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G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

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).

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life
and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
"A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall
bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman.
Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel Ramos, Roy Roderick
Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p.
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June

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,

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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. 1920). 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.

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On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as
part of his obligation to provide the patient a good anesthesiologist', and for arriving
for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient.
For if the patient was properly intubated as claimed by them, the patient would not
have become comatose. And, the fact that another anesthesiologist was called to try
to intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and prudence as the
patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the
plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly
and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff
Erlinda Ramos reckoned from November 15, 1985 or in the total sum
of P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further
sum of P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.

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:

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.

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:

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

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IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

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

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.

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

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to justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether
a certain set of circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the domain
of medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be
given by non-expert witnesses. 29 Hence, in cases where 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,
applying theres ipsa loquitur stated:

43

where the Kansas Supreme Court in

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.

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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.

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.

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.

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:

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.

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.

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:

Page 7 of 23
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of
Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is
not taught as part of nursing procedures and techniques. Indeed, we take judicial
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption
that she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated
the patient or that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine the condition of the heart,
lungs, and other organs. Thus, witness Cruz's categorical statements that appellant
Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual
bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external appearances, and manifest conditions
which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert
testimony is not necessary for the proof of negligence in non-technical matters or those of which an
ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so
obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia
procedures have become so common, that even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be acceptable.

Q: Do you know the reason why the patient was placed in that
trendelenburg position?

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.

A: As far as I know, when a patient is in that position, there is a

decrease of blood supply to the brain. 46

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:

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

Page 8 of 23
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your
first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:

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.

A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.

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:

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?

ATTY. LIGSAY:
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,

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

Page 9 of 23
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.

Q: But not in particular when you practice pulmonology?

A: No.

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.

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

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.

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.

Page 10 of 23
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

Page 11 of 23
of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short
of the minimum standards acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily liable with respondent doctors for
petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also
for those of others based on the former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage.78 In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the
care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual.
The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for
the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they
were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to
meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube.
Food preparation should be normally made by a dietitian to provide her with the correct daily caloric
requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation
of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred
and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but
which could not, from the nature of the case, be made with certainty. 80 In other words, temperate
damages can and should be awarded on top of actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided for. The reason is that these damages
cover two distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are appropriate.

Page 12 of 23
The amount given as temperate damages, though to a certain extent speculative, should take into
account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an
award of P1,500,000.00 in temperate damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury
suffered by the plaintiff would have led to expenses which were difficult to estimate because while they
would have been a direct result of the injury (amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in
that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation
of her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art prosthetic technology. Well beyond the
period of hospitalization (which was paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the shrinkage of the stump from the
process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected
by the biological changes of middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will have to be adjusted to respond to
the changes in bone resulting from a precipitate decrease in calcium levels observed
in the bones of all post-menopausal women. In other words, the damage done to her
would not only be permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would normally undergo through
the years. The replacements, changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of these adjustments, it has been
documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory

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

Page 13 of 23
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

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.

April 11, 2002

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR.
PERFECTA GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move
for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable
for petitioner Erlinda Ramos comatose condition after she delivered herself to them for their
professional care and management.
For better understanding of the issues raised in private respondents respective motions, we will briefly
restate the facts 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

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

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:

Page 14 of 23
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;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE
STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY
INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE
TESTIMONY OF PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL
FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF
DR. JAMORA AND DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO

PETITIONERS DESPITE THE FACT 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:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF
THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP]
EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL
CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF
PETITIONERS.5
In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for
reconsideration. The Philippine College of Surgeons filed its 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.

Page 15 of 23
The Court enumerated the issues to be resolved in this case as follows:

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

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

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.

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

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

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 preoperative 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

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
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
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?

Page 16 of 23
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done by
Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional
acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by D.
Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
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:
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
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:

Page 17 of 23
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was
started by mask. After pentothal injection this was followed by IV injection of Norcuron 4mg.
After 2 minutes 02 was given by positive pressure for about one minute. Intubation with
endotracheal tube 7.5 m in diameter was done with slight difficulty (short neck & slightly
prominent upper teeth) chest was examined for breath sounds & checked if equal on both
sides. The tube was then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02
4 liters was given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone.
Cyanosis disappeared. Blood pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the
chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was
persistent. Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline
was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate &
another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously
given & assisted positive pressure. Laboratory exams done (see results in chart).
Patient was transferred to ICU for further management.

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.
The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr.
Gutierrez synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only
after Erlinda was taken out of the operating room. The standard practice in anesthesia is that every
single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez case, she could not
account for at least ten (10) minutes of what happened during the administration of anesthesia on
Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is
instructive:
DR. ESTRELLA
Q

You mentioned that there were two (2) attempts in the intubation period?

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

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?

A
The first medication, no, first the patient was oxygenated for around one to two
minutes.
Q

Yes, so, that is about 12:13?

Page 18 of 23
A
Yes, and then, I asked the resident physician to start giving the pentothal very slowly
and that was around one minute.
Q

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

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

12:18?

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

That was the first attempt?

Yes.

What about the second attempt?

On the second attempt I was able to intubate right away within two to three seconds.

Q
At what point, for purposes of discussion without accepting it, at what point did you
make the comment "na mahirap ata to intubate, mali ata ang pinasukan"
A

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

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?

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?

Maybe.

Which one, sir?

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

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

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

At what point?

When the first attempt when I inserted the laryngoscope for the first time.

So, when you claim that at the first attempt you inserted the laryngoscope, right?

Yes.

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
But in one of the recordings somewhere at the, somewhere in the transcript of records
that when the lawyer of the other party try to inquire from you during the first attempt that
was the time when "mayroon ba kayong hinugot sa tube, I do not remember the page now, but
it seems to me it is there. So, that it was on the second attempt that (interrupted)
A

I was able to intubate.

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

Maybe, I cannot remember the time, Sir.

Page 19 of 23
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

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

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.

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

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

Page 20 of 23
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:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate anxiety.
Second is to dry up the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When a patient is anxious
there is an outpouring of adrenalin which would have adverse effect on the patient.
One of it is high blood pressure, the other is that he opens himself to disturbances in
the heart rhythm, which would have adverse implications. So, we would like to
alleviate patients anxiety mainly because he will not be in control of his body there
could be adverse 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?

Page 21 of 23
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three hours
waiting and the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the
anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety and
most operating tables are very narrow and that patients are usually at risk of falling on
the floor so there are restraints that are placed on them and they are never, never left
alone in the operating room by themselves specially if they are already 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?

CHIEF JUSTICE:
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 x 46
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

DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.

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

Page 22 of 23
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;

Page 23 of 23
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.