint supervisors and room watchers from among the employees of the government and/or private individuals with baccalaureate degrees, who have been trained by the Commission for the purpose and who shall be entitled to a reasonable daily allowance for every examination day actually attended, to be determined and fixed by the Commission; publish the list of successful examinees; provide schools, colleges and universities, public and private, offering courses for licensure examinations, with copies of sample test questions on examinations recently conducted by the Commission and copies of the syllabi or terms of specifications of subjects for licensure examinations; and impose the penalty of suspension or prohibition from taking licensure examinations

P a g e | 195 to any examinee charged and found guilty of violating the rules and regulations governing the conduct of licensure examinations promulgated by the Commission; (e) To admit the successful examinees to the practice of the profession or occupation; cause the entry of their names on its registry book and computerized database; issue certificates of registration/professional license, bearing the registrants name, picture, and registration number, signed by all the members of the Board concerned and the Chairperson, with the official seal of the Board and the Commission affixed thereto which certificate shall be the authority to practice; and at the option of the professional concerned, ministerially issue the professional identification card, to be used solely for the purpose of identification, upon payment of the appropriate amount: Provided, That, marine deck and marine engineer officers shall also be issued endorsement certificates exclusively by the Commission pursuant to the 1978 and 1995 Standards of Training, Certification and Watch-keeping (STCW) Convention, to the exclusion of any other government agency, Section 1(2) of Executive Order No. 149, Series of 1999 and provisions of other existing laws, executive orders, administrative issuance/regulations to the contrary notwithstanding:Provided, further, That, once a certificate of registration/professional license, or certificate of competency, in the case of marine deck and engine officers are issued, this cannot be withdrawn, cancelled, revoked, or suspended except for just cause as may be provided by law after due notice and hearing; (f) To have custody of all the records of the various Boards, including examination papers, minutes of deliberation, records of administrative cases and investigations and examination results for control and disposition; (g) To determine and fix the amount of fees to be charged and collected for examination, registration, registration without examination, professional identification card, certification, docket, appeal, replacement, accreditation, including surcharges and other fees not specified under the provisions of Republic Act Numbered Four Hundred Sixty Five as amended by Republic Act Numbered Sixty Five Hundred and Eleven or to charge and collect reasonable fees at the rates higher than the rates provided thereunder subject to the approval by the Office of the President. (h) To appoint subject to the Civil Service laws, rules, and regulations, officials and employees of the Commission necessary for the effective performance of its functions and responsibilities; prescribe their duties and fix their compensation subject to the provisions of Republic Act Numbered Six Thousand Seven Hundred and Fifty Eight and allowances including other fringe benefits; and to assign and/or reassign personnel as the exigency of the service requires subject to the Civil Service laws, rules and regulations; and to organize or reorganize the structure of the Commission; and create or abolish positions or change the designation of existing positions in accordance with a staffing pattern prepared by it and approved by the Office of the President upon the recommendation of the Department of Budget and Management (DBM) to meet the changing conditions or as the need arises: Provided, That, such changes shall not affect the employment status of the incumbents, reduce their ranks and/or salaries nor shall result in their separation from the service; (i) To submit and recommend to the President of the Philippines the names of licensed/registered professionals for appointment as members of the various Professional Regulatory Boards from among those nominated to fill up vacancies pursuant to the provisions of Executive Order No. 496, Series of 1991; (j) Upon recommendation of the Professional Regulatory Board concerned, to approve the registration of and authorize the issuance of a certificate of registration/license and professional identification card with or without examination to a foreigner who is registered under the laws of his state or country and whose certificate of registration issued therein has not been suspended or revoked: Provided, That, the requirements for the registration or licensing in said foreign state or country are substantially the same as those required and contemplated by the laws of the Philippines and that the laws of such foreign state or country allow the citizens of the Philippines to practice the profession on the same basis and grant the same privileges as those enjoyed by the subjects or citizens of such foreign state or country: Provided, further, That, the Commission may, upon recommendation of the Board concerned, authorize the issuance of a certificate of registration/license or a special temporary permit to foreign professionals who desire to practice their professions in the country under reciprocity and other international agreements; consultants in foreign-funded, joint venture or foreign-assisted projects of the government, employees of Philippine or foreign private firms or institutions pursuant to law, or health professionals engaged in humanitarian mission for a limited period of time: Provided, finally, That agencies, organizations or individuals whether public or private, who secure he services of a foreign professional authorized by law to practice in the Philippines for reasons aforementioned, shall be responsible for securing a special permit from the Professional Regulation Commission (PRC) and the Department of Labor and Employment (DOLE), pursuant to PRC and DOLE rules:

P a g e | 196 (k) To authorize any officer of the Commission to administer oaths: (l) To supervise foreign nations who are authorized by existing laws to practice their professions either as holders of a certificate of registration and a professional identification card or a temporary special permit in the Philippines; to ensue that the terms and conditions for their practice or of their employment are strictly complied with; to require the hiring or employing government agency or private entity/institution to secure a temporary special permit from the concerned Board subject to approval by the Commission and to file a criminal complaint against the head of the government agency or officers of the said private entity/institution, who shall be liable under the penalty provided for in the concerned professional regulatory law or the penalty imposed pursuant to this Act, when the professional was hired and allowed to practice his/her profession without permit; to file upon due process request for deportation with the Bureau of Immigration and Deportation (BID); and to supervise professionals who were former citizens of the Philippines and who had been registered and issued a certificate of registration and a professional identification card prior to their naturalization as foreign citizens, who may, while in the country on a visit, sojourn or permanent residence, practice their profession: Provided, That, prior to the practice of their profession they shall have first been issued a special permit and updated professional identification card by the Board concerned subject to approval by the Commission and upon payment of the permit and annual registration fees; (m) To monitor the performance of schools in licensure examinations and publish the results thereof in a newspaper of national circulation; (n) To adopt and institute a comprehensive rating system for universities, colleges, and training institutes based on the passing ratio and overall performance of students in board examinations; (o) To exercise administrative supervision over the various professional regulatory boards and its members; (p) To adopt and promulgate such rules and regulations as may be necessary to effectively implement policies with respect to the regulation and practice of the professions; (q) To implement the program for the full computerization of all licensure examinations given by the various professional regulatory boards including the registration of professionals not later than the year 2003 and other operations of the Commission; (r) To investigate and decide administrative matters involving officers and employees under the jurisdiction of the Commission; (s) To investigate motu proprio or upon the filing of a verified complaint, any member of the Professional Regulatory Boards for neglect of duty, incompetence, unprofessional, unethical, immoral or dishonorable conduct, commission of irregularities in the licensure examinations which taint or impugn the integrity and authenticity of the results of the said examinations and, if found guilty, to revoke or suspend their certificates of registration and professional licenses/identification cards and to recommend to the President of the Philippines their suspension or removal from office as the case may be; (t) To issue summons, subpoena and subpoena duces tecum in connection with the investigation of cases against officials and employees of the Commission and the members of the Professional Regulatory Boards; (u) To hold in contempt in erring party or person only upon application with a court of competent jurisdiction; (v) To call upon or request any department, instrumentality, office, bureau, institution or agency of the government including local government units to render such assistance as it may require, or to coordinate or cooperate in order to carry out, enforce or implement the professional regulatory policies of the government or any program or activity it may undertake pursuant to the provisions of this Act; (w) To initiate an investigation, upon complaint under oath by an aggrieved party, of any person, whether a private individual or professional, local or foreign, who practices the regulated profession or occupation without being authorized by law, or without being registered with and licensed by the concerned regulatory board and issued the corresponding license/professional identification card or temporary or special permit, or who commits any of the prohibited acts provided in the regulatory laws of the various professions, which acts are criminal in nature, and if the evidence so warrants, to forward the records of the case to the office of the city or provincial prosecutor for the filing of the corresponding information in court by the lawyers of the legal services of the Commission who may prosecute said case/s upon being deputized by the Secretary of Justice;

P a g e | 197 (x) To prepare an annual report of accomplishments on the programs, projects and activities of the Commission during the year for submission to Congress after the close of its calendar year and make appropriate recommendations on issues and/or problems affecting the Commission, the Professional Regulatory Board, and the various professions under its jurisdiction; and (y) To perform such other functions and duties as may be necessary to carry out the provisions of this Act, the various professional regulatory laws, decrees, executive orders and other administrative issuance. Section 8. Regional Offices The Commission is hereby authorized to create regional offices as may be necessary to carry out their functions mandated under this Act. Section 9. Powers, Functions and Responsibilities of the Various Professional Regulatory Boards The various, professional regulatory boards shall retain the following powers, functions and responsibilities: (a) To regulate the practice of the professions in accordance with the provisions of their respective professional regulatory laws; (b) To monitor the conditions affecting the practice of the profession or occupation under their respective jurisdictions and whenever necessary, adopt such measures as may be deemed proper for the enhancement of the profession or occupation and/or the maintenance of high professional, ethical and technical standards, and for this purpose the members of the Board duly authorized by the Commission with deputized employees of the Commission, may conduct ocular inspection in industrial, mechanical, electrical or chemical plants or establishments, hospitals, clinics, laboratories, testing facilities, mines and quarries, other engineering facilities and in the case of schools, in coordination with the Commission on Higher Education (CHED); (c) To hear and investigate cases arising from violations of their respective laws, the rules and regulations promulgated thereunder and their Codes of Ethics and, for this purpose, may issue summons, subpoenaand subpoena duces tecum to alleged violators and/or witnesses to compel their attendance in such investigations or hearings: Provided, That, the decision of the Professional Regulatory Board shall, unless appealed to the Commission, become final and executory after fifteen (15) days from receipt of notice of judgment or decision; (d) To delegate the hearing or investigation of administrative cases filed before them except in cases where the issue or question involved strictly concerns the practice of the profession or occupation, in which case, the hearing shall be presided over by at least one (1) member of the Board concerned assisted by a Legal or Hearing Officer of the Commission; (e) To conduct, through the Legal Officers of the Commission, summary proceedings on minor violations of their respective regulatory laws, violations of the rules and regulations issued by the boards to implement their respective laws, including violations of the general instructions to examinees committed by examinees, and render summary judgment thereon which shall, unless appealed to the Commission, become final and executory after fifteen (15) days from receipt of notice of judgment or decision; (f) Subject to final approval by the Commission, to recommend registration without examination and the issuance of corresponding certificate of registration and professional identification card; (g) After due process, to suspend, revoke or reissue, reinstate certificate of registration or licenses for causes provided by law; (h) To prepare, adopt and issue the syllabi or tables of specifications of the subjects for examinations in consultation with the academe; determine and prepare the questions for the licensure examinations which shall strictly be within the scope of the syllabus or table of specifications of the subject for examination; score and rate the examination papers with the name and signature of the Board member concerned appearing thereon and submit the results in all subjects duly signed by the members of the Board to the Commission within ten (10) days from the last day of examination unless extended by the Commission for justifiable cause/s; and subject to the approval by the Commission, determine the appropriate passing general average rating in an examination if not provided for in the law regulating the profession; and (i) To prepare an annual report of accomplishments on programs, projects and activities of the Board during the year for submission to the Commission after the close of each calendar year and make appropriate recommendations on issues or problems affecting the profession to the Commission.

P a g e | 198 Section 10. Compensation of the Members of the Professional Regulatory Boards The members of the Professional Regulatory Boards shall receive compensation equivalent to, at least, two salary grades lower than the salary grade of the Commissioners: Provided, That the Chairperson of the Regulatory Board shall receive a monthly compensation of two steps higher than the members of the Board, and: Provided, further, That they shall be entitled to other allowances and benefits provided under existing laws. Section 11. Person to Teach Subjects for Licensure Examination on all Professions All subjects for licensure examinations shall be taught by persons who are holders of valid certificates of registration and valid professional licenses of the profession and who comply with the other requirements of the CHED. Section 12. Assistance of Law Enforcement Agency Any law enforcement agency shall, upon call or request of the Commission or of any Professional Regulatory Board, render assistance in enforcing the regulatory law of the profession including the rules and regulations promulgated thereunder by prosecuting the violators thereof in accordance with law and the rules of court. Section 13. Appropriations The amount necessary to carry out the initial implementation of this Act shall be charged against the current years appropriations of the Professional Regulation Commission. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. Section 14. Authority to Use Income In addition to the annual appropriations of the Commission provided under the Annual General Appropriations Act, the Commission is hereby authorized to use its income not exceeding the amount of Forty-five million pesos (P45,000,000.00) a year for a period of five (5) years after the effectivity of this Act to implement the program for full computerization of the operations of the Commission, subject to the usual accounting and auditing requirements. Section 15. Penalties for Manipulation and Other Corrupt Practices in the Conduct of Professional Examinations (a) Any person who manipulates or rigs licensure examination results, secretly informs or makes known licensure examination questions prior to the conduct of the examination or tampers with the grades in professional licensure examinations shall, upon conviction, be punished by imprisonment of not less than six (6) years and one (1) day to not more than twelve (12) years or a fine of not less than Fifty thousand pesos (P50,000.00) to not more than One hundred thousand pesos (P100,000.00) or both such imprisonment and fine at the discretion of the court. (b) In case the offender is an officer or employee of the Commission or a member of the regulatory board, he/she shall be removed from office and shall suffer the penalty of perpetual absolute disqualification from public office to addition to the penalties prescribed in the preceding section of this Act; (c) The penalty of imprisonment ranging from four (4) years and one (1) day to six (6) years or a fine ranging from Twenty thousand pesos (P20,000.00) to not more than Forty-nine thousand pesos (P49,000.00), or both imprisonment and fine at the discretion of the court, shall be imposed upon the accomplices. The penalty of imprisonment ranging from two (2) years and one (1) day to four (4) years or a fine ranging from Five thousand pesos (P5,000.00) to not more than Nineteen thousand pesos (P19,000.00), or both imprisonment and fine at the discretion of the court, shall be imposed upon the accessories. Section 16. Penalties for Violation of Section 7 Subparagraph (1) by Heads of Government Agencies or Officers of Private Entities/Institutions Any head of a government agency or officer(s) of a private firm/institution who violates Section 7 subpar. (1) of this Act shall be punished by imprisonment of not less than six (6) months and one (1) day to not more than six (6) years, or a fine of not less than Fifty thousand pesos (P50,000.00) to not more than Five hundred thousand pesos (P500,000.00) or both at the discretion of the court. Section 17. Implementing Rules and Regulations Within ninety (90) days after the approval of this Act, the Professional Regulation Commission, together with representatives of the various Professional Regulatory Boards and accredited professional organizations, the DBM, and the CHED shall prepare and promulgate the necessary rules and regulations needed to implement the provisions of this Act. Section 18. Transitory Provisions The incumbent Commissioner and two (2) incumbent Associate Commissioners shall serve as Chairperson and Commissioners respectively under the terms for which they have been appointed without need of new appointments. The incumbent Executive Director shall likewise serve as Assistant Commissioner without need of new appointment.

P a g e | 199 Section 19. Separability Clause If any provision of this Act or the application of such provision to any person or circumstances is declared invalid or unconstitutional, the remainder of this Act or application of such provisions to other persons or circumstance shall not be affected by such declaration. Section 20. Repealing Clause Republic Act. No. 546, Presidential Decree No. 223, as amended by Presidential Decree No. 657, Republic Act No. 5181, and Executive Order No. 266, Series of 1995 are hereby repealed. Section 23 (h) of Republic Act No. 7836, Section 4 (m & s). Section 23 of Republic Act No. 7920, and Section 29 of Republic Act No. 8050, insofar as it requires completion of the requirements of the Continuing Professional Education (CPE) as a condition for the renewal of the license are hereby repealed. All other laws, orders, rules and regulations or resolutions and all part/s thereof inconsistent with the provisions of this Act are hereby repealed or amended accordingly. Section 21. Effectivity This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in two (2) newspapers of general circulation, whichever is earlier. Approved: December 05, 2000

(Sgd.)JOSEPH EJERCITO ESTRADA President of the Philippines Case:

EN BANC G.R. No. 180046 April 2, 2009

REVIEW CENTER ASSOCIATION OF THE PHILIPPINES, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO ERMITA and COMMISSION ON HIGHER EDUCATION represented by its Chairman ROMULO L. NERI, Respondents. CPA REVIEW SCHOOL OF THE PHILIPPINES, INC. (CPAR), PROFESSIONAL REVIEW AND TRAINING CENTER, INC. (PRTC), ReSA REVIEW SCHOOL, INC. (ReSA), CRC-ACE REVIEW SCHOOL, INC. (CRC-ACE)Petitioners-Intervenors. PIMSAT COLLEGES, Respondent-Intervenor. DECISION CARPIO, J.: The Case Before the Court is a petition for prohibition and mandamus assailing Executive Order No. 566 (EO 566) and Commission on Higher 2 Education (CHED) Memorandum Order No. 30, series of 2007 (RIRR). The Antecedent Facts On 11 and 12 June 2006, the Professional Regulation Commission (PRC) conducted the Nursing Board Examinations nationwide. In June 2006, licensure applicants wrote the PRC to report that handwritten copies of two sets of examinations were circulated during the examination period among the examinees reviewing at the R.A. Gapuz Review Center and Inress Review Center. George Cordero, Inress Review Centers President, was then the incumbent President of the Philippine Nurses Association. The examinees were provided with a list of 500 questions and answers in two of the examinations five subjects, particularly Tests III (Psy chiatric 3 Nursing) and V (Medical-Surgical Nursing). The PRC later admitted the leakage and traced it to two Board of Nursing members. On 19 June 2006, the PRC released the results of the Nursing Board Examinations. On 18 August 2006, the Court of Appeals restrained the PRC from proceeding with the oath-taking of the successful examinees set on 22 August 2006. Consequently, President Gloria Macapagal-Arroyo (President Arroyo) replaced all the members of the PRCs Board of Nursing. President Arroyo also ordered the examinees to re-take the Nursing Board Examinations. On 8 September 2006, President Arroyo issued EO 566 which authorized the CHED to supervise the establishment and operation of all review centers and similar entities in the Philippines. On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno (Chairman Puno), approved CHED Memorandum Order 4 No. 49, series of 2006 (IRR).
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In a letter dated 24 November 2006, the Review Center Association of the Philippines (petitioner), an organization of independent review centers, asked the CHED to "amend, if not withdraw" the IRR arguing, among other things, that giving permits to operate a review center to Higher Education Institutions (HEIs) or consortia of HEIs and professional organizations will effectively abolish independent review centers. In a letter dated 3 January 2007, Chairman Puno wrote petitioner, through its President Jose Antonio Fudolig (Fudolig), that to suspend the implementation of the IRR would be inconsistent with the mandate of EO 566. Chairman Puno wrote that the IRR was presented to the stakeholders during a consultation process prior to its finalization and publication on 13 November 2006. Chairman Puno also wrote that petitioners comments and suggestions would b e considered in the event of revisions to the IRR. In view of petitioners continuing request to suspend and re-evaluate the IRR, Chairman Puno, in a letter dated 9 February 7 2007, invited petitioners representatives to a dialogue on 14 March 2007. In accordance with what was agreed upon during the dialogue, petitioner submitted to the CHED its position paper on the IRR. Petitioner also requested the CHED to confirm in writing Chairman Punos statements during the dialogue, particularly on lowering of the registration fee from P400,000 to P20,000 and the requirement for reviewers to have five years teaching experience instead of five years administrative experie nce. Petitioner likewise requested for a categorical answer to their request for the suspension of the IRR. The CHED did not reply to the letter. On 7 May 2007, the CHED approved the RIRR. On 22 August 2007, petitioner filed before the CHED a Petition to Clarify/Amend 8 Revised Implementing Rules and Regulations praying for a ruling: 1. Amending the RIRR by excluding independent review centers from the coverage of the CHED; 2. Clarifying the meaning of the requirement for existing review centers to tie-up or be integrated with HEIs, consortium or HEIs and PRC-recognized professional associations with recognized programs, or in the alternative, to convert into schools; and 3. Revising the rules to make it conform with Republic Act No. 7722 (RA 7722) limiting the CHEDs coverage to public and private institutions of higher education as well as degree-granting programs in post-secondary educational institutions. On 8 October 2007, the CHED issued Resolution No. 718-2007 referring petitioners request to exclude independent review centers from CHEDs supervision and regulation to the Office of the President as the matter requires the amendment of EO 566. In a le tter 11 dated 17 October 2007, then CHED Chairman Romulo L. Neri (Chairman Neri) wrote petitioner regarding its petition to be excluded from the coverage of the CHED in the RIRR. Chairman Neri stated: While it may be true that regulation of review centers is not one of the mandates of CHED under Republic Act 7722, however, on September 8, 2006, Her Excellency, President Gloria Macapagal-Arroyo, issued Executive Order No. 566 directing the Commission on Higher Education to regulate the establishment and operation of review centers and similar entities in the entire country. With the issuance of the aforesaid Executive Order, the CHED now is the agency that is mandated to regulate the establishment and operation of all review centers as provided for under Section 4 of the Executive Order which provides that "No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. x x x" To exclude the operation of independent review centers from the coverage of CHED would clearly contradict the intention of the said Executive Order No. 566. Considering that the requests requires the amendment of Executive Order No. 566, the Commission, during its 305th Commission Meeting, resolved that the said request be directly referred to the Office of the President for appropriate action. As to the request to clarify what is meant by tie-up/be integrated with an HEI, as required under the Revised Implementing Rules 12 and Regulations, tie-up/be integrated simply means, to be in partner with an HEI. (Boldfacing and underscoring in the original) On 26 October 2007, petitioner filed a petition for Prohibition and Mandamus before this Court praying for the annulment of the RIRR, the declaration of EO 566 as invalid and unconstitutional, and the prohibition against CHED from implementing the RIRR. Dr. Freddie T. Bernal, Director III, Officer-In-Charge, Office of the Director IV of CHED, sent a letter to the President of Northcap Review Center, Inc., a member of petitioner, that it had until 27 November 2007 to comply with the RIRR. 1avvphi1.zw+ On 15 February 2008, PIMSAT Colleges (respondent-intervenor) filed a Motion For Leave to Intervene and To Admit Comment-inIntervention and a Comment-in-Intervention praying for the dismissal of the petition. Respondent-intervenor alleges that the Office of the President and the CHED did not commit any act of grave abuse of discretion in issuing EO 566 and the RIRR. Respondentintervenor alleges that the requirements of the RIRR are reasonable, doable, and are not designed to deprive existing review centers of their review business. The Court granted the Motion for Leave to Intervene and to Admit Comment-in-Intervention in its 11 15 March 2008 Resolution. On 23 April 2008, a Motion for Leave of Court for Intervention In Support of the Petition and a Petition In Intervention were filed by CPA Review School of the Philippines, Inc. (CPAR), Professional Review and Training Center, Inc. (PRTC), ReSA Review School, Inc.
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(ReSA), CRC-ACE Review School, Inc. (CRC-ACE), all independent CPA review centers operating in Manila (collectively, petitionersintervenors). Petitioners-intervenors pray for the declaration of EO 566 and the RIRR as invalid on the ground that both constitute an 16 unconstitutional exercise of legislative power. The Court granted the intervention in its 29 April 2008 Resolution. On 21 May 2008, the CHED issued CHED Memorandum Order No. 21, Series of 2008 (CMO 21, s. 2008) extending the deadline for six months from 27 May 2008 for all existing independent review centers to tie-up or be integrated with HEIs in accordance with the RIRR. In its 25 November 2008 Resolution, this Court resolved to require the parties to observe the status quo prevailing before the issuance of EO 566, the RIRR, and CMO 21, s. 2008. The Assailed Executive Order and the RIRR Executive Order No. 566 states in full: EXECUTIVE ORDER NO. 566 DIRECTING THE COMMISSION ON HIGHER EDUCATION TO REGULATE THE ESTABLISHMENT AND OPERATION OF REVIEW CENTERS AND SIMILAR ENTITIES WHEREAS, the State is mandated to protect the right of all citizens to quality education at all levels and shall take appropriate steps to make education accessible to all, pursuant to Section 1, Article XIV of the 1987 Constitution; WHEREAS, the State has the obligation to ensure and promote quality education through the proper supervision and regulation of the licensure examinations given through the various Boards of Examiners under the Professional Regulation Commission; WHEREAS, the lack of regulatory framework for the establishment and operation of review centers and similar entities, as shown in recent events, have adverse consequences and affect public interest and welfare; WHEREAS, the overriding necessity to protect the public against substandard review centers and unethical practices committed by some review centers demand that a regulatory framework for the establishment and operation of review centers and similar entities be immediately instituted; WHEREAS, Republic Act No. 7722, otherwise known as the Higher Education Act of 1994, created the Commission on Higher Education, which is best equipped to carry out the provisions pertaining to the regulation of the establishment and operation of review centers and similar entities. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. Establishment of a System of Regulation for Review Centers and Similar Entities. The Commission on Higher Education (CHED), in consultation with other concerned government agencies, is hereby directed to formulate a framework for the regulation of review centers and similar entities, including but not limited to the development and institutionalization of policies, standards, guidelines for the establishment, operation and accreditation of review centers and similar entities; maintenance of a mechanism to monitor the adequacy, transparency and propriety of their operations; and reporting mechanisms to review performance and ethical practice. SEC. 2. Coordination and Support. The Professional Regulation Commission (PRC), Technical Skills Development Authority (TESDA), Securities and Exchange Commission (SEC), the various Boards of Examiners under the PRC, as well as other concerned non-government organizations life professional societies, and various government agencies, such as the Department of Justice (DOJ), National Bureau of Investigation (NBI), Office of the Solicitor General (OSG), and others that may be tapped later, shall provide the necessary assistance and technical support to the CHED in the successful operationalization of the System of Regulation envisioned by this Executive Order. SEC. 3. Permanent Office and Staff. To ensure the effective implementation of the System of Regulation, the CHED shall organize a permanent office under its supervision to be headed by an official with the rank of Director and to be composed of highly competent individuals with expertise in educational assessment, evaluation and testing; policies and standards development, monitoring, legal and enforcement; and statistics as well as curriculum and instructional materials development. The CHED shall submit the staffing pattern and budgetary requirements to the Department of Budget and Management (DBM) for approval. SEC. 4. Indorsement Requirement. No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. After due consultation with the stakeholders, the concerned review centers and similar entities shall be given a reasonable period, at the discretion of the CHED, to comply with the policies and standards, within a period not exceeding three (3) years, after due publication of this Executive
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Order. The CHED shall see to it that the System of Regulation including the implementing mechanisms, policies, guidelines and other necessary procedures and documentation for the effective implementation of the System, are completed within sixty days (60) upon effectivity of this Executive Order. SEC. 5. Funding. The initial amount necessary for the development and implementation of the System of Regulation shall be sourced from the CHED Higher Education Development Fund (HEDF), subject to the usual government accounting and auditing practices, or from any applicable funding source identified by the DBM. For the succeeding fiscal year, such amounts as may be necessary for the budgetary requirement of implementing the System of Regulation and the provisions of this Executive Order shall be provided for in the annual General Appropriations Act in the budget of the CHED. Whenever necessary, the CHED may tap its Development Funds as supplemental source of funding for the effective implementation of the regulatory system. In this connection, the CHED is hereby authorized to create special accounts in the HEDF exclusively for the purpose of implementing the provisions of this Executive Order. SEC. 6. Review and Reporting. The CHED shall provide for the periodic review performance of review centers and similar entities and shall make a report to the Office of the President of the results of such review, evaluation and monitoring. SEC. 7. Separability. Any portion or provision of this Executive Order that may be declared unconstitutional shall not have the effect of nullifying other provisions hereof, as long as such remaining provisions can still subsist and be given effect in their entirely. SEC. 8. Repeal. All rules and regulations, other issuances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed or modified accordingly. SEC. 9. Effectivity. This Executive Order shall take effect immediately upon its publication in a national newspaper of general circulation. DONE in the City of Manila, this 8th day of September, in the year of Our Lord, Two Thousand and Six. (Sgd.) Gloria Macapagal-Arroyo By the President: (Sgd.) Eduardo R. Ermita Executive Secretary The pertinent provisions of the RIRR affecting independent review centers are as follows: Rule VII IMPLEMENTING GUIDELINES AND PROCEDURES Section 1. Authority to Establish and Operate Only CHED recognized, accredited and reputable HEIs may be authorized to establish and operate review center/course by the CHED upon full compliance with the conditions and requirements provided herein and in other pertinent laws, rules and regulations. In addition, a consortium or consortia of qualified schools and/or entities may establish and operate review centers or conduct review classes upon compliance with the provisions of these Rules. Rule XIV TRANSITORY PROVISIONS Section 1. Review centers that are existing upon the approval of Executive Order No. 566 shall be given a grace period of up to one (1) year, to tie-up/be integrated with existing HEIs[,] consortium of HEIs and PRC recognized Professional Associations with recognized programs under the conditions set forth in this Order and upon mutually acceptable covenants by the contracting parties. In the alternative, they may convert as a school and apply for the course covered by the review subject to rules and regulations of the CHED and the SEC with respect to the establishment of schools. In the meantime, no permit shall be issued if there is non-compliance with these conditions or non-compliance with the requirements set forth in these rules. Section 2. Only after full compliance with the requirements shall a Permit be given by the CHED to review centers contemplated under this Rule. Section 3. Failure of existing review centers to fully comply with the above shall bar them from existing as review centers and they shall be deemed as operating illegally as such. In addition, appropriate administrative and legal proceedings shall be commence[d] against the erring entities that continue to operate and appropriate sanctions shall be imposed after due process.

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The Issues The issues raised in this case are the following: 1. Whether EO 566 is an unconstitutional exercise by the Executive of legislative power a s it expands the CHEDs jurisdiction; and 2. Whether the RIRR is an invalid exercise of the Executives rule-making power. The Ruling of this Court The petition has merit. Violation of Judicial Hierarchy The Office of the Solicitor General (OSG) prays for the dismissal of the petition. Among other grounds, the OSG alleges that petitioner violated the rule on judicial hierarchy in filing the petition directly with this Court. This Courts original jurisdiction to issue a writ of certiorari, prohibition, mand amus, quo warranto, habeas corpus, and injunction is 18 not exclusive but is concurrent with the Regional Trial Courts and the Court of Appeals in certain cases. The Court has explained: This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts origin al jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upo n the Courts time and attention which are better 19 devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. The Court has further explained: The propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court must be put to a halt for two reasons: (1) it would be an imposition upon the precious time of this Court; and (2) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the 20 issues because this Court is not a trier of facts. The rule, however, is not absolute, as when exceptional and compelling circumstances justify the exercise of this Court of its primary jurisdiction. In this case, petitioner alleges that EO 566 expands the coverage of RA 7722 and in doing so, the Executive Department usurps the legislative powers of Congress.1awphi1 The issue in this case is not only the validity of the RIRR. Otherwise, the proper remedy of petitioner and petitioners-intervenors would have been an ordinary action for the nullification of the RIRR before the 21 Regional Trial Court. The alleged violation of the Constitution by the Executive Department when it issued EO 566 justifies the exercise by the Court of its primary jurisdiction over the case. The Court is not precluded from brushing aside technicalities and taking cognizance of an action due to its importance to the public and in keeping with its duty to determine whether the other 22 branches of the Government have kept themselves within the limits of the Constitution. OSGs Technical Objections The OSG alleges that the petition should be dismissed because the verification and certification of non-forum shopping were signed only by Fudolig without the express authority of any board resolution or power of attorney. However, the records show that Fudolig 23 was authorized under Board Resolution No. 3, series of 2007 to file a petition before this Court on behalf of petitioner and to execute any and all documents necessary to implement the resolution. The OSG also alleges that the petition should be dismissed for violation of the 2004 Rules on Notarial Practice because Fudolig only presented his community tax certificate as competent proof of identity before the notary public. The Court would have required Fudolig to comply with the 2004 Rules on Notarial Practice except that Fudolig already presented his Philippine passport before the notary public when petitioner submitted its reply to the OSGs comment. EO 566 Expands the Coverage of RA 7722 The OSG alleges that Section 3 of RA 7722 should be read in conjunction with Section 8, enumerating the CHEDs powers and functions. In particular, the OSG alleges that the CHED has the power under paragraphs (e) and (n) of Section 8 to:

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(e) monitor and evaluate the performance of programs and institutions of higher learning for appropriate incentives as well as the imposition of sanctions such as, but not limited to, diminution or withdrawal of subsidy, recommendation on the downgrading or withdrawal of accreditation, program termination or school closure; (n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effectively the purpose and objectives of this Act[.] The OSG justifies its stand by claiming that the term "programs x x x of higher learning" is broad enough to include programs offered by review centers. We do not agree. Section 3 of RA 7722 provides: Sec. 3. Creation of Commission on Higher Education. - In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as the Commission. The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS), and attached to the Office of the President for administrative purposes only. Its coverage shall be both public and private institutions of higher education as well as degree-granting programs in all post-secondary educational institutions, public and private . (Emphasis supplied) Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing Rules of RA 7722) defines an institution of higher learning or a program of higher learning. "Higher education," however, is defined as "education beyond the secondary level" or "education provided by a college or 26 university." Under the "plain meaning" or verba legis rule in statutory construction, if the statute is clear, plain, and free from 27 ambiguity, it must be given its literal meaning and applied without interpretation. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by use of such words as are found in the 28 statute. Hence, the term "higher education" should be taken in its ordinary sense and should be read and interpreted together with the phrase "degree-granting programs in all post-secondary educational institutions, public and private." Higher education should be taken to mean tertiary education or that which grants a degree after its completion. Further, Articles 6 and 7 of the Implementing Rules provide: Article 6. Scope of Application. - The coverage of the Commission shall be both public and private institutions of higher education as well as degree granting programs in all post-secondary educational institutions, public and private. These Rules shall apply to all public and private educational institutions offering tertiary degree programs. The establishment, conversion, or elevation of degree-granting institutions shall be within the responsibility of the Commission. Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning primarily offering tertiary degree programs shall belong to the Commission. (Emphasis supplied) Clearly, HEIs refer to degree-granting institutions, or those offering tertiary degree or post-secondary programs. In fact, Republic Act No. 8292 or the Higher Education Modernization Act of 1997 covers chartered state universities and colleges. State universities and colleges primarily offer degree courses and programs. Sections 1 and 8, Rule IV of the RIRR define a review center and similar entities as follows: Section 1. REVIEW CENTER. - refers to a center operated and owned by a duly authorized entity pursuant to these Rules intending to offer to the public and/or to specialized groups whether for a fee or for free a program or course of study that is intended to refresh and enhance the knowledge and competencies and skills of reviewees obtained in the formal school setting in preparation for the licensure examinations given by the Professional Regulations Commission (PRC). The term review center as understood in these rules shall also embrace the operation or conduct of review classes or courses provided by individuals whether for a fee or not in preparation for the licensure examinations given by the Professional Regulations Commission. xxx Section 8. SIMILAR ENTITIES the term refer to other review centers providing review or tutorial services in areas not covered by licensure examinations given by the Professional Regulations Commission including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific fields like English, Mathematics and the like. The same Rule defines a review course as follows:
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Section 3. REVIEW COURSE refers to the set of non-degree instructional program of study and/or instructional materials/module, offered by a school with a recognized course/program requiring licensure examination, that are intended merely to refresh and enhance the knowledge or competencies and skills of reviewees. The scopes of EO 566 and the RIRR clearly expand the CHEDs coverage under RA 7722. The CHEDs coverage under RA 7722 is limited to public and private institutions of higher education and degree-granting programs in all public and private postsecondary educational institutions. EO 566 directed the CHED to formulate a framework for the regulation of review centers and similar entities. The definition of a review center under EO 566 shows that it refers to one which offers " a program or course of study that is intended to refresh and enhance the knowledge or competencies and skills of reviewees obtained in the formal school setting in preparation for the licensure examinations" given by the PRC. It also covers the operation or conduct of review classes or courses provided by individuals whether for a fee or not in preparation for the licensure examinations given by the PRC. A review center is not an institution of higher learning as contemplated by RA 7722. It does not offer a degree-granting program that would put it under the jurisdiction of the CHED. A review course is only intended to "refresh and enhance the knowledge or competencies and skills of reviewees." A reviewee is not even required to enroll in a review center or to take a review course prior to taking an examination given by the PRC. Even if a reviewee enrolls in a review center, attendance in a review course is not mandatory. The reviewee is not required to attend each review class. He is not required to take or pass an examination, and neither is he given a grade. He is also not required to submit any thesis or dissertation. Thus, programs given by review centers could not be considered "programs x x x of higher learning" that would put them under the jurisdiction of the CHED. Further, the "similar entities" in EO 566 cover centers providing "review or tutorial services" in areas not covered by licensure examinations given by the PRC, which include, although not limited to, college entrance examinations, Civil Services examinations, and tutorial services. These review and tutorial services hardly qualify as programs of higher learning. Usurpation of Legislative Power The OSG argues that President Arroyo was merely exercising her executive power to ensure that the laws are faithfully executed. The OSG further argues that President Arroyo was exercising her residual powers under Executive Order No. 292 (EO 29 292), particularly Section 20, Title I of Book III, thus: Section 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. (Emphasis supplied)1avvphi1 Section 20, Title I of Book III of EO 292 speaks of other powers vested in the President under the law. The exercise of the 31 Presidents residual powers under this provision requires legislation, as the provision clearly states that the exercise of the Presidents other powers and functions has to be "provided for under the law." There is no law granting the President the power to amend the functions of the CHED. The President may not amend RA 7722 through an Executive Order without a prior legislation granting her such power. The President has no inherent or delegated legislative power to amend the functions of the CHED under RA 7722. Legislative power 32 is the authority to make laws and to alter or repeal them, and this power is vested with the Congress under Section 1, Article VI of the 1987 Constitution which states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. In Ople v. Torres, the Court declared void, as a usurpation of legislative power, Administrative Order No. 308 (AO 308) issued by the President to create a national identification system. AO 308 mandates the adoption of a national identification system even in the absence of an enabling legislation. The Court distinguished between Legislative and Executive powers, as follows: The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer laws. It is the power of carrying the laws into practical operation and enforcing their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus
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and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. x x x. An administrative order is: "Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders." An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the 34 legislative policy. x x x. Just like AO 308 in Ople v. Torres, EO 566 in this case is not supported by any enabling law. The Court further stated in Ople: x x x. As well stated by Fisher: "x x x Many regulations however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe 35 rules and regulations is not an independent source of power to make laws. " Since EO 566 is an invalid exercise of legislative power, the RIRR is also an invalid exercise of the CHEDs quasi -legislative power. Administrative agencies exercise their quasi-legislative or rule-making power through the promulgation of rules and 36 regulations. The CHED may only exercise its rule-making power within the confines of its jurisdiction under RA 7722. The RIRR covers review centers and similar entities which are neither institutions of higher education nor institutions offering degree-granting programs. Exercise of Police Power Police power to prescribe regulations to promote the health, morals, education, good order or safety, and the general welfare of the 37 people flows from the recognition that salus populi est suprema lex the welfare of the people is the supreme law. Police power primarily rests with the legislature although it may be exercised by the President and administrative boards by virtue of a valid 38 delegation. Here, no delegation of police power exists under RA 7722 authorizing the President to regulate the operations of nondegree granting review centers. Republic Act No. 8981 is Not the Appropriate Law It is argued that the President of the Philippines has adequate powers under the law to regulate review centers and this could have 39 been done under an existing validly delegated authority, and that the appropriate law is Republic Act No. 8981 (RA 8981). Under Section 5 of RA 8981, the PRC is mandated to "establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the integrity of all licensure examinations." Section 7 of RA 8981 further states that the PRC shall adopt "measures to preserve the integrity and inviolability of licensure examinations." There is no doubt that a principal mandate of the PRC is to preserve the integrity of licensure examinations. The PRC has the power to adopt measures to preserve the integrity and inviolability of licensure examinations. However, this power should properly be interpreted to refer to the conduct of the examinations. The enumeration of PRCs powers under Section 7(e) includes among others, the fixing of dates and places of the examinations and the appointment of supervisors and watchers. The power to preserve the integrity and inviolability of licensure examinations should be read together with these functions. These powers of the PRC have nothing to do at all with the regulation of review centers. The PRC has the power to investigate any of the members of the Professional Regulatory Boards (PRB) for "commission of any irregularities in the licensure examinations which taint or impugn the integrity and authenticity of the results of the said 40 examinations." This is an administrative power which the PRC exercises over members of the PRB. However, this power has nothing to do with the regulation of review centers. The PRC has the power to bar PRB members from conducting review classes in review centers. However, to interpret this power to extend to the power to regulate review centers is clearly an unwarranted interpretation of RA 8981. The PRC may prohibit the members of the PRB from conducting review classes at review centers because the PRC has administrative supervision over the members of the PRB. However, such power does not extend to the regulation of review centers. Section 7(y) of RA 8981 giving the PRC the power to perform "such other functions and duties as may be necessary to carry out the provisions" of RA 8981 does not extend to the regulation of review centers. There is absolutely nothing in RA 8981 that mentions regulation by the PRC of review centers.

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The Court cannot likewise interpret the fact that RA 8981 penalizes "any person who manipulates or rigs licensure examination results, secretly informs or makes known licensure examination questions prior to the conduct of the examination or tampers with 41 the grades in the professional licensure examinations" as a grant of power to regulate review centers. The provision simply provides for the penalties for manipulation and other corrupt practices in the conduct of the professional examinations. The assailed EO 566 seeks to regulate not only review centers but also "similar entities." The questioned CHED RIRR defines "similar entities" as referring to "other review centers providing review or tutorial services in areas not covered by licensure examinations given by the PRC including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific 42 fields like English, Mathematics and the like." The PRC has no mandate to supervise review centers that give courses or lectures intended to prepare examinees for licensure examinations given by the PRC. It is like the Court regulating bar review centers just because the Court conducts the bar examinations. Similarly, the PRC has no mandate to regulate similar entities whose reviewees will not even take any licensure examination given by the PRC . WHEREFORE, we GRANT the petition and the petition-in-intervention. We DECLARE Executive Order No. 566 and Commission on Higher Education Memorandum Order No. 30, series of 2007 VOID for being unconstitutional. SO ORDERED.

Footnotes
1

Rollo, pp. 35-37. Directing the Commission on Higher Education to Regulate the Establishment and Operation of Review Centers and Similar Entities. Signed on 8 September 2006.
2

Id. at 38-55. Revised Implementing Rules and Regulations Governing The Establishment and Operation of Review Centers And Similar Entities In The Philippines Pursuant To Executive Order No. 566. Approved on 7 May 2007.
3

Virginia Madeja and Anesia Dionisio were eventually charged with violation of Republic Act No. 8981 (An Act Modernizing the Professional Regulation Commission) and Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act).
4

Rollo, pp. 105-121. CMO 49, s. 2006 is otherwise known as the Implementing Rules and Regulations Governing the Establishment and Operation of Review Centers and Similar Entities in the Philippines.
5

Id. at 75-77. Id. at 79. Id. at 80. Id. at 58-69. An Act Creating the Commission on Higher Education, Appropriating Funds Therefor and For Other Purposes. Rollo, p. 180. Id. at 181-182. Id. at 181-182. Id. at 92. Not 14 February 2008 as stated in the 11 March 2008 Resolution. Rollo, p. 184. Id. at 230. Id. at 257. LPBS Commercial, Inc. v. Amila, G.R. No. 147443, 11 February 2008, 544 SCRA 199.

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19

Liga ng mga Barangay National v. City Mayor of Manila, 465 Phil. 529, 542-543 (2004), citing People v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA 415.
20

LPBS Commercial, Inc. v. Amila, supra note 18 at 205, citing Santiago v. Vasquez, G.R. Nos. 99289-90, 27 January 1993, 217 SCRA 633. Holy Spirit Homeowners Association, Inc. v. Defensor, G.R. No. 163980, 3 August 2006, 497 SCRA 581. Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, 20 February 2006, 482 SCRA 673. Rollo, p. 104.

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Rules and Regulations Implementing RA 7722, as amended. WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY, 1986 ed., p. 1068. Id. Republic v. Lacap, G.R. No. 158253, 2 March 2007, 517 SCRA 255. Id. The Administrative Code of 1987. See Larin v. Executive Secretary, 345 Phil. 962 (1997). See Kilusang Mayo Uno v. Director-General, National Economic Development Authority, G.R. No. 167798, 19 April 2006, 487 SCRA 623. Id. 354 Phil. 948 (1998). Id. at 966-968. Id. at 970. Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity Commission, G.R. No. 144322, 6 February 2007, 514 SCRA 346. Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., G.R. No. 170656, 15 August 2007, 530 SCRA 341. Id. Otherwise known as the Philippine Regulation Commission Modernization Act of 2000. Section 7(s). Section 15. Section 8, RIRR.

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SEPARATE CONCURRING OPINION BRION, J.: I concur with the ponencia that EO 566 and the instruments derived from this EO should be declared invalid. At the same time, I maintain that the President of the Philippines has adequate powers under the law to regulate review centers. EO 566 is invalid as a regulatory measure over review centers because an executive order of this tenor cannot be issued under R.A. 7722 (The Higher Education Act of 1994). The appropriate existing law to regulate review centers is R.A. 8981, otherwise known as The PRC Modernization Act of 2000. A holistic reading of R.A. 8981 shows that it attempts to provide the blue print for a credible and effective Philippine licensure examination system and process. Under this law, the Professional Regulation Commission (an entity under the Executive Department together with the Commission on Higher Education) was given among other powers related with its primary mandate to establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the integrity of all licensure examinations the full authority to promulgate rules and regulation to implement its mandate. To be sure, R.A.8981 does not narrowly or restrictively concern itself with the conduct of actual examinations alone as the ponencia discussed; it covers and relates as well to the various integral and/or institutional components of the licensure examination process or system. I find it unfortunate that R.A. 7722 was made the basis for the regulation of review centers, when R.A. 8981 could have provided opportunities, appropriate to the PRC, to achieve the same end. This is unfortunate under the circumstances since the invalidity of using R.A. 7722 as the legal basis, without saying more on what can be a viable alternative, can leave a major player in the Philippine licensure examination process immune, even for a time, from regulation. It is for this compelling reason that I have tackled in this Separate Concurring Opinion the alternative and (while not fully determinative of the issue of the validity of EO 566) the related issues of: (1) whether the business of review centers can be the subject of regulation; (2) if so, on what legal basis; and (3) again, if so, which governmental authority has been vested with jurisdiction by law. The Background Facts The Office of the Solicitor General (OSG) objects to the filing of the present petition directly with this Court, based on the principle of hierarchy of courts. The principle, as a rule, can be invoked where no compelling reason exists for a direct resort to this 1 Court. However, a compelling reason does exist as the ponencia properly noted. Likewise, there are no major issues of fact that are

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essentially for the trial or lower courts to handle as triers of facts; hence, direct resort to this Court is justified. In this regard, at the 3 petitioners urging and based on the implicit stance of all other parties to take judicial notice of the background facts, I am providing a fuller account of the background of the case based on parallel official developments, all of them related to the root of the present issue the nursing exam scandal of 2006. This background albeit footnoted because they do not all directly affect the present case may lead to a fuller appreciation of the case and the view I am putting forward, and is offered in the spirit of George Santa yanas 4 advice to remember the past to avoid being condemned to its repetition. The President Has Legal Basis to Regulate, but under R.A. 8981, not R.A. 7722 I hold the view that the President has sufficient legal basis to regulate review centers and could have done so under an existing validly delegated authority. This authority, however, is not based on the charter of the CHED, R.A. 7722; hence, the issuance of EO 566 on the basis of R.A. 7722 was an illegal act of subordinate legislation undertaken without statutory basis. The law dealing with leakage and manipulation of licensure examinations is Republic Act No. 8981 (the PRC Law). Section 5 of this law defines the PRCs primary mandate, which is to establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the integrity of all licensure exa minations. Some of the PRCs powers, functions and responsibilities under Section 7 of the law include: Section 7. Powers, Functions and Responsibilities of the Commission . The powers, functions, and responsibilities of the Commission are as follows: xxxx (d) To administer and conduct the licensure examinations of the various regulatory boards in accordance with the rules and regulations promulgated by the Commission; determine and fix the places and dates of examinations; use publicly or privatelyowned buildings and facilities for examination purposes; conduct more than one (1) licensure examination: Provided, That, when there are two (2) or more examinations given in a year, at least one (1) examination shall be held on weekdays (Monday to Friday): Provided, further, That, if only one (1) examination is given in a year, this shall be held only on weekdays: Provided, finally, That, the Commission is also authorized to require the completion of a refresher course where the examinee has failed to pass three (3) times, except as otherwise provided by law; approve the results of examinations and the release of the same; adopt measures to preserve the integrity and inviolability of licensure examinations; appoint supervisors and room watchers from among the employees of the government and/or private individuals with baccalaureate degrees, who have been trained by the Commission for the purpose and who shall be entitled to a reasonable daily allowance for every examination day actually attended, to be determined and fixed by the Commission; publish the list of successful examinees; provide schools, colleges and universities, public and private, offering courses for licensure examinations, with copies of sample test questions on examinations recently conducted by the Commission and copies of the syllabi or terms of specifications of subjects for licensure examinations; and impose the penalty of suspension or prohibition from taking licensure examinations to any examinee charged and found guilty of violating the rules and regulations governing the conduct of licensure examinations promulgated by the Commission; xxxx (s) To investigate motu proprio or upon the filing of a verified complaint, any member of the Professional Regulatory Boards for neglect of duty, incompetence, unprofessional, unethical, immoral or dishonorable conduct, commission of irregularities in the licensure examinations which taint or impugn the integrity and authenticity of the results of the said examinations and, if found guilty, to revoke or suspend their certificates of registration and professional licenses/identification cards and to recommend to the President of the Philippines their suspension or removal from office as the case may be; xxxx (y) To perform such other functions and duties as may be necessary to carry out the provisions of this Act, the various professional regulatory laws, decrees, executive orders and other administrative issuance Complementing these mandates are the penal provisions giving teeth to the PRCs regulato ry powers. Section 15 of the PRC Law provides: Section 15. Penalties for Manipulation and Other Corrupt Practices in the Conduct of Professional Examinations . (a) Any person who manipulates or rigs licensure examination results, secretly informs or makes known licensure examination questions prior to the conduct of the examination or tampers with the grades in professional licensure examinations shall, upon conviction, be punished by imprisonment of not less than six (6) years and one (1) day to not more than twelve (12) years or a fine of not less than Fifty thousand pesos (P50,000.00) to not more than One hundred thousand pesos (P100,000.00) or both such imprisonment and fine at the discretion of the court. Another critical power under Section 17 of the law is the authority to promulgate the necessary rules and regulations needed to implement its provisions.
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Section 17. Implementing rules and Regulations. Within ninety (90) days after the approval of this Act, the Professional Regulation Commission, together with the representatives of the various Professional Regulatory Boards and accredited professional organizations, the DBM, and the CHED shall prepare and promulgate the necessary rules and regulations needed to implement the provisions of this Act. To be valid, this authority must be exercised on the basis of a policy that the law wishes to enforce and of sufficient standards that mark the limits of the legislatures delegation of authority. The completeness of this delegation is evidenced by the PRC Laws policy statement which provides: Section 2. Statement of Policy. The State recognizes the important role of professionals in nation-building and, towards this end, promotes the sustained development of a sustained reservoir of professionals whose competence has been determined by honest and credible licensure examinations and whose standards of professional service and practice are internationally recognized and considered world-class brought by the regulatory measures, programs and activities that foster professional growth and advancement. Read together with the grant of powers and functions under Section 5 (particularly the statement that "the Commission shall establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the 6 integrity of all licensure examinations"), both policy and standards are therefore present as required by law and jurisprudence. Whether review centers can be the legitimate subjects of PRC regulation, given the above-described experience with the nursing board examination leakage and the terms of the PRC Law, is not a hard question to answer. Review centers, because of the role they have assumed and the reliance on them by examinees, have become active participants in the licensure examination process, and their involvement can neither be downplayed nor ignored. Board examinees now undergo review preparatory to licensure examinations as a matter of accepted practice, and pay considerable sums to avail themselves of the services review centers offer. These services include the provision of review materials; lectures on examination methods; practice examinations to simulate the actual exam environment; and final coaching just before the actual examination date. To some exam candidates, these services have become security blankets that, whether true or not, boost their confidence come examination time. Not the least of the considerations, of course, is that the review center industry has now become a billion-peso industry with sufficient means and resources for the corrupt elements of the industry to subvert the integrity and reputation of the licensure examinations. PRC 7 experiences in the last few years attest to this reality. Thus, the integrity and effectiveness of review centers are now basic considerations in ensuring an honest and credible licensure examination system. In these lights, the regulation of review centers is a must for the PRC, given its duty to adopt measures that will preserve the integrity and inviolability of licensure examinations. Thus, unlike the CHED, the PRC has the requisite authority or mandate under the PRC Modernization Law to regulate the establishment and operation of review centers. Can the President transfer the power of regulation granted the PRC to CHED? This question essentially arises under the premise that review centers fall under the PRC's mandate so that there is no gap in the law, and the President, in the exercise of her power of control, can regulate review centers. Can this presidential authority be now cited as basis to argue for the validity of EO 566? The short and quick answer is no, because the disputed EO does not even invoke the PRC Law as its legal basis. Nor can the EO be revived by simply re-issuing it, citing the PRC Law and the authority of the President of the Philippines to issue regulations. To regulate review centers under the PRC law, another EO appropriate to the PRC and its structure under the PRC law will have to be prepared and issued. The President, as Chief Executive, has the power of control over all the executive departments, bureaus, and offices. The power of control refers to the power of an officer to alter, modify, nullify, or set aside what a subordinate officer has done in the performance 9 of his duties, and to substitute the judgment of the former for that of the latter. Under this power, the President may directly 10 exercise a power statutorily given to any of his subordinates, as what happened in the old case of Araneta v. Gatmaitan, where President Ramon Magsaysay himself directly exercised the authority granted by Congress to the Secretary of Agriculture and Natural Resources to promulgate rules and regulations concerning trawl fishing. We similarly ruled in Bermudez v. Torres when we said that the President, being the head of the Executive Department, can very well disregard or do away with the action of the departments, bureaus or offices even in the exercise of discretionary authority; in so opting, he cannot be said to be acting beyond the scope of his 11 authority. The statutory support for this authority is provided under Section 31 (2), Chapter 10, Title III, Book III of Executive Order No. 292, otherwise known as the Administrative Code of 1987 (EO 292), which states: Sec. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:
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(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies ; and (3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies. The Presidents direct exercise of the power of subordinate legislation is done via the issuance of an executive or administr ative order, defined under Section 2, Chapter 2, Book III of EO 292, as an ordinance issued by the President providing for rules of a general or permanent character in the implementation or execution of constitutional or statutory powers. The valid grant of the authority to issue subordinate legislation to the PRC and the exercise of this power by the President as the head of the executive department of government, however, do not extend to the authority of the President to take control of the PRCs powers under the PRC Law, and to assign these to anoth er agency within the executive branch. Effectively, this was what happened in the present case; the President, through EO 566, took control of the PRCs authority t o issue subordinate legislation to regulate review centers, and transferred this power to the CHED. This is an illegal sub-delegation of delegated power. What has once been delegated by Congress can no longer be further delegated by the original delegate to 12 another, expressed in the Latin maxim potestas delegata non delegare potest. When the PRC Law granted the power of subordinate legislation to the PRC, the mandate was given to this agency (and under the control powers of the President, to the President by necessary implication) as the original delegate; the faithful fulfillment of this mandate is a duty that the PRC itself, as 13 the delegate, must perform using its own judgment and not the intervening mind of another. Additionally, EO 566 placed entities subject to the jurisdiction of a particular agency (in this case, the PRC) under the jurisdiction of another (the CHED). As the cited reorganization powers of the President show, the statutorily-allowed transfer of functions refers to those from the Office of the President to the departments and agencies, or from the departments and agencies to the Office of the President. This proceeds from the power of control the Constitution grants to the President. No general statutory nor constitutional authority exists, however, allowing the President to transfer the functions of one department or agency to another. The reason for this is obvious the jurisdiction of a particular department or agency is provided for by law and this jurisdiction may not be modified, reduced or increased, via a mere executive order except to the extent that the law allows. Thus, only the President, based on her constitutionally-provided control powers, can assume the functions of any of the departments or agencies under the Executive Department. Even then, the President cannot transfer these functions to another agency without transgressing the legislative prerogatives of Congress. This conclusion necessarily impacts on the validity of the CHEDs issuance of the RIRR and other instruments which must similarly be invalid since they sprang from an invalid and impermissible sub-delegation of power. I therefore vote to invalidate EO 566 and the issuances arising from this EO. ARTURO D. BRION Associate Justice

Footnotes
1

See: Rubenito, et al. v. Lagata, et al., G.R. No. 140959, December 21, 2004, 447 SCRA 417.

Far East Bank & Trust Company v. Court of Appeals, G.R. No. 123569, April 1, 1996, 256 SCRA 15; Antiporda, Jr. v. Sandiganbayan, G.R. No. 116941, May 31, 2001, 358 SCRA 335.
3

Rollo, p. 4.

On June 11-12, 2006, the Professional Regulations Commission (PRC), in coordination with the Board of Nursing (BON), administered the Philippine Nurse Licensure Examination covering five (5) nursing subjects. After computing the grades of the examinees pursuant to the established rule under the Philippine Nursing Act of 2002 (R.A. 9173, specifically, Sections 14 & 15 thereof) giving equal weight to all the examinable subjects, 41.24% of the total number of examinees passed, including 1,186 examinees who were purportedly "borderline cases." Allegations of leakage in two (2) tests Tests III and IV however plagued the licensure examination. This prompted the PRC to constitute a committee to investigate the reported leakage. The PRC investigating body found that leakages occurred in Tests III and V; 20 of the 100 questions in Test III and 90 of the 100 questions in Test V were found to have been leaked to the examinees by certain nursing review centers days prior to the scheduled exam. The investigating body recommended, among others, the filing of criminal charges against the examiners BON members Madeja (for Test III) and Dionisio (for Test V). The National Bureau of Investigation (NBI) conducted a parallel investigation; the Senate, on the other hand, conducted a legislative inquiry on the leakage controversy. The PRC approved the report of the investigating body. To address the leakage problem, the PRC approved Resolution No. 31 (Resolution 31) of the BON that: (1) invalidated 20 of the 100 questions in Test III, while ruling that the remaining 80 questions are sufficient to measure the examinees competency for the subject covered by Test III; and (2) ordered the re-computation of the grades in Test V under a statistical

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treatment to tone down the upward pull of the leakage. As a result of the re-computation, the original passing rate of 41.24% rose to 42.42%; the 1,186 previously "borderline cases" became flunkers; while 1,687 examinees who flunked under the original computation became passers as "borderline cases." Various groups, concerned about the integrity and reputation of the professional nursing examination, expressed their opposition against the manner the PRC addressed the leakage and asked the PRC to reconsider Resolution 31. The PRC nevertheless scheduled and started administering the oaths for the 17,821 purportedly successful examinees; some were even issued licenses. To prevent the PRC from further administering the oaths and issuing professional licenses to the purported successful examinees, Rene Luis M. Tadle, Earl Francis R. Sumile, and Michael Angelo S. Brant (all from the University of Santo Tomas; hereinafter "Tadle, et al.") filed on August 16, 2006 with the Court of Appeals (CA) a petition for prohibition (docketed CA-G.R. SP NO. 95709) asking the appellate court to enjoin the implementation of Resolution 31 and the oath-taking of the declared passers. Tadle, et al. anchored their petition on the ground that the PRC and the BON reneged on their ministerial duty under the law to compute the grades of examinees based on the actual results from each of the five test subjects; that based on the combined application of Sections 14 and 15 of the Philippine Nursing ACT of 2002, the PRC and the BON has the duty to compute the scores of the examinees based on the actual results of the tests for the five areas; the PRC and the BON however based the ratings of examinees for Test V not on the result of an actual, true, and honest examination in Test V. To the petitioners, "the PRC BON changed the rules of computing the ratings for passing examinees, in a manner of speaking, after the game has been played." The importance also of the subject area covered by Test V was allegedly disregarded when it was given a weight lesser than the others. As additional ground, the petitioners drew a distinction between the 2003 bar examination controversy and the nursing leakage issue. Tadle, et al. asked the appellate court to issue a temporary restraining order (TRO) and a preliminary injunction. The appellate court issued on August 18, 2006 a TRO directing the PRC and the BON to CEASE and DESIST from enforcing Resolution 31 and from proceeding with the oathtaking scheduled on August 22, 2006 of those who purportedly passed the June x x x examinations for nursing licensure. The case drew several interventions both for and against the petition for prohibition. The Presidential Task Force on National Licensure Examination (NCLEX) for Nurses in the Philippines (the Task Force) joined the petition and additionally asked for a writ of certiorari to: annul Resolution 31; invalidate Tests III and V and conduct a new examination for these subjects; nullify the declaration of the passing examinees for lack of basis; and nullify and set aside the oath administered or caused to be administered by the PRC on supposed passing examinees. Various groups of examinees who alleged to have honestly passed the exam, on the other hand, filed their respective motions for intervention to oppose the petition for prohibition. The case followed its usual course the filing of comments, hearings on the merits, and the filing of the parties memoranda. During the pendency of the case, the President promulgated Executive Order No. 565 (EO 565) which transferred the oversight functions of the Office of the President over the PRC to the Department of Labor and Employment (DOLE) by attaching the PRC to the DOLE for general direction and coordination (This was later superseded by Executive Order No. 565-A defining the extent of the DOLEs authority over the PRC). At almost the same time, the President promulgated Executive Order No. 566 (EO 566) whose constitutionality is now assailed in the present petition directing the Commission on Higher Education (CHED) to regulate the establishment and operation of review centers and similar entities. Under Section 1 of EO 566, the CHED, in consultation with other concerned government agencies, was directed to formulate a framework for the regulation of review centers and similar entities, including but not limited to the development and institutionalization of policies, standards, and guidelines for the establishment, operation, and accreditation of review centers and similar entities; maintenance of a mechanism to monitor the adequacy, transparency, and propriety of their operations; and reporting mechanisms to review performance and ethical practice. Under the EO 566, too, no review center or similar entity shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. The President at almost the same time undertook a total overhaul of the BONs membership. In the meantime, the NBI concluded its investigation and found, among others, that the leakage occurred only in Manila and Baguio and that the leakage of the test questions was perpetrated by the Gapuz, Inress, and Royal Pentagon Review Centers through the final coaching sessions these centers conducted two days prior to the scheduled exam. The CA rendered its decision in CA-G.R. SP NO. 95709 on October 13, 2006. Its dispositive portion reads: WHEREFORE, the petition is GRANTED. Declaring Resolution No. 31, Series of 2006 as null andvoid, a Writ of Prohibition is hereby issued permanently enjoining the respondents from implementing said resolution. Granting further the incidental reliefs required under the premises, the respondents are hereby directed: 1) To conduct a selective retaking in Tests III and V among the 1,687 examinees whose names were merely added to the unaltered list of 41.24% of successful examinees; 2) To restore the names of the 1,186 successful examinees and include them again in the list of 41.24% who actually passed the June 11 and 12, 2006 Nursing Licensure Examination; and 3) To cause the oath taking and issuance of licenses to all of the 41.24% successful examinees as herein reconstituted. This disquisition is without prejudice to respondents and the executive branchs revoking the licenses issued to examinees who may eventually be identified as among those who attended the final coaching sessions at Gapuz, Inress and Pentagon review centers. SO ORDERED. The CA thus annulled Resolution 31 for having been issued with grave abuse of discretion; to the appellate court, the effect of the leakage was insignificant so that the resolution should not have been in the first place issued. The CA at the same time prohibited the implementation of Resolution 31. It added that the applicable rule on computation should be the pre-Resolution 31 formulae, and on this basis and as incidental relief, ordered the PRC to cause the oath-taking and issuance of licenses to all of the 41.24% successful examinees. It likewise found no basis for a wholesale retake of Tests III and V of the licensure examination. Finally, the appellate court, taking into account the findings of the NBI, ruled that the licenses of those who attended the final coaching sessions at Gapuz, Inress, and Pentagon review centers may be revoked by the PRC, BON or the executive branch. On October 16 2006, the petitioners filed a motion for reconsideration of the appellate courts October 13 Decision . A DOLE-initiated attempt at conciliation failed. At the conciliation hearing, however, CA Justice Vicente Veloso verbally indicated that execution of the CA decision can

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take place and that the PRC may be held in contempt of court for not administering the oaths to the successful examinees. Thus, the next day October 27, 2006 the PRC started administering the oaths and issuing the license to those who passed as defined by the CA decision. Tadle, et al. filed a petition for certiorari with the Supreme Court assailing: (1) the act of the CA in allegedly "improperly allowing its ponente to compel the PRC and the BON into letting the supposedly successful examinees take their oaths and their licenses although the decision in their favor has not yet become final"; and (2) the CAs October 13, 2006 decision. The petition for certiorari, however, was dismissed by the Court on a technicality. The Court thereafter denied with finality the Tadle, et al.s motion for reconsideration of the dismissal of their SC petition. On November 3, 2006, the CHED issued MEMORANDUM ORDER No. 49, Series of 2006 (CMO 49). Under Rule 7.2 of CMO 49, an applicant for authority to establish and operate a review center must either be: (a) schools, colleges or universities established/created by the State, or by operation of law, or private HEIs granted recognition by the CHED; or (b) Consortium/consortia of qualified HEIs and PRC-recognized Professional Association. Under Rule 15 of CMO 49, existing review centers are given a grace period of one (1) year to tie-up/be integrated with existing HEIs, consortium of HEIs and PRC-recognized Professional Association or convert as a school and apply for the course covered by the review. Otherwise, no permit as required by CMO 49 for operation and establishment will ever be given them and this will bar them from existing as review centers, and be deemed as operating illegally as such. The CHED revised CMO 49 when it issued CMO 30, Series of 2007, on May 7, 2007 (the RIRR). It was at this point that the petitioner association of independent review centers came to us, via the present petition, to assail the constitutionality of the EO 566 and the RIRR. Meanwhile, the conclusion of the legal battle did not write finis to the hurdles the June 2006 nursing board examinees had to surpass. On February 14, 2007, the Commission on Graduate of Foreign Nursing Schools (CGFNS) of the United States of America issued a press release/statement essentially saying that the Philippine nurses sworn in as licensed nurses in the Philippines following their passing the compromised licensure exam of June 2006 shall not be eligible for VisaScreenCertificate (a requirement in order that a Philippine nurse may engage in her profession in the United States of America). The CGFNS noted in its statement though that the June 2006 passers may overcome this bar and qualify for a Visa Screen Certificate by taking the equivalent of Tests 3 and 5 on a future licensing examination administered by Philippine regulatory authorities and obtaining a passing score; and, in this connection, it urged the Philippine authorities to provide an opportunity for re-take of tests without surrender of license. The President reacted by promulgating Executive Order No. 609 (EO 609) on March 12, 2007. Under EO 609, the June 2006 nursing board passers were given to enhance their employability the option of voluntarily retaking the equivalent of Tests III and V of the nurse licensure examination, without the risk of revocation of their professional licenses. The government assistance given to those who shall opt to voluntarily retake Tests III and V are as follows: (1) the PRC was directed to waive the collection of the usual examination fees; and (2) the designation throughout the country of special review centers to be conducted by centers of excellence in nursing or nursing schools with high passing rates where the voluntary retakers may avail themselves of free nursing board review. The CHED extended the 1-year grace period provided under the RIRR for the existing review centers compliance for six (6) months under CMO 55, Series of 2007, issued on November 19, 2007. Subsequently, the CHED under CMO 21, Series of 2008 extended the deadline for another six (6) months. We issued a Resolution requiring the parties to observe the status quo prevailing before the issuance of EO 566, the RIRR and CMO 21, s. 2008.
5

An Act Modernizing the Professional Regulation Commission, Repealing for the Purpose Presidential Decree Number Two Hundred and Twenty-Three, entitled "Creating the Professional Regulation Commission, and Prescribing its Powers and Functions," and for Other Purposes.
6

See: Tatad v. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330, on the tests for a valid delegation of legislative powers.
7

The PRC acted on the anomalies that allegedly marred the following licensure examinations for: Physicians (February 1993), Marine Deck Officers (June 2002), Teachers (August 2004), and Civil Engineers (November 2007).
8

CONSTITUTION, Article VII, Section 17. See Ang-Angco v. Castillo, G.R. No. L-17169, November 30, 1963, 9 SCRA 619, citing Hebron v. Reyes, 104 Phil. 175 (1958). 101 Phil. 328 (1957). G.R. No. 131429. August 4, 1999, 311 SCRA 733. United States v. Barrias, 11 Phil 327 (1908). See Cruz, Philippine Political Law (2002), p. 91.

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REPUBLIC ACT NO. 6511 - AN ACT AMENDING REPUBLIC ACT NUMBERED FOUR HUNDRED SIXTY-FIVE ENTITLED "AN ACT TO STANDARDIZE THE EXAMINATION AND REGISTRATION FEES CHARGED BY THE NATIONAL EXAMINING BOARDS, AND FOR OTHER PURPOSES"

SECTION 1. Sections one, two, three, four, five and six of Republic Act Numbered Four hundred sixty-five are hereby amended to read as follows:

P a g e | 214 "Sec. 1. The provisions of existing law to the contrary notwithstanding, applicants for any of the licensure examinations conducted by any of the boards under the Office of the Boards of Examiners shall pay examination fees as follows;

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(a) One hundred pesos: 1) Accountants 2) Agricultural Engineers 3) Architects 4) Chemical Engineers 5) Civil Engineers 6) Customs Brokers 7) Dentists, except Dental Hygienists 8) Electrical Engineers except Master Electricians 9) Electronics and Communications Engineers 10) Foresters 11) Geodetic Engineers 12) Licensing Contractors 13) Master Marine Officers, except Chief, Second, Third Mates, Major, Minor or Harbor Bay Lake-River Patrons 14) Mechanical Engineers except Certified Plant Mechanics 3) Minor Patrons 15) Mining Engineers 4) Therapists 16) Physicians except examinees for physician's preliminary examinations 17) Sanitary Engineers 18) Chief Marine Engineers (b) Seventy-five pesos: 1) Chemists 2) Second Steam and Motor Engineers 3) Dietitians 5) Master Electricians 6) Examinees for physician's preliminary and final examinations 7) Dental Hygienists 8) Certified Plant Mechanics 9) Second and Third Mates 10) Third and Fourth Steam and Motor Engineers 4) Geologists 5) Medical Technologists 6) Naval Architects and Marine Engineers 7) Nurses 8) Optometrists 9) Pharmacists 10) Social Workers 11) Sugar Technologists 12) Veterinarians 13) Midwives 14) Chief Mates and Major Patrons 15) Master Plumbers or Plumbing Engineers (c) Fifty pesos: 1) Bay-River-Lake Motor Engineers 2) Harbor-Bay-River-Lake Patrons

Provided, that in cases where removal examinations are allowed, the examination fee shall fifty per centum of the original fee prescribed under classifications A, B and C provided for under this section. "Sec. 2. Every applicant for registration in any of the professions or occupations under regulation by the Office of the Boards of Examiners who passed the corresponding examination shall pay a registration fee of fifty pesos for those falling under class (a); forty pesos for those under class (b); and thirty pesos for those under class (c) provided in section one, except those in the marine examinations who are registered by the Philippine Coast Guard. An applicant for registration without examination shall pay also the amount corresponding to the examination fee of the profession or occupation applied

P a g e | 216 plus the registration fee herein prescribed: provided, that detailmen shall pay twenty pesos, mine or quarry foreman and chemical technician, thirty pesos: provided, further, that applicants for registration who qualified in the examination given prior to the approval of this Act, shall pay the corresponding registration fee heretofore prescribed. "Sec. 3. Every practicing professional or practitioner of any of the occupations regulated by the Office of the Boards of Examiners shall pay an annual registration fee of five pesos: provided, that major or minor patrons, second, third, or fourth motor or steam engineers, harbor-river-lake patrons, bay-riverlake-motor engineers, master electricians, certified plant mechanics, master plumbers, midwives, chemical technicians and mine or quarry foremen shall pay two pesos: provided, further, that licensed contractors and detailmen shall be exempt from the payment of the annual registration fee as they are required to renew their licenses or registrations annually. Failure to pay the annual registration fee on or before January twenty of the year next following the calendar year in which it is due, shall bear a surcharge of twenty per centum for each calendar year in which payment has not been made: provided, that after the lapse of five continuous years from the year it was last paid if the annual registration fee has never been paid, the delinquent's certificate of registration shall be considered suspended and his name shall be dropped from the annual roster for not having been good standing and may be reinstated only upon application and payment of the fee herein provided for registration without examination. When a registered practitioner desires to stop practicing his profession, he shall inform the board concerned in writing within one year from the time he stopped practicing in order to exempt him from the payment of the annual registration fee: provided, that when he intends to resume the practice of his professions, he shall likewise inform the board concerned in writing and pay the annual registration fee for the current year without any surcharge and his name shall be reinstated in the annual roster. The annual registration card, at least for the calendar year immediately preceding, shall be presented to the collection agent of the Bureau of Internal Revenue when paying his professional tax and the registration number, date of issuance and the year shown on the card shall be indicated on the official receipt as evidence that the payor is authorized by law to practice the profession. "Sec. 4. Every applicant for duplicate certificate of registration shall pay a fee of twenty-five pesos and for certifications or true copies of records with the official seal of the office or of the board concerned, two pesos for the first one hundred words and in excess thereof fifty centavos for every one hundred words or a fraction thereof. "Sec. 5. All examination, registration and other fees shall be paid to the collecting officer of the Office of the Boards of Examiners which shall be deposited in a special trust account to constitute the professional regulation special fund and which shall be expended solely for the operational expenses of the Office of the Boards of Examiners, for compensation of members of the board and salaries of officials and employees including the hiring of temporary personnel as the exigencies of the service require, for the purchase, acquisition and improvement of equipment, furniture, and fixtures, motor vehicles, sites and construction of building for office spaces and examination halls, for conducting research to keep the office abreast with recent trends in regulation of professions and occupations and in all other matters that would enhance the effectiveness and efficiency of the office.

P a g e | 217 "Sec. 6. Each Chairman and member of the Board of Examiners, whether a government employee or not, shall receive as compensation a fee not exceeding fifteen pesos per capita of the candidates examined or registered without examination, and a per diem not exceeding ten (P10.00) pesos for each day of attendance in administrative investigations and ocular inspections lasting not less than one hour at a time: provided, that the total compensation of any Chairman or member shall not be less than three thousand six hundred pesos, but not more than twenty-four thousand pesos for participating in all examinations given by their respective board during the fiscal year. Any member whose term expires before the end of the fiscal year shall receive only the compensation equivalent to the number of candidates examined and/or registered without examination wherein he last participated or at the rate of five hundred pesos per month computed from the beginning of fiscal year until the last day of his term of office or until his successor shall have been appointed and qualified, whichever is higher: provided, that the Chairman or member whose term expires before the result of the examination he last participated in his released shall be allowed to continue correcting his examination papers and to perform his other duties relative to the release of the results thereof until he shall signed the certificate of registration of those who have qualified in the examination or were registered without examination, without additional compensation except those allowed herein, and that the full compensation due him shall be paid only after he shall have been cleared of all his responsibilities." SECTION 2. All laws, executive orders, administrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SECTION 3. This Act shall take effect upon its approval. Approved: July 1, 1972 PRESIDENTIAL DECREE No. 541 August 20, 1974 ALLOWING FORMER FILIPINO PROFESSIONALS TO PRACTICE THEIR RESPECTIVE PROFESSIONS IN THE PHILIPPINES. WHEREAS, a considerable number of Filipino professionals have, with the passage of time, gone to other countries to pursue further studies and/or take up specialized studies in their chosen fields of endeavor while others emigrated to other lands in search of better job opportunities; WHEREAS, since their departure from the Philippines some of these professionals have become naturalized citizens of their host countries so that they are now barred from the practice of their profession in our country; WHEREAS, a considerable number of these erstwhile Filipino professionals are now desirous to come home under the Balikbayan Program and, while here, would like to serve our people or share their advanced knowledge and expertise with their local professional colleagues; WHEREAS, for the sake of faster national development our government is now trying to attract these erstwhile Filipino professionals to return and reside permanently in the Philippines so that they can provide the talent and expertise urgently needed by the homeland;

P a g e | 218 NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order the following: Section 1. The provisions of all existing laws, rules and regulations, decrees, orders, and instructions to the contrary notwithstanding, professionals who were formerly citizens of the Philippines and who have previously passed licensure examinations in the Philippines for the practice of their profession, may, while in this country on a visit, sojourn or permanent residence, practice their profession: Provided, That they are professional practitioners of good standing prior to their departure from the Philippines and in their adopted country: Provided further, That prior to the practice of their profession they shall have first registered with the Professional license fee; and Provided finally, That they shall pay the corresponding income tax due on all incomes realized by them in the practice of their respective professions in the Philippines. Section 2. The Professional Regulations Commission shall promulgate the necessary rules and regulations to implement and carry out the purposes of this Decree. Section 3. This Decree shall take effect immediately. DONE in the City of Manila, this 20th day of August, in the year of Our Lord, nineteen hundred and seventy-four.

1987 CONSTITUTION ARTICLE XII NATIONAL ECONOMY AND PATRIMONY

Section 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. Cases:
EN BANC G.R. No. L-25135 September 21, 1968

PHILIPPINE MEDICAL ASSOCIATION, petitioner, vs. BOARD OF MEDICAL EXAMINERS and JOSE MA. TORRES, respondents. Seva-Albert-Vergara and Julio V. Presbitero for petitioner. Regino Hermosisima, Jr., for respondent Jose Ma. Torres. Solicitor General for respondent Board of Medical Examiners.

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CONCEPCION, C.J.: Original action for certiorari and mandamus, against the Board of Medical Examiners and Jose Ma. Torres, to annul a resolution of the former and a certificate issued by the same authorizing the latter to practice medicine in the Philippines without examination. The facts are not disputed. Jose Ma. Torres hereinafter referred to as respondent is a Spanish subject and a member of the Missionary Sons of the Immaculate Heart of Mary, otherwise known as the Claretian Missionaries. Having graduated from the University of Barcelona, Spain, with the degree of Licentiate in Medicine and Surgery, he is entitled, under the laws of Spain, to practice medicine and surgery throughout the territory thereof. On January 21, 1955, respondent was granted special authority to practice medicine in Lamitan, Basilan City, where he resides, pursuant to Section 771(e) of the Revised Administrative Code reading: SEC. 771. Persons exempt from registration. Registration shall not be required of the following classes of persons: . . . (e) In cases of epidemic or in municipalities where there is no legally qualified practicing physician, or when the circumstances require it, in the interest of the public health, the Director of Health may issue special authorizations, to all medical students who have completed the first three years of their studies, or to persons who have qualified in medicine, and to graduate or registered nurses, who may request it. This authority was revoked, on November 8, 1960, by the then Secretary of Health, upon the ground that "the conditions under which it was granted no longer obtained in Lamitan Basilan City, there being enough practising physicians in that locality." Said officer restored the authority on December 19, 1960, to be revoked again, on January 22, 1963. It was renewed once more, on September 1, 1963, and, once again, it was revoked on February 10, 1964, upon the recommendation of the Board of Medical Examiners hereinafter referred to as the Board. On motion for reconsideration filed by respondent, the Board issued, on April 6, 1965, its Resolution No. 25, series of 1965, which was approved by the President, granting respondent a certificate to practice medicine in the Philippines without the examination required in Republic Act No. 2882, otherwise known as the Medical Act of 1959. The resolution relied therefor upon The Treaty on the Validity of Academic Degrees and The Exercise of the Professions between the Republic of the Philippines and the Spanish State, signed at Manila on March 4, 1949, and 1 ratified on May 19, 1949. Petitioner herein, Philippine Medical Association, is a domestic corporation. On June 14, 1965, it addressed the Chairman of the Board a communication requesting reconsideration of said resolution No. 25, upon the ground that, pursuant to said Medical Act of 1959, respondent has to take and pass the examination therein prescribed, before he can be allowed to practice medicine in the Philippines. This letter was followed by another, dated October 6, 1965, to which said Chairman replied on October 8, 1965, stating "that the final decision on the matter will have to come from the President of the Philippines upon whose authority said resolution has been finally approved and implemented." Thereupon, or, on October 18, 1965, petitioner commenced the present action, for the purpose stated at the beginning of this decision, upon the theory that the Board had violated Republic Act No. 2882 in granting respondent's certificate for the general practice of medicine in the Philippines without the examination prescribed

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in said Act; that the Board had exceeded its authority in passing said Resolution, because of which the same is null and void; that the Board should, therefore, be ordered to cancel the certificate issued in pursuance of said resolution; and that petitioner has no other plain, adequate and speedy remedy in the ordinary course of law. In their respective answers, respondents admit the basic facts, but not the conclusions drawn therefrom by the petitioner and allege that the resolution in question is sanctioned by the provisions of the Treaty above referred to; that petitioner has no cause of action; and that the petition should be dismissed for failure of the petitioner to exhaust the available administrative remedies. Respondents cite the cases of Costas vs. Aldanese and Almario vs. City Mayor in support of the theory that petitioner herein has no sufficient interest or "personality" to maintain the present case. In the first case, it was 4 held that the President of the Association of Philippine (Marine) Engineers had no particular "individual" interest, and, hence,no cause of action for mandamus to compel the Collector of Customs to implement section 1203(j) of the Administrative Code, providing that steamers making round trips of more than 48 hours or travelling at night shall carry the complement of marine engineers therein specified. In the second case, a citizen of the Philippines, as such, who is not an Applicant for any stall or booth, or the representative of any such applicant, stallholder orany association of persons who are deprived of the right to occupy stalls in said market, "is not the real party in interest who has the capacity, right or personality" to bring an action for mandamus, to compel the office of Pasay City to comply with the provisions of Republic Act No. 37, by ejecting, from the public market of said City, stallholders who are not nationals of the Philippines. Said cases are not in point. To begin with, both are actions for mandamus, whereas the case at bar is mainly one for certiorari. Although, petitioner herein, likewise, seeks a writ of mandamus, directing the Board to cancel the certificate of registration issued to the respondent, this would be a necessary consequence of the writ of certiorari annulling the disputed resolution. Moreover, said two (2) cases were commenced by individuals, who, as such, had no special interest in the relief therein prayed for. Indeed, in the Almario case it was intimated that the result might have been otherwise had it been brought by an "association" whose members have an interest in the subject matter of the action. This was confirmed by PHILCONSA vs. Gimenez, in which we sustained the right of the Philippine Constitution Association to assail the constitutionality of Republic Act No. 3836, insofar as it allowed retirement gratuity and commutation of vacation and sick leave to members of Congress and to elective officials thereof. 6 Further authority in favor of petitioner herein is supplied by Nacionalista Party vs. F. Bautista Angelo in which the Nacionalista Party successfully impugned the validity of the designation of the then Solicitor General as Acting Member of the Commission on Elections. It is our considered opinion that the view adopted in the last three (3) cases should be maintained and that, in line therewith, petitioner herein has sufficient interest to prosecute the case at bar and a cause of action against respondents herein. As regards their objection based upon petitioner's failure to appeal to the President, suffice it to say that the rule requiring exhaustion of administrative remedies is concededly subject to exceptions, among which are cases 7 involving only questions of law or when jurisdiction is in issue or the action complained of bears the approval of a department secretary, as the disputed resolution, which was approved by the Executive Secretary "by authority of 8 the President," or as an alter ego of the Executive. The case at bar falls under these exceptions to said rule.1awphl.nt
5 2 3

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The main issue herein hinges on the interpretation of Article I of the Treaty aforementioned, reading as follows: The nationals of both countries who shall have obtained degrees or diplomas to practice the liberal professions in either of the Contracting States, issued by competent national authorities, shall be deemed competent to exercise said professions in the territory of the Other, subject to the laws and regulations of the latter. When the degree or diploma of Bachelor, issued by competent national authorities allows its holder without requiring further evidence of proficiency to pursue normally higher courses of study, he shall also be deemed qualified to continue his studies in the territory of either Party in conformity with the applicable laws and regulations of the State which recognizes the validity of the title or diploma in question, and with the rules and regulations of the particular educational institution in which he intends to pursue his studies. This Treaty provision was the subject matter of our resolution of August 15, 1961, in connection with the petition of Arturo Efren Garcia for admission to the Philippine Bar without taking the Bar Examinations. After completing, in Spain, the course prescribed therefor, Garcia had been graduated from the College of Law of the Universidad Central de Madrid with the degree of "Licenciado en Derecho", which entitled him to practice law in Spain. Having invoked the provisions of said treaty in support of his claim of exemption from the requisite bar examinations, this Court denied his petition upon the ground, among others ". . . that the privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections 2, 9, and 16 thereof, which have the force of law, require that before anyone can practice the legal profession in the Philippines he must first successfully pass the required bar examinations; . . ." We find no plausible reason to depart from this view. On the contrary, we reiterate the same, inasmuch as the theory of respondent herein cannot be accepted without placing graduates from our own educational institutions at a disadvantage vis-a-vis Spanish graduates from Spanish schools, colleges or universities. Indeed, the latter could under respondent's pretense engage in the practice of medicine in the Philippines without taking the examination prescribed in Republic Act No. 2882, whereas the former would have to take and pass said examination. Worse still, since as we ruled in the Garcia case the benefits of the aforementioned Treaty cannot be availed of in the Philippines except by Spanish subjects, the result would be should respondent's contention be sustained that graduates from Spanish schools of medicine would be entitled to practice medicine in the Philippines without examination, if they were Spanish subjects, but not if they are Filipinos. Surely said treaty was not made to discriminate against Philippine schools, colleges or universities, much less against nationals of the Philippines. WHEREFORE, we hold that said Treaty merely extended to diplomas issued or degrees conferred by educational institutions of Spain the same recognition and treatment that we accord to similar diplomas or degrees from local institutions of learning; that holders of said Spanish diplomas or degrees must take the examination prescribed by our laws for holders of similar diplomas or degrees from educational institutions in the Philippines; that resolution No. 25, series of 1965, of respondent Board is violative of Republic Act No. 2882 and hence, null and void; and that, respondent Board of Medical Examiners should be, as it is hereby ordered to cancel the certificate of registration, for the practice of medicine in the Philippines, issued in favor of respondent Jose Ma. Torres, without special pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Footnotes

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1

Effective on January 5, 1951. 45 Phil. 345. L-21565, January 31, 1966. Not the association itself. G.R. No. L-23325, December 18, 1965. 85 Phil. 101.

Cario v. ACCFA, L-19808, September 29, 1966; Tapales v. The President and the Board of Regents, L-17523, March 30, 1963; Danan v. Secretary of Agriculture, L-19547, January 31, 1967.
8

Gonzales v. Hechanova, L-21897, October 22, 1963; Extensive Enterprise v. Sarbro, L-22383 & L-22386, May 16, 1966; Santos v. Secretary of Public Works, L-16949, March 18, 1967; Lacson-Magallanes v. Jose Pao, L-27811, November 17, 1967.

EN BANC G.R. No. 78164 July 31, 1987

TERESITA TABLARIN, MA, LUZ CIRIACO, MA NIMFA B. ROVIRA, EVANGELINA S. LABAO, in their behalf and in behalf of applicants for admission into the Medical Colleges during the school year 1987-88 and future years who have not taken or successfully hurdled tile National Medical Admission Test (NMAT).petitioners, vs. THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of Branch XXXVII of the Regional Trial Court of the National Capital Judicial Region with seat at Manila, THE HONORABLE SECRETARY LOURDES QUISUMBING, in her capacity as Chairman of the BOARD OF MEDICAL EDUCATION, and THE CENTER FOR EDUCATIONAL MEASUREMENT (CEM), respondents. FELICIANO, J.: The petitioners sought admission into colleges or schools of medicine for the school year 1987-1988. However, the petitioners either did not take or did not successfully take the National Medical Admission Test (NMAT) required by the Board of Medical Education, one of the public respondents, and administered by the private respondent, the Center for Educational Measurement (CEM). On 5 March 1987, the petitioners filed with the Regional Trial Court, National Capital Judicial Region, a Petition for Declaratory Judgment and Prohibition with a prayer for Temporary Restraining Order and Preliminary Injunction. The petitioners sought to enjoin the Secretary of Education, Culture and Sports, the Board of Medical Education and the Center for Educational Measurement from enforcing Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS Order No. 52, series of 1985, dated 23 August 1985 and from requiring the taking and passing of the NMAT as a condition for securing certificates of eligibility for admission, from proceeding with accepting applications for taking the NMAT and from administering the NMAT as scheduled on 26 April 1987 and in the future. After hearing on the petition for issuance of preliminary injunction, the trial court denied said petition on 20 April 1987. The NMAT was conducted and administered as previously scheduled. Petitioners accordingly filed this Special Civil Action for certiorari with this Court to set aside the Order of the respondent judge denying the petition for issuance of a writ of preliminary injunction.

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Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as the "Medical Act of 1959" defines its basic objectives in the following manner: Section 1. Objectives. This Act provides for and shall govern (a) the standardization and regulation of medical education (b) the examination for registration of physicians; and (c) the supervision, control and regulation of the practice of medicine in the Philippines. (Underscoring supplied) The statute, among other things, created a Board of Medical Education which is composed of (a) the Secretary of Education, Culture and Sports or his duly authorized representative, as Chairman; (b) the Secretary of Health or his duly authorized representative; (c) the Director of Higher Education or his duly authorized representative; (d) the Chairman of the Medical Board or his duly authorized representative; (e) a representative of the Philippine Medical Association; (f) the Dean of the College of Medicine, University of the Philippines; (g) a representative of the Council of Deans of Philippine Medical Schools; and (h) a representative of the Association of Philippine Medical Colleges, as members. The functions of the Board of Medical Education specified in Section 5 of the statute include the following: (a) To determine and prescribe equirements for admission into a recognized college of medicine; (b) To determine and prescribe requirements for minimum physical facilities of colleges of medicine, to wit: buildings, including hospitals, equipment and supplies, apparatus, instruments, appliances, laboratories, bed capacity for instruction purposes, operating and delivery rooms, facilities for outpatient services, and others, used for didactic and practical instruction in accordance with modern trends; (c) To determine and prescribe the minimum number and minimum qualifications of teaching personnel, including student-teachers ratio; (d) To determine and prescribe the minimum required curriculum leading to the degree of Doctor of Medicine; (e) To authorize the implementation of experimental medical curriculum in a medical school that has exceptional faculty and instrumental facilities. Such an experimental curriculum may prescribe admission and graduation requirements other than those prescribed in this Act; Provided, That only exceptional students shall be enrolled in the experimental curriculum; (f) To accept applications for certification for admission to a medical school and keep a register of those issued said certificate; and to collect from said applicants the amount of twenty-five pesos each which shall accrue to the operating fund of the Board of Medical Education; (g) To select, determine and approve hospitals or some departments of the hospitals for training which comply with the minimum specific physical facilities as provided in subparagraph (b) hereof; and (h) To promulgate and prescribe and enforce the necessary rules and regulations for the proper implementation of the foregoing functions. (Emphasis supplied) Section 7 prescribes certain minimum requirements for applicants to medical schools: Admission requirements. The medical college may admit any student who has not been convicted by any court of competent jurisdiction of any offense involving moral turpitude and who presents (a) a record of completion of a bachelor's degree in science or arts; (b) a certificate of eligibility for entrance to a medical school from the Board of Medical Education; (c) a certificate of good moral character issued by two former professors in the college of

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liberal arts; and (d) birth certificate. Nothing in this act shall be construed to inhibit any college of medicine from establishing, in addition to the preceding, other entrance requirements that may be deemed admissible. xxx xxx x x x (Emphasis supplied)

MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture and Sports and dated 23 August 1985, established a uniform admission test called the National Medical Admission Test (NMAT) as an additional requirement for issuance of a certificate of eligibility for admission into medical schools of the Philippines, beginning with the school year 1986-1987. This Order goes on to state that: 2. The NMAT, an aptitude test, is considered as an instrument toward upgrading the selection of applicants for admission into the medical schools and its calculated to improve the quality of medical education in the country. The cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every year by the Board of Medical Education after consultation with the Association of Philippine Medical Colleges. The NMAT rating of each applicant, together with the other admission requirements as presently called for under existing rules, shall serve as a basis for the issuance of the prescribed certificate of elegibility for admission into the medical colleges. 3. Subject to the prior approval of the Board of Medical Education, each medical college may give other tests for applicants who have been issued a corresponding certificate of eligibility for admission that will yield information on other aspects of the applicant's personality to complement the information derived from the NMAT. xxx xxx xxx

8. No applicant shall be issued the requisite Certificate of Eligibility for Admission (CEA), or admitted for enrollment as first year student in any medical college, beginning the school year, 1986-87, without the required NMAT qualification as called for under this Order. (Underscoring supplied) Pursuant to MECS Order No. 52, s. 1985, the private respondent Center conducted NMATs for entrance to medical colleges during the school year 1986-1987. In December 1986 and in April 1987, respondent Center conducted the NMATs for admission to medical colleges during the school year 1987.1988.1avvphi1 Petitioners raise the question of whether or not a writ of preliminary injunction may be issued to enjoin the enforcement of Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS Order No. 52, s. 1985, pending resolution of the issue of constitutionality of the assailed statute and administrative order. We regard this issue as entirely peripheral in nature. It scarcely needs documentation that a court would issue a writ of preliminary injunction only when the petitioner assailing a statute or administrative order has made out a case of unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of constitutionality, aside from showing a clear legal right to the remedy sought. The fundamental issue is of course the constitutionality of the statute or order assailed. 1. The petitioners invoke a number of provisions of the 1987 Constitution which are, in their assertion, violated by the continued implementation of Section 5 (a) and (f) of Republic Act 2381, as amended, and MECS Order No. 52, s. 1985. The provisions invoked read as follows: (a) Article 11, Section 11: "The state values the dignity of every human person and guarantees full respect of human rights. "

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(b) ArticleII, Section l3: "The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs." (c) Article II, Section 17: "The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress and to promote total human liberation and development. " (d) Article XIV, Section l: "The State shall protect and promote the right of all citizens to quality education at all levels and take appropriate steps to make such education accessible to all. " (e) Article XIV, Section 5 (3): "Every citizen has a right to select a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements." Article II of the 1987 Constitution sets forth in its second half certain "State policies" which the government is enjoined to pursue and promote. The petitioners here have not seriously undertaken to demonstrate to what extent or in what manner the statute and the administrative order they assail collide with the State policies embodied in Sections 11, 13 and 17. They have not, in other words, discharged the burden of proof which lies upon them. This burden is heavy enough where the constitutional provision invoked is relatively specific, rather than abstract, in character and cast in behavioral or operational terms. That burden of proof becomes of necessity heavier where the constitutional provision invoked is cast, as the second portion of Article II is cast, in language descriptive of basic policies, or more precisely, of basic objectives of State policy and therefore highly generalized in tenor. The petitioners have not made their case, even a prima facie case, and we are not compelled to speculate and to imagine how the legislation and regulation impugned as unconstitutional could possibly offend the constitutional provisions pointed to by the petitioners. Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more petitioners have failed to demonstrate that the statute and regulation they assail in fact clash with that provision. On the contrary we may note-in anticipation of discussion infra that the statute and the regulation which petitioners attack are in fact designed to promote "quality education" at the level of professional schools. When one reads Section 1 in relation to Section 5 (3) of Article XIV as one must one cannot but note that the latter phrase of Section 1 is not to be read with absolute literalness. The State is not really enjoined to take appropriate steps to make quality education " accessible to all who might for any number of reasons wish to enroll in a professional school but rather merely to make such education accessible to all who qualify under "fair, reasonable and equitable admission and academic requirements. " 2. In the trial court, petitioners had made the argument that Section 5 (a) and (f) of Republic Act No. 2382, as amended, offend against the constitutional principle which forbids the undue delegation of legislative power, by failing to establish the necessary standard to be followed by the delegate, the Board of Medical Education. The general principle of non-delegation of legislative power, which both flows from the reinforces the more fundamental rule of the separation and allocation of powers among the three great departments of 1 government, must be applied with circumspection in respect of statutes which like the Medical Act of 1959, deal with subjects as obviously complex and technical as medical education and the practice of medicine in our present day world. Mr. Justice Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc. vs. The Public 2 Service Commission: One thing, however, is apparent in the development of the principle of separation of powers and that is that the maxim of delegatus non potest delegare or delegate potestas non potest delegare , adopted this practice (Delegibus

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et Consuetudiniis Anglia edited by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167) but which is also recognized in principle in the Roman Law (d. 17.18.3) has been made to adapt itself to the complexities of modern government, giving rise to the adoption, within certain limits of the principle of "subordinate legislation," not only in the United States and England but in practically all modern governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater power by the legislature, and toward the approval of the practice by the 3 courts." The standards set for subordinate legislation in the exercise of rule making authority by an administrative agency like the Board of Medical Education are necessarily broad and highly abstract. As explained by then Mr. Justice 4 Fernando in Edu v. Ericta The standard may be either expressed or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly the legislative objective is public safety. What is sought to 5 be attained as in Calalang v. Williams is "safe transit upon the roads. We believe and so hold that the necessary standards are set forth in Section 1 of the 1959 Medical Act: "the standardization and regulation of medical education" and in Section 5 (a) and 7 of the same Act, the body of the statute itself, and that these considered together are sufficient compliance with the requirements of the nondelegation principle. 3. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s. 1985, is an "unfair, unreasonable and inequitable requirement," which results in a denial of due process. Again, petitioners have failed to specify just what factors or features of the NMAT render it "unfair" and "unreasonable" or "inequitable." They appear to suggest that passing the NMAT is an unnecessary requirement when added on top of the admission requirements set out in Section 7 of the Medical Act of 1959, and other admission requirements established by internal regulations of the various medical schools, public or private. Petitioners arguments thus appear to relate to utility and wisdom or desirability of the NMAT requirement. But constitutionality is essentially a question of power or authority: this Court has neither commission or competence to pass upon questions of the desirability or wisdom or utility of legislation or administrative regulation. Those questions must be address to the political departments of the government not to the courts. There is another reason why the petitioners' arguments must fail: the legislative and administrative provisions impugned by them constitute, to the mind of the Court, a valid exercise of the police power of the state. The police power, it is commonplace learning, is the pervasive and non-waivable power and authority of the sovereign to secure and promote an the important interests and needs in a word, the public order of the general 6 community. An important component of that public order is the health and physical safety and well being of the 7 population, the securing of which no one can deny is a legitimate objective of governmental effort and regulation. Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the practice of medicine in all its branches has long been recognized 8 as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. thus, legislation and administrative regulations requiring those who wish to

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practice medicine first to take and pass medical board examinations have long ago been recognized as valid 9 exercises of governmental power. Similarly, the establishment of minimum medical educational requirements i.e., the completion of prescribed courses in a recognized medical school for admission to the medical profession, 10 has also been sustained as a legitimate exercise of the regulatory authority of the state. What we have before us in the instant case is closely related: the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current stage of our social and economic development, are widely known. We believe that the government is entitled to prescribe an admission test like the NMAT as a means for achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for 11 instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] and quite probably in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. 4. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in conflict with the equal protection clause of the Constitution. More specifically, petitioners assert that that portion of the MECS Order which provides that the cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every-year by the Board of Medical 11 Education after consultation with the Association of Philippine Medical Colleges. (Emphasis supplied) infringes the requirements of equal protection. They assert, in other words, that students seeking admission during a given school year, e.g., 1987-1988, when subjected to a different cutoff score than that established for an, e.g., earlier school year, are discriminated against and that this renders the MECS Order "arbitrary and capricious." The force of this argument is more apparent than real. Different cutoff scores for different school years may be dictated by differing conditions obtaining during those years. Thus, the appropriate cutoff score for a given year may be a function of such factors as the number of students who have reached the cutoff score established the preceding year; the number of places available in medical schools during the current year; the average score attained during the current year; the level of difficulty of the test given during the current year, and so forth. To establish a permanent and immutable cutoff score regardless of changes in circumstances from year to year, may wen result in an unreasonable rigidity. The above language in MECS Order No. 52, far from being arbitrary or capricious, leaves the Board of Medical Education with the measure of flexibility needed to meet circumstances as they change. We conclude that prescribing the NMAT and requiring certain minimum scores therein as a condition for admission to medical schools in the Philippines, do not constitute an unconstitutional imposition.

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WHEREFORE, the Petition for certiorari is DISMISSED and the Order of the respondent trial court denying the petition for a writ of preliminary injunction is AFFIRMED. Costs against petitioners. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Footnotes
1

See People v. Vera, 65 Phil. 56 (1937) and Pelaez v. Auditor general, 15 SCRA 569 (1965). 70 Phil. 221 (1940). 70 Phil., at 229; underscoring supplied. 35 SCRA 481 (1970). 35 SCRA, at 497; underscoring supplied. At this point, Mr. Justice Fernando dropped a useful footnote of the following tenor:

"This Court has considered as sufficient standards, "public welfare," Municipality of Cardona v. Binangonan, 36 Phil. 547 (I 917); "necessary in the interest of law and order," Rubi v. Provincial Board, 39 Phil. 660 (1919); "public interest," People v. Rosenthal, 68 Phil. 328 (1939); and "justice and equity and substantial merits of the case," International Hardwood v. Pangil Federation of Labor, 70 Phil. 602 (1940). " In People v. Exconde, 101 Phil. 1125 (1957), Mr. Justice J.B. L. Reyes said: "It is well established in this jurisdiction that, while the making of laws is a non-delegable activity that corresponds exclusively to Congress, nevertheless, the latter may constitutionally delegate authority and promulgate rules and regulations to implement a given legislation and effectuate its policies, for the reason that the legislature often finds it imprac ticable (if not impossible) to anticipate and provide for the multifarious and complex situations that may be met in carrying the law into effect. All that is required is that the regulation should be germane to the objects and purposes of the law," that the regulation be not in contradiction with it, but conform to the standards that the law prescribes-." (101 Phil. at 1129; underscoring supplied).
6

E.G., U.S. v. Toribio, 15 Phil. 85 (1910); Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila, 20 SCRA 849 (1967) and Morfe v. Mutuc, 22 SCRA 424 (1968).
7

E.G., Case v. Board of Health, 24 Phil. 256 (1913); People vs. Witte, 146 NE 178 (1925) and Lorenzo v. Director of Health, 50 Phil. 595 (1927).

Barsky v. Board of Regents, 347 US 442, 98 L.Ed. 829, 74 SCT. 650 (1954); Louisiana State Board of Medical Examiners v. Beatty, 220 La. 1, 55 So2d. 761 (1951) and Reisinger v. Com., State Board of Medical Education and Licensure, et al., 399 A2d 1160 (1979).
9

Dent v. West Virginia, 129 US 114, 32 L.Ed. 623, 9 SCt. 231 (1889); State v. Bair, 112 Jowa 466,84 NW 532 (1900). People v. Love, 298 Ill 304, 131 NE 809, 16 ALR 703 (1921); Collins v. Texas, 223 US 288, 56 L.Ed. 439, 32 SCt. 286 (1912). See, e.g., McDonald v. Hogness, et al., 92 Wash. 431, 598 P. 2d. 707 (1979).

10

11

EN BANC G.R. No. 88259 August 10, 1989

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THE BOARD OF MEDICAL EDUCATION and the HON. LOURDES R. QUISUMBING, in her capacity as Secretary of the Department of Education, Culture and Sports and Chairman, Board of Medical Education, petitioners, vs. HON. DANIEL P. ALFONSO, Presiding Judge of the Regional Trial Court, Branch 74, Fourth Judicial Region, Antipolo, Rizal, and the PHILIPPINE MUSLIM-CHRISTIAN COLLEGE OF MEDICINE FOUNDATION, INC., respondents. Carpio, Villaraza & Cruz for private respondent. Anatolio S. Tuazon, Jr. for intervenors.

NARVASA, J.: Petitioners, the Board of Medical Education, the government agency which supervises and regulates the country's medical colleges, and Secretary Lourdes R. Quisumbing of the Department of Education, Culture and Sports, as Chairperson of the Board, pray for a writ of certiorari to nullify and set aside the order issued by respondent Judge Daniel P. Alfonso, Regional Trial Court, Antipolo, Rizal, in Civil Case No. 1385 restraining the enforcement of petitioner Quisumbing's order of closure of the respondent Philippine Muslim-Christian College of Medicine Foundation, Inc. (hereafter simply the College).lwph1.t The, College, a private educational institution, was founded in 1981 for the avowed purpose of producing physicians who will "emancipate Muslim citizens from age-old attitudes on health." The, unstable peace and order situation in Mindanao led to the establishment of the College in Antipolo, Rizal, which granted it a temporary permit to operate in the municipality, instead of in Zamboanga City where the school was first proposed to be located. It has since adopted Antipolo as its permanent site and changed its name to the Rizal College of Medicine. In 1985, the Department of Education, Culture and Sports (DECS) and the Board of Medical Education (BME) authorized the Commission on Medical Education to conduct a study of all medical schools in the Philippines. The, report of the Commission showed that the College fell very much short of the minimum standards set for medical 1 schools. The, team of inspectors, composed of Doctors Florentino Herrera, Jr., Elena Ines Cuyegkeng, Horacio 2 Estrada, Jose V. Silao, Jr. and Andres L. Reyes, recommended the closure of the school upon the following findings, to wit: (a) the College was not fulfilling the purpose for which it had been created because of its inappropriate location and the absence in its curriculum of subjects relating to Muslim culture and welfare; (b) its lack of university affiliation hindered its students from obtaining a "balanced humanistic and scientific" education; (c) it did not have its philosophy base hospital for the training of its students in the major clinical disciplines, as required by the DECS; (d) more than 60% of the college faculty did not teach in the College full-time, resulting in shortened and irregular class hours, subject overloading, and in general, poor quality teaching.

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The, school disputed these findings as biased and discriminatory. At its request, the Board of Medical Education, in 3 May, 1987, sent another team of doctors for a re-evaluation of the College. After inspection, the team confirmed 4 the previous findings and recommended the phase-out of the school. The, first two reports were verified on June 23, 1987 by a third team of inspectors. A year thereafter, the College failed another test what was in effect the fourth evaluation of its fitness to continue as a medical school conducted on March 4 and 5, 1988 by a team from the Board of Medical Education determining the eligibility of medical schools for government recognition. The, College was adjudged "inadequate" in all aspects of the survey, to wit, 6 college, curriculum, facilities, teaching hospital, and studentry. The, inspectors, Doctors Nilo Rosas, Macario Tan and Elena Ines Cuyegkeng, accordingly recommended denial of government; recognition. Accordingly, the Board of Medical Education recommended to the DECS the closure of the College, effective the end of the school year 1988-1989. The, College however succeeded in having the Board form yet another team to review the previous findings. Doctors Elena Ines Cuyegkeng, Alberto Romualdez, Artemio Ordinaria Joven Cuanang and Nilo L. Rosas conducted their inspection on June 18, 1988. Their findings: although there had been a "major effort to improve the physical plant for classroom instructions and the library, serious deficiencies remain(ed) in the areas of clinical facilities and library operations;" "faculty continue(d) to be quite inadequate with no prospects for satisfactory growth and development;" "student profile ... (was) below par from the point of view of credentials (NMAT and transfer records) as well as level knowledge and preparedness at various stages of medical education," and "the most serious deficiency ... (was) the almost total lack of serious development efforts in academic medicine i.e., seeming lack of philosophy of teaching, no serious effort to study curricula, almost non-existent innovative approaches." Again, the recommendation was to close the College with provisions for the dispersal of 7 its students to other medical schools. In her letter of June 23, 1988, Secretary Quisumbing informed the Chairman of the College's Board of Trustees, Mr. Victor Sumulong, of the decision of the Board of Medical Education to close the College. Mr. Sumulong instead proposed a gradual phase-out starting the school year 1989-1990 in order not to dislocate the students and staff 8 and to minimize financial loss. The, Board subsequently allowed the College to continue its operations but only until May, 1989, after which it was to be closed, this decision being "final and unappealable." The, College was, however, assured of assistance in the relocation of its students and in its rehabilitation as an institution for health9 related and paramedical courses. The, College appealed the decision to the Office of the President, imputing grave abuse of discretion to the 10 Secretary. On February 16, 1989, Executive Secretary Catalino Macaraig, Jr., finding "no reason to disturb" the 11 contested decision, affirmed it. On March 2, 1989, the College went to court. It filed Civil Case No. 1385 in the court of respondent Judge Daniel P. Alfonso against Secretary Quisumbing in her capacity as Secretary of Education, Culture and Sports, questioning the decision as illegal, oppressive, arbitrary and discriminatory and applied for a writ of preliminary injunction to restrain its implementation. The, writ issued as prayed for by order of the respondent Judge dated May 10, 1989. His Honor ruled that the inspection of June 18, 1988 was the principal basis of the closure order, and on such basis sustained the claim of the College that the inspection was done in an "arbitrary and haphazard manner" by a team of inspectors who had already prejudged the school. Judge Alfonso held that there was no evidence supporting the findings in the report of June 18, 1988, and declared that his philosophy ocular inspection of the College disclosed that the deficiencies mentioned in the report were non-existent, and that on the contrary, the laboratory and library areas were "big
12 5

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enough," and in the operations of the proposed base hospital were going on smoothly at the time of the ocular inspection." The, school thereupon promptly advertised in major newspaper dailies for enrollees in all levels of the medical 13 college and in its pre-board review classes. Hence the present petition, assailing the order of injunction dated May 10, 1989 as having been issued with grave abuse of discretion, and praying for a restraining order against its enforcement as well as for the dismissal of the action instituted in the court a quo. The, Court on June 1, 1989 ordered the respondent College to desist from advertising and admitting students, and the respondent judge to refrain from enforcing his injunction order. The, College in its Comment would justify its entitlement to the questioned injunction on the ground that the closure order against which it was directed was issued without factual basis and in violation of the right of the College to due process of law, and that it violates MECS Order No. 5 (Series of 1986) to the effect that the penalty of closure cannot be imposed earlier than three (3) years from the last evaluation, which in this instance was made, on June 18, 1988. Resort to the Courts to obtain a reversal of the determination by the Secretary of Education, Culture and Sports that the College is unfit to continue its operations is in this case clearly unavailing. There is, to begin with, no law authorizing an appeal from decisions or orders of the Secretary of Education, Culture and Sports to this Court or any other Court. It is not the function of this Court or any other Court to review the decisions and orders of the Secretary on the issue of whether or not an educational institution meets the norms and standards required for permission to operate and to continue operating as such. On this question, no Court has the power or prerogative to substitute its opinion for that of the Secretary. Indeed, it is obviously not expected that any Court would have the competence to do so. The, only authority reposed in the Courts in the matter is the determination of whether or not the Secretary of Education, Culture and Sports has acted within the scope of powers granted him by law and the Constitution. As long as it appears that he has done so, any decision rendered by him should not and will not be subject to review and reversal by any court. Of course, if it should be made, to appear to the Court that those powers were in a case exercised so whimsically, capriciously, oppressively, despotically or arbitrarily as to call for peremptory correction or stated otherwise, that the Secretary had acted with grave abuse of discretion, or had unlawfully neglected the performance of an act which the law specifically enjoins as a duty, or excluded another from the use or enjoyment of a right or office to which such other is entitled it becomes the Court's duty to rectify such action through the extraordinary remedies of certiorari, prohibition, or mandamus, whichever may properly apply. Yet even in these extreme instances, where a Court finds that there has been abuse of powers by the Secretary and consequently nullifies and/or forbids such an abuse of power, or compliance whatever is needful to keep its exercise within bounds, the Court, absent any compelling reason to do otherwise, should still leave to the Secretary the ultimate determination of the issue of the satisfy action or fulfillment by an educational institution of the standards set down for its legitimate operation, as to which it should not ordinarily substitute its over judgment for that of said office. In any case, the recorded facts quite clearly fail to support the College's claim of grave abuse of discretion containing the order of closure, and on the contrary convincingly show the challenged decision to be correct. From 1985, no less than five (5) surveys were conducted of respondent institution to determine its compliance with the minimum standards established for a medical college. The, first survey, that undertaken by the Commission on

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Medical Education, disclosed such various and significant deficiencies in the school as to constrain the inspectors to recommend its closure. Four (4) other surveys were thereafter made by as many different committees or teams, at the school's instance or otherwise, all of which basically confirmed the results of that first survey. Moreover, the findings of all five (5) surveys were affirmed by the Office of the President. Indeed, the petitioner, through the Chairman of its Board of Trustees, to all intents and purposes accepted the validity of the findings of those five (5) survey groups when it proposed, in 1988, a gradual phase-out of the school starting in 1989. The, respondent College knew that the recommendation for its closure was made, as early as 1986, that recommendation was reiterated and reaffirmed four (4) times thereafter until it was finally approved and acted upon by the Secretary, whose action was confirmed by the Office of the President. Said respondent was given notice in June 1988, that in consequence of all these, the time for its definite closure had been unalterably set at May, 1989, a notice which was accompanied by assurances of assistance in the relocation of its students before June, 1989 and in its rehabilitation as a school for other courses. After having resorted to the whole range of administrative remedies available to it, without success, it sought to obtain from the respondent Court the relief it could not obtain from those sources, and what can only be described as a deliberate attempt to frustrate and obstruct implementation of the decision for its closure as of June, 1989 openly solicited, by newspaper advertisements or otherwise, enrollment of new and old students. Given these facts, and it being a matter of law that the Secretary of Education, Culture and Sports exercises the power to enjoin compliance with the requirements laid down for medical schools and to mete out sanctions where he finds that violations thereof have been committed, it was a grave abuse of discretion for the respondent judge to issue the questioned injunction and thereby thwart official action, in the premises correctly taken, allowing the College to operate without the requisite government permit. A single ocular inspection, done after the College had been pre-warned thereof, did not, in the circumstances, warrant only the findings of more qualified inspectors about the true state of the College, its faculty, facilities, operations, etc. The, members of the evaluating team 14 came from the different sectors in the fields of education and medicine, and their judgment in this particular area is certainly better than that of the respondent Judge whose sole and only visit to the school could hardly have given him much more to go on than a brief look at the physical plant and facilities and into the conduct of the classes and other school activities. Respondent Judge gravely abused his discretion in substituting his judgment for theirs. It is well-settled doctrine that courts of justice should not generally interfere with purely administrative and discretionary functions; that courts have no supervisory power over the proceedings and actions of the administrative departments of the government; involving the exercise of judgment and findings of facts, because by reason of their special knowledge and expertise over matters falling under their jurisdiction, the latter are in a better position to pass judgment on such matters andn their findings of facts in that regard are generally accorded 15 respect, if not finality, by the courts. There are, to be sure, exceptions to this general rule but none of them obtains in this case. The, claim of denial of due process likewise holds no water, as the record clearly shows that the College was given every opportunity to so improve itself as to come up to requirements, but remained sadly sub-standard after the inspections conducted by the evaluating teams. It had, in fact, admitted its failure to have up to the desired standards when it proposed its gradual phase-out in its letter dated June 27, 1988 to Secretary Quisumbing. It was also precisely because of its complaints of bias and prejudice that the Board of Medical Education dispatched new teams to survey and re-evaluate its performance. It had even gone all the way up to the Office of the President to seek a reversal of the order of closure. There is thus no reason for it to complain of a lack of opportunity to be heard and to explain its side as well as to seek reconsideration of the ruling complained of. There is also no merit in respondent College's argument that the closure violated NMCS ORDER No. 5, Series of 1986, because it was sought to be effected before the lapse of the three-year period therein snowed, which in this

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case is sought to be counted from June 18, 1988, or the date of the last evaluation. The, provision referred to reads: The following sanction shall be applied against any medical school, for failure to comply with the specific requirements of the essentials, viz.: xxx c. Withdrawal or cancellation of the school's government; authority to operate, for failure to fully comply with the prescribed requirements after three (3) years from the last evaluation conducted on the school . It must at once be obvious from a reading of the provision, paragraph c, that the situation therein contemplated where a school is found to have failed to "fully comply with the prescribed requirements," i.e., has not complied with some requirements and has failed to do so within three (3) years from the last evaluation is quite distinct from that obtaining in the case at bar where respondent school was found to have deficiencies so serious as to warrant its immediate closure. Said paragraph c should not be construed to prohibit absolutely the withdrawal or cancellation of government; authority to operate until after three (3) years from the last evaluation conducted on the school; or, stated otherwise, it does not unexceptionally prescribe a three-year waiting period before authority to operate may be withdrawn. Rather, it should be read as giving the Secretary of Education the discretion, depending on the seriousness of the discovered deficiencies, to afford an educational institution which has failed to comply with some requirement or other, time not exceeding three (3) years to correct the deficiencies before applying the sanction of withdrawal or cancellation of the government; authority to operate. The, circumstances in the case at bar are far from nominal and, to repeat, are different from those obviously envisioned by the paragraph in question. There had never been a recommendation that the College be granted an opportunity to comply with certain requirements. From the outset, the proposal had been that it be forthwith closed, its discovered deficiencies as a medical college being of so serious a character as to be irremediable. The, other four (4) surveys were conducted, not to determine if in the course of time the petitioner school had already fully complied with all the prescribed requisites, but rather, whether or not the original recommendation for its closure was correct and should be sustained. And, as already mentioned, the subsequent surveys, over a period of more than three (3) years, served but to confirm the validity of that initial proposal for its closure. Under these circumstances, therefore, even if it be assumed that the provision, paragraph c, applied to petitioner school, it must be held that there has been substantial compliance therewith. Having thus disposed of the issues raised by the facts of the case, the Court sees no useful purpose to be served by remanding the case to the Trial Court for further proceedings. The, only acceptable reason for such a remand would be so that the Trial Court may determine whether or not the petitioners' first have acted within the scope of their powers or grossly abused them, a matter that this Court has already passed upon here. Such a remand cannot be justified on the theory that the Trial Court will make its philosophy independent determination of whether or not respondent medical institution has complied with the minimum standards laid down for its continued operation, since, as here ruled, it has not that power. WHEREFORE, premises considered, the petition is hereby granted and the temporary restraining order issued by the Court is made, permanent. The, questioned writ of preliminary injunction dated May 10, 1989 is set aside and respondent Judge is ordered to dismiss Civil Case No. 1385. SO ORDERED.

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Fernan, (C.J.), Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes, Gri;o-Aquino, Medialdea and Regalado, JJ., concur. Melencio-Herrera, and Sarmiento JJ., took no part.

Footnotes 1 as embodied in DECS Order No. 5, Series of 1986 on the Essentials and Requirements for Medical Schools. 2 Annex B, Petition. 3 to wit, Doctors Serafin J. Juliano, Elena Ines Cuyegkeng, Macario Tan, Horacio Estrada, Andres L. Reyes, Jose J. Silao, Jr. and Adolfo A. Trinidad. 4 Annex C, Petition. 5 composed of Doctors Elena Ines Cuyegkeng, Nilo L. Rosas, Macario Tan and Artemio Ordinario, The, team gave the College very poor ratings in all five aspects of the survey (Administration, College and Curriculum, School, Hospital and Library Facilities, Faculty Staff and Studentry), 6 Annex E, Petition. 7 Annex F, Petition. 8 Annex G, Petition. 9 Annex 1, Petition. 10 Annex I, Petition. 11 Annex K, Petition. 12 Annex A, Petition. 13 Annex N, Petition. 14 e.g. the Association of Philippine Medical College in the case of Dr. Macario G. Tan and Dr. Elena Ines Cuyegkeng; the UP College of Medicine and the Department of Health in the case of Dr. Alberto Romualdez; the Board of Medicine of the Professional Regulation Commission in the case of Dr. Artemio Ordinaria and the DECS, in the case of Dr. Nilo L. Rosas. 15 Ateneo de Manila v. CA, 145 SCRA 106, Liangga Bay Logging Co., Inc. vs. Lopez Enage 152 SCRA 80; Alcuaz v. PSBA, G.R. No. 76353, May 2, 1988.

EN BANC G.R. No. 89572 December 21, 1989 DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL MEASUREMENT, petitioners, vs. ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents.

P a g e | 235 Ramon M. Guevara for private respondent.

CRUZ, J.: The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical Admission Test (NMAT) is entitled to take it again. The petitioner contends he may not, under its rule thath) A student shall be allowed only three (3) chances to take the NMAT. After three (3) successive failures, a student shall not be allowed to take the NMAT for the fourth time. The private respondent insists he can, on constitutional grounds. But first the facts. The private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many times. 1 When he applied to take it again, the petitioner rejected his application on the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his admission to the test. In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality education. By agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an amended petition filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised were due process and equal protection. After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had been deprived of his right to pursue a medical education through an arbitrary exercise of the police power. 3 We cannot sustain the respondent judge. Her decision must be reversed. In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their competence and preparation for a medical education. Justice Florentino P. Feliciano declared for a unanimous Court: Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the pratice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus,

P a g e | 236 legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. Similarly, the establishment of minimum medical educational requirements-i.e., the completion of prescribed courses in a recognized medical school-for admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority of the state. What we have before us in the instant case is closely related: the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current state of our social and economic development, are widely known. We believe that the government is entitled to prescribe an admission test like the NMAT as a means of achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] and quite probably, in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. However, the respondent judge agreed with the petitioner that the said case was not applicable. Her reason was that it upheld only the requirement for the admission test and said nothing about the socalled "three-flunk rule." We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot be regarded any less valid than the former in the regulation of the medical profession. There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. 5 In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method.

P a g e | 237 The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health. The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction. A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others. The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. 6 The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar those who, like him, have been tested and found wanting. The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to operate with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution. There can be no question that a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be similarly treated. There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals.

P a g e | 238 The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love. No depreciation is intended or made against the private respondent. It is stressed that a person who does not qualify in the NMAT is not an absolute incompetent unfit for any work or occupation. The only inference is that he is a probably better, not for the medical profession, but for another calling that has not excited his interest. In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed and may even be outstanding. It is for the appropriate calling that he is entitled to quality education for the full harnessing of his potentials and the sharpening of his latent talents toward what may even be a brilliant future. We cannot have a society of square pegs in round holes, of dentists who should never have left the farm and engineers who should have studied banking and teachers who could be better as merchants. It is time indeed that the State took decisive steps to regulate and enrich our system of education by directing the student to the course for which he is best suited as determined by initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes, not because we are lacking in intelligence but because we are a nation of misfits. WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13, 1989, is REVERSED, with costs against the private respondent. It is so ordered. Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes 1 A check with the Department of Education showed that the private respondent had actually taken and flunked four tests already and was applying to take a fifth examination. 2 He also failed this fifth test. 2 Rollo, pp. 26-34. 3 152 SCRA 730. 4 US vs. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Ynot v. Intermediate Appellate Court, 148 SCRA 659. 5 Article XIV, Section 5(3). 6 Footnote Nos. 1 & 2.

G.R. No. 144681

June 21, 2004

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PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents. DECISION TINGA, J.: This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the D E C I S I O N, dated 2 May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the judgment dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take their physicians oath and to register as duly licensed phys icians. Equally 3 challenged is the R E S O L U T I O N promulgated on August 25, 2000 of the Court of Appeals, denying petitioners Motion for Reconsideration. The facts of this case are as follows: The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure examination. Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100% in BioChem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the performances of the candidates from other schools was made. The Board observed that strangely, the unusually high ratings were true only for Fatima College examinees. It was a record-breaking phenomenon in the history of the Physician Licensure Examination.
1

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On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the 4 examinees from the Fatima College of Medicine. The PRC asked the National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination. Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination. On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores in the two subjects. It must be a cause "strong enough to eliminate the normal variations that 5 one should expect from the examinees [of Fatima College] in terms of talent, effort, energy, etc." For its part, the NBI found that "the questionable passing rate of Fatima examinees in the [1993] Physician 6 Examination leads to the conclusion that the Fatima examinees gained early access to the test questions." On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 9366530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents as intervenors. Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with "immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem and Ob-Gyne examinations. It recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC. On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory injunction sought by the respondents. It ordered the petitioners to administer the physicians oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC. The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701. On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of theDecision ordaining as follows: WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower court against petitioners is hereby nullified and set aside. SO ORDERED.
7

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In ourResolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate court.

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Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel. On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses. On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her nonappearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing. Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994. The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Ordersof the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506. On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows: WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is ordered to allow petitioners counsel to cross -examine the respondents witnesses, to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against respondents. IT IS SO ORDERED.
8

The trial was then set and notices were sent to the parties. A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings. In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994. Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al. On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994. On November 25, 1994, petitioners counsel moved for the inhibition of the trial court judge for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision.

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On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which reads: WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except 9 those with asterisks and footnotes in pages 1 & 2 of this decision) [sic], to take the physicians oath and to register them as physicians. It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be taken against any of the petitioners for such causes and in the manner provided by law and consistent with the requirements of the Constitution as any other professionals. No costs. SO ORDERED.
10

As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch. On December 26, 1994, the petitioners herein filed their Notice of Appeal in Civil Case No. 93-66530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283. In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817. On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise: WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of the same or similar acts will be dealt with accordingly. SO ORDERED.
12 11

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. RaquenoRabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo,

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Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its decision in CA-G.R. SP No. 37283 would not apply to them. On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit: WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the instant appeal. No pronouncement as to costs. SO ORDERED.
13

In sustaining the trial courts decision, the appellate court ratiocinated that the respondents complied with all the statutory requirements for admission into the licensure examination for physicians in February 1993. They all 14 passed the said examination. Having fulfilled the requirements of Republic Act No. 2382, they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC. Hence, this petition raising the following issues: I WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES. II WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO 15 BECOME DOCTORS. To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus? The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate courts decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law. The petitioners stress that this Courts Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no showing "that the Court of Appeals had committed any reversible error in rendering the questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long become final and executory. Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians

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pursuant to Section 20 of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians and register them. Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is 17 18 directed, or from operation of law. Section 3 of Rule 65 of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled. We shall discuss the issues successively. 1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under Rep. Act No. 2382. For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal 19 20 duty, not involving discretion. Moreover, there must be statutory authority for the performance of the act, and 21 the performance of the duty has been refused. Thus, it must be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959? As found by the Court of Appeals, on which we agree on the basis of the records: It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory requirements for admission into the licensure examinations for physicians conducted and administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of 22 them successfully passed the same examinations. The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them, steps which would enable respondents to practice 23 the medical profession pursuant to Section 20 of the Medical Act of 1959? The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection with 24 every other part to produce a harmonious whole, not confining construction to only one section. The intent or meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly, Section 20, of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety of the Medical Act of 1959. A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word "shall" with respect to the issuance of certificates of registration. Thus, the petitioners "shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board." In statutory construction the term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements
16

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for the grant of his physicians license, the Board is obliged to administer to him his oath and register him as a 25 physician, pursuant to Section 20 and par. (1) of Section 22 of the Medical Act of 1959. However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance with the Board requirements by the respondents. The unusually high scores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved. Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative investigations and "disapprove applications for examination or registration," pursuant to the objectives of Rep. Act 26 No. 2382 as outlined in Section 1 thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as 27 required by Section 9 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled: WHEREFORE, the BOARD hereby CANCELS the respondents*+ examination papers in the Physician Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD. SO ORDERED.
28

Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized. The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has been declared to be of unsound mind. They aver that none of these circumstances are present in their case. Petitioners reject respondents argument. We are informed that in Board Resolution No. 26, dated July 21, 1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for "immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations." It likewise sought to cancel the examination results obtained by the examinees from the Fatima College. Section 8 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in the Philippines, must have "satisfactorily passed the corresponding Board Examination." Section 22, in turn, provides that the oath may only be administered "to physicians who qualified in the examinations." The operative word here is "satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of dispelling doubt or 31 ignorance." Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents "satisfactorily passed" the licensure examinations. The Board instead sought to nullify the examination results obtained by the respondents. 2. On the Right Of The Respondents To Be Registered As Physicians The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal
30 29

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remedy for a legal right. There must be a well-defined, clear and certain legal right to the thing demanded. It is 34 long established rule that a license to practice medicine is a privilege or franchise granted by the government. It is true that this Court has upheld the constitutional right of every citizen to select a profession or course of 36 study subject to a fair, reasonable, and equitable admission and academic requirements. But like all rights and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State 37 to safeguard health, morals, peace, education, order, safety, and general welfare of the people. Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the 38 Philippines, without first passing the examination required by the Philippine Medical Act. In another case worth noting, we upheld the power of the State to upgrade the selection of applicants into medical schools through 39 admission tests. It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones 40 constitutional rights as a condition to acquiring the license. Under the view that the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance 41 of said officials in the exercise of their power. In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physicians license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will. 3. On the Ripeness of the Petition for Mandamus Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus below for being premature. They argue that the administrative remedies had not been exhausted. The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CAG.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision
35 32 33

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of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that: Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the 42 filing of this petition and denial thereof should follow as a logical consequence. There is no longer any justiciable 43 controversy so that any declaration thereon would be of no practical use or value. It should be recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court 44 of Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994. The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any. Section 26 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are 46 still available. However, the doctrine of exhaustion of administrative remedies does not apply where, as in this 47 case, a pure question of law is raised. On this issue, no reversible error may, thus, be laid at the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530. As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CAG.R. SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate courts ruling i n CA-G.R. SP No. 37283, a decision which is inapplicable to the aforementioned respondents will similarly not apply to them. As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-66530, dropping their names from the suit.
45

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Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners. WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE. SO ORDERED. Puno, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

Footnotes
1

Rollo, pp. 44-67. Penned by Associate Justice Cancio C. Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and Renato C. Dacudao concurring.
2

CA Rollo, pp. 140-175.

Supra, note 1 at 408. Penned by Associate Justice Cancio C. Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and Renato C. Dacudao, concurring.
4

Id. at 69. Id. at 96. Id. at 92.

Id. at 175. Penned by Associate Justice Alfredo L. Benipayo and concurred in by Presiding Justice Santiago M. Kapunan (later a member of the Supreme Court and now retired) and Associate Justice Ma. Alicia Austria-Martinez (now a member of the Second Division of the Supreme Court).
8

Rollo, pp. 199-200. Penned by Associate Justice Jaime M. Lantin, with Associate Justices Angelina S. Gutierrez (now a member of the Supreme Court), and Conchita Carpio Morales (likewise a present member of the Supreme Court) concurring.
9

Of the intervenors in Civil Case No. 93-66530, Achilles Peralta and Evelyn Ramos were dropped as parties per Order of the trial court dated August 24, 1993. The case was dismissed as to Sally Bunagan, Reogelio Ancheta, Oscar Padua, Evelyn Grajo, Valentino Arboleda, Carlos Bernardo, Jr., Mario Cuaresma, Violeta Felipe, and Percival Pangilinan as per Order dated November 25, 1994. Corazon Cruz and Samuel Bangoy were deemed by the trial court no longer entitled to the avails of the suit for seeking extrajudicial relief from the Board of Medicine, as per its Order dated November 25, 1994. See CA Rollo, pp. 140-141.
10

CA Rollo, pp. 174-175. Id. at 205.

11

12

G.R. Nos. 117817 and 118437, 9 July 1998, 292 SCRA 155, 167. Penned by Associate Justice Josue N. Bellosillo, with Associate Justices Hilario G. Davide, Jr., Jose C. Vitug, Artemio V. Panganiban, and Leonardo A. Quisumbing concurring.
13

Rollo, p. 67.

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14

The Medical Act of 1959. Rollo, pp. 28-29.

15

16

SEC. 20. Issuance of Certificates of Registration, grounds for refusal of [the] same. The Commissioner of Civil Service (now Professional Regulation Commission) the chairman, the members and the Secretary of the Board of Medical Examiners (now Medical Board) shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. They shall not issue a certificate of registration to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude, or has been found guilty of immoral or dishonorable conduct after the investigation by the Board of Medical Examiners (now Medical Board), or has been declared to be of unsound mind. (As amended by Rep. Act No. 4224, which took effect June 19, 1965).
17

See United States v. Boutwell, 17 Wall (US) 604, 21 L. Ed 721; Laizure v. Baker, 11 P. 2d 560; State ex rel Lyons v. McDowell, 57 A. 2d 94; Rader v. Burton, 122 N.E. 2d 856; Board of Managers v. City of Wilmington, 70 S.E. 2d 833.
18

SEC. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
19

See Potter v. Anderson, 392 P. 2d 650; State ex rel Jester v. Paige, 213 P. 2d 441; State ex rel. Sharp v. Cross, 211 P. 2d 760; St. George v. Hanson, et al., 78 S.E. 2d 885; State ex rel Vander v. Board of County Comrs. et al., 135 N.E. 2d 701.
20

See State ex rel Jester v. Paige, supra; Pedroso v. De Walt, et al., 340 S.W. 2d 566.

21

See State Board of Barber Examiners v. Walker, 192 P. 2d 723; State ex rel Sharp v. Cross, supra; State ex rel Hacharedi v. Baxter, 74 N.E. 2d 242, 332 US 827, 92 L. Ed 402, 68 S. Ct 209.
22

Rollo, p. 58. Id. at 59.

23

24

Sotto v. Sotto, No. 17768, 1 September 1922, 43 Phil. 688, 694. See also Araneta v. Concepcion and Araneta, No. L-9667, 31 July 1956, 99 Phil. 709, 712.
25

SEC. 22. Administrative investigations. In addition to the functions provided for in the preceding sections, the Board of Medical Examiners (now Medical Board) shall perform the following duties: (1) to administer oath to physicians who qualified in the examinations (stress supplied); (2) to study the conditions affecting the practice of medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession; (4) to subpoena or subpoena duces tecum witnesses for all purposes required in the discharge of its duties; and (5) to promulgate, with the approval of the Commissioner of Civil Service (now Professional Regulation Commission), such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the proper practice of medicine in the Philippines. Administrative investigations shall be conducted by at least two members of the Medical Board with one legal officer sitting during the investigation, otherwise the proceedings shall be considered void. The existing rules of evidence shall be observed during all administrative investigations. The Board may disapprove applications for examination or registration, reprimand erring physicians, or suspend or revoke registration certificates, if the respondents are found guilty after due investigation. (As amended by Rep. Act No. 4224, effective June 19, 1965.)
26

SEC. 1. Objectives. This Act provides for and shall govern (a) the standardization and regulation of medical education; (b) the examination for registration of physicians; and (c) the supervision, control, and regulation of the practice of medicine in the Philippines.
27

SEC. 9. Candidates for board examinations. Candidates for Board examinations shall have the following qualifications:

(1) He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof;

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(2) He shall be of good moral character; (3) He shall be of sound mind; (4) He shall not have been convicted by a court of competent jurisdiction of any offense involving moral turpitude; (5) He shall be a holder of the Degree of Doctor of Medicine or its equivalent conferred by a college of medicine duly recognized by the Government; and (6) He must have completed a calendar year of technical training known as internship the nature of which shall be prescribed by the Board of Medical Education undertaken in hospitals and health centers approved by the Board. (As amended by Rep. Act No. 5946, approved June 21, 1969).
28

Rollo, p. 419. Id. at 99.

29

30

SEC. 8. Prerequisite to the practice of medicine. No person shall engage in the practice of medicine in the Philippines unless he is at least twenty-one years of age, has satisfactorily passed the corresponding Board Examination, and is a holder of a valid Certificate of Registration duly issued to him by the Board of Medical Examiners (now Medical Board).
31

Websters New International Dictionary 2017 (1993 ed.). See Fosdick v. Terry, 117 So. 2d 397, 398; Puritan Coal Corp. v. Davis, 42 S.E. 2d 807, 813. Lemi v. Valencia, No. L-20768, 29 November 1968, 26 SCRA 203, 210; Ocampo v. Subido, No. L-28344, 27 August 1976, 72 SCRA 443, 452-453. See Morse v. State Board of Medical Examiners, 122 S.W. 446, 448 (1909). Const. Art. XIV, Sec. 5 (3). Reyes v. Court of Appeals, G.R. Nos. 94961 and 96491, 25 February 1991, 194 SCRA 402, 409-410. Primicias v. Fugoso, No. L-1800, 27 January 1948, 80 Phil. 71, 75. Philippine Medical Association v. Board of Medical Examiners, No. L-25135, 21 September 1968, 25 SCRA 29. Tablarin v. Judge Angelina S. Gutierrez, No. L-78164, 31 July 1987, 152 SCRA 730, 743. See Manchester Press Club v. State Liquor Commission, 200 A. 407, 116 ALR 1093.

32

33

34

35

36

37

38

39

40

41

See Yick Wo v. Hopkins, 118 US 356, 30 L.Ed. 220, 6 S. Ct. 1064; City Council of Montgomery v. West, 42 So. 1000; In Re Porterfield, 168 P. 2d 706, 167 ALR 675; Anderson v. City of Wellington, 19 P. 719; State v. Harris, 6 S.E. 2d 854.
42

Citing Bautista v. Board of Energy, G.R. No. 75016, 13 January 1989, 169 SCRA 167. Citing Gancho-on v. Secretary of Labor and Employment, G.R. No. 108033, 14 April 1997, 271 SCRA 204, 208. Rollo, pp. 340-341.

43

44

45

SEC. 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of the Civil Service (now Professional Regulation Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.
46

Ang Tuan Kai & Co. v. Import Control Commission, No. L-4427, 21 April 1952, 91 Phil. 143, 145; Peralta v. Salcedo, etc., No. L-10771, 30 April 1957, 101 Phil. 452, 454.
47

See Madrigal v. Lecaroz, G.R. No. 46218, 23 October 1990, 191 SCRA 20, 26.

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G.R. No. 166097

July 14, 2008

BOARD OF MEDICINE, DR. RAUL FLORES (now DR. JOSE S. RAMIREZ), in his capacity as Chairman of the Board, PROFESSIONAL REGULATION COMMISSION, through its Chairman, HERMOGENES POBRE (now DR. ALCESTIS M. GUIANG), Petitioners, vs. YASUYUKI OTA, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari assailing the Decision of the Court of Appeals (CA) in CA2 3 G.R. SP No. 84945 dated November 16, 2004 which affirmed the Decision of the Regional Trial Court (RTC), 4 Branch 22, Manila, dated October 19, 2003. The facts are as follows: Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, who has continuously resided in the Philippines for more than 10 years. He graduated from Bicol Christian College of Medicine on April 21, 1991 with a 5 degree of Doctor of Medicine. After successfully completing a one-year post graduate internship training at the Jose Reyes Memorial Medical Center, he filed an application to take the medical board examinations in order to obtain a medical license. He was required by the Professional Regulation Commission (PRC) to submit an affidavit of undertaking, stating among others that should he successfully pass the same, he would not practice medicine until he submits proof that reciprocity exists between Japan and the Philippines in admitting foreigners into the 6 practice of medicine. Respondent submitted a duly notarized English translation of the Medical Practitioners Law of Japan duly 7 authenticated by the Consul General of the Philippine Embassy to Japan, Jesus I. Yabes; thus, he was allowed to 8 take the Medical Board Examinations in August 1992, which he subsequently passed. In spite of all these, the Board of Medicine (Board) of the PRC, in a letter dated March 8, 1993, denied respondent's request for a license to practice medicine in the Philippines on the ground that the Board "believes that no genuine reciprocity can be 9 found in the law of Japan as there is no Filipino or foreigner who can possibly practice there." Respondent then filed a Petition for Certiorari and Mandamus against the Board before the RTC of Manila on June 10 24, 1993, which petition was amended on February 14, 1994 to implead the PRC through its Chairman. In his petition before the RTC, respondent alleged that the Board and the PRC, in refusing to issue in his favor a Certificate of Registration and/or license to practice medicine, had acted arbitrarily, in clear contravention of the provision of Section 20 of Republic Act (R.A.) No. 2382 (The Medical Act of 1959), depriving him of his legitimate 11 right to practice his profession in the Philippines to his great damage and prejudice. On October 19, 2003, the RTC rendered its Decision finding that respondent had adequately proved that the medical laws of Japan allow foreigners like Filipinos to be granted license and be admitted into the practice of medicine under the principle of reciprocity; and that the Board had a ministerial duty of issuing the Certificate of
1

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Registration and license to respondent, as it was shown that he had substantially complied with the requirements 12 under the law. The RTC then ordered the Board to issue in favor of respondent the corresponding Certificate of 13 Registration and/or license to practice medicine in the Philippines. The Board and the PRC (petitioners) appealed the case to the CA, stating that while respondent submitted documents showing that foreigners are allowed to practice medicine in Japan, it was not shown that the conditions for the practice of medicine there are practical and attainable by a foreign applicant, hence, reciprocity was not established; also, the power of the PRC and the Board to regulate and control the practice of medicine is 14 discretionary and not ministerial, hence, not compellable by a writ of mandamus. The CA denied the appeal and affirmed the ruling of the RTC. Hence, herein petition raising the following issue: WHETHER THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN FINDING THAT RESPONDENT HAD ESTABLISHED THE EXISTENCE OF RECIPROCITY IN THE PRACTICE OF MEDICINE BETWEEN THE PHILIPPINES AND 16 JAPAN. Petitioners claim that: respondent has not established by competent and conclusive evidence that reciprocity in the practice of medicine exists between the Philippines and Japan. While documents state that foreigners are allowed to practice medicine in Japan, they do not similarly show that the conditions for the practice of medicine in said country are practical and attainable by a foreign applicant. There is no reciprocity in this case, as the requirements to practice medicine in Japan are practically impossible for a Filipino to comply with. There are also ambiguities in the Medical Practitioners Law of Japan, which were not clarified by respondent, i.e., what are the provisions of the School Educations Laws, what are the criteria of the Minister of Health and Welfare of Japan in determining whether the academic and technical capability of foreign medical graduates are the same or better than graduates of medical schools in Japan, and who can actually qualify to take the preparatory test for the National Medical Examination. Consul General Yabes also stated that there had not been a single Filipino who was issued a license to practice medicine by the Japanese Government. The publication showing that there were foreigners practicing medicine in Japan, which respondent presented before the Court, also did not specifically 17 show that Filipinos were among those listed as practicing said profession. Furthermore, under Professional 18 Regulation Commission v. De Guzman, the power of the PRC and the Board to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, which 19 power is discretionary and not ministerial, hence, not compellable by a writ of mandamus. Petitioners pray that the CA Decision dated November 16, 2004 be reversed and set aside, that a new one be rendered reinstating the Board Order dated March 8, 1993 which disallows respondent to practice medicine in the 20 Philippines, and that respondent's petition before the trial court be dismissed for lack of merit. In his Comment, respondent argues that: Articles 2 and 11 of the Medical Practitioners Law of Japan and Section 9 of the Philippine Medical Act of 1959 show that reciprocity exists between the Philippines and Japan concerning the practice of medicine. Said laws clearly state that both countries allow foreigners to practice medicine in their respective jurisdictions as long as the applicant meets the educational requirements, training or residency in hospitals and pass the licensure examination given by either country. Consul General Yabes in his letter dated January 28, 1992 stated that "the Japanese Government allows a foreigner to practice medicine in Japan after complying with the local requirements." The fact that there is no reported Filipino who has successfully penetrated the medical practice in Japan does not mean that there is no reciprocity between the two countries, since it does not follow that no Filipino will ever be granted a medical license by the Japanese Government. It is not the essence
15

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of reciprocity that before a citizen of one of the contracting countries can demand its application, it is necessary that the interested citizens country has previously granted the same privilege to the citizens of the other 21 22 contracting country. Respondent further argues that Section 20 of the Medical Act of 1959 indicates the mandatory character of the statute and an imperative obligation on the part of the Board inconsistent with the idea of discretion. Thus, a foreigner, just like a Filipino citizen, who successfully passes the examination and has all the qualifications and none of the disqualifications, is entitled as a matter of right to the issuance of a certificate of 23 registration or a physicians license, which right is enforceable by mandamus. Petitioners filed a Reply and both parties filed their respective memoranda reiterating their arguments.1avvphi1 The Court denies the petition for lack of merit. There is no question that a license to practice medicine is a privilege or franchise granted by the government. It is a right that is earned through years of education and training, and which requires that one must first secure a 27 license from the state through professional board examinations. Indeed, [T]he regulation of the practice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. Similarly, the establishment of minimum medical educational requirements i.e., the completion of prescribed courses in a recognized medical school for admission to the medical profession, has also been 28 sustained as a legitimate exercise of the regulatory authority of the state." It must be stressed however that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body which regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. As the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without 29 prescribing definite rules and conditions for the guidance of said officials in the exercise of their power. R.A. No. 2382 otherwise known as the Medical Act of 1959 states in Section 9 thereof that: Section 9. Candidates for Board Examinations.- Candidates for Board examinations shall have the following qualifications: 1. He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof; xxxx Presidential Decree (P.D.) No. 223 also provides in Section (j) thereof that:
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j) The [Professional Regulation] Commission may, upon the recommendation of the Board concerned, approve the registration of and authorize the issuance of a certificate of registration with or without examination to a foreigner who is registered under the laws of his country: Provided, That the requirement for the registration or licensing in said foreign state or country are substantially the same as those required and contemplated by the laws of the Philippines and that the laws of such foreign state or country allow the citizens of the Philippines to practice the profession on the same basis and grant the same privileges as the subject or citizens of such foreign state or country: Provided, finally, That the applicant shall submit competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country's existing laws permit citizens of the Philippines to practice the profession under the rules and regulations governing citizens thereof. The Commission is also hereby authorized to prescribe additional requirements or grant certain privileges to foreigners seeking registration in the Philippines if the same privileges are granted to or some additional requirements are required of citizens of the Philippines in acquiring the same certificates in his country; xxxx As required by the said laws, respondent submitted a copy of the Medical Practitioners Law of Japan, duly authenticated by the Consul General of the Embassy of the Philippines in Japan, which provides in Articles 2 and 11, thus: Article 2. Anyone who wants to be medical practitioner must pass the national examination for medical practitioner and get license from the Minister of Health and Welfare. xxxx Article 11. No one can take the National Medical Examination except persons who conform to one of the following items: 1. Persons who finished regular medical courses at a university based on the School Education Laws (December 26, 1947) and graduated from said university. 2. Persons who passed the preparatory test for the National Medical Examination and practiced clinics and public sanitation more than one year after passing the said test. 3. Persons who graduated from a foreign medical school or acquired medical practitioner license in a foreign country, and also are recognized to have the same or more academic ability and techniques as persons stated in 31 item 1 and item 2 of this article. Petitioners argue that while the Medical Practitioners Law of Japan allows foreigners to practice medicine therein, said document does not show that conditions for the practice of medicine in said country are practical and attainable by a foreign applicant; and since the requirements are practically impossible for a Filipino to comply with, there is no reciprocity between the two countries, hence, respondent may not be granted license to practice medicine in the Philippines. The Court does not agree. R.A. No. 2382, which provides who may be candidates for the medical board examinations, merely requires a foreign citizen to submit competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs (DFA), showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof.

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Section (j) of P.D. No. 223 also defines the extent of PRC's power to grant licenses, i.e., it may, upon recommendation of the board, approve the registration and authorize the issuance of a certificate of registration with or without examination to a foreigner who is registered under the laws of his country, provided the following conditions are met: (1) that the requirement for the registration or licensing in said foreign state or country are substantially the same as those required and contemplated by the laws of the Philippines; (2) that the laws of such foreign state or country allow the citizens of the Philippines to practice the profession on the same basis and grant the same privileges as the subject or citizens of such foreign state or country; and (3) that the applicant shall submit competent and conclusive documentary evidence, confirmed by the DFA, showing that his country's existing laws permit citizens of the Philippines to practice the profession under the rules and regulations governing citizens thereof. The said provision further states that the PRC is authorized to prescribe additional requirements or grant certain privileges to foreigners seeking registration in the Philippines if the same privileges are granted to or some additional requirements are required of citizens of the Philippines in acquiring the same certificates in his country. Nowhere in said statutes is it stated that the foreign applicant must show that the conditions for the practice of medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven that a Filipino has been granted license and allowed to practice his profession in said country before a foreign applicant may be given license to practice in the Philippines. Indeed, the phrase used in both R.A. No. 2382 and P.D. No. 223 is that: [T]he applicant shall submit] competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country's existing laws permit citizens of the Philippines to practice the profession [of medicine] under the [same] rules and regulations governing citizens thereof. x x x (Emphasis supplied) It is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring respondent to prove first that a Filipino has already been granted license and is actually practicing therein unduly expands the requirements provided for under R.A. No. 2382 and P.D. No. 223. While it is true that respondent failed to give details as to the conditions stated in the Medical Practitioners Law of Japan -- i.e., the provisions of the School Educations Laws, the criteria of the Minister of Health and Welfare of Japan in determining whether the academic and technical capability of foreign medical graduates are the same as or better than that of graduates of medical schools in Japan, and who can actually qualify to take the preparatory test for the National Medical Examination respondent, however, presented proof that foreigners are actually practicing in Japan and that Filipinos are not precluded from getting a license to practice there. Respondent presented before the trial court a Japanese Government publication, Physician-Dentist-Pharmaceutist 32 Survey, showing that there are a number of foreign physicians practicing medicine in Japan. He also presented a 33 letter dated January 28, 1992 from Consul General Yabes, which states: Sir: With reference to your letter dated 12 January 1993, concerning your request for a Certificate of Confirmation for the purpose of establishing a reciprocity with Japan in the practice of medical profession relative to the case of Mr. Yasuyuki Ota, a Japanese national, the Embassy wishes to inform you that inquiries from the Japanese Ministry of Foreign Affairs, Ministry of Health and Welfare as well as Bureau of Immigration yielded the following information:

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1. They are not aware of a Filipino physician who was granted a license by the Japanese Government to practice medicine in Japan; 2. However, the Japanese Government allows a foreigner to practice medicine in Japan after complying with the local requirements such as holding a valid visa for the purpose of taking the medical board exam, checking the applicant's qualifications to take the examination, taking the national board examination in Japanese and filing an application for the issuance of the medical license. Accordingly, the Embassy is not aware of a single Filipino physician who was issued by the Japanese Government a license to practice medicine, because it is extremely difficult to pass the medical board examination in the Japanese language. Filipino doctors here are only allowed to work in Japanese hospitals as trainees under the supervision of a Japanese doctor. On certain occasions, they are allowed to show their medical skills during seminars for demonstration purposes only. (Emphasis supplied) Very truly yours, Jesus I. Yabes Minister Counsellor & Consul General From said letter, one can see that the Japanese Government allows foreigners to practice medicine therein provided that the local requirements are complied with, and that it is not the impossibility or the prohibition against Filipinos that would account for the absence of Filipino physicians holding licenses and practicing medicine in Japan, but the difficulty of passing the board examination in the Japanese language. Granting that there is still no Filipino who has been given license to practice medicine in Japan, it does not mean that no Filipino will ever be able to be given one. Petitioners next argue that as held in De Guzman, its power to issue licenses is discretionary, hence, not compellable by mandamus. The Court finds that the factual circumstances of De Guzman are different from those of the case at bar; hence, the principle applied therein should be viewed differently in this case. In De Guzman, there were doubts about the integrity and validity of the test results of the examinees from a particular school which garnered unusually high scores in the two most difficult subjects. Said doubts called for serious inquiry concerning the applicants 34 satisfactory compliance with the Board requirements. And as there was no definite showing that the requirements and conditions to be granted license to practice medicine had been satisfactorily met, the Court held 35 that the writ of mandamus may not be granted to secure said privilege without thwarting the legislative will. Indeed, to be granted the privilege to practice medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications. It must also appear that he has fully complied with all the 36 conditions and requirements imposed by the law and the licensing authority. In De Guzman itself, the Court explained that: A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word "shall" with respect to the issuance of certificates of registration. Thus, the petitioners [PRC] "shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board." In statutory construction the term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee
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satisfies the requirements for the grant of his physician's license, the Board is obliged to administer to him his oath 38 and register him as a physician, pursuant to Section 20 and par. (1) of Section 22 of the Medical Act of 1959. In this case, there is no doubt as to the competence and qualifications of respondent. He finished his medical degree from Bicol Christian College of Medicine. He completed a one-year post graduate internship training at the Jose Reyes Memorial Medical Center, a government hospital. Then he passed the Medical Board Examinations which was given on August 8, 1992 with a general average of 81.83, with scores higher than 80 in 9 of the 12 subjects. In fine, the only matter being questioned by petitioners is the alleged failure of respondent to prove that there is reciprocity between the laws of Japan and the Philippines in admitting foreigners into the practice of medicine. Respondent has satisfactorily complied with the said requirement and the CA has not committed any reversible error in rendering its Decision dated November 16, 2004 and Resolution dated October 19, 2003. WHEREFORE, the petition is hereby DENIED for lack of merit. SO ORDERED.

Footnotes
1

In lieu of Justice Minita V. Chico-Nazario, per Special Order No. 508 dated June 25, 2008.

Penned by Associate Justice Eugenio S. Labitoria and concurred in by Associate Justices Bienvenido L. Reyes and Rosalinda Asuncion-Vicente.
2

Rollo, pp. 28-36. Penned by Judge Marino M. Dela Cruz, Jr. Rollo, pp. 38-54. Id. at 29 (CA Decision). Id. at 29-30; records, pp. 2-3; 9,11; 309. Id. at 30; records, pp. 221-227. Id.; records, p. 10. Rollo, p. 30; records, p. 21. Records, pp. 71-82, 92. Id. at 5, 80. Id. at 316-318, 322. Id. at 324. CA rollo, pp.11-16. Rollo, pp. 34-35. Id. at 15.

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17

Rollo, pp. 16-22. G.R. No. 144681, June 21, 2004, 432 SCRA 505. Rollo, p. 23. Id. at 23-24. Rollo, pp. 75-81.

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It states that "x x x the Board of Medicine Examiners shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board."
23

Rollo, pp. 83-84. Id. at 95-104. Dated October 3, 2006 for respondent and November 28, 2006 for petitioners. Professional Regulation Commission v. De Guzman, supra note 18, at 523. Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 107 (2000). Tablarin v. Gutierrez, G.R. No. L-78164, July 31, 1987, 152 SCRA 730, 742. Professional Regulation Commission v. De Guzman, supra note 18, at 524. Creating the Professional Regulation Commission and Prescribing Its Powers and Functions, June 22, 1973. See records, pp. 221, 224. Exhibits "D", "D-1", "D-2", "D-3" and "E-1", "E-2", "E-3", "E-4"; records, pp. 230-237. Exhibit "C", id. at 228. Professional Regulation Commission v. De Guzman, supra note 18, at 521. Id. at 525. Id.

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Section 20. Issuance of Certificate of Registration, grounds for refusal of same. The Commissioner of Civil Service and the secretary of the Board of Medical Examiners shall sign jointly and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. They shall not issue a certificate of registration to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude, or has been found guilty of immoral or dishonorable conduct after he due investigation by the Board of Medical Examiners, or has been declared to be of unsound mind.
38

Professional Regulation Commission v. De Guzman, supra note 18, at 520.