G.R. No. 124354 December 29, 1999 ROGELIO E. RAMOS and ERLINDA RAMOS, in t eir o!

n be a"# and a$ nat%ra" &%ardian$ o# t e minor$, ROMMEL RAMOS, RO' RODERI() RAMOS and RON RA'MOND RAMOS, petitioners, vs. (O*R+ O, A--EALS, DELOS SAN+OS MEDI(AL (EN+ER, DR. ORLINO .OSA)A and DRA. -ER,E(+A G*+IERRE/, respondents.

)A-*NAN, J.: The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient s fate. 1 In the case at bar, the !ourt is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2 "etitioners seek the reversal of the decision 3 of the !ourt of Appeals, dated #$ %ay &$$', which overturned the decision 4 of the (egional Trial !ourt, dated )* +anuary &$$#, finding private respondents liable for damages arising from negligence in the performance of their professional duties towards petitioner ,rlinda (amos resulting in her comatose condition. The antecedent facts as summari-ed by the trial court are reproduced hereunder. "laintiff ,rlinda (amos was, until the afternoon of +une &/, &$0', a 1/2year old 3,4h. 5A56 robust woman 3T78, October &$, &$0$, p. &*6. ,4cept for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder 3T78, +anuary &), &$00, pp. 12'6, she was as normal as any other woman. %arried to (ogelio ,. (amos, an e4ecutive of "hilippine 9ong :istance Telephone !ompany, she has three children whose names are (ommel (amos, (oy (oderick (amos and (on (aymond (amos 3T78, October &$, &$0$, pp. '2;6. <ecause the discomforts somehow interfered with her normal ways, she sought professional advice. 7he was advised to undergo an operation for the removal of a stone in her gall bladder 3T78, +anuary &), &$00, p. '6. 7he underwent a series of e4aminations which included blood and urine tests 3,4hs. 5A5 and 5!56 which indicated she was fit for surgery. Through the intercession of a mutual friend, :r. <uenvia=e 3T78, +anuary &), &$00, p. /6, she and her husband (ogelio met for the first time :r. Orlino Ho-aka 3should be Hosaka> see T78, ?ebruary #*, &$$*, p. )6, one of the defendants in this case, on +une &*, &$0'. They agreed that their date at the operating table at the :97%! 3another defendant6, would be on +une &/, &$0' at $.** A.%.. :r. Hosaka decided that she should undergo a 5cholecystectomy5 operation after e4amining the documents 3findings from the !apitol %edical !enter, ?,@ Hospital and :97%!6 presented to him. (ogelio ,. (amos, however, asked :r. Hosaka to look for a good anesthesiologist. :r. Hosaka, in turn, assured (ogelio that he will get a good anesthesiologist. :r. Hosaka charged a fee of "&;,***.**, which was to include the anesthesiologist s fee and which was to be paid after the operation 3T78, October &$, &$0$, pp. &12&', ##2#), )&2))> T78, ?ebruary #/, &$$*, p. &)> and T78, 8ovember $, &$0$, pp. )21, &*, &/6. A day before the scheduled date of operation, she was admitted at one of the rooms of the :97%!, located along ,. (odrigue- Avenue, Aue-on !ity 3T78, October &$,&$0$, p. &&6. At around /.)* A.%. of +une &/, &$0' and while still in her room, she was prepared for the operation by the hospital staff. Her sister2in2law, Herminda !ru-, who was the :ean of the !ollege of 8ursing at the !apitol %edical !enter, was also there for moral support. 7he reiterated her previous reBuest for Herminda to be with her even during the operation. After praying, she was

given in=ections. Her hands were held by Herminda as they went down from her room to the operating room 3T78, +anuary &), &$00, pp. $2&&6. Her husband, (ogelio, was also with her 3T78, October &$, &$0$, p. &06. At the operating room, Herminda saw about two or three nurses and :r. "erfecta Gutierre-, the other defendant, who was to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as :ean of the !ollege of 8ursing at the !apitol %edical !enter who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating room. At around $.)* A.%., :r. Gutierre- reached a nearby phone to look for :r. Hosaka who was not yet in 3T78, +anuary &), &$00, pp. &&2&#6. :r. Gutierre- thereafter informed Herminda !ru- about the prospect of a delay in the arrival of :r. Hosaka. Herminda then went back to the patient who asked, 5%indy, wala pa ba ang :octor5C The former replied, 5Huwag kang mag2alaala, darating na iyon5 3Ibid.6. Thereafter, Herminda went out of the operating room and informed the patient s husband, (ogelio, that the doctor was not yet around 3id., p. &)6. Dhen she returned to the operating room, the patient told her, 5%indy, inip na inip na ako, ikuha mo ako ng ibang :octor.5 7o, she went out again and told (ogelio about what the patient said 3id., p. &'6. Thereafter, she returned to the operating room. At around &*.** A.%., (ogelio ,. (amos was 5already dying EandF waiting for the arrival of the doctor5 even as he did his best to find somebody who will allow him to pull out his wife from the operating room 3T78, October &$, &$0$, pp. &$2#*6. He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive 3ibid.6. At almost &#.** noon, he met :r. Garcia who remarked that he 3:r. Garcia6 was also tired of waiting for :r. Hosaka to arrive 3id., p. #&6. Dhile talking to :r. Garcia at around &#.&* ".%., he came to know that :r. Hosaka arrived as a nurse remarked, 58andiyan na si :r. Hosaka, dumating na raw.5 @pon hearing those words, he went down to the lobby and waited for the operation to be completed 3id., pp. &;, #$2)*6. At about &#.&' ".%., Herminda !ru-, who was inside the operating room with the patient, heard somebody say that 5:r. Hosaka is already here.5 7he then saw people inside the operating room 5moving, doing this and that, EandF preparing the patient for the operation5 3T78, +anuary &), &$00, p. &;6. As she held the hand of ,rlinda (amos, she then saw :r. Gutierre- intubating the hapless patient. 7he thereafter heard :r. Gutierre- say, 5ang hirap ma2intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan5 3id., p. &/6. <ecause of the remarks of :ra. Gutierre-, she focused her attention on what :r. Gutierre- was doing. 7he thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless ,rlinda even as :r. Hosaka approached her. 7he then heard :r. Hosaka issue an order for someone to call :r. !alderon, another anesthesiologist 3id., p. &$6. After :r. !alderon 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 G 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 3Id., pp. &$2#*6. Immediately thereafter, she went out of the operating room, and she told (ogelio ,. (amos 5that something wrong was . . . happening5 3Ibid.6. :r. !alderon was then able to intubate the patient 3T78, +uly #', &$$&, p. $6. %eanwhile, (ogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the operating room. He also saw several doctors rushing towards the operating room. Dhen informed by Herminda !ru- that something wrong was happening, he told her 3Herminda6 to be back with the patient inside the operating room 3T78, October &$, &$0$, pp. #'2 #06. Herminda !ru- immediately rushed back, and saw that the patient was still in trendelenburg position 3T78, +anuary &), &$00, p. #*6. At almost ).** ".%. of that fateful day, she saw the patient taken to the Intensive !are @nit 3I!@6. About two days thereafter, (ogelio ,. (amos was able to talk to :r. Hosaka. The latter informed the former that something went wrong during the intubation. (eacting to what was told to him, (ogelio reminded the doctor that the condition of his wife would not have happened, had he 3:r. Hosaka6 looked for a good anesthesiologist 3T78, October &$, &$0$, p. )&6.

:octors Gutierre- and Hosaka were also asked by the hospital to e4plain what happened to the patient. The doctors e4plained that the patient had bronchospasm 3T78, 8ovember &', &$$*, pp. #;2#/6. ,rlinda (amos stayed at the I!@ for a month. About four months thereafter or on 8ovember &', &$0', the patient was released from the hospital.

:uring the whole period of her confinement, she incurred hospital bills amounting to "$),'1#.#' which is the sub=ect of a promissory note and affidavit of undertaking e4ecuted by (ogelio ,. (amos in favor of :97%!. 7ince that fateful afternoon of +une &/, &$0', she has been in a comatose condition. 7he cannot do anything. 7he cannot move any part of her body. 7he cannot see or hear. 7he is living on mechanical means. 7he suffered brain damage as a result of the absence of o4ygen in her brain for four to five minutes 3T78, 8ovember $, &$0$, pp. #&2##6. After being discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with her husband (ogelio incurring a monthly e4pense ranging from "0,***.** to "&*,***.** 3T78, October &$, &$0$, pp. )#2)16. 7he was also diagnosed to be suffering from 5diffuse cerebral parenchymal damage5 3,4h. 5G5> see also T78, :ecember #&, &$0$, p. ;6. 5
Thus, on 0 +anuary &$0;, petitioners filed a civil case 0 for damages with the (egional Trial !ourt of Aue-on !ity against herein private respondents alleging negligence in the management and care of ,rlinda (amos. :uring the trial, both parties presented evidence as to the possible cause of ,rlinda s in=ury. "laintiff presented the testimonies of :ean Herminda !ru- and :r. %ariano Gavino to prove that the sustained by ,rlinda was due to lack of o4ygen 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 e4pert testimony of :r. ,duardo +amora, a pulmonologist, to the effect that the cause of brain damage was ,rlinda s allergic reaction to the anesthetic agent, Thiopental 7odium 3"entothal6. After considering the evidence from both sides, the (egional Trial !ourt rendered =udgment 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 =urisprudence to the case at bar, this !ourt finds and so holds that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff2patient ,rlinda (amos. On the part of :r. "erfecta Gutierre-, this !ourt finds that she omitted to e4ercise reasonable care in not only intubating the patient, but also in not repeating the administration of atropine 3T78, August #*, &$$&, pp. '2&*6, without due regard to the fact that the patient was inside the operating room for almost three 3)6 hours. ?or after she committed a mistake in intubating EtheF 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 o4ygen in her 3patient s6 brain for appro4imately four to five minutes which, in turn, caused the patient to become comatose. On the part of :r. Orlino Hosaka, this !ourt finds that he is liable for the acts of :r. "erfecta Gutierre- 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)6 hours late. On the part of :97%! 3the hospital6, this !ourt finds that it is liable for the acts of negligence of the doctors in their 5practice of medicine5 in the operating room. %oreover, the hospital is liable for failing through its responsible officials, to cancel the scheduled operation after :r. Hosaka ine4cusably failed to arrive on time.

In having held thus, this !ourt re=ects the defense raised by defendants that they have acted with due care and prudence in rendering medical services to plaintiff2patient. ?or 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 3the patient s6 nailbed turned bluish, belie their claim. ?urthermore, 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. 444 444 444 DH,(,?O(,, and in view of the foregoing, =udgment is rendered in favor of the plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, =ointly and severally, the former the following sums of money, to wit. &6 the sum of "0,***.** as actual monthly e4penses for the plaintiff ,rlinda (amos reckoned from 8ovember &', &$0' or in the total sum of ";)#,***.** as of April &', &$$#, sub=ect to its being updated> #6 the sum of "&**,***.** as reasonable attorney s fees> )6 the sum of "0**,***.** by way of moral damages and the further sum of "#**,***,** by way of e4emplary damages> and, 16 the costs of the suit.

7O O(:,(,:. 1
"rivate respondents seasonably interposed an appeal to the !ourt of Appeals. The appellate court rendered a :ecision, dated #$ %ay &$$', reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads. DH,(,?O(,, for the foregoing premises the appealed decision is hereby (,H,(7,:, and the complaint below against the appellants is hereby ordered :I7%I77,:. The counterclaim of appellant :e 9os 7antos %edical !enter is G(A8T,: but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to "$),'1#.#', plus legal interest for =ustice must be tempered with mercy.

7O O(:,(,:. 2
The decision of the !ourt of Appeals was received on $ +une &$$' by petitioner (ogelio (amos who was mistakenly addressed as 5Atty. (ogelio (amos.5 8o copy of the decision, however, was sent nor received by the !oronel 9aw Office, then counsel on record of petitioners. (ogelio referred the decision of the appellate court to a new lawyer, Atty. 9igsay, only on #* +une &$$', or four 316 days before the e4piration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. 9igsay, filed with the appellate court a motion for e4tension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 1 +uly &$$'. However, the appellate court denied the motion for e4tension of time in its (esolution dated #' +uly &$$'. 9%eanwhile, petitioners engaged the services of another counsel, Atty. 7illano, to replace Atty. 9igsay. Atty. 7illano filed on / August &$$' a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the :ivision !lerk of !ourt of the !ourt of Appeals had not yet served a copy thereof to the counsel on record. :espite this e4planation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its (esolution, dated #$ %arch &$$;, primarily on the ground that the fifteen2day 3&'6 period for filing a motion for reconsideration had already e4pired, to wit. De said in our (esolution on +uly #', &$$', that the filing of a %otion for (econsideration cannot be e4tended> precisely, the %otion for ,4tension 3Rollo, p. &#6 was denied. It is, on the other hand, admitted in the latter %otion that plaintiffsIappellees received a copy of the decision as early as +une $, &$$'. !omputation wise, the period to file a %otion for (econsideration e4pired on +une

#1. The %otion for (econsideration, in turn, was received by the !ourt of Appeals already on +uly 1, necessarily, the &'2day period already passed. ?or that alone, the latter should be denied. ,ven assuming admissibility of the %otion for the (econsideration, but after considering the !ommentIOpposition, the former, for lack of merit, is hereby :,8I,:.

7O O(:,(,:. 13
A copy of the above resolution was received by Atty. 7illano on && April &$$;. The ne4t day, or on &# April &$$;, Atty. 7illano filed before this !ourt a motion for e4tension of time to file the present petition for certiorari under (ule 1'. The !ourt granted the motion for e4tension of time and gave petitioners additional thirty 3)*6 days after the e4piration of the fifteen2day 3&'6 period counted from the receipt of the resolution of the !ourt of Appeals within which to submit the petition. The due date fell on #/ %ay &$$;. The petition was filed on $ %ay &$$;, well within the e4tended period given by the !ourt. "etitioners assail the decision of the !ourt of Appeals on the following grounds. I I8 "@TTI8G %@!H (,9IA8!, O8 TH, T,7TI%O8I,7 O? (,7"O8:,8T7 :(A. G@TI,((,J, :(A. !A9:,(O8 A8: :(. +A%O(A> II I8 ?I8:I8G THAT TH, 8,G9IG,8!, O? TH, (,7"O8:,8T7 :I: 8OT !A@7, TH, @8?O(T@8AT, !O%ATO7, !O8:ITIO8 O? ",TITIO8,( ,(9I8:A (A%O7> III

I8 8OT A""9KI8G TH, :O!T(I8, O? RES IPSA LOQUITUR. 11

<efore 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 !ourt of Appeals. In their !omment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners on the decision of the !ourt of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. De 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 !ourt of Appeals was not sent to then counsel on record of petitioners, the !oronel 9aw Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner (ogelio (amos on $ +une &$$' wherein he was mistakenly addressed as Atty. (ogelio (amos. <ased on the other communications received by petitioner (ogelio (amos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record. "etitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on #* +une &$$'. 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. Dith a few e4ceptions, 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. %oreover, since the !ourt of Appeals already issued a second (esolution, dated #$ %arch &$$;, which superseded the earlier resolution issued on #' +uly &$$', 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. <ased 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. ?or 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 9atin phrase which literally means 5the thing or the transaction speaks for itself.5 The phrase 5res ipsa loquitur is a ma4im for the rule that the fact of the occurrence of an in=ury, 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 Buestion of fact for defendant to meet with an e4planation. 13 Dhere the thing which caused the in=ury 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 e4planation by the defendant, that the accident arose from or was caused by the defendant s want of care. 14 The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and e4perience, the very nature of certain types of occurrences may =ustify an inference of negligence on the part of the person who controls the instrumentality causing the in=ury in the absence of some e4planation by the defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary human e4perience and on the basis of such e4perience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. 10 Hence, res ipsa loquitur is applied in con=unction with the doctrine of common knowledge. However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. 11 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 12 It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the reBuirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. 23 7till, before resort to the doctrine may be allowed, the following reBuisites must be satisfactorily shown. &. The accident is of a kind which ordinarily does not occur in the absence of someone s negligence> #. It is caused by an instrumentality within the e4clusive control of the defendant or defendants> and

). The possibility of contributing conduct which would make the plaintiff responsible is eliminated.21
In the above reBuisites, the fundamental element is the 5control of instrumentality5 which caused the damage. 227uch 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 in=ury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23 %edical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to =ustify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a Buestion of law since it is a =udicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 20 Although generally, e4pert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for e4pert medical testimony is dispensed with because the in=ury itself provides the proof of negligence. 21 The reason is that the general rule on the necessity of e4pert 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. 22 Ordinarily, only physicians and surgeons of skill and e4perience 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, e4ternal appearances, and manifest conditions which are observable by any one may be given by non2e4pert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician

negligent upon proper proof of in=ury to the patient, without the aid of e4pert testimony, where the court from its fund of common knowledge can determine the proper standard of care. 33Dhere common knowledge and e4perience teach that a resulting in=ury would not have occurred to the patient if due care had been e4ercised, 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 reBuired to show not only what occurred but how and why it occurred. 31 Dhen the doctrine is appropriate, all that the patient must do is prove a ne4us between the particular act or omission complained of and the in=ury sustained while under the custody and management of the defendant without need to produce e4pert medical testimony to establish the standard of care. (esort 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 in=ury suffered by him. Thus, courts of other =urisdictions have applied the doctrine in the following situations. leaving of a foreign ob=ect in the body of the patient after an operation, 32 in=uries sustained on a healthy part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34knocking out a tooth while a patient s =aw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 30among others. 8evertheless, 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 conseBuences of professional care were not as such as would ordinarily have followed if due care had been e4ercised. 31 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 32 The physician or surgeon is not reBuired at his peril to e4plain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. 43The real Buestion, therefore, is whether or not in the process of the operation any e4traordinary 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 une4plained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward conseBuence. 41 If there was such e4traneous interventions, the doctrine of res ipsa loquitur may be utili-ed and the defendant is called upon to e4plain the matter, by evidence of e4culpation, if he could. 42 De find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be e4plained, the damage sustained by ,rlinda 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. Brid ell, 43 where the Lansas 7upreme !ourt in applying the res ipsa loquitur stated. The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control of his physician who had complete and e4clusive 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 in=ury rendering him decerebrate and totally incapacitated. The in=ury 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 conseBuence of administering such anesthesia in the absence of negligence. @pon these facts and under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the conseBuences of professional treatment were not as such as would ordinarily have followed if due care had been e4ercised. 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 e4planation

of event is more accessible to the defendants than to the plaintiff for they had the e4clusive control of the instrumentalities of anesthesia.

@pon all the facts, conditions and circumstances alleged in !ount II it is held that a cause of action is stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforeBuoted case apply with eBual force here. In the present case, ,rlinda submitted herself for cholecystectomy and e4pected 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 e4ercised complete and e4clusive control over her. At the time of submission, ,rlinda was neurologically sound and, e4cept 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 ,rlinda sustained, is an in=ury 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. 8ormally, a person being put under anesthesia is not rendered decerebrate as a conseBuence of administering such anesthesia if the proper procedure was followed. ?urthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the e4clusive control of private respondents, who are the physicians2in2charge. 9ikewise, petitioner ,rlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. !onsidering that a sound and unaffected member of the body 3the brain6 is in=ured or destroyed while the patient is unconscious and under the immediate and e4clusive control of the physicians, we hold that a practical administration of =ustice dictates the application of res ipsa loquitur. @pon these facts and under these circumstances the !ourt would be able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the patient. %oreover, 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 ,rlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur. 8onetheless, 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 in=ury occurs to a patient while under anesthesia, or to any and all anesthesia cases. ,ach case must be viewed in its own light and scrutini-ed 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 !ourt now comes to the issue of whether the !ourt of Appeals erred in finding that private respondents were not negligent in the care of ,rlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the pro4imate cause of ,rlinda s comatose condition. !orollary thereto, we shall also determine if the !ourt of Appeals erred in relying on the testimonies of the witnesses for the private respondents. In sustaining the position of private respondents, the !ourt of Appeals relied on the testimonies of :ra. Gutierre-, :ra. !alderon and :r. +amora. In giving weight to the testimony of :ra. Gutierre-, the !ourt of Appeals rationali-ed that she was candid enough to admit that she e4perienced some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to show that the brain damage sustained by ,rlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental 7odium 3"entothal6, a short2acting barbiturate, as testified on by their e4pert witness, :r. +amora. On the other hand, the appellate court re=ected the testimony of :ean Herminda !ru- offered in favor of petitioners that the cause of the brain in=ury 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 ,rlinda and her family. De disagree with the findings of the !ourt of Appeals. De hold that private respondents were unable to disprove the presumption of negligence on their part in the care of ,rlinda and their negligence was the pro4imate 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 in=ury but also in providing the !ourt the legal ne4us 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 ,rlinda. Dith regard to :ra. Gutierre-, we find her negligent in the care of ,rlinda during the anesthesia phase. As borne by the records, respondent :ra. Gutierre- failed to properly intubate the patient. This fact was attested to by "rof. Herminda !ru-, :ean of the !apitol %edical !enter 7chool of 8ursing and petitioner s sister2in2law, who was in the operating room right beside the patient when the tragic event occurred. Ditness !ru- testified to this effect. ATTK. "A+A(,7. A. In particular, what did :ra. "erfecta Gutierre- do, if any on the patientC A. In particular, I could see that she was intubating the patient. A. :o you know what happened to that intubation process administered by :ra. Gutierre-C ATTK. A9!,(A. 7he will be incompetent Kour Honor. !O@(T. Ditness 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 :ra. "erfecta Gutierre- herself. 7he was saying 5Ang hirap ma2intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. 444 444 444 ATTK. "A+A(,7. A. ?rom whom did you hear those words 5lumalaki ang tiyan5C A. ?rom :ra. "erfecta Gutierre-. 444 444 444 A. After hearing the phrase 5lumalaki ang tiyan,5 what did you notice on the person of the patientC A. I notice 3sic6 some bluish discoloration on the nailbeds of the left hand where I was at. A. Dhere was :r. Orlino HoEsFaka then at that particular timeC A. I saw him approaching the patient during that time. A. Dhen he approached the patient, what did he do, if anyC A. He made an order to call on the anesthesiologist in the person of :r. !alderon.

A. :id :r. !alderon, upon being called, arrive inside the operating roomC A. Kes sir. A. Dhat did EsFhe do, if anyC A. E7Fhe tried to intubate the patient. A. Dhat happened to the patientC A. Dhen :r. !alderon try 3sic6 to intubate the patient, after a while the patient s nailbed became bluish and I saw the patient was placed in trendelenburg position. 444 444 444 A. :o you know the reason why the patient was placed in that trendelenburg positionC

A. As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 40
444 444 444 The appellate court, however, disbelieved :ean !ru- 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 techniBues. Indeed, we take =udicial notice of the fact that nurses do not, and cannot, intubate. ,ven on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda !ru-, admittedly, did not peep into the throat of the patient. 3T78, +uly #', &$$&, p. &)6. %ore importantly, there is no evidence that she ever auscultated the patient or that she conducted any type of e4amination 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 !ru- s categorical statements that appellant :ra. Gutierre- failed to intubate the appellee ,rlinda (amos and that it was :ra. !alderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 41
In other words, what the !ourt of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness !ru- is not competent to testify on whether or not the intubation was a success. De do not agree with the above reasoning of the appellate court. Although witness !ru- 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, e4ternal appearances, and manifest conditions which are observable by any one. 42 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of e4pert witnesses is not reBuired. It is the accepted rule that e4pert testimony is not necessary for the proof of negligence in non2technical matters or those of which an ordinary person may be e4pected to have knowledge, or where the lack of skill or want of care is so obvious as to render e4pert testimony unnecessary. 49 De take =udicial 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 reBuire a medical degree to be acceptable. At any rate, without doubt, petitioner s witness, an e4perienced clinical nurse whose long e4perience and scholarship led to her appointment as :ean of the !apitol %edical !enter 7chool at 8ursing, was fully capable of determining whether or not the intubation was a success. 7he had e4tensive clinical e4perience starting as a staff nurse in !hicago, Illinois> staff nurse and clinical instructor in a teaching hospital, the ?,@28(%?> :ean of the 9aguna !ollege

of 8ursing in 7an "ablo !ity> and then :ean of the !apitol %edical !enter 7chool of 8ursing. 53(eviewing witness !ru- 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. Dith her clinical background as a nurse, the !ourt is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day. %ost of all, her testimony was affirmed by no less than respondent :ra. Gutierre- who admitted that she e4perienced difficulty in inserting the tube into ,rlinda s trachea, to wit. ATTK. 9IG7AK. A. In this particular case, :octora, while you were intubating at your first attempt 3sic6, you did not immediately see the tracheaC :(A. G@TI,((,J. A. Kes sir. A. :id you pull away the tube immediatelyC A. Kou do not pull the . . . A. :id you or did you notC A. I did not pull the tube. A. Dhen you said 5mahirap yata ito,5 what were you referring toC A. 5%ahirap yata itong i2intubate,5 that was the patient. A. 7o, you found some difficulty in inserting the tubeC

A. Kes, because of 3sic6 my first attempt, I did not see right away.

51

!uriously in the case at bar, respondent :ra. Gutierre- made the hapha-ard defense that she encountered hardship in the insertion of the tube in the trachea of ,rlinda because it was positioned more anteriorly 3slightly deviated from the normal anatomy of a person6 52 making it harder to locate and, since ,rlinda 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 ,rlinda s airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. ?rom their testimonies, it appears that the observation was made only as an afterthought, as a means of defense. The pre2operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. "re2operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient s medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the patient s medical history, review of current drug therapy, physical e4amination and interpretation of laboratory data. 54 The physical e4amination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper air a!. 55 A thorough analysis of the patient s airway normally involves investigating the following. cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visuali-e uvula and the thyromental distance. 50 Thus, physical characteristics of the patient s upper airway that could make tracheal intubation difficult should be studied. 51 Dhere the need arises, as when initial assessment indicates possible problems 3such as the alleged short neck and protruding teeth of ,rlinda6 a thorough e4amination of the patient s airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent :ra. Gutierre- admitted that she saw ,rlinda for the first time on the day of the operation itself, on &/ +une &$0'. <efore this date, no prior consultations with, or pre2operative evaluation of ,rlinda was done by her. @ntil the day of the operation, respondent :ra. Gutierre- was unaware of the physiological make2up and needs of ,rlinda. 7he was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to ,rlinda. (espondent :ra. Gutierre- act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of e4ceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician s centuries2old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear i"dicia of her negligence. (espondent :ra. Gutierre-, 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. (espondent :ra. Gutierre- tried to muddle the difference between an elective surgery and an emergency surgery =ust so her failure to perform the reBuired pre2 operative evaluation would escape unnoticed. In her testimony she asserted. ATTK. 9IG7AK. A. Dould you agree, :octor, that it is good medical practice to see the patient a day before so you can introduce yourself to establish good doctor2patient relationship and gain the trust and confidence of the patientC :(A. G@TI,((,J.

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 cardio2pulmonary clearance like that, I usually don t do it e4cept on emergency and on cases that have an abnormalities 3 sic6. 52
However, the e4act opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of pre2operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all. ,lective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the lu4ury of time to be at the patient s beside to do a proper interview and clinical evaluation. There is ample time to e4plain the method of anesthesia, the drugs to be used, and their possible ha-ards for purposes of informed consent. @sually, the pre2 operative assessment is conducted at least one day before the intended surgery, when the patient is rela4ed and cooperative. ,rlinda s case was elective and this was known to respondent :ra. Gutierre-. Thus, she had all the time to make a thorough evaluation of ,rlinda s case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the bedside. 7he herself admitted that she had seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. 7he negligently failed to take advantage of this important opportunity. As such, her attempt to e4culpate herself must fail. Having established that respondent :ra. Gutierre- failed to perform pre2operative evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the pro4imate cause of ,rlinda s comatose condition. "rivate respondents repeatedly hammered the view that the cerebral ano4ia which led to ,rlinda s coma was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental 7odium, introduced into her system. Towards this end, they presented :r. +amora, a ?ellow of the "hilippine !ollege of "hysicians and :iplomate of the "hilippine 7pecialty <oard of Internal %edicine, who advanced private respondents theory that the o4ygen deprivation which led to ano4ic encephalopathy, 03 was due to an unpredictable drug reaction to the short2acting barbiturate. De find the theory of private respondents unacceptable. ?irst of all, :r. +amora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. 7ince :r. +amora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their complications. :r. +amora is likewise not an allergologist and could not therefore properly advance e4pert opinion on allergic2mediated processes. %oreover, he is not a

pharmacologist and, as such, could not have been capable, as an e4pert would, of e4plaining to the court the pharmacologic and to4ic effects of the supposed culprit, Thiopental 7odium 3"entothal6. The inappropriateness and absurdity of accepting :r. +amora s testimony as an e4pert witness in the anesthetic practice of "entothal administration is further supported by his own admission that he formulated his opinions on the drug not from the practical e4perience gained by a specialist or e4pert in the administration and use of 7odium "entothal on patients, but only from reading certain references, to wit. ATTK. 9IG7AK. A. In your line of e4pertise on pulmonology, did you have any occasion to use pentothal as a method of managementC :(. +A%O(A. A. De do it in con=unction with the anesthesiologist when they have to intubate our patient. A. <ut not in particular when you practice pulmonologyC A. 8o. A. 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 pentothalC A. <ased on my personal e4perience also on pentothal. A. How many times have you used pentothalC A. They used it on me. I went into bronchospasm during my appendectomy. A. And because they have used it on you and on account of your own personal e4perience you feel that you can testify on pentothal here with medical authorityC

A. 8o. That is why I used references to support my claims. 01

An anesthetic accident caused by a rare drug2induced bronchospasm properly falls within the fields of anesthesia, internal medicine2allergy, and clinical pharmacology. The resulting ano4ic encephalopathy belongs to the field of neurology. Dhile admittedly, many bronchospastic2mediated pulmonary diseases are within the e4pertise of pulmonary medicine, :r. +amora s field, the anesthetic drug2induced, 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 :r. +amora s testimony as an e4pert in the administration of Thiopental 7odium. The provision in the rules of evidence 02 regarding e4pert witnesses states. 7ec. 1$. Opi"io" of e#pert it"ess. G The opinion of a witness on a matter reBuiring special knowledge, skill, e4perience or training which he is shown to possess, may be received in evidence. Generally, to Bualify as an e4pert witness, one must have acBuired special knowledge of the sub=ect matter about which he or she is to testify, either by the study of recogni-ed authorities on the sub=ect or by practical e4perience.03 !learly, :r. +amora does not Bualify as an e4pert 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 e4perts in the proper areas. %oreover, private respondents theory, that Thiopental 7odium may have produced ,rlinda s coma by triggering an allergic mediated response, has no support in evidence. 8o evidence of stridor, skin reactions, or whee-ing G some of the more common accompanying signs of an allergic reaction G appears on record. 8o laboratory data were ever presented to the court. In any case, private respondents themselves admit that Thiopental induced, allergic2mediated 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. ,vidently, the Thiopental2allergy theory vigorously asserted by private respondents was a mere afterthought. 7uch an e4planation 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 pro4imate cause of ,rlinda s comatose condition. "ro4imate cause has been defined as that which, in natural and continuous seBuence, unbroken by any efficient intervening cause, produces in=ury, and without which the result would not have occurred. 04 An in=ury or damage is pro4imately 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 in=ury or damage> and that the in=ury or damage was either a direct result or a reasonably probable conseBuence of the act or omission. 05 It is the dominant, moving or producing cause. Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the pro4imate cause which triggered the chain of events leading to ,rlinda s brain damage and, ultimately, her comatosed condition. "rivate respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by witness !ru- when she heard respondent :ra. Gutierre- remarked, 5Ang hirap ma2intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.5 Thereafter, witness !ru- noticed abdominal distention on the body of ,rlinda. 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. :uring intubation, such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. ,ntry into the esophagus would certainly cause some delay in o4ygen delivery into the lungs as the tube which carries o4ygen is in the wrong place. That abdominal distention had been observed during the first intubation suggests that the length of time utili-ed in inserting the endotracheal tube 3up to the time the tube was withdrawn for the second attempt6 was fairly significant. :ue to the delay in the delivery of o4ygen in her lungs ,rlinda showed signs of cyanosis. 00 As stated in the testimony of :r. Hosaka, the lack of o4ygen became apparent only after he noticed that the nailbeds of ,rlinda were already blue. 01 However, private respondents contend that a second intubation was e4ecuted on ,rlinda and this one was successfully done. De do not think so. 8o evidence e4ists 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 o4ygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second intubation. "roceeding from this event 3cyanosis6, it could not be claimed, as private respondents insist, that the second intubation was accomplished. ,ven granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly e4plained by the trial court, ,rlinda already suffered brain damage as a result of the inadeBuate o4ygenation of her brain for about four to five minutes. 02 The above conclusion is not without basis. 7cientific studies point out that intubation problems are responsible for one2third 3&I)6 of deaths and serious in=uries associated with anesthesia. 09 8evertheless, ninety2eight percent 3$0M6 or the vast ma=ority of difficult intubations may be anticipated by performing a thorough evaluation of the patient s airway prior to the operation. 13 As stated beforehand, respondent :ra. Gutierre- failed to observe the proper pre2 operative protocol which could have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre2operative evaluation, respondent physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient s neck and oral area, defects which would have been easily overcome by a prior knowledge of those variations together with a change in techniBue. 11 In other words, an e4perienced anesthesiologist, adeBuately alerted by a thorough pre2operative evaluation, would have had little difficulty going around the short neck and protruding teeth. 12 Having failed to observe common medical

standards in pre2operative management and intubation, respondent :ra. Gutierre- negligence resulted in cerebral ano4ia and eventual coma of ,rlinda. De now determine the responsibility of respondent :r. Orlino Hosaka as the head of the surgical team. As the so2 called 5captain of the ship,5 13 it is the surgeon s responsibility to see to it that those under him perform their task in the proper manner. (espondent :r. Hosaka s negligence can be found in his failure to e4ercise the proper authority 3as the 5captain5 of the operative team6 in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record e4ists to show that respondent :r. Hosaka verified if respondent :ra. Gutierreproperly intubated the patient. ?urthermore, it does not escape us that respondent :r. Hosaka had scheduled another procedure in a different hospital at the same time as ,rlinda s cholecystectomy, and was in fact over three hours late for the latter s operation. <ecause 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 eBual responsibility for the events which resulted in ,rlinda s condition. De now discuss the responsibility of the hospital in this particular incident. The uniBue practice 3among private hospitals6 of filling up specialist staff with attending and visiting 5consultants,5 14 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 e4ercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. :octors who apply for 5consultant5 slots, visiting or attending, are reBuired to submit proof of completion of residency, their educational Bualifications> generally, evidence of accreditation by the appropriate board 3diplomate6, evidence of fellowship in most cases, and references. These reBuirements are carefully scrutini-ed by members of the hospital administration or by a review committee set up by the hospital who either accept or re=ect the application. 15 This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally reBuired to attend clinico2 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, andIor 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 e4ercise real control over their attending and visiting 5consultant5 staff. Dhile 5consultants5 are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient s condition, the control e4ercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer2employee relationship, with the e4ception of the payment of wages. In assessing whether such a relationship in fact e4ists, 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 employer2 employee relationship in effect e4ists between hospitals and their attending and visiting physicians. This being the case, the Buestion now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner s condition. 10 The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article #&0* of the !ivil !ode which considers a person accountable not only for his own acts but also for those of others based on the former s responsibility under a relationship of patria potestas. 11 7uch responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. 12 In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents 3parent, guardian, teacher or employer6 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 e4ercised 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 e4ercised 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 #&0*. Having failed to do this, respondent hospital is conseBuently solidarily responsible with its physicians for ,rlinda s condition.

<ased on the foregoing, we hold that the !ourt of Appeals erred in accepting and relying on the testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of negligence. @pon these disBuisitions we hold that private respondents are solidarily liable for damages under Article #&/; 19 of the !ivil !ode. De now come to the amount of damages due petitioners. The trial court awarded a total of ";)#,***.** pesos 3should be ";&;,***.**6 in compensatory damages to the plaintiff, 5sub=ect to its being updated5 covering the period from &' 8ovember &$0' up to &' April &$$#, based on monthly e4penses for the care of the patient estimated at "0,***.**. At current levels, the "0***Imonthly amount established by the trial court at the time of its decision would be grossly inadeBuate to cover the actual costs of home2based care for a comatose individual. The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. Dhat it reflected were the actual e4penses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills. And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice speciali-ing in the care of the chronically ill for the purpose of providing a proper milieu adeBuate to meet minimum standards of care. In the instant case for instance, ,rlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. ?eeding is done by nasogastric tube. ?ood preparation should be normally made by a dietitian to provide her with the correct daily caloric reBuirements and vitamin supplements. ?urthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications. Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the !ivil !ode on actual or compensatory damages present us with some difficulties. Dell2settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The !ivil !ode provides. Art. #&$$. G ,4cept as provided by law or by stipulation, one is entitled to an adeBuate compensation only for such pecuniary loss suffered by him as he has duly proved. 7uch 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 in=ury suffered as a conseBuence of an act of negligence has been completed and that the cost can be liBuidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting in=ury might be continuing and possible future complications directly arising from the in=ury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adeBuately and correctly respond to the in=ury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial> a"d one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. 23 In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the in=ury is chronic and continuing. And because of the uniBue 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 eBuitable G and certainly not in the best interests of the administration of =ustice G for the victim in such cases to constantly come before the courts and invoke their aid in seeking ad=ustments to the compensatory damages previously awarded G temperate damages are appropriate. The amount given as temperate damages, though to a certain e4tent speculative, should take into account the cost of proper care. In the instant case, petitioners were able to provide only home2based 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 =ustice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally speciali-es 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 inadeBuate. @nder the circumstances, an award of "&,'**,***.** in temperate damages would therefore be reasonable. 21 In Vale"$uela vs. %ourt of Appeals, 22 this !ourt was confronted with a situation where the in=ury suffered by the plaintiff would have led to e4penses which were difficult to estimate because while they would have been a direct result of the in=ury 3amputation6, and were certain to be incurred by the plaintiff, they were likely to arise only in the future. De awarded "&,***,***.** in moral damages in that case. :escribing the nature of the in=ury, the !ourt therein stated. As a result of the accident, %a. 9ourdes Halen-uela underwent a traumatic amputation of her left lower e4tremity at the distal left thigh =ust above the knee. <ecause of this, Halen-uela will forever be deprived of the full ambulatory functions of her left e4tremity, even with the use of state of the art prosthetic technology. Dell beyond the period of hospitali-ation 3which was paid for by 9i6, she will be reBuired to undergo ad=ustments in her prosthetic devise due to the shrinkage of the stump from the process of healing. These ad=ustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy. :uring the lifetime, the prosthetic devise will have to be replaced and read=usted to changes in the si-e of her lower limb effected by the biological changes of middle2 age, menopause and aging. Assuming she reaches menopause, for e4ample, the prosthetic will have to be ad=usted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post2menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and ad=usting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and ad=ustments will reBuire corresponding ad=ustive physical and occupational therapy. All of these ad=ustments, it has been documented, are painful. 444 444 444

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 an4iety, sleeplessness, psychological in=ury, mental and physical pain are inestimable. 23
The in=ury suffered by ,rlinda as a conseBuence of private respondents negligence is certainly much more serious than the amputation in the Halen-uela case. "etitioner ,rlinda (amos was in her mid2forties when the incident occurred. 7he 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. %eanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to Buantify. ,ven the temperate damages herein awarded would be inadeBuate if petitioner s condition remains unchanged for the ne4t ten years. De recogni-ed, in Halen-uela that a discussion of the victim s actual in=ury 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 in=ury suffered by the victim or those actually affected by the victim s condition. 24The 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 in=ury and suffering in this case is clearly a real one. ?or the foregoing reasons, an award of "#,***,***.** in moral damages would be appropriate.

?inally, by way of e4ample, e4emplary damages in the amount of "&**,***.** are hereby awarded. !onsidering the length and nature of the instant suit we are of the opinion that attorney s fees valued at "&**,***.** are likewise proper. Our courts face uniBue difficulty in ad=udicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause in=ury or death to their patients. However, intent is immaterial in negligence cases because where negligence e4ists and is proven, the same automatically gives the in=ured a right to reparation for the damage caused. ,stablished medical procedures and practices, though in constant flu4 are devised for the purpose of preventing complications. A physician s e4perience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished career using unorthodo4 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 ne4us is made between the deviation and the in=ury or damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre2operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private respondents case. DH,(,?O(,, 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. &6 "&,)'#,***.** as actual damages computed as of the date of promulgation of this decision plus a monthly payment of "0,***.** up to the time that petitioner ,rlinda (amos e4pires or miraculously survives> #6 "#,***,***.** as moral damages, )6 "&,'**,***.** as temperate damages> 16 "&**,***.** each as e4emplary damages and attorney s fees> and, '6 the costs of the suit. 7O O(:,(,:. &avide' (r)' %)()' Pu"o' Pardo a"d *"ares+Sa"tia,o' (()' co"cur) ,ootnote$ & In the @nited 7tates alone, a great number of people die every year as a result of medical mishaps. The &) :ecember &$$$ issue of TI%, %AGAJI8, featured an article on medical negligence entitled 5:octors :eadly %istakes5 which is Buoted in part. 5It is hardly news that medical professionals make mistakes G even dumb, deadly mistakes. Dhat is shocking is how often it happens. :epending on which statistics you believe, the number of American killed by medical screw2ups is somewhere between 11,*** and $0,*** every year G the eighth leading cause of death even by the more conservative figure, ahead of car crashes, breast cancer and AI:7. %ore 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.5 # !holecystectomy is the surgical e4cision of the gall bladder.

G.R. No. 122113

Se4tember 20, 2333

-EO-LE O, +.E -.ILI--INES, plaintiff2appellee, vs. ,ERIGEL OLI5A, accused2appellant. -ARDO, J.6 T-e %ase The case is an appeal from the decision of the (egional Trial !ourt, <ranch &#, 7anche- %ira, !agayan& finding accused ?erigel Oliva 3hereinafter referred to as 5?erigel56 guilty beyond reasonable doubt of arson and murder,#sentencing him to seventeen 3&/6 years, four 316 months and 3&6 day of reclusio" temporal, for arson, and

toreclusio" perpetua for murder, ordering him to pay Avelino %anguba damages of two hundred pesos 3"#**.**6, and to pay indemnity of fifty thousand pesos 3"'*,***.**6 to the heirs of <en=amin ,strellon.) T-e .acts On August #), &$$), at around eleven o clock in the evening, Avelino %anguba 3hereinafter referred to as 5Avelino56 and his family were sleeping in their house in 7an +ose, !laveria, !agayan. Avelino went out of the house to urinate.1 He saw ?erigel set the roof of their house on fire with a lighted match.' Awakened by the loud barking of dogs, Avelino s wife sensed danger and peeped through a hole in their wall. she also saw ?erigel burn the roof of their house.; 7he shouted, 5"erry is burning our houseN5 and called out to the neighbors for help./ Dhile the fire ra-ed Avelino s house, ?erigel and three others, :ominador Oliva, %arcos "aderan and Arnel :omingo watched at a distance of about five 3'6 meters.0 One of the neighbors, <en=amin ,strellon 3hereinafter referred to as 5<en=amin56 went to the nearby river and fetched water with a pail. As <en=amin was helping put out the fire, he was shot by ?erigel at close range.$<en=amin tried to run, but he slumped and fell to the ground. The gunshot wound caused <en=amin s death.&* Avelino, his wife, and <en=amin s son, 8oel, witnessed the shooting since they were only about five 3'6 to si4 3;6 meters away from ?erigel when the incident occurred.&& The place was brightly lit by the burning roof and visibility was not a problem.&# On August #1, &$$), a post2mortem report was made on <en=amin s cadaver,&) revealing the following.&1 5II. "O7T%O(T,% ?I8:I8G7. 5!adaver is in a state of rigor mortis and with postmortem lividity at back. 5Gunshot wound of entrance *.$ cm. at left lateral mid2scapular area going medially and anterosuperiorily, &* cms. deep without e4it.5 5III. !A@7, O? :,ATH 5Internal Hemorrhage due to gunshot wound at back.5 On October 1, &$$), an information for murder was filed&' against accused2appellant ?erigel Oliva and co2accused :ominador Oliva, %arcos "aderan and Arnel :omingo, to wit.&; 5That on or about August #), &$$), in the municipality of !laveria, province of !agayan, and within the =urisdiction of this Honorable !ourt, the said accused ?erigel Oliva, :ominador Oliva, %arcos "aderan and Arnel :omingo, armed with a gun, conspiring together and helping one another, with intent to kill, with treachery, with evident premeditation and with abuse of superior strength, did then and there wilfully 3sic6, unlawfully and feloniously assault, attack and shoot one <en=amin ,strellon, inflicting upon him gunshot wound on his body, which caused his death. 5!O8T(A(K TO 9AD.5 On the same day, the accused were also charged with arson, as follows.&/ 5That on or about August #), &$$), in the municipality of !laveria, province of !agayan, and within the =urisdiction of this Honorable !ourt, the said accused ?erigel Oliva, %arcos "aderan, Arnel :omingo and :ominador Oliva, conspiring together and helping one another, with intent to destroy and to cause damage, did then and there wilfully 3sic6, unlawfully and feloniously set on fire the house of one Avelino <. %anguba in the total amount of ?I?TK THO@7A8: 3"'*,***.**6 pesos, "hilippine currency.

5!ontrary to law.5 On October #*, &$$), the accused were arraigned. Dith the assistance of their respective counsel, they pleaded 5not guilty5 to the two crimes.&0 On +uly #&, &$$1, accused ?erigel escaped while in the custody of "IG2& +oaBuin ". !aringan. At the time of his escape, ?erigel was a detention prisoner at the "rovincial +ail ,4tension of 7anche- %ira, !agayan.&$ On +anuary ), &$$', ?erigel was apprehended at Angadanan, Isabela by prison guards +oaBuin ". Garingan and Angelino %. !acatian, members of the 7cout (anger regiment and members of the "8" of Angadanan, Isabela.#* The cases for arson and murder were tried =ointly.#& In view of the common evidence presented coupled with the difficulty of distinguishing which evidence was for a particular case, only one decision was rendered.## On August #), &$$', the trial court rendered a decision, the dispositive portion of which reads.#) 5DH,(,?O(,, premises all considered, =udgment is hereby rendered as follows, to wit. 5&. AcBuitting accused %arcos "aderan, Arnel :omingo and :ominador Oliva of the crime of Arson and %urder for lack of evidence and hereby orders for their immediate release from detention> 5#. ?inding the accused ?erigel Oliva guilty beyond reasonable doubt of the crime of Arson penali-ed under par. #, 7ec. ) of ": &;&) and hereby sentences him to suffer imprisonment of seventeen 3&/6 years, four 316 months, and 3&6 day of reclusion temporal> 5). ?inding the accused ?erigel Oliva guilty beyond reasonable doubt of the crime of %urder penali-ed under Art. #10 of the (evised "enal !ode and hereby sentences him to suffer imprisonment of reclusion perpetua> 51. Ordering the accused ?erigel Oliva to pay "#** to Avelino %anguba as damages for the burning of the roof of his house that was burned 3sic6> 5'. Ordering the accused ?erigel Oliva to pay "'*,*** to the heirs of <en=amin ,strellon as indemnity for the latter s death. 57O O(:,(,:.5 T-e Appeal Hence, this appeal.#1 ?erigel argues that the trial court erred when. first, it ignored glaring inconsistencies in the testimonies of prosecution witnesses>#' seco"d, it totally disregarded the defense of alibi> and t-ird, it took into account the Bualifying circumstance of treachery in the commission of murder and the fact that the house was inhabited when it was burned.#; The !ourt s (uling De find no reversible error and affirm the conviction. Dhether or not <en=amin was shot while he was on the street#/ or when he was in the act of pouring water on the burning roof#0 is irrelevant to the crime. De agree with the 7olicitor General that <en=amin could have been on the street while pouring water on the burning roof.#$ The two testimonies were not inconsistent. Also whether or not <en=amin immediately fell or tried to run away after he was shot is not important. The fact is that he was shot> any act of his after he was shot would not change the shooting, which at that point was fait accompli.

,Bually insignificant is whether the gun used was a long firearm or a short firearm. Identification of the weapon only becomes critical when there is doubt as to the identity of the assailant. In this case, the trial court did not doubt the identity, and neither would we. The fact is that <en=amin was shot and that it was ?erigel who shot him. This was the categorical, straightforward and unbiased testimony of the prosecution witnesses. The settled rule is that the trial court s assessment of the credibility of witnesses is entitled to great respect.)* Absent any indication that the trial court overlooked some material fact or gravely abused its discretion, we find no compelling reason to interfere with its assessment of the credibility of the eyewitnesses.)& The 5inconsistencies5 pointed out by accused2appellant are on minor details. To acBuit one who was positively identified on the basis of inconseBuential matters would result in mischief and in=ustice. )# we have held that minor inconsistencies are not enough to impair the essential integrity of the prosecution s evidence as a whole.)) ?erigel harps on the testimony of acting <arangay !aptain of ?ilomena, !alanasan, Lalinga2Apayao, which he avers must not be disregarded. He feebly argues that the testimony of <arangay !aptain Isabel (amos conclusively established the impossibility of the presence of accused :ominador Oliva at the time of the commission of the crimes. ?rom this, accused2appellant reasons that it 5follows that the testimonies of prosecution witnesses pointing to the accused2appellant as the assailant should not be believed.5 This is "o"+sequitur. ,ven assuming that :ominador Oliva s presence was impossible, such has no bearing in this appeal. Here, it is the guilt of ?erigel Oliva that is in issue. The trial court acBuitted :ominador of the charges, but convicted ?erigel. ?erigel s innocence cannot be deduced from :ominador s acBuittal. ?urther, we note that ?erigel escaped during the trial. ?light is an indication of guilt.)1 T-e %o"victio" for Arso" Dhen ?erigel burned Avelino s house, the law applicable was ".:. 8o. &;&). )' @nder 7ection ) 3#6 of the law, the penalty of reclusio" temporal to reclusio" perpetua shall be imposed if the property burned is 5any inhabited house or dwelling.5 @nder the amendment, it is the fact that the house burned is inhabited that Bualifies the crime. There is no need to prove that the accused had actual knowledge that the house was inhabited.); @nder 7ection ) 3#6 of "residential :ecree 8o. &;&), the elements of arson are. 3&6 that there is intentional burning> and 3#6 that what is intentionally burned is an inhabited house or dwelling.)/ The records show that when ?erigel willfully set fire to the roof of Avelino s house, Avelino s wife and children were asleep therein. "roof of corpus delicti is indispensable in prosecutions for felonies and offenses. %orpus delicti is the body or substance of the crime.)0 It refers to the fact that a crime has been actually committed. %orpus delicti is the fact of the commission of the crime that may be proved by the testimonies of witnesses.)$ In murder, the fact of death is the corpus delicti.1* In arson, the corpus delicti rule is satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. The uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus delicti and to warrant conviction.1& Here, corpus delicti of the arson and murder was duly proven beyond reasonable doubt. !onvicting ?erigel Oliva of arson, the trial court imposed the straight penalty of seventeen 3&/6 years, four 316 months and one 3&6 day of reclusio" temporal. This is an error. An indeterminate penalty must be imposed. This is mandatory.1# Thus, we modify the penalty. In People v) Omoto!,1) we stated that in the absence of mitigating or aggravating circumstances proven, the prescribed penalty shall be imposed in its medium period.11 Applying the Indeterminate 7entence 9aw, the imposable penalty is prision mayor, in any of its periods, as minimum, to twenty 3#*6 years of reclusio" temporal, as ma4imum. T-e %o"victio" for /urder As to whether the shooting was attended with treachery, we find that it was. Treachery Bualified the crime to murder. In crimes against persons, treachery e4ists when the accused employs means, methods and forms which directly and specially ensure its e4ecution, without risk to himself arising from the defense which the offended party might

make.1' Dhen <en=amin was shot, he was merely acting as a good neighbor, innocently helping the %angubas put out the fire that was ra-ing the roof of their house.1; At that moment, <en=amin was unaware of the fatal attack on him. He was not given an opportunity to defend himself or to retaliate. This clearly establishes the treacherous manner of the killing.1/ At the time of the commission of the offense,10 the penalty for murder under Article #10 of the (evised "enal !ode was reclusio" temporal in its ma4imum period to death.1$ There being no aggravating or mitigating circumstance that attended the killing, the proper imposable penalty is reclusio" perpetua.'* A ard of &ama,es as to Arso" Avelino testified that the value of the portion of the house that was burned was two hundred pesos 3"#**.**6.'*This was not rebutted by the defense and was even reiterated on cross e4amination when Avelino was permitted to elaborate on the number of palma brava pieces that were burned.'& This was the amount awarded by the trial court. De affirm this award. 7ince there is no evidence to award moral damages to Avelino s family, we decline to grant such award. &ama,es %o""ected to /urder The trial court awarded <en=amin s heirs the amount of fifty thousand pesos 3"'*,***.**6 as indemnity for his death. De affirm this award. Indemnity may be awarded without need of further proof other than the death of the victim.'# However, there is a need to add an award for moral damages. <en=amin s wife, 8elia ,strellon testified that she was only three 3)6 meters away from her husband when he was shot. <en=amin was in her embrace when he died. At this point, she lost consciousness.') De thus find that an award of fifty thousand pesos 3"'*,***.**6 is adeBuate and reasonable, taking the pain and anguish of <en=amin s wife and si4 3;6 children into consideration.'1 T-e .allo 7.ERE,ORE, the decision of the (egional Trial !ourt, <ranch &#, 7anche- %ira, !agayan is A,,IRMED withMODI,I(A+ION. Accused2appellant ?erigel Oliva is found guilty beyond reasonable doubt of A(7O8, defined and penali-ed under ".:. 8o. &;&), 7ection ) 3#6. In the absence of any modifying circumstance, he is sentenced to an intermediate penalty of ten 3&*6 years and one 3&6 day of prision mayor, as minimum, to twenty 3#*6 years of reclusion temporal, as ma4imum. Accused2appellant is further ordered to pay Avelino %anguba actual damages in the amount of two hundred pesos 3"#**.**6. Accused2appellant is found guilty beyond reasonable doubt of %@(:,(, defined and penali-ed under Article #10 of the (evised "enal !ode.'' In the absence of aggravating and mitigating circumstances, he is sentenced to reclusion perpetua. Accused appellant is further ordered to pay the heirs of <en=amin ,strellon moral damages of fifty thousand pesos 3"'*,***.**6 and civil indemnity for wrongful death of fifty thousand pesos 3"'*,***.**6. !osts against accused2appellant. SO ORDERED. &avide' (r)' % )( )' Pu"o a"d 0apu"a"' (( )' concur. *"ares+Sa"tia,o' ( )' is on leave.