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G.R. No.

L-3422

June 13, 1952

HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT
OF APPEALS, respondents.
This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc.
to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City
of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for
cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a
foot high from the surface of the ground. Through the wide gate entrance, which is continually open,
motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter
the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16,
1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of
other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks;
and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a
cadaver, having been died of "asphyxia secondary to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid
accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American
origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise
ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is technically a trespasser in the premises. (See 65
C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in question although its danger is
apparent to those of age, is so enticing or alluring to children of tender years as to induce them to
approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S., p.
458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children
in play? In other words is the body of water an attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as
natural, in the absence of some unusual condition or artificial feature other than the mere water and its
location.
There are numerous cases in which the attractive nuisance doctrine has not been held not to be
applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains,
cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho,
Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas,
Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum
was published in 1950, whereas its decision was promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance
was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the
danger of drowning. Against this danger children are early instructed so that they are sufficiently
presumed to know the danger; and if the owner of private property creates an artificial pool on his own
property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable
because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184,
185; 112 Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the
petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by
petitioner that the parents of the boy were guilty of contributory negligence precluding recovery,
because they left for Manila on that unlucky day leaving their son under the care of no responsible
individual needs no further discussion.
The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.
G.R. No. 185412

November 16, 2011

GILBERT QUIZORA, Petitioner, vs. DENHOLM CREW MANAGEMENT (PHILIPPINES), INC., Respondent.
Before this Court is a petition for review challenging the September 10, 2008 Decision1 of the Court of
Appeals(CA), which set aside the Resolutions2 of the National Labor Relations Commission (NLRC) dated
September 20, 2004 and May 24, 2005, and reinstated the Decision of the Labor Arbiter (LA) dated June
27, 2002.
The Facts
Records show that in 1992, Denholm Crew Management (Philippines), Inc. (respondent company), a
domestic manning agency that supplied manpower to Denklav Maritime Services, Ltd. (Denklav), a
foreign maritime corporation, hired the services of Gilbert Quizora (petitioner) to work as a messman on
board the international vessels of Denklav. Based on Article 4.2 of the Collective Bargaining
Agreement3 (CBA) entered into by and between the Association of Marine Officers and Seamen Union of
the Philippines (AMOSUP) and Denholm Ship Management (Singapore) Ltd., represented by Denklav, his
contractual work as messman was considered terminated upon the expiration of each contract. Article
5.1 thereof provided that the duration of his sea service with respondent company was nine (9) months
depending on the requirements of the foreign principal. After the end of a contract for a particular
vessel, he would be given his next assignment on a different vessel. His last assignment was from
November 4, 1999 to July 16, 2000 on board the vessel "MV Leopard."
After the expiration of his contract with "MV Leopard," petitioner was lined up for another assignment
to a different vessel, but he was later disqualified for employment and declared unfit for sea duty after
he was medically diagnosed to be suffering from "venous duplex scan (lower extremities) deep venous
insufficiency, bilateral femoral and superficial femoral veins and the (L) popliteal vein." In laymans
terms, he was medically found to have varicose veins.
Subsequently, petitioner demanded from respondent company the payment of disability benefits,
separation pay and reimbursement of medical expenses. His demands, however, were denied. He then
submitted his claim before the AMOSUP, but it was likewise denied. Thereafter, he filed with the LA a
complaint for payment of disability benefits, medical expenses, separation pay, damages, and attorneys
fees.
On June 27, 2002, the LA, after due hearing, rendered a decision dismissing petitioners complaint for
lack of merit.
On appeal, the NLRC issued its Resolution dated September 20, 2004 reversing the LAs decision and
ordering respondent company to pay petitioner his disability compensation in the amount of
US$60,000.00.

Upon the denial of its motion for reconsideration in the NLRC Resolution dated May 24, 2005,
respondent company elevated the case to the CA with the following arguments:
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION IN RULING THAT PRIVATE RESPONDENT IS ENTITLED TO DISABILITY BENEFITS OF
$60,000.00 CONSIDERING THAT:
1) PRIVATE RESPONDENT FAILED TO PROVE BY SUBSTANTIAL EVIDENCE THAT HIS ACQUISITION OF
VARICOSE VEINS WAS CAUSED BY HIS PREVIOUS EMPLOYMENT WITH PETITIONER COMPANY.
2) VARICOSE VEINS IS A COMMON DISEASE FOR THOSE WHO ARE AT LEAST 30 YEARS OLD. IT CAN BE
ACQUIRED GENETICALLY OR CAN BE DUE TO LACK OF EXERCISE. HENCE, TO BLAME THE PETITIONER
COMPANY FOR PRIVATE RESPONDENTS VARICOSE VEINS IS MOST UNFAIR AND UNJUST.
3) WHILE PRIVATE RESPONDENT MAY HAVE ACQUIRED A DISABILITY, HE NEVER LOST HIS EARNING
CAPACITY PERMANENTLY SO AS TO ENTITLE HIM TO DISABILITY BENEFITS UNDER THE CBA.
Decision of the Court of Appeals
On September 8, 2010, the CA rendered a decision setting aside the NLRC Resolution and reinstating the
LA Decision. The CA explained that since having varicose veins was not among those listed as
occupational diseases under Presidential Decree (P.D.) No. 626, petitioner bore the burden of proving
that such ailment was brought about by his working conditions. His mere claim that his employment with
respondent company was the cause of his varicose veins hardly constituted substantial evidence to
convince a reasonable mind that his ailment was work-related or the risk of contracting it was increased
by his working conditions with respondent company. There was even no proof that the disease
progressed due to the circumstances of his work which did not fall under any of the factors that
contribute to varicose veins. The mere fact that he had no other employer except respondent company
did not necessarily impute to the latter the disease acquired by him. Since his claim was not supported
by substantial evidence, he was not entitled to disability benefits.
Unsatisfied with the CA decision, petitioner raised before this Court the following
ISSUES
I.
II.
III.

WHETHER RESPONDENT HAS THE BURDEN OF PROVING THAT PETITIONERS ILLNESS IS


NOT WORK RELATED
WHETHER PETITIONERS ILLNESS IS WORK RELATED
WHETHER PETITIONER IS ENTITLED TO DISABILITY BENEFITS

In advocacy of his position, petitioner argues that the burden of proving that his illness is not workrelated rests on the respondent company. Citing the provisions of the Philippine Overseas and
Employment Authority Standard Employment Contract (POEA-SEC), he claims that illnesses not listed
therein are disputably presumed work-related. It is only when the claim is under the provisions of the
Employees Compensation Act that the claimant has the burden of proving that the illness is workrelated. As it is not listed, he is relieved from the trouble of proving the work-relatedness of the illness
because it is already disputably presumed by law. Hence, respondent company should rebut this
presumption by proving otherwise but, unfortunately, it failed to do so.
To petitioner, there is little difficulty in showing that acquiring varicose veins is work-related for a
seafarer. He avers that he was engaged by respondent company as a seafarer for nine (9) years covering
seven (7) contracts with their vessels; that he was medically screened in every contract; and that he was
found fit to work up to his last contract on board the vessel "MV Leopard."
Moreover, petitioner claims that he is entitled to total and permanent disability benefits because his
varicose veins have rendered him permanently incapacitated to return to work as a seafarer.

Position of respondent company


Respondent company counters that there is no evidence showing that petitioners varicose veins were
caused by his previous employment with respondent company, that this disease was work-related, and
that it caused him permanent disability.
Petitioner omitted to mention his health after his stint on the "MV Leopard." Also, his application for a
new contract with respondent company came long after the contract ended. He was discovered to have
varicose veins in March 2001, or months after his last employment contract with respondent company
ended in July 2000. So, it is difficult to conclude that his varicose veins can only be attributable to his
previous employment with the company.
Besides, petitioners employment was not continuous but on a per-contract basis which usually lasted
for nine (9) months depending on the requirement of the foreign principal. He was considered "signedoff" upon the expiration of each contract. It was possible that he acquired varicose veins while he was
"signed-off" from the vessels of respondent company. Except for his bare allegations, there is nothing to
support his theory that his intermittent contracts of employment with respondent company had
reasonable connection with his acquisition of varicose veins. He neither presented proof on this point
nor offered a medical expert opinion.
Respondent company further argues that the disputable presumption under Section 20(B) (4) of the
2000 POEA SEC is completely irrelevant to this case. First, the 2000 POEA-SEC initially took effect
sometime in July 2002. Petitioners last employment contract with respondent company was from
November 1999 to July 2000. Thus, at the time the parties entered into an overseas employment
contract in November 1999, the provisions of the POEA-SEC, which were deemed incorporated into the
contract, were those from the 1996 POEA-SEC. Hence, it is the 1996 POEA-SEC, not the 2000 POEA-SEC,
which should govern his claim for disability benefits. The disputable presumption relied upon by
petitioner does not appear in the 1996 POEA-SEC but can only be found in the 2000 POEA-SEC.
Second, even assuming that the 2000 POEA-SEC governed petitioners previous employment with
respondent company, he was still not entirely relieved of the burden to submit evidence to prove his
claim because Section 20(B) of the 2000 POEA-SEC specifically pertains to work-related injury or illness.
Therefore, it is still incumbent upon him to present proof that his varicose veins were reasonably
connected to his work.
Respondent company opines that varicose veins is a common disease for those who are at least 30 years
old and it can be acquired genetically or through lack of exercise.
Lastly, respondent company asserts that there is no showing that petitioners varicose veins caused him
permanent disability. While affliction with varicose veins may bring pain and discomfort to the body of a
person, the illness is not permanent as it can actually be treated, either through self-help or medical
care.
The Courts Ruling
The Court finds no merit in the petition.
Before tackling the issue of what rule governs the case, there is a need to compare the provisions of
Section 20-B of the 1996 POEA-SEC and Section 20-B of the 2000 POEA-SEC. Section 20 (B) of the 1996
POEA-SEC reads as follows:
SECTION 20. COMPENSATION AND BENEFITS
B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS:
The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract
are as follows:

1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;
2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall
be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board
and lodging until the seafarer is declared fit to work or to be repatriated.
However, if after repatriation, the seafarer still requires medical attention arising from said injury or
illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of
his disability has been established by the company-designated physician.

incapacitated to do so, in which case a written notice to the agency within the same period is deemed as
compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in
his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly
between the employer and the seafarer. The third doctor's decision shall be final and binding on both
parties.
4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work related.

3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance
equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has
been assessed by the company-designated physician, but in no case shall this period exceed one
hundred twenty (120) days.

5. Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full
cost of repatriation in the event the seafarer is declared (1) fit for repatriation; or (2) fit to work, but the
employer is unable to find employment for the seafarer on board his former vessel or another vessel of
the employer despite earnest efforts.

For this purpose, the seafarer shall submit himself to a post-employment medical examination by a
company-designated physician within three working days upon his return except when he is physically
incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as
compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in
his forfeiture of the right to claim the above benefits.

6. In case of permanent total or partial disability of the seafarer caused by either injury or illness, the
seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of
his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates
and the rules of compensation applicable at the time the illness or disease was contracted. [Emphasis
supplied]

4. Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full
cost of repatriation in the event that the seafarer is declared (1) fit for repatriation; or (2) fit to work but
the employer is unable to find employment for the seafarer on board his former vessel or another vessel
of the employer despite earnest efforts.

Considering that petitioner executed an overseas employment contract with respondent company in
November 1999, the 1996 POEA-SEC should govern. The 2000 POEA-SEC initially took effect on June 25,
2000. Thereafter, the Court issued the Temporary Restraining Order (TRO) which was later lifted on June
5, 2002. This point was discussed in the case of Coastal Safeway Marine Services, Inc. v. Leonisa
Delgado,4 where it was written:

5. In case of permanent total or partial disability of the seafarer during the term of employment caused
by either injury or illness, the seafarer shall be compensated in accordance with the schedule of benefits
enumerated in Section 30 of his Contract. Computation of his benefits arising from an illness or disease
shall be governed by the rates and the rules of compensation applicable at the time the illness or disease
was contracted.
On the other hand, Section 20 (B) of the 2000 POEA-SEC reads:
SECTION 20. COMPENSATION AND BENEFITS
B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS
The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of
his contract are as follows:
1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;
2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall
be liable for the full cost of such medical, serious dental, surgical and hospital treatment, as well as
board and lodging, until the seafarer is declared fit to work or to be repatriated.
However, if after repatriation, the seafarer still requires medical attention arising from said injury or
illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of
his disability has been established by the company-designated physician.
3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance
equivalent to his basic wage until he is declared fit to work, or the degree of permanent disability has
been assessed by the company-designated physician, but in no case shall this period exceed one
hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a
company-designated physician within three working days upon his return, except when he is physically

The employment of seafarers, including claims for death benefits, is governed by the contracts they sign
every time they are hired or rehired; and as long as the stipulations therein are not contrary to law,
morals, public order or public policy, they have the force of law between the parties. While the seafarer
and his employer are governed by their mutual agreement, the POEA rules and regulations require that
the POEA Standard Employment Contract be integrated in every seafarers contract.
A perusal of Jerrys employment contract reveals that what was expressly integrated therein by the
parties was DOLE Department Order No. 4, series of 2000 or the POEA Amended Standard Terms and
Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels, and POEA
Memorandum Circular No. 9, series of 2000. However, POEA had issued Memorandum Circular No. 11,
series of 2000 stating that:
In view of the Temporary Restraining Order issued by the Supreme Court in a Resolution dated 11
September 2000 on the implementation of certain amendments of the Revised Terms and Conditions
Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels as contained in DOLE
Department Order No. 04 and POEA Memorandum Circular No. 09, both Series of 2000, please be
advised of the following:
Section 20, Paragraphs (A), (B) and (D) of the former Standard Terms and Conditions Governing the
Employment of Filipino Seafarers on Board Ocean-Going Vessels, as provided in DOLE Department Order
No. 33, and POEA Memorandum Circular No. 55, both Series of 1996 shall apply in lieu of Section 20 (A),
(B) and (D) of the Revised Version;
xxxx
In effect, POEA Memorandum Circular No. 11-00 thereby paved the way for the application of the POEA
Standard Employment Contract based on POEA Memorandum Circular No. 055, series of 1996. Worth
noting, Jerry boarded the ship [in] August 2001 before the said temporary restraining order was lifted on
June 5, 2002 by virtue of Memorandum Circular No. 2, series of 2002. Consequently, Jerrys employment
contract with Coastal must conform to Section 20(A) of the POEA Standard Employment Contract based

on POEA Memorandum Circular No. 055, series of 1996, in determining compensability of Jerrys death.
[Emphases supplied]

including liver disease, fluid in the abdomen, previous groin injury, heart failure, topical steroids, trauma
or injury to the skin, previous venous surgery and exposure to ultra-violet rays.

Thus, petitioner cannot simply rely on the disputable presumption provision mentioned in Section 20 (B)
(4) of the 2000 POEA-SEC. As he did so without solid proof of work-relation and work-causation or workaggravation of his illness, the Court cannot provide him relief.

Lastly, there is also no proof that petitioners varicose veins caused him to suffer total and permanent
disability.1wphi1The Pre-Employment Medical Examination6 (PEME) he underwent cannot serve as
enough basis to justify a finding of a total and permanent disability because of its non-exploratory
nature.

At any rate, granting that the provisions of the 2000 POEA-SEC apply, the disputable presumption
provision in Section 20 (B) does not allow him to just sit down and wait for respondent company to
present evidence to overcome the disputable presumption of work-relatedness of the illness. Contrary to
his position, he still has to substantiate his claim in order to be entitled to disability compensation. He
has to prove that the illness he suffered was work-related and that it must have existed during the term
of his employment contract. He cannot simply argue that the burden of proof belongs to respondent
company.
For disability to be compensable under Section 20 (B) of the 2000 POEA-SEC, two elements must concur:
(1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed
during the term of the seafarers employment contract. In other words, to be entitled to compensation
and benefits under this provision, it is not sufficient to establish that the seafarers illness or injury has
rendered him permanently or partially disabled; it must also be shown that there is a causal connection
between the seafarers illness or injury and the work for which he had been contracted.
The 2000 POEA-SEC defines "work-related injury" as "injury[ies] resulting in disability or death arising out
of and in the course of employment" and "work-related illness" as "any sickness resulting to disability or
death as a result of an occupational disease listed under Section 32-A of this contract with the conditions
set therein satisfied.5

The fact that respondent passed the companys PEME is of no moment. We have ruled that in the past
the PEME is not exploratory in nature. It was not intended to be a totally in-depth and thorough
examination of an applicants medical condition. The PEME merely determines whether one is "fit to
work" at sea or "fit for sea service," it does not state the real state of health of an applicant. In short, the
"fit to work" declaration in the respondents PEME cannot be a conclusive proof to show that he was
free from any ailment prior to his deployment. Thus we held inNYK-FIL Ship Management, Inc. v. NLRC:
While a PEME may reveal enough for the petitioner (vessel) to decide whether a seafarer is fit for
overseas employment, it may not be relied upon to inform petitioners of a seafarers true state of
health. The PEME could not have divulged respondents illness considering that the examinations were
not exploratory.7
Besides, it was not expressly stated in his medical diagnosis that his illness was equivalent to a total and
permanent disability. Absent any indication, the Court cannot accommodate him.
WHEREFORE, the petition is DENIED. SO ORDERED.
G.R. No. 178901

November 23, 2011

Unfortunately for petitioner, he failed to prove that his varicose veins arose out of his employment with
respondent company. Except for his bare allegation that it was work-related, he did not narrate in detail
the nature of his work as a messman aboard Denklavs vessels. He likewise failed to particularly describe
his working conditions while on sea duty. He also failed to specifically state how he contracted or
developed varicose veins while on sea duty and how and why his working conditions aggravated it.
Neither did he present any expert medical opinion regarding the cause of his varicose veins. No written
document whatsoever was presented that would clearly validate his claim or visibly demonstrate that
the working conditions on board the vessels he served increased the risk of acquiring varicose veins.

GOVERNTMENT SERVICE INSURANCE SYSTEM, Petitioner, vs. MANUEL P. BESITAN, Respondent.

Moreover, although petitioner was rehired by respondent company several times, his eight-year service
as a seaman was not actually without a "sign-off" period. His contract with respondent company was
considered automatically terminated after the expiration of each overseas employment contract. Upon
the termination of each contract, he was considered "signed-off" and he would have to go back and reapply by informing respondent company as to his availability. Thereafter, he would have to sign an
Availability Advise Form. Meanwhile, he would have to wait for a certain period of time, probably
months, before he would be called again for sea service.

Factual Antecedents

Thus, respondent company can argue that petitioners eight (8) years of service with it did not
automatically mean that he acquired his varicose veins by reason of such employment. His sea service
was not an unbroken service. The fact that he never applied for a job with any other employer is of no
moment. He enjoyed month-long "sign-off" vacations when his contract expired. It is possible that he
acquired his condition during one of his "sign-off" periods.
As discussed in the decision of the CA, varicose veins may be caused by trauma, thrombosis,
inflammation or heredity. Although the exact cause of varicose veins is still unknown, a number of
factors contribute to it which include heredity, advance aging, prolonged standing, being overweight,
hormonal influences during pregnancy, use of birth control pills, post-menopausal hormonal
replacement therapy, prolonged sitting with legs crossed, wearing tight undergarments or clothes,
history of blood clots, injury to the veins, conditions that cause increased pressure in the abdomen

In compensation proceedings, the test of proof is probability, not absolute certainty; hence, a claimant
only needs to show reasonable work connection and not direct causal relation.1
This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the May 10, 2007
Decision3 of the Court of Appeals (CA) in CA-G.R. SP No. 97407 ordering petitioner Government Service
Insurance System (GSIS) to pay respondent Manuel P. Besitans (Besitan) claim for compensation
benefits. Also assailed is the CAs July 7, 2007 Resolution4 denying the motion for reconsideration.

Petitioner GSIS is a social insurance institution created under Commonwealth Act (CA) No. 186, 5 charged
with the management and administration of the trust fund of the Employees Compensation Commission
(ECC) for government officials and employees.6
Respondent Besitan was employed by the Central Bank of the Philippines (now Bangko Sentral ng
Pilipinas) on January 21, 1976 as a Bank Examiner.7 Subsequently, he was promoted as Bank Officer II
and eventually as Bank Officer III.8 His duties and responsibilities are as follows:
1. Heads a team of examiners in the conduct of regular/special examination of rural banks;
2. Submits report of examination/memoranda to MB and other reports related to examination;
3. Confers with Head/Top Management of rural banks under examination;
4. Monitors, verifies, and analyzes various periodic and special reports required of rural banks to
ascertain, among others, compliance with pertinent laws and regulations, and prepares reports
corresponding thereto;

5. Evaluates, processes, and prepares memoranda/reports on various requests such as the establishment
of branches/banking offices and investments in allied undertakings/subsidiaries/affiliates, both locally
and abroad; as well as prepares appropriate recommendations on requests/complaints received from
the public, etc.;

find substantial evidence to establish work-connection in this case, this Commission finds no sufficient
cause to deviate from the decision of the System denying appellants claim.

6. Performs related duties as may be assigned.9

SO ORDERED.17

In October 2005, Besitan was diagnosed with End Stage Renal Disease secondary to Chronic
Glomerulonephritis and thus, had to undergo a kidney transplant at the National Kidney and Transplant
Institute (NKTI), for which he incurred medical expenses amounting to P817,455.40.10

Ruling of the Court of Appeals

Ruling of the Government Service Insurance System


Believing that his working condition increased his risk of contracting the disease, Besitan filed with the
GSIS a claim for compensation benefits under Presidential Decree (PD) No. 626,11 as amended. The GSIS,
however, denied the claim in a letter dated May 2, 2006.12 Besitan sought reconsideration in a letter
dated June 6, 2006;13but the GSIS denied the same in a letter dated June 20, 2006.14

WHEREFORE, the appealed decision is AFFIRMED and the claim is DISMISSED for lack of merit.

On appeal, the CA reversed the ruling of the ECC. The CA ruled that Besitan is entitled to compensation
benefits under PD No. 626, as amended, because his ailment was aggravated by the nature of his work,
as evidenced by the Medical Certificate18 issued by Dr. Gregorio Suarez II, Bank Physician III of the
Bangko Sentral ng Pilipinas.19Thus, the dispositive portion of the Decision of the CA reads:

Ruling of the Employees Compensation Commission

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the petition for review is GRANTED. The November 16,
2006 Decision of the Employees Compensation Commission in ECC Case No. GM-17449-1002-06 is
REVERSED and SET ASIDE. The respondent Government Service Insurance System is ORDERED to pay the
petitioner Manuel P. Besitans full claim for compensation benefits under PD No. 626, as amended.
Without costs in this instance.

Besitan elevated the matter to the ECC and the case was docketed as ECC Case No. GM-17449-1002-06.15

SO ORDERED.20

On November 16, 2006, the ECC issued a Decision16 affirming the denial by the GSIS of respondents
claim. It said:

GSIS filed a Motion for Reconsideration which was denied by the CA in a Resolution 21 dated July 17,
2007.

The appeal is not meritorious.

Issue

The appellant alleged that the nature and working conditions of his employment caused or contributed
to the development of his kidney ailment. However, Harissons Principles of Internal Medicine, Vol. 2,
15th edition shows otherwise, to wit:

Hence, the instant petition with the basic issue of whether Besitan is entitled to compensation benefits
under PD No. 626, as amended.

The causes of Glomerulonephritis are the following:

ntigenic component seen in


Poststreptococcal Glomerulonephritis. Other bacterial, viral and parasitic infections may also produce an
antigenic component.1wphi1 Some of these infections are Typhoid fever, Syphilis, Leptospirosis,
Toxoplasmosis, Varicella, Mumps, Measles, Schistosomiasis and Hepatitis B and C infection.
-complex disorder such as Lupus nephritis, Henoch-Schonlein
Purpura, Cryoglobulinemia, Bacterial Endocarditis, Systemic Vasculitis and Rheumatoid Arthritis.
The appellant alleged that he was exposed to tremendous pressures demanded by his job necessitating
prolonged hours of work, most of the time sitting for hours and even delaying or foregoing urination in
order not to disrupt the continuity of concentration on the job. He also alleged that during his field
assignments, mostly in remote provinces, he also experienced foregoing urination and skipping of meals
in order to rush the completion of his examination reports. Unfortunately, his bare assertions do not
automatically make his ailment compensable. Awards for compensation cannot rest on speculations or
presumptions. The employee must present evidence to prove a positive proposition (Orate vs. CA, G.R.
No. 132761, March 26, 2003). The appellants habit of delaying his urination should not be attributed to
his work but to personal neglect of his health.
Generally, a physicians report is the best evidence of work-connection and be the basis for an award
because the physician is in the best position to judge possible causal relation between the illness and the
work performed. In this case, the certificate issued by the appellants attending physician is silent under
the item which reads: Was the injury or illness directly caused by the employees duties? Having failed to

Petitioners Arguments
GSIS contends that Besitans ailment, Glomerulonephritis, is not an occupational disease; hence, it is
incumbent upon him to prove that the risk of contracting the said disease was increased by his
employment and working condition.22 And since he failed to show that there is a causal relationship
between his employment and his ailment, he cannot claim compensation benefits under PD No. 626, as
amended.23 GSIS also puts in issue the use of the word "probably" by
the CA in its Decision24 which proves that the CA was not definite of its findings.25 GSIS claims that
awards of compensation must be based on substantial evidence, not on presumptions or speculations.26
Respondents Arguments
Besitan admits that his ailment is not listed as an occupational disease under PD No. 626, as
amended.27 He, however, insists that he was able to prove by substantial evidence that the risk of
contracting the disease was increased by his working condition.28 He maintains that in claiming
compensation benefits, certainty is not required, only probability.29 He points out that he was in good
health when he was employed by the Bangko Sentral ng Pilipinas in 1976 and that it was only in 2004
that he contracted his kidney ailment.30 He avers that in performing his duties and responsibilities, he
had to travel frequently to different barangays and provinces in Luzon, Visayas and Mindanao; that
during his trips to these places, he had to ride provincial buses up to 8-10 hours; that while on the bus,
he had to delay his urination; and that during his stay in these places, he was constrained to drink deep
well water due to lack of sufficient potable water.31 He also asserts that his ailment could have been
caused by viral and bacterial infections which he could have acquired when he was assigned to these
remote places.32 Thus, he claims that his working condition increased his risk of contracting the
disease.331wphi1
Our Ruling

The petition lacks merit.

working condition could have contributed to the weakening of his kidneys, which could have caused his
disease, to wit:

Section 1, Rule III of the Amended Rules on Employees Compensation34 provides:


RULE
Compensability

III

SECTION 1. Grounds
(a) For the injury and the resulting disability or death to be compensable, the injury must be the result of
accident arising out of and in the course of the employment. (ECC Resolution No. 2799, July 25, 1984).
(b) For the sickness and the resulting disability or death to be compensable, the sickness must be the
result of an occupational disease listed under Annex "A" of these Rules with the conditions set therein
satisfied, otherwise, proof must be shown that the risk of contracting the disease is increased by the
working conditions.
xxxx
Corollarily, for the sickness or resulting disability or death to be compensable, the claimant must prove
either (1) that the employees sickness was the result of an occupational disease listed under Annex "A"
of the Amended Rules on Employees Compensation, or (2) that the risk of contracting the disease was
increased by his working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a reasonable proof that the employees working
condition increased his risk of contracting the disease, or that there is a connection between his work
and the cause of the disease.35 Only a reasonable proof of work-connection, not direct causal relation,
however, is required to establish compensability of a non-occupational disease.36 Probability, and not
certainty, is the yardstick in compensation proceedings; thus, any doubt should be interpreted in favor of
the employees for whom social legislations, like PD No. 626, were enacted. 37
Compensability proved by substantial evidence
Moreover, direct and clear evidence, is not necessary to prove a claim.38 Strict rules of evidence do not
apply as PD No. 626 only requires substantial evidence or "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."39
In this case, since Besitans ailment, End Stage Renal Disease secondary to Chronic Glomerulonephritis is
not among those listed under Annex "A," of the Amended Rules on Employees Compensation, he needs
to show by substantial evidence that his risk of contracting the disease was increased by his working
condition.
After a careful study of the instant case, we find that Besitan has sufficiently proved that his working
condition increased his risk of contracting Glomerulonephritis, which according to GSIS may be caused by
bacterial, viral, and parasitic infection (i.e. Typhoid fever, Syphilis, Leptospirosis, Toxoplasmosis,
Varicella, Mumps, Measles, Schistosomiasis, Hepatitis B and C infection, etc.).40
When Besitan entered the government service in 1976, he was given a clean bill of health. In 2005, he
was diagnosed with End Stage Renal Disease secondary to Chronic Glomerulonephritis. It would appear
therefore that the nature of his work could have increased his risk of contracting the disease. His
frequent travels to remote areas in the country could have exposed him to certain bacterial, viral, and
parasitic infection, which in turn could have caused his disease. Delaying his urination during his long
trips to the provinces could have also increased his risk of contracting his disease. As a matter of fact,
even the Bank Physician of Bangko Sentral ng Pilipinas, Dr. Gregorio Suarez II, agreed that Besitans

This is to certify that Mr. Manuel P. Besitan [is] a Bank Examiner of BSP, whose duties [require] him to
work over prolonged hours and travel to remote places in the Philippines.
He claims that during the delivery of his duties he often [foregoes] urination and taking replenishment of
water.1wphi1 At times, he claims that he has to eat and drink what is available in the area [of his bank
examination]. This could probably contribute to the increase of uric acid in his system.
All these conditions could contribute to the weakening of his kidney thereby [progressing] to the present
condition of his ESRD.41
Clearly, the above-quoted Medical Certificate42 is sufficient to prove that the working condition of
Besitan increased his risk of contracting Glomerulonephritis. In claims for compensation benefits, a
doctors certification as to the nature of a claimants disability deserves full credence because no medical
practitioner would issue certifications indiscriminately.43 As we see it then, Besitan was able to prove by
substantial evidence his entitlement to compensation benefits under PD No. 626.
In closing, it may not be amiss to add that the primordial purpose of PD No. 626 is to provide meaningful
protection to the workers against the hazards of disability or illness; hence, a liberal attitude in favor of
the employee and his beneficiaries in deciding claims for compensation should be adopted.44
WHEREFORE, the petition is hereby DENIED. The assailed May 10, 2007 Decision and the July 17, 2007
Resolution of the Court of Appeals in CA-G.R. SP No. 97407 are hereby AFFIRMED. Petitioner
Government Service Insurance System is hereby ORDERED to pay respondent Manuel P. Besitan the
compensation benefits due him under Presidential Decree No. 626, as amended. SO ORDERED.
G.R. No. 111127 July 26, 1996
MR. & MRS. ENGRACIO FABRE, JR. and PORFIRIO CABIL, vs. COURT OF APPEALS,
This is a petition for review on certiorari of the decision of the Court of Appeals 1 in CA-GR No. 28245,
dated September 30, 1992, which affirmed with modification the decision of the Regional Trial Court of
Makati, Branch 58, ordering petitioners jointly and severally to pay damages to private respondent
Amyline Antonio, and its resolution which denied petitioners' motion for reconsideration for lack of
merit.
Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda minibus. They used the
bus principally in connection with a bus service for school children which they operated in Manila. The
couple had a driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for two weeks, His job
was to take school children to and from the St. Scholastica's College in Malate, Manila.
On November 2, 1984 private respondent Word for the World Christian Fellowship Inc. (WWCF)
arranged with petitioners for the transportation of 33 members of its Young Adults Ministry from Manila
to La Union and back in consideration of which private respondent paid petitioners the amount of
P3,000.00.
The group was scheduled to leave on November 2, 1984, at 5:00 o'clock in the afternoon. However, as
several members of the party were late, the bus did not leave the Tropical Hut at the corner of Ortigas
Avenue and EDSA until 8:00 o'clock in the evening. Petitioner Porfirio Cabil drove the minibus.
The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge at Carmen was
under repair, sot hat petitioner Cabil, who was unfamiliar with the area (it being his first trip to La
Union), was forced to take a detour through the town of Baay in Lingayen, Pangasinan. At 11:30 that
night, petitioner Cabil came upon a sharp curve on the highway, running on a south to east direction,
which he described as "siete." The road was slippery because it was raining, causing the bus, which was

running at the speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left
traffic steel brace and sign along the road and rammed the fence of one Jesus Escano, then turned over
and landed on its left side, coming to a full stop only after a series of impacts. The bus came to rest off
the road. A coconut tree which it had hit fell on it and smashed its front portion.
Several passengers were injured. Private respondent Amyline Antonio was thrown on the floor of the bus
and pinned down by a wooden seat which came down by a wooden seat which came off after being
unscrewed. It took three persons to safely remove her from this portion. She was in great pain and could
not move.
The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he was not
familiar with the area and he could not have seen the curve despite the care he took in driving the bus,
because it was dark and there was no sign on the road. He said that he saw the curve when he was
already within 15 to 30 meters of it. He allegedly slowed down to 30 kilometers per hour, but it was too
late.
The Lingayen police investigated the incident the next day, November 3, 1984. On the basis of their
finding they filed a criminal complaint against the driver, Porfirio Cabil. The case was later filed with the
Lingayen Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for the damage to the
latter's fence. On the basis of Escano's affidavit of desistance the case against petitioners Fabre was
dismissed.
Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati, Metro Manila. As a
result of the accident, she is now suffering from paraplegia and is permanently paralyzed from the waist
down. During the trial she described the operations she underwent and adduced evidence regarding the
cost of her treatment and therapy. Immediately after the accident, she was taken to the Nazareth
Hospital in Baay, Lingayen. As this hospital was not adequately equipped, she was transferred to the Sto.
Nio Hospital, also in the town of Ba-ay, where she was given sedatives. An x-ray was taken and the
damage to her spine was determined to be too severe to be treated there. She was therefore brought to
Manila, first to the Philippine General Hospital and later to the Makati Medical Center where she
underwent an operation to correct the dislocation of her spine.
In its decision dated April 17, 1989, the trial court found that:
No convincing evidence was shown that the minibus was properly checked for travel to a long distance
trip and that the driver was properly screened and tested before being admitted for employment.
Indeed, all the evidence presented have shown the negligent act of the defendants which ultimately
resulted to the accident subject of this case.
Accordingly, it gave judgment for private respondents holding:
Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio were
the only ones who adduced evidence in support of their claim for damages, the Court is therefore not in
a position to award damages to the other plaintiffs.
WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr. & Mrs.
Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the Civil Code of the
Philippines and said defendants are ordered to pay jointly and severally to the plaintiffs the following
amount:
1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages; and

5) 25% of the recoverable amount as attorney's fees;


6) Costs of suit.
SO ORDERED.
The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio but
dismissed it with respect to the other plaintiffs on the ground that they failed to prove their respective
claims. The Court of Appeals modified the award of damages as follows:
1) P93,657.11 as actual damages;
2) P600,000.00 as compensatory damages;
3) P50,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) P10,000.00 as attorney's fees; and
6) Costs of suit.
The Court of Appeals sustained the trial court's finding that petitioner Cabil failed to exercise due care
and precaution in the operation of his vehicle considering the time and the place of the accident. The
Court of Appeals held that the Fabres were themselves presumptively negligent. Hence, this petition.
Petitioners raise the following issues:
I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.
II. WHETHER OF NOT PETITIONERS WERE LIABLE FOR THE INJURIES SUFFERED BY PRIVATE
RESPONDENTS.
III WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP TO WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages in the amount of
P600,000.00. It is insisted that, on the assumption that petitioners are liable an award of P600,000.00 is
unconscionable and highly speculative. Amyline Antonio testified that she was a casual employee of a
company called "Suaco," earning P1,650.00 a month, and a dealer of Avon products, earning an average
of P1,000.00 monthly. Petitioners contend that as casual employees do not have security of tenure, the
award of P600,000.00, considering Amyline Antonio's earnings, is without factual basis as there is no
assurance that she would be regularly earning these amounts.
With the exception of the award of damages, the petition is devoid of merit.
First, it is unnecessary for our purpose to determine whether to decide this case on the theory that
petitioners are liable for breach of contract of carriage or culpa contractual or on the theory of quasi
delict or culpa aquiliana as both the Regional Trial Court and the Court of Appeals held, for although the
relation of passenger and carrier is "contractual both in origin and nature," nevertheless "the act that
breaks the contract may be also a tort." 2 In either case, the question is whether the bus driver,
petitioner Porfirio Cabil, was negligent.
The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned the bus,
failed to exercise the diligence of a good father of the family in the selection and supervision of their
employee is fully supported by the evidence on record. These factual findings of the two courts we
regard as final and conclusive, supported as they are by the evidence. Indeed, it was admitted by Cabil
that on the night in question, it was raining, and as a consequence, the road was slippery, and it was
dark. He averred these facts to justify his failure to see that there lay a sharp curve ahead. However, it is
undisputed that Cabil drove his bus at the speed of 50 kilometers per hour and only slowed down when

he noticed the curve some 15 to 30 meters ahead. 3 By then it was too late for him to avoid falling off the
road. Given the conditions of the road and considering that the trip was Cabil's first one outside of
Manila, Cabil should have driven his vehicle at a moderate speed. There is testimony 4 that the vehicles
passing on that portion of the road should only be running 20 kilometers per hour, so that at 50
kilometers per hour, Cabil was running at a very high speed.
Considering the foregoing the fact that it was raining and the road was slippery, that it was dark, that
he drove his bus at 50 kilometers an hour when even on a good day the normal speed was only 20
kilometers an hour, and that he was unfamiliar with the terrain, Cabil was grossly negligent and should
be held liable for the injuries suffered by private respondent Amyline Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the presumption that his
employers, the Fabres, were themselves negligent in the selection and supervisions of their employee.
Due diligence in selection of employees is not satisfied by finding that the applicant possessed a
professional driver's license. The employer should also examine the applicant for his qualifications,
experience and record of service. 5 Due diligence in supervision, on the other hand, requires the
formulation of rules and regulations for the guidance of employees and issuance of proper instructions
as well as actual implementation and monitoring of consistent compliance with the rules. 6
In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did not consider
the fact that Cabil had been driving for school children only, from their homes to the St. Scholastica's
College in Metro Manila. 7 They had hired him only after a two-week apprenticeship. They had hired him
only after a two-week apprenticeship. They had tested him for certain matters, such as whether he could
remember the names of the children he would be taking to school, which were irrelevant to his
qualification to drive on a long distance travel, especially considering that the trip to La Union was his
first. The existence of hiring procedures and supervisory policies cannot be casually invoked to overturn
the presumption of negligence on the part of an employer. 8
Petitioners argue that they are not liable because (1) an earlier departure (made impossible by the
congregation's delayed meeting) could have a averted the mishap and (2) under the contract, the WWCF
was directly responsible for the conduct of the trip. Neither of these contentions hold water. The hour of
departure had not been fixed. Even if it had been, the delay did not bear directly on the cause of the
accident. With respect to the second contention, it was held in an early case that:
[A] person who hires a public automobile and gives the driver directions as to the place to which he
wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible
for acts of negligence of the latter or prevented from recovering for injuries suffered from a collision
between the automobile and a train, caused by the negligence or the automobile driver. 9
As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres, did not have
to be engaged in the business of public transportation for the provisions of the Civil Code on common
carriers to apply to them. As this Court has held: 10
Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of
carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering
their services to the public.
The above article makes no distinction between one whose principal business activity is the carrying of
persons or goods or both, and one who does such carrying only as an ancillary activity (in local idiom, as
"a sideline"). Article 1732 also carefully avoids making any distinction between a person or enterprise
offering transportation service on a regular or scheduled basis and one offering such service on an
occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier
offering its services to the "general public," i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of the general population. We think that
Article 1732 deliberately refrained from making such distinctions.

As common carriers, the Fabres were found to exercise "extraordinary diligence" for the safe
transportation of the passengers to their destination. This duty of care is not excused by proof that they
exercise the diligence of a good father of the family in the selection and supervision of their employee.
As Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to passengers through the negligence or willful
acts of the former's employees although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees.
The same circumstances detailed above, supporting the finding of the trial court and of the appellate
court that petitioners are liable under Arts. 2176 and 2180 for quasi delict, fully justify findings them
guilty of breach of contract of carriage under Arts. 1733, 1755 and 1759 of the Civil Code.
Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think the Court of
Appeals erred in increasing the amount of compensatory damages because private respondents did not
question this award as inadequate. 11 To the contrary, the award of P500,000.00 for compensatory
damages which the Regional Trial Court made is reasonable considering the contingent nature of her
income as a casual employee of a company and as distributor of beauty products and the fact that the
possibility that she might be able to work again has not been foreclosed. In fact she testified that one of
her previous employers had expressed willingness to employ her again.
With respect to the other awards, while the decisions of the trial court and the Court of Appeals do not
sufficiently indicate the factual and legal basis for them, we find that they are nevertheless supported by
evidence in the records of this case. Viewed as an action for quasi delict, this case falls squarely within
the purview of Art. 2219(2) providing for the payment of moral damages in cases of quasi delict. On the
theory that petitioners are liable for breach of contract of carriage, the award of moral damages is
authorized by Art. 1764, in relation to Art. 2220, since Cabil's gross negligence amounted to bad
faith. 12 Amyline Antonio's testimony, as well as the testimonies of her father and copassengers, fully
establish the physical suffering and mental anguish she endured as a result of the injuries caused by
petitioners' negligence.
The award of exemplary damages and attorney's fees was also properly made. However, for the same
reason that it was error for the appellate court to increase the award of compensatory damages, we hold
that it was also error for it to increase the award of moral damages and reduce the award of attorney's
fees, inasmuch as private respondents, in whose favor the awards were made, have not appealed. 13
As above stated, the decision of the Court of Appeals can be sustained either on the theory of quasi
delict or on that of breach of contract. The question is whether, as the two courts below held,
petitioners, who are the owners and driver of the bus, may be made to respond jointly and severally to
private respondent. We hold that they may be. In Dangwa Trans. Co. Inc. v. Court of Appeals, 14 on facts
similar to those in this case, this Court held the bus company and the driver jointly and severally liable
for damages for injuries suffered by a passenger. Again, in Bachelor Express, Inc. v. Court of
Appeals 15 a driver found negligent in failing to stop the bus in order to let off passengers when a fellow
passenger ran amuck, as a result of which the passengers jumped out of the speeding bus and suffered
injuries, was held also jointly and severally liable with the bus company to the injured passengers.
The same rule of liability was applied in situations where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a third party who was the driver of another vehicle,
thus causing an accident. In Anuran v. Buo, 16 Batangas Laguna Tayabas Bus Co. v. Intermediate
Appellate Court, 17 and Metro Manila Transit Corporation v. Court of Appeals, 18 the bus company, its
driver, the operator of the other vehicle and the driver of the vehicle were jointly and severally held
liable to the injured passenger or the latters' heirs. The basis of this allocation of liability was explained
in Viluan v. Court of Appeals, 19 thus:

Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while
that of respondents [owner and driver of other vehicle] arises from quasi-delict. As early as 1913, we
already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the
negligence of the driver of the bus on which he was riding and of the driver of another vehicle, the
drivers as well as the owners of the two vehicles are jointly and severally liable for damages. Some
members of the Court, though, are of the view that under the circumstances they are liable on quasidelict. 20

On October 25, 1995, Contiquincybunge Export Company loaded 6,843.700 metric tons of U.S. Soybean
Meal in Bulk on board the vessel MN "Sea Dream" at the Port of Darrow, Louisiana, U.S.A., for delivery to
the Port of Manila to respondent Simon Enterprises, Inc., as consignee. When the vessel arrived at the
South Harbor in Manila, the shipment was discharged to the receiving barges of petitioner Asian
Terminals, Inc. (ATI), the arrastre operator. Respondent later received the shipment but claimed having
received only 6,825.144 metric tons of U.S. Soybean Meal, or short by 18.556 metric tons, which is
estimated to be worth US$7,100.16 or P186,743.20.3

It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals 21 this Court exonerated the jeepney
driver from liability to the injured passengers and their families while holding the owners of the jeepney
jointly and severally liable, but that is because that case was expressly tried and decided exclusively on
the theory of culpa contractual. As this Court there explained:

On November 25, 1995, Contiquincybunge Export Company made another shipment to respondent and
allegedly loaded on board the vessel M/V "Tern" at the Port of Darrow, Louisiana, U.S.A. 3,300.000
metric tons of U.S. Soybean Meal in Bulk for delivery to respondent at the Port of Manila. The carrier
issued its clean Berth Term Grain Bill of Lading.4

The trial court was therefore right in finding that Manalo (the driver) and spouses Mangune and Carreon
(the jeepney owners) were negligent. However, its ruling that spouses Mangune and Carreon are jointly
and severally liable with Manalo is erroneous. The driver cannot be held jointly and severally liable with
carrier in case of breach of the contract of carriage. The rationale behind this is readily discernible.
Firstly, the contract of carriage is between the carrier is exclusively responsible therefore to the
passenger, even if such breach be due to the negligence of his driver (see Viluan v. The Court of Appeals,
et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). 22

On January 25, 1996, the carrier docked at the inner Anchorage, South Harbor, Manila. The subject
shipment was discharged to the receiving barges of petitioner ATI and received by respondent which,
however, reported receiving only 3,100.137 metric tons instead of the manifested 3,300.000 metric tons
of shipment. Respondent filed against petitioner ATI and the carrier a claim for the shortage of 199.863
metric tons, estimated to be worth US$79,848.86 or P2,100,025.00, but its claim was denied.

As in the case of BLTB, private respondents in this case and her coplaintiffs did not stake out their claim
against the carrier and the driver exclusively on one theory, much less on that of breach of contract
alone. After all, it was permitted for them to allege alternative causes of action and join as many parties
as may be liable on such causes of action 23 so long as private respondent and her coplaintiffs do not
recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to
recover from both the carrier and the driver, thus, justifying the holding that the carrier and the driver
were jointly and severally liable because their separate and distinct acts concurred to produce the same
injury.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION as to award of
damages. Petitioners are ORDERED to PAY jointly and severally the private respondent Amyline Antonio
the following amounts:
1) P93,657.11 as actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) 25% of the recoverable amount as attorney's fees; and
6) costs of suit.
SO ORDERED.
G.R. No. 177116

February 27, 2013

ASIAN TERMINALS, INC., Petitioner, vs. SIMON ENTERPRISES, INC., Respondent.


Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the Decision1 dated November 27, 2006 and Resolution2 dated March 23, 2007 of the
Court of Appeals (CA) in CA-G.R. CV No. 71210.
The facts are as follows:

Thus, on December 3, 1996, respondent filed with the Regional Trial Court (RTC) of Manila an action for
damages5 against the unknown owner of the vessels M/V "Sea Dream" and M/V "Tern," its local agent
Inter-Asia Marine Transport, Inc., and petitioner ATI alleging that it suffered the losses through the fault
or negligence of the said defendants. Respondent sought to claim damages plus attorneys fees and costs
of suit. Its claim against the unknown owner of the vessel M/V "Sea Dream," however, was later settled
in a Release and Quitclaim6 dated June 9, 1998, and only the claims against the unknown owner of the
M/V "Tern," Inter-Asia Marine Transport, Inc., and petitioner ATI remained.
In their Answer,7 the unknown owner of the vessel M/V "Tern" and its local agent Inter-Asia Marine
Transport, Inc., prayed for the dismissal of the complaint essentially alleging lack of cause of action and
prescription. They alleged as affirmative defenses the following: that the complaint does not state a
cause of action; that plaintiff and/or defendants are not the real parties-in-interest; that the cause of
action had already prescribed or laches had set in; that the claim should have been filed within three
days from receipt of the cargo pursuant to the provisions of the Code of Commerce; that the defendant
could no longer check the veracity of plaintiffs claim considering that the claim was filed eight months
after the cargo was discharged from the vessel; that plaintiff hired its own barges to receive the cargo
and hence, any damages or losses during the discharging operations were for plaintiffs account and
responsibility; that the statement of facts bears no remarks on any short-landed cargo; that the draft
survey report indicates that the cargo discharged was more than the figures appearing in the bill of
lading; that because the bill of lading states that the goods are carried on a "shippers weight, quantity
and quality unknown" terms and on "all terms, conditions and exceptions as per charter party dated
October 15, 1995," the vessel had no way of knowing the actual weight, quantity, and quality of the bulk
cargo when loaded at the port of origin and the vessel had to rely on the shipper for such information;
that the subject shipment was discharged in Manila in the same condition and quantity as when loaded
at the port of loading; that defendants responsibility ceased upon discharge from the ships tackle; that
the damage or loss was due to the inherent vice or defect of the goods or to the insufficiency of packing
thereof or perils or dangers or accidents of the sea, pre-shipment damage or to improper handling of the
goods by plaintiff or its representatives after discharge from the vessel, for which defendants cannot be
made liable; that damage/loss occurred while the cargo was in the possession, custody or control of
plaintiff or its representative, or due to plaintiffs own negligence and careless actuations in the handling
of the cargo; that the loss is less than 0.75% of the entire cargo and assuming arguendo that the
shortage exists, the figure is well within the accepted parameters when loading this type of bulk cargo;
that defendants exercised the required diligence under the law in the performance of their duties; that
the vessel was seaworthy in all respects; that the vessel went straight from the port of loading to Manila,
without passing through any intermediate ports so there was no chance for any loss of the cargo; the
plaintiffs claim is excessive, grossly overstated, unreasonable and a mere paper loss and is certainly
unsubstantiated and without any basis; the terms and conditions of the relevant bill of lading and the

charter party, as well as the provisions of the Carriage of Goods by Sea Act and existing laws, absolve the
defendants from any liability; that the subject shipment was received in bulk and thus defendant carrier
has no knowledge of the condition, quality and quantity of the cargo at the time of loading; that the
complaint was not referred to the arbitrators pursuant to the bill of lading; that liability, if any, should
not exceed the CIF value of the lost cargo, or the limits of liability set forth in the bill of lading and the
charter party. As counterclaim, defendants prayed for the payment of attorneys fees in the amount
of P220,000. By way of cross-claim, they ask for reimbursement from their co-defendant, petitioner ATI,
in the event that they are held liable to plaintiff.
Petitioner ATI meanwhile alleged in its Answer8 that it exercised the required diligence in handling the
subject shipment. It moved for the dismissal of the complaint, and alleged by way of special and
affirmative defense that plaintiff has no valid cause of action against petitioner ATI; that the cargo was
completely discharged from the vessel M/V "Tern" to the receiving barges owned or hired by the
plaintiff; and that petitioner ATI exercised the required diligence in handling the shipment. By way of
counterclaim, petitioner ATI argued that plaintiff should shoulder its expenses for attorneys fees in the
amount of P20,000 as petitioner ATI was constrained to engage the services of counsel to protect its
interest.
On May 10, 2001, the RTC of Manila rendered a Decision9 holding petitioner ATI and its co-defendants
solidarily liable to respondent for damages arising from the shortage. The RTC held:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants M/V "Tern" InterAsia Marine Transport, Inc. and Asian Terminal Inc. jointly and severally liable to pay plaintiff Simon
Enterprises the sum of P2,286,259.20 with legal interest from the date the complaint was filed until fully
satisfied, 10% of the amount due plaintiff as and for attorneys fees plus the costs of suit.

SO ORDERED.13
In affirming the RTC Decision, the CA held that there is no justification to disturb the factual findings of
the trial court which are entitled to respect on appeal as they were supported by substantial evidence. It
agreed with the findings of the trial court that the unknown owner of the vessel M/V "Tern" and InterAsia Marine Transport, Inc. failed to establish that they exercised extraordinary diligence in transporting
the goods or exercised due diligence to forestall or lessen the loss as provided in Article 1742 14 of the
Civil Code. The CA also ruled that petitioner ATI, as the arrastre operator, should be held jointly and
severally liable with the carrier considering that petitioner ATIs stevedores were under the direct
supervision of the unknown owner of M/V "Tern" and that the spillages occurred when the cargoes were
being unloaded by petitioner ATIs stevedores.
Petitioner ATI filed a motion for reconsideration,15 but the CA denied its motion in a Resolution 16dated
March 23, 2007. The unknown owner of the vessel M/V "Tern" and Inter-Asia Marine Transport, Inc. for
their part, appealed to this Court via a petition for review on certiorari, which was docketed as G.R. No.
177170. Its appeal, however, was denied by this Court on July 16, 2007 for failure to sufficiently show
any reversible error committed by the CA in the challenged Decision and Resolution as to warrant the
exercise of this Courts discretionary appellate jurisdiction. The unknown owner of M/V "Tern" and InterAsia Marine Transport, Inc. sought reconsideration of the denial but their motion was denied by the
Court in a Resolution dated October 17, 2007.17
Meanwhile, on April 20, 2007, petitioner ATI filed the present petition raising the sole issue of whether
the appellate court erred in affirming the decision of the trial court holding petitioner ATI solidarily liable
with its codefendants for the shortage incurred in the shipment of the goods to respondent.
Petitioner ATI argues that:

Defendants counterclaim and cross claim are hereby DISMISSED for lack of merit.
SO ORDERED.10

1. Respondent failed to prove that the subject shipment suffered actual loss/shortage as there was no
competent evidence to prove that it actually weighed 3,300 metric tons at the port of origin.

The trial court found that respondent has established that the losses/shortages were incurred prior to its
receipt of the goods. As such, the burden shifted to the carrier to prove that it exercised extraordinary
diligence as required by law to prevent the loss, destruction or deterioration.

2. Stipulations in the bill of lading that the cargo was carried on a "shippers weight, quantity and quality
unknown" is not contrary to public policy. Thus, herein petitioner cannot be bound by the quantity or
weight of the cargo stated in the bill of lading.

However, the trial court held that the defendants failed to prove that they did so. The trial court gave
credence to the testimony of Eduardo Ragudo, a super cargo of defendant Inter-Asia Marine Transport,
Inc., who admitted that there were spillages or overflow down to the spillage saver. The trial court also
noted that said witness also declared that respondents representative was not allowed to sign the
Masters Certificate. Such declaration, said the trial court, placed petitioner ATI in a bad light and
weakened its stand.

3. Shortage/loss, if any, may have been due to the inherent nature of the shipment and its insufficient
packing considering that the subject cargo was shipped in bulk and had a moisture content of 12.5%.

Not satisfied, the unknown owner of the vessel M/V "Tern," Inter-Asia Marine Transport, Inc. and
petitioner ATI respectively filed appeals to the CA. In their petition, the unknown owner of the vessel
M/V "Tern" and Inter-Asia Marine Transport, Inc. raised the question of whether the trial court erred in
finding that they did not exercise extraordinary diligence in the handling of the goods.11
On the other hand, petitioner ATI alleged that:
THE COURT-A-QUO COMMITTED SERIOUS AND REVERSIBLE ERROR IN HOLDING DEFENDANT[]APPELLANT ATI SOLIDARILY LIABLE WITH CO-DEFENDANT APPELLANT INTERASIA MARINE TRANSPORT,
INC. CONTRARY TO THE EVIDENCE PRESENTED.12
On November 27, 2006, the CA promulgated the assailed Decision, the decretal portion of which reads:
WHEREFORE, the appealed Decision dated May 10, 2001 is affirmed, except the award of attorneys fees
which is hereby deleted.

4. Respondent failed to substantiate its claim for damages as no competent evidence was presented to
prove the same.1wphi1
5. Respondent has not presented any scintilla of evidence showing any fault/negligence on the part of
herein petitioner.
6. Petitioner ATI should be entitled to its counterclaim.18
Respondent, on the other hand, quotes extensively the CA decision and maintains its correctness.
We grant the petition.
The CA erred in affirming the decision of the trial court holding petitioner ATI solidarily liable with its codefendants for the shortage incurred in the shipment of the goods to respondent.
We note that the matters raised by petitioner ATI involve questions of fact which are generally not
reviewable in a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, as the Court is not a trier of facts. Section 1 thereof provides that "the petition x x x shall raise
only questions of law, which must be distinctly set forth."

A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the
probative value of the evidence presented, the truth or falsehood of facts being admitted. A question of
fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query
invites calibration of the whole evidence considering mainly the credibility of the witnesses, the
existence and relevancy of specific surrounding circumstances as well as their relation to each other and
to the whole, and the probability of the situation.19
The well-entrenched rule in our jurisdiction is that only questions of law may be entertained by this
Court in a petition for review on certiorari. This rule, however, is not ironclad and admits certain
exceptions, such as when (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 facts
are contradicted by the presence of evidence on record; (8) the findings of the Court of Appeals are
contrary to those of the trial court; (9) the Court of Appeals manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the
Court of Appeals are beyond the issues of the case; and (11) such findings are contrary to the admissions
of both parties.20
After a careful review of the records, we find justification to warrant the application of the fourth
exception. The CA misapprehended the following facts.
First, petitioner ATI is correct in arguing that the respondent failed to prove that the subject shipment
suffered actual shortage, as there was no competent evidence to prove that it actually weighed 3,300
metric tons at the port of origin.
Though it is true that common carriers are presumed to have been at fault or to have acted negligently if
the goods transported by them are lost, destroyed, or deteriorated, and that the common carrier must
prove that it exercised extraordinary diligence in order to overcome the presumption,21 the plaintiff must
still, before the burden is shifted to the defendant, prove that the subject shipment suffered actual
shortage. This can only be done if the weight of the shipment at the port of origin and its subsequent
weight at the port of arrival have been proven by a preponderance of evidence, and it can be seen that
the former weight is considerably greater than the latter weight, taking into consideration the
exceptions provided in Article 173422 of the Civil Code.
In this case, respondent failed to prove that the subject shipment suffered shortage, for it was not able
to establish that the subject shipment was weighed at the port of origin at Darrow, Louisiana, U.S.A. and
that the actual weight of the said shipment was 3,300 metric tons.
The Berth Term Grain Bill of Lading23 (Exhibit "A"), the Proforma Invoice24 (Exhibit "B"), and the Packing
List25(Exhibit "C"), being used by respondent to prove that the subject shipment weighed 3,300 metric
tons, do not, in fact, help its cause. The Berth Term Grain Bill of Lading states that the subject shipment
was carried with the qualification "Shippers weight, quantity and quality unknown," meaning that it was
transported with the carrier having been oblivious of the weight, quantity, and quality of the cargo. This
interpretation of the quoted qualification is supported by Wallem Philippines Shipping, Inc. v. Prudential
Guarantee & Assurance, Inc.,26 a case involving an analogous stipulation in a bill of lading, wherein the
Supreme Court held that:
Indeed, as the bill of lading indicated that the contract of carriage was under a "said to weigh"
clause, the shipper is solely responsible for the loading while the carrier is oblivious of the contents of
the shipment.(Emphasis supplied)
Similarly, International Container Terminal Services, Inc. v. Prudential Guarantee & Assurance Co.,
Inc.,27explains the meaning of clauses analogous to "Shippers weight, quantity and quality unknown" in
this manner:

This means that the shipper was solely responsible for the loading of the container, while the carrier
was oblivious to the contents of the shipment x x x. The arrastre operator was, like any ordinary
depositary, duty-bound to take good care of the goods received from the vessel and to turn the same
over to the party entitled to their possession, subject to such qualifications as may have validly been
imposed in the contract between the parties. The arrastre operator was not required to verify the
contents of the container received and to compare them with those declared by the shipper because,
as earlier stated, the cargo was at the shippers load and count x x x. (Italics in the original; emphasis
supplied)
Also, Bankers & Manufacturers Assurance Corporation v. Court of Appeals28 elucidates thus:
The recital of the bill of lading for goods thus transported [i.e., transported in sealed containers or
"containerized"] ordinarily would declare "Said to Contain", "Shippers Load and Count", "Full Container
Load", and the amount or quantity of goods in the container in a particular package is only prima
facie evidence of the amount or quantity x x x.
A shipment under this arrangement is not inspected or inventoried by the carrier whose duty is only to
transport and deliver the containers in the same condition as when the carrier received and accepted
the containers for transport x x x. (Emphasis supplied)
Hence, as can be culled from the above-mentioned cases, the weight of the shipment as indicated in the
bill of lading is not conclusive as to the actual weight of the goods. Consequently, the respondent must
still prove the actual weight of the subject shipment at the time it was loaded at the port of origin so that
a conclusion may be made as to whether there was indeed a shortage for which petitioner must be
liable. This, the respondent failed to do.
The Proforma Invoice militates against respondents claim that the subject shipment weighed 3,300
metric tons. The pertinent portion of the testimony of Mr. Jose Sarmiento, respondents Claims
Manager, is narrated below:
Atty. Rebano: You also identified a while ago, Mr. Witness Exhibit B, the invoice. Why does it state as
description of the cargo three thousand metric tons and not three thousand three hundred?
A: Usually there is a contract between the supplier and our company that embodied [sic] in the letter
credit [sic] that they have the option to ship the cargo plus or minus ten percent of the quantity.
xxxx
Q: So, it is possible for the shipper to ship less than ten percent in [sic] the quantity stated in the
invoice and it will still be a valid shipment. Is it [sic] correct?
A: It [sic] is correct but we must be properly advised and the commercial invoice should indicate how
much they sent to us.29 (Emphasis supplied)
The quoted part of Mr. Sarmientos testimony not only shows uncertainty as to the actual weight of the
shipment, it also shows that assuming respondent did order 3,300 metric tons of U.S. Soybean Meal
from Contiquincybunge Export Company, and also assuming that it only received 3,100.137 metric tons,
such volume would still be a valid shipment because it is well within the 10% allowable shortage. Note
that Mr. Sarmiento himself mentioned that the supplier has the option to "ship the cargo plus or minus
ten percent of the quantity."30
Notably also, the genuineness and the due execution of the Packing List, the Berth Term Grain Bill of
Lading, and the Proforma Invoice, were not established.
Wallem Philippines Shipping, Inc.,31 is instructive on this matter:

We find that the Court of Appeals erred in finding that a shortage had taken place. Josephine Suarez,
Prudentials claims processor, merely identified the papers submitted to her in connection with GMCs
claim (Bill of Lading BEDI/1 (Exh. "B"), Commercial Invoice No. 1401 issued by Toepfer International Asia
Pte, Ltd. (Exh. "C"), SGS Certificate of Quality (Exh. "F-1"), and SGS Certificate of Weight (Exh. "F-3")). Ms.
Suarez had no personal knowledge of the contents of the said documents and could only surmise as to
the actual weight of the cargo loaded on M/V Gao Yang x x x.
xxxx
Ms. Suarezs testimony regarding the contents of the documents is thus hearsay, based as it is on the
knowledge of another person not presented on the witness stand.
Nor has the genuineness and due execution of these documents been established. In the absence of
clear, convincing, and competent evidence to prove that the shipment indeed weighed 4,415.35 metric
tons at the port of origin when it was loaded on the M/V Gao Yang, it cannot be determined whether
there was a shortage of the shipment upon its arrival in Batangas. (Emphasis supplied)
As in the present case, Mr. Sarmiento merely identified the three above-mentioned exhibits, but he had
no personal knowledge of the weight of the subject shipment when it was loaded onto the M/V "Tern"
at the port of origin. His testimony as regards the weight of the subject shipment as described in Exhibits
"A," "B," and "C" must then be considered as hearsay,32 for it was based on the knowledge of a person
who was not presented during the trial in the RTC.
The presumption that the Berth Term Grain Bill of Lading serves as prima facie evidence of the weight of
the cargo has been rebutted, there being doubt as to the weight of the cargo at the time it was loaded at
the port of origin. Further, the fact that the cargo was shipped with the arrangement "Shippers weight,
quantity and quality unknown," indeed means that the weight of the cargo could not be determined
using as basis the figures written on the Berth Term Grain Bill of Lading. This is in line with Malayan
Insurance Co., Inc. v. Jardine Davies Transport Services, Inc.,33 where we said:
The presumption that the bill of lading, which petitioner relies upon to support its claim for
restitution,constitutes prima facie evidence of the goods therein described was correctly deemed by
the appellate court to have been rebutted in light of abundant evidence casting doubts on its veracity.
That MV Hoegh undertook, under the bill of lading, to transport 6,599.23 MT of yellow crude sulphur on
a "said to weigh" basis is not disputed. Under such clause, the shipper is solely responsible for the
loading of the cargo while the carrier is oblivious of the contents of the shipment. Nobody really knows
the actual weight of the cargo inasmuch as what is written on the bill of lading, as well as on the
manifest, is based solely on the shippers declaration.
The bill of lading carried an added clause the shipments weight, measure, quantity, quality,
condition, contents and value unknown. Evidently, the weight of the cargo could not be gauged from
the bill of lading. (Italics in the original; emphasis supplied)
The respondent having failed to present evidence to prove the actual weight of the subject shipment
when it was loaded onto the M/V "Tern," its cause of action must then fail because it cannot prove the
shortage that it was alleging. Indeed, if the claimant cannot definitively establish the weight of the
subject shipment at the point of origin, the fact of shortage or loss cannot be ascertained. The claimant
then has no basis for claiming damages resulting from an alleged shortage. Again, Malayan Insurance
Co., Inc.,34 provides jurisprudential basis:
In the absence of clear, convincing and competent evidence to prove that the cargo indeed
weighed,albeit the Bill of Lading qualified it by the phrase "said to weigh," 6,599.23 MT at the port of
origin when it was loaded onto the MV Hoegh, the fact of loss or shortage in the cargo upon its arrival in
Manila cannot be definitively established. The legal basis for attributing liability to either of the
respondents is thus sorely wanting. (Emphasis supplied)

Second, as correctly asserted by petitioner ATI, the shortage, if any, may have been due to the inherent
nature of the subject shipment or its packaging since the subject cargo was shipped in bulk and had a
moisture content of 12.5%.
It should be noted that the shortage being claimed by the respondent is minimal, and is an indication
that it could be due to consolidation or settlement of the subject shipment, as accurately observed by
the petitioner. A Kansas State University study on the handling and storage of soybeans and soybean
meal35 is instructive on this matter. Pertinent portions of the study reads:
Soybean meal is difficult to handle because of poor flow ability and bridging characteristics. Soybean
meal tends to settle or consolidate over time. This phenomenon occurs in most granular materials and
becomes more severe with increased moisture, time and small particle size x x x.
xxxx
Moisture is perhaps the most important single factor affecting storage of soybeans and soybean
meal. Soybeans contain moisture ranging from 12% to 15% (wet basis) at harvest time x x x.
xxxx
Soybeans and soybean meal are hygroscopic materials and will either lose (desorb) or gain (adsorb)
moisture from the surrounding air. The moisture level reached by a product at a given constant
temperature and equilibrium relative humidity (ERH) is its equilibrium moisture content (EMC) x x x.
(Emphasis supplied)
As indicated in the Proforma Invoice mentioned above, the moisture content of the subject shipment
was 12.5%. Taking into consideration the phenomena of desorption, the change in temperature
surrounding the Soybean Meal from the time it left wintertime Darrow, Louisiana, U.S.A. and the time it
arrived in Manila, and the fact that the voyage of the subject cargo from the point of loading to the point
of unloading was 36 days, the shipment could have definitely lost weight, corresponding to the amount
of moisture it lost during transit.
The conclusion that the subject shipment lost weight in transit is bolstered by the testimony of Mr.
Fernando Perez, a Cargo Surveyor of L.J. Del Pan. The services of Mr. Perez were requested by
respondent.36 Mr. Perez testified that it was possible for the subject shipment to have lost weight during
the 36-day voyage, as it was wintertime when M/V "Tern" left the United States and the climate was
warmer when it reached the Philippines; hence the moisture level of the Soybean Meal could have
changed.37 Moreover, Mr. Perez himself confirmed, by answering a question propounded by the RTC,
that loss of weight of the subject cargo cannot be avoided because of the shift in temperature from the
colder United States weather to the warmer Philippine climate.38
More importantly, the 199.863 metric-ton shortage that respondent alleges is a minimal 6.05% of the
weight of the entire Soy Bean Meal shipment. Taking into consideration the previously mentioned option
of the shipper to ship 10% more or less than the contracted shipment, and the fact that the alleged
shortage is only 6.05% of the total quantity of 3,300 metric tons, the alleged percentage loss clearly does
not exceed the allowable 10% allowance for loss, as correctly argued by petitioner. The alleged loss, if
any, not having exceeded the allowable percentage of shortage, the respondent then has no cause of
action to claim for shortages.
Third, we agree with the petitioner ATI that respondent has not proven any negligence on the part of the
former.
As petitioner ATI pointed out, a reading of the Survey Report of Del Pan Surveyors39 (Exhibits "D" to "D4" of respondent) would not show any untoward incident or negligence on the part of petitioner ATI
during the discharging operations.

Also, a reading of Exhibits "D", "D-1", and "D-2" would show that the methods used in determining
whether there was a shortage are not accurate.

AND SET ASIDE insofar as petitioner Asian Terminals, Inc. is concerned. Needless to add, the complaint
against petitioner docketed as RTC Manila Civil Case No. 96-81101 is ordered DISMISSED.

Respondent relied on the Survey Reports of Del Pan Surveyors to prove that the subject shipment
suffered loss. The conclusion that there was a shortage arose from an evaluation of the weight of the
cargo using the barge displacement method. This is a type of draught survey, which is a method of cargo
weight determination by ships displacement calculations.40 The basic principle upon which the draught
survey methodology is based is the Principle of Archimedes, i.e., a vessel when floating in water, will
displace a weight of water equal to its own weight.41 It then follows that if a weight of cargo is loaded on
(or unloaded from) a vessel freely floating in water, then the vessel will sink (or float) into the water until
the total weight of water displaced is equal to the original weight of the vessel, plus (or minus) the cargo
which has been loaded (or unloaded) and plus (or minus) density variation of the water between the
starting survey (first measurement) and the finishing survey (second measurement).42 It can be seen that
this method does not entail the weighing of the cargo itself, but as correctly stated by the petitioner, the
weight of the shipment is being measured by mere estimation of the water displaced by the barges
before and after the cargo is unloaded from the said barges.

No pronouncement as to costs. SO ORDERED.

In addition, the fact that the measurements were done by Del Pan Surveyors in prevailing slight to
slightly rough sea condition43 supports the conclusion that the resulting measurement may not be
accurate. A United Nations study on draught surveys44 in fact states that the accuracy of draught surveys
will be dependent upon several factors, one of which is the weather and seas condition in the harbor.
Also, it can be seen in respondents own Exhibit "D-1" that the actual weight of the cargo was
established by weighing 20% of the cargo. Though we recognize the practicality of establishing cargo
weight through random sampling, we note the discrepancy in the weights used in the determination of
the alleged shortage.
Exhibit "D-1" of respondent states that the average weight of each bag is 52 kilos. A total of 63,391
bags45 were discharged from the barges, and the tare weight46 was established at 0.0950
kilos.47 Therefore, if one were to multiply 52 kilos per bag by 63,391 bags and deduct the tare weight of
0.0950 kilos multiplied by 63,391 bags, the result would be 3,290,309.65 kilos, or 3,290.310 metric tons.
This would mean that the shortage was only 9.69 metric tons, if we suppose that respondent was able to
establish that the shipment actually weighed 3,300 metric tons at the port of loading.
However, the computation in Exhibit "D-2" would show that Del Pan Surveyors inexplicably used 49 kilos
as the weight per bag, instead of 52 kilos, therefore resulting in the total net weight of 3,100,137 kilos or
3,100.137 metric tons. This was the figure used as basis for respondent's conclusion that there is a
shortage of 199.863 metric tons.48
These discrepancies only lend credence to petitioner ATI's assertion that the weighing methods
respondent used as bases are unreliable and should not be completely relied upon.
Considering that respondent was not able to establish conclusively that the subject shipment weighed
3,300 metric tons at the port of loading, and that it cannot therefore be concluded that there was a
shortage for which petitioner should be responsible; bearing in mind that the subject shipment most
likely lost weight in transit due to the inherent nature of Soya Bean Meal; assuming that the shipment
lost weight in transit due to desorption, the shortage of 199.863 metric tons that respondent alleges is a
minimal 6.05% of the weight of the entire shipment, which is within the allowable 10% allowance for
loss; and noting that the respondent was not able to show negligence on the part of the petitioner and
that the weighing methods which respondent relied upon to establish the shortage it alleges is
inaccurate, respondent cannot fairly claim damages against petitioner for the subject shipment's alleged
shortage.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated November 27, 2006
and Resolution dated March 23, 2007 of the Court of Appeals in CA-G.R. CV No. 71210 are REVERSED

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
This is a petition for review of the decision[1] 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 that at the time of his admission, Jorge was
conscious, ambulatory, oriented, coherent, and with respiratory distress.[2] Typhoid fever was then
prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per
month.[3] 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. Blood count, routine urinalysis, stool
examination, and malarial smear were also made.[4] 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 examination. 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 by Dr. Blanes
whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he
did not.[5] 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[6]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 Jorge did not die of typhoid fever.[7]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
sufficient tests on the patients compatibility with said drug. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring
negligent doctors and nurses.[8]

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.

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 action is for medical malpractice. This 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 like surrounding
circumstances.[12] 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 caused injury to the patient.[13] There are thus four elements involved
in medical negligence cases, namely: duty, breach, injury, and proximate causation.

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, he did not open the skull to examine the brain. His
findings[9] 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 results ratio of
1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation
regarding the absence of ulceration 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 examination of
the brain.[10]
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 may be made. No additional information may be deduced from a higher
dilution.[11] 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 damages 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:

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.

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 condition under the same circumstances. It is
breach of this duty which constitutes actionable malpractice.[14]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 has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.[15]
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. Court of Appeals:[16]
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 nonexpert 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 following an operation for appendicitis, among others.[17]
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 contribution of the
person injured.[18]

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test,
diagnosed Jorges illness as typhoid fever, and immediately prescribed the administration of the
antibiotic chloromycetin;[21] and (2) Dr. Marvie Blanes erred in ordering the administration of the second
dose of 500 milligrams of chloromycetin barely three hours after the first was given.[22] 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 also plain from his
testimony that he has treated only about three cases of typhoid fever. Thus, he testified that:[23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?

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 cholecystectomy.[19] 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.

A In autopsy. But, that was when I was a resident physician yet.

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:

Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the
cases now you practice?

. . . . 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 desired result.[20]
Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly
committed by respondent doctors.

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.

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 the patient had bronchospasms[24] triggered by her allergic response to a
drug,[25] 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 infectious diseases and microbiology and an associate professor at the
Southwestern University College of Medicine and the Gullas College of Medicine, testified that he has
already treated over a thousand cases of typhoid fever.[26] According to him, when a case of typhoid
fever is suspected, the Widal test is normally used,[27]and if the 1:320 results of the Widal test on Jorge
Reyes had been presented to him along with the patients history, his impression would also be that the
patient was suffering from typhoid fever.[28] As to the treatment of the disease, he stated that
chloromycetin was the drug of choice.[29] He also explained that despite the measures taken by
respondent doctors and the intravenous administration of two doses of chloromycetin, complications of
the disease could not be discounted. His testimony is as follows:[30]
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 with chills, temperature - 41oC, 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 41oC, and then about 40 minutes later the
temperature rose to 100oF, 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 Yes.
As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was
normal, Dr. Rico explained that, while hyperplasia[31] in the payers patches or layers of the small
intestines is present in typhoid fever, the same may not always be grossly visible and a microscope was
needed to see the texture of the cells.[32]
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 necessitating that the test be repeated, becoming more conclusive at the second and third
weeks of the disease.[33] He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is
really the possible complications which could develop like perforation, hemorrhage, as well as liver and
cerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio
stated that no additional information could be obtained from a higher ratio.[35] He also agreed with Dr.
Gotiong that hyperplasia in the payers patches may be microscopic.[36]
Indeed, the standard contemplated is not what is actually the average merit among all known
practitioners from the best to the worst and from the most to the least experienced, but the reasonable
average merit among the ordinarily good physicians.[37] 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 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 that Jorge Reyes died of anaphylactic shock[38] 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:

A No, the finding would be more on the meninges or covering of the brain.

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson,
et. al., in Harrisons 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.)
at 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.

Q And in order to see those changes would it require opening the skull?

....

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?

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 exhibited an absence of the competence and skills expected of general
practitioners similarly situated.[39]
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 diligence in the vigilance over the goods and for
the safety of the passengers,[40] physicians and surgeons should have the same duty toward their
patients.[41] 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. 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.
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,
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life
and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly
caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal
as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional advice. She
was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. "A" and
"C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990,
p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating
table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided
that she should undergo a "cholecystectomy" operation after examining the documents (findings from
the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however,
asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get
a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15,
22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by
the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the
Capitol Medical Center, was also there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After praying, she was given injections. Her hands
were held by Herminda as they went down from her room to the operating room (TSN, January 13, 1988,
pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room,
Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as
Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect
of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala
pa ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told

her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor"
even as he did his best to find somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to the lobby
and waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room
"moving, doing this and that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient.
She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand
of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
operating room, she saw this anesthesiologist trying to intubate the patient. The patient's nailbed
became bluish and the patient was placed in a trendelenburg position a position where the head of
the patient is placed in a position lower than her feet which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was
then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating
room. When informed by Herminda Cruz that something wrong was happening, he told her (Herminda)
to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient.
The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985,
the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which
is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot
do anything. She cannot move any part of her body. She cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been
staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also

diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN,
December
21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained
by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by
private respondents during the anesthesia phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of
brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not
only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed
became bluish and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient
suffered brain damage because of the absence of oxygen in her (patient's) brain for approximately four
to five minutes which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the
patient a good anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable for failing
through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted with due
care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and prudence as the patient's case was
an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following
sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;

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

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

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;

4) the costs of the suit.

II

SO ORDERED.

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint
below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos
Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus legal interest for justice must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received
by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time to file a motion for reconsideration. The motion
for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day
period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of
the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May
1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness
of the petition in relation to the motion for reconsideration filed by petitioners with the Court of
Appeals.
In
their
Comment, 12 private respondents contend that the petition should not be given due course since the
motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly
dismissed by the appellate court for having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of
the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive
period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was not
sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the
delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since
the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the
earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believed that the receipt of the former should be considered in determining the timeliness of the filing of
the present petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa 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 defendant to meet with an
explanation. 13 Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by
the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence
of some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere
procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to
thereby place on the defendant the burden of going forward with the proof. 20 Still, before resort to the
doctrine may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order
to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from the standard medical procedure, when the
doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed
with because the injury itself provides the proof of negligence. 27 The reason is that the general rule on
the necessity of expert testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of mankind which may be testified
to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by any one may be given by nonexpert witnesses. 29 Hence, in cases where theres ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard of
care. 30 Where common knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that
the patient must do is prove a nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant without need to produce expert

medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there
is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the
removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does
not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to
the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the
usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res
ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of
a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any particular scientific treatment did not produce
the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that
the desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of
the routine performance occurred which is beyond the regular scope of customary professional activity
in such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter,
by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained,
the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case
for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in
applying theres ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the operation
was never performed. At the time of submission he was neurologically sound and physically fit in mind
and body, but he suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation
or in the absence of negligence in the administration of an anesthetic, and in the use and employment of
an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts and under
these circumstances a layman would be able to say, as a matter of common knowledge and observation,
that the consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the
process of a gall bladder operation. In fact, this kind of situation does not in the absence of negligence of
someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person
being put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of
private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been
guilty of contributory negligence because she was under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while
the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that
a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and
under these circumstances the Court would be able to say, as a matter of common knowledge and
observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired
results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation
or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made
out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the
operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's
comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on
the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the
brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the
allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as
testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the
testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor
of respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase.
As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event
occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and
all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.

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: What happened to the patient?

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?

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.

DRA. GUTIERREZ:
A: Yes sir.

xxx xxx xxx


Q: Did you pull away the tube immediately?
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 46

A: You do not pull the . . .


Q: Did you or did you not?

xxx xxx xxx


A: I did not pull the tube.
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not taught as
part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not,
and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a
patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the
patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if the endotracheal tube was in its
proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may
be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience
and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was
fully capable of determining whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching
hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same
were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity
which would have been difficult to fabricate. With her clinical background as a nurse, the Court is
satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful
day.

Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned
more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate
and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior
to the induction of anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patient's medical records and visits with the
patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and interpretation of laboratory data. 54 The
physical examination performed by the anesthesiologist is directed primarily toward the central nervous
system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance. 56 Thus, physical characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates
possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough
examination of the patient's airway would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day
of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of

the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the
trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just so
her failure to perform the required pre-operative evaluation would escape unnoticed. In her testimony
she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and
in my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available
for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the
patient only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation.
There is ample time to explain the method of anesthesia, the drugs to be used, and their possible
hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted at least
one day before the intended surgery, when the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time
to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner
only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to
take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find
the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he
is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been

capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to
wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books and
not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you feel that
you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted
that he could not testify about the drug with medical authority, it is clear that the appellate court erred
in giving weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every anesthetic
accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order
to absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An
injury or damage is proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This
fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The development of abdominal distention,
together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus
instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what
actually took place was an esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea.
Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube
which carries oxygen is in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the
tube was withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack
of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already
blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and
this one was successfully done. We do not think so. No evidence exists on record, beyond private
respondents' bare claims, which supports the contention that the second intubation was successful.
Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the
same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could
not be claimed, as private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was obviously too late. As
aptly explained by the trial court, Erlinda already suffered brain damage as a result of the inadequate
oxygenation of her brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing
a thorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this

unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative
evaluation, respondent physician could have been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the patient's neck and oral area, defects which
would have been easily overcome by a prior knowledge of those variations together with a change in
technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough preoperative evaluation, would have had little difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team.
As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him
perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure
to exercise the proper authority (as the "captain" of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for
the latter's operation. Because of this, he had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are
allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily liable with respondent doctors for
petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for
those of others based on the former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage.78 In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the
care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they
were forced to bring home the patient to avoid mounting hospital bills.

liquidated. However, these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty. 80 In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where the injury is chronic
and continuing. And because of the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are appropriate.
The amount given as temperate damages, though to a certain extent speculative, should take into
account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an
award of P1,500,000.00 in temperate damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were difficult to estimate because while they would
have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they
were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

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.

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

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.

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.

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

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.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are forever lost. The
resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a
mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim's condition. 84The 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
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,

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 of 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, Cruz 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 November 15, 1985. Since the
ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999.1
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 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) P100,000.00
each exemplary damages and attorneys fees; and 5) the costs of the suit.2

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds
therefor:

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

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 AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT
LEGAL BASIS.3
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE
COURT 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;

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

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 Petition-in-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 developments in modern medical and hospital practice.6 The Court noted these
pleadings in the Resolution of July 17, 2000.7
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:

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.

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

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 THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR.4
Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following
grounds:

3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST.8
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 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.9 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 use. But the burden of responsibility in terms of selection of agent and
how to administer it rest on the anesthesiologist.10
The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or
emergency, cannot be dispensed with.11 Such evaluation is necessary for the formulation of a plan of
anesthesia care suited to the needs of the patient concerned.

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:

Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his current drug
therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate
prescription of preoperative medications as necessary to the conduct of anesthesia.12

Yes, Your Honor.

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 distance.13

In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?

Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she
herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the
scheduled operation. She auscultated14 the patients heart and lungs and checked the latters blood
pressure to determine if Erlinda was indeed fit for operation.15 However, she did not proceed to examine
the patients airway. Had she been able to check petitioner Erlindas airway prior to the operation, Dr.
Gutierrez 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 Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.16

CHIEF JUSTICE:

ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
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 (pentothal).18 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 authority on anesthesia practice and procedure and their
complications.19

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:

Patient was transferred to ICU for further management.22


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.

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, you may have people who have this.20

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:

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 record. No laboratory data were ever presented
to the court."21

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).

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?
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

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?

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
Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was
around one minute.

I did not say "mali ata ang pinasukan" I never said that.

Which one, sir?

So, that is about 12:13 no, 12:15, 12:17?

The "mahirap intubate ito" assuming that you (interrupted)

Yes, and then, after one minute another oxygenation was given and after (interrupted)

Iyon lang, that is what I only said "mahirap intubate (interrupted)

12:18?

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.

A
Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that
relaxant (interrupted)
Q

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.

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)

12:19. And at that time, what would have been done to this patient?

I was able to intubate.

And this is more or less about what time 12:21?

Maybe, I cannot remember the time, Sir.

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

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?

A
I said "mahirap ata ito" when the first attempt I did not see the trachea right away. That was when
I (interrupted)
Q

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
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

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

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"

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

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 events 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 particularly 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 appearances and manifest conditions which
are observable by any one.24 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 trendelenburg position.25 Cruz further
averred that she noticed that the abdomen of Erlinda became distended.26
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
the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease 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 the endotracheal tube, were all under
the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.27 In Voss vs. Bridwell,28 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 been exercised."29Considering 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-the-Ship doctrine.30 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 her field and has acquired skills and knowledge in the course of her training which Dr.
Hosaka, as a surgeon, does not possess.31 He states further that current American jurisprudence on the
matter recognizes that the trend towards specialization in medicine has created situations where
surgeons do not always have the right to control all personnel within the operating room, 32 especially a
fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 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,
considering 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 realistically
reflects the actual relationship which exists in a modern operating room."35 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 Dr. Hosaka performed a surgery, he
would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient.36
Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda
showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist
and cardiologist to help resuscitate Erlinda.37
Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez
worked as a team. Their work cannot be placed in separate watertight compartments because their
duties intersect with each other.38
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 have to observe the
surgeons acts during the surgical process and calls the attention of the surgeon whenever necessary39 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 the 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 arrived at DLSMC only at around
12:10 p.m. In reckless disregard for his patients well being, Dr. Hosaka scheduled two procedures 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 continued
starvation and consequently, to the risk of acidosis,40 or the condition of decreased alkalinity of the
blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual
disturbances.41 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 turn results in high blood pressure or disturbances
in the heart rhythm:

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 pre-medicated 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.
DR. CAMAGAY:
And care.

DR. CAMAGAY:
CHIEF JUSTICE:
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 results to surgery and he will be opened up; a
knife is going to open up his body. x x x42
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:

Duty as a matter of fact?


DR. CAMAGAY:
Yes, Your Honor.43
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 skill,"44 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 liable with respondent doctors therefor under Article 2180 of the Civil
Code45 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 wages. In assessing whether such a relationship in
fact exists, the control test is determining. x x x46
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; and (4) the power to control not only the end to be
achieved, but the means to be used in reaching such an end.47
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


references.48 Second, it is not the hospital but the patient who pays the consultants fee for services
rendered by the latter.49 Third, a hospital does not dismiss a consultant; instead, the latter may lose his
or her accreditation or privileges granted by the hospital.50 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 orders are carried out strictly.51
After a careful consideration of the arguments 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 visiting 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 recommendation.52 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.
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
damages 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 promulgation of the Decision up to the time
the patient expires or survives.53 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 Erlindas 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 P1,500,000.00 in temperate damages would therefore be reasonable.54
However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio
that petitioner Erlinda died on August 3, 1999.55 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 exemplary
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.
G.R. No. 126297

February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner, vs. THE COURT OF APPEALS and NATIVIDAD and ENRIQUE
AGANA, Respondents.
With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second motion for
reconsideration2urging 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),3 Asian Hospital, Inc. (AHI),4 and Private Hospital Association of the
Philippines (PHAP)5 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),6 and referred en consulta to the Court en banc the motion for prior leave of
court and the second motion for reconsideration of PSI.7
Due to paramount public interest, the Court en banc accepted the referral8 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 premises.9
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr.
Fuentes), was impleaded by Enrique Agana and Natividad Agana (later substituted by her heirs), in a
complaint10 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 body two
gauzes11 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 decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for
damages.13 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 reimbursement from Dr. Ampil.141avvphi1
On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision.15 PSI filed a
motion for reconsideration16 but the Court denied it in a resolution dated February 11, 2008.17
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 decision in Ramos v. Court of Appeals18 that "for purposes of allocating
responsibility in medical negligence cases, an employer-employee relationship exists between hospitals
and their consultants."19Although the Court in Ramos later issued a Resolution dated April 11,
200220 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 responsibility over the actions of Dr. Ampil.21
Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that
he was its agent.22 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) condition.23 After his meeting with Dr. Ampil,
Enrique asked Natividad to personally consult Dr. Ampil.24 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 hospital. Thus, under the doctrine of apparent authority applied in Nogales, et al. v. Capitol
Medical Center, et al.,25 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 services to Natividad Agana, to exercise reasonable care to protect her from
harm,26 to oversee or supervise all persons who practiced medicine within its walls, and to take active
steps in fixing any form of negligence committed within its premises.27 PSI committed a serious breach of
its corporate duty when it failed to conduct an immediate investigation into the reported missing
gauzes.28
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 Dr. Ampil, which is an element of the principle of corporate negligence.29
In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the
existence of an employer-employee 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 consequences and adverse
effects on all three parties.30
The Aganas comment that the arguments of PSI need no longer be entertained for they have all been
traversed in the assailed decision and resolution.31
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,32 in reality it utilizes doctors,
surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical
treatment.33 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
217634 in relation to Article 218035 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 relation to Article
143136 and Article 186937 of the Civil Code or the principle of apparent authority.38 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 established standard of conduct to which it should conform as a
corporation.39

This Court still employs the "control test" to determine the existence of an employer-employee
relationship between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations
Commission, et al.40 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

hospital's agent; and second, the patients reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.49
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 his daughter to take her mother to Dr.
Ampil.50 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 consulted Dr. Ampil at the instigation of her daughter.51

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.

Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:

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)

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?

Even in its December 29, 1999 decision41 and April 11, 2002 resolution42 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 employer-employee relationship and in the
capacity of independent contractors."43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 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 discussion on the matter that it viewed their
relationship as one of mere apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes.46 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 became final and conclusive even to this Court. 47 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 employer-employee 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)48 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

Atty. Agcaoili

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 than the usual medical service to be given to us, than his
ordinary patients.52 (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 care"53 to be signed preparatory to the surgery of Natividad. The form
reads:
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 to have Natividad treated in Medical City General Hospital, meaning that, had Dr. Ampil
been affiliated with another hospital, he would still have been chosen by the Aganas as Natividad's
surgeon.54
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 informed about it at
all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital of her
discomfort and pain, the hospital would have been obliged to act on it."56
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 prominence57 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 responsibility was not yet in existence at the time Natividad underwent
treatment;58 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 committed."59 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 interposed by a party.60
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 Natividad about the two missing gauzes.61 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 personally notify the patient
about it.62Furthermore, 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 discomfort.63

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 could 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 doctorconsultant 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 doctorsconsultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI arose
from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad.64
Other circumstances peculiar to this case warrant this ruling,65 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 of Dr. Ampil can no longer be ascertained.66
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.

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.

No further pleadings by any party shall be entertained in this case.

In her answer,8 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.

Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this
resolution.
SO ORDERED.
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.
Challenged in this petition for review on certiorari is the Decision1 dated June 15, 2004 as well as the
Resolution2dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which
modified the Decision3dated 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 type,4 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 treatment 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 another 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 death as "Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated
Intravascular Coagulation."5
On the other hand, the Certificate of Death6 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 suit7 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
Angelicas 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

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 to P150,000.00 a year from his
jewelry and watch repairing business.9Petitioner, 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 and the fourth time
when Angelicas mother called her through long distance.10 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 only side effects were nausea, vomiting and hair loss.11Those
were the only side-effects of chemotherapy treatment mentioned by petitioner.12
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 requested by petitioner: Angelicas chest x-ray, ultrasound of the liver,
creatinine and complete liver function tests.13 Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.14
The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,15Doxorubicin16 and Cosmegen17 intravenously. Petitioner was supposedly assisted by her
trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr. Marbella denied having any
participation in administering the said chemotherapy drugs.20
On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas
face.21They asked petitioner about it, but she merely quipped, "Wala yan. Epekto ng gamot." 22 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. Victoria Abesamis on
the matter.23

because this may induce further bleeding.35 She was also transferred to the intensive care unit to avoid
infection.

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 again as merely the effect of medicines.24 Petitioner testified that
she did not see any discoloration on Angelicas face, nor did she notice any difficulty in the childs
breathing. She claimed that Angelica merely complained of nausea and was given ice chips.251avvphi1

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned
black. Part of Angelicas 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, Lina asked for a
doctor but the latter could not answer her anymore.36 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 their 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 daughter. 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, Reynaldo 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 priest came and they prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was "malfunction" or bogged-down machine.37

On August 22, 1993, at around ten oclock in the morning, upon 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. Later in the evening,
Angelica passed black stool and reddish urine.26 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 carpo-pedal 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 calcium
gluconate, the spasm and numbness subsided.27
The following day, August 23, petitioner yielded to respondents request to take Angelica home. But
prior to discharging Angelica, 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 problem arises.28
However, Angelica remained in confinement because while still in the premises of SLMC, her
"convulsions" returned and she also had LBM. Angelica was given oxygen and administration of calcium
continued.29
The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also
noticed that she had a fever and had difficulty breathing.30 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 infused calcium
gluconate on the patient at a "stat dose." She further ordered that Angelica be given Bactrim,31 a
synthetic antibacterial combination drug,32 to combat any infection on the childs body.33
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 and 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 to Angelica at that time.34
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, which 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 remove the endotracheal tube

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though
that Angelicas skin was indeed sloughing off.38 She stressed that at 9:30 in the evening, Angelica pulled
out her endotracheal tube.39 On September 1, exactly two weeks after being admitted at SLMC for
chemotherapy, Angelica died.40 The cause of death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelicas other organs to fail.41 Petitioner attributed this to the
patients poor defense mechanism brought about by the cancer itself.42
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner
acted arrogantly and called him names. He was asked to sign a promissory note as he did not have cash
to pay the hospital bill.43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNPCrime 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 the 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 have detected it.44

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or
his relatives every 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 aggravate the patients condition.45

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.

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for
the defendants. He explained 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 did not see them
anymore after follow-up; it is either they died or had seen another doctor.46

xxxx

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 chemotherapy as adjuvant treatment. Using the standard of negligence laid down in Picart
v. Smith,47 the trial court declared that petitioner has taken the necessary precaution against the adverse
effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence.
Respondents were ordered to pay their unpaid hospital bill in the amount ofP139,064.43.48
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 after 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

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffsappellants to their claim for damages.

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.49 (Emphasis supplied.)
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. Petitioner emphasized that she was not negligent in the prechemotherapy 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 genetic 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 codirector 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 the respondents.50
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 prudent provider would not have done; and that that failure or action caused injury to the
patient.51
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 which laymen in most instances
are incapable of intelligently evaluating, hence the indispensability of expert testimonies.52
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 professional
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 Schoendorff v. Society of
New York Hospital53 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 performs an operation without his patients
consent, commits an assault, for which he is liable in damages."54 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 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 judgment by
reasonably balancing the probable risks against the probable benefits.55
Subsequently, in Canterbury v. Spence56 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 alone. 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 themselves.57 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 responsibility. 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 patients reliance upon the physician is a trust of the kind
which traditionally has exacted obligations beyond those associated with armslength transactions.58 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 no treatment.59 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 relationship between the physicians
failure to divulge and damage to the patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 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 evaluate data, and where the patient is a child or
incompetent.62 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 need is whatever information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its materiality to the patients decision.63
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 significant undisclosed information relating to the treatment which would have altered her decision to
undergo it.64
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 chemotherapys success rate. Besides, informed consent
laws in other countries generally require only a reasonable explanation of potential harms, so specific
disclosures such as statistical data, may not be legally necessary.65
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 prove both the duty and the breach of that duty
through expert testimony.66Such expert testimony must show the customary standard of care of
physicians in the same practice as that of the defendant doctor.67
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 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 perspective 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 reject a recommended medical procedure."68(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.