Brief Fact Summary.

Plaintiff was in dire need of medical attention

and he called upon Defendant, his family doctor, to help him. For no
reason, Defendant refused. Plaintiff died.
Synopsis of Rule of Law. Licensed doctors are not obligated to
accept all patients who are in dire need of medical attention. There is
no affirmative duty to be a good citizen and help others in peril if you
have not caused their predicament.
Facts. Defendant was a practicing physician, duly licensed under state
law. Defendant held himself out to the public as a general practitioner
of medicine. Defendant was Plaintiffs family physician. Plaintiff was
violently ill and summoned Defendant by messenger to attend to him
and tendered the fee. The messenger told Defendant that no other
physician was available at that time and Plaintiff was relying upon
Defendant for help. Defendant refused to help Plaintiff. Defendant had
nothing to do that prevented him from helping Plaintiff. Plaintiff died
wholly because Defendant refused to help him. The alleged wrongful
act was Defendants refusal to enter into a contract for employment.
Plaintiff sued Defendant for wrongful death. Defendant demurred and
the trial court sustained it. Plaintiff appealed.
Issue. The facts of this case present two issues:
* Are licensed doctors obligated to help patients who are in dire need
of medical attention?
* Is there an affirmative duty to be a good citizen and help others in
peril if you have not caused their predicament?
Held. No, licensed doctors are not obligated to accept all patients who
are in dire need of medical attention. No, there is no affirmative duty to
be a good citizen and help others in peril if you have not caused their
predicament.
Discussion. Absent a heightened relationship, there is no affirmative
duty that a person give help to a stranger.
MA. PAZ FERNANDEZ KROHN, petitioner,
vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.
Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.
Oscar F. Martinez for private respondent.

BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in
evidence before the trial court in a petition for annulment of marriage
grounded on psychological incapacity. The witness testifying on the
report is the husband who initiated the annulment proceedings, not the
physician who prepared the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn,
invoking the rule on privileged communication between physician and
patient, seeks to enjoin her husband from disclosing the contents of
the report. After failing to convince the trial court and the appellate
court, she is now before us on a petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married
at the Saint Vincent de Paul Church in San Marcelino, Manila. The union
produced three children, Edgar Johannes, Karl Wilhelm and Alexandra.
Their blessings notwithstanding, the relationship between the couple
developed into a stormy one. In 1971, Ma. Paz underwent
psychological testing purportedly in an effort to ease the marital strain.
The effort however proved futile. In 1973, they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric
report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and
Baltazar Reyes. On 2 November 1978, presenting the report among
others, he obtained a decree ("Conclusion") from the Tribunal
Metropolitanum Matrimoniale in Manila nullifying his church marriage
with Ma. Paz on the ground of "incapacitas assumendi onera
conjugalia due to lack of due discretion existent at the time of the
wedding and thereafter." 1 On 10 July 1979, the decree was confirmed
and pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now
Regional Trial Court) of Pasig, Br. II, issued an order granting the
voluntary dissolution of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his
marriage with Ma. Paz before the trial court. 3In his petition, he cited
the Confidential Psychiatric Evaluation Report which Ma. Paz merely
denied in her Answer as "either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried
to testify on the contents of the Confidential Psychiatric Evaluation
Report. This was objected to on the ground that it violated the rule on
privileged communication between physician and patient.
Subsequently, Ma. Paz filed a Manifestation expressing her "continuing

objection" to any evidence, oral or documentary, "that would thwart

the physician-patient privileged communication rule," 5 and thereafter
submitted a Statement for the Record asserting among others that
"there is no factual or legal basis whatsoever for petitioner (Edgar) to
claim 'psychological incapacity' to annul their marriage, such ground
being completely false, fabricated and merely an
afterthought." 6 Before leaving for Spain where she has since resided
after their separation, Ma. Paz also authorized and instructed her
counsel to oppose the suit and pursue her counterclaim even during
her absence.
On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the
introduction of the confidential psychiatric report as evidence, 7 and
afterwards moved to strike out Ma. Paz' Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the
Confidential Psychiatric Evaluation Report in evidence and ruling that

. . . the Court resolves to overrule the objection and to

sustain the Opposition to the respondent's Motion; first,
because the very issue in this case is whether or not the
respondent had been suffering from psychological
incapacity; and secondly, when the said psychiatric report
was referred to in the complaint, the respondent did not
object thereto on the ground of the supposed privileged
communication between patient and physician. What was
raised by the respondent was that the said psychiatric
report was irrelevant. So, the Court feels that in the
interest of justice and for the purpose of determining
whether the respondent as alleged in the petition was
suffering from psychological incapacity, the said
psychiatric report is very material and may be testified to
by petitioner (Edgar Krohn, Jr.) without prejudice on the
part of the respondent to dispute the said report or to
cross-examination first the petitioner and later the
psychiatrist who prepared the same if the latter will be
presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider
Order dated June 4, 1991, and directed that the Statement for the
Record filed by Ma. Paz be stricken off the record. A subsequent motion
for reconsideration filed by her counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of
Appeals. In a Decision promulgated 30 October 1992, the appellate

court dismissed the petition for certiorari. 10 On 5 February 1993, the

motion to reconsider the dismissal was likewise denied. Hence, the
instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the
contents of the psychiatric report and prays for the admission of her
Statement for the Record to form part of the records of the case. She
argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician
from testifying on matters which he may have acquired in attending to
a patient in a professional capacity, "WITH MORE REASON should be
third person (like respondent-husband in this particular instance) be
PROHIBITED from testifying on privileged matters between a physician
and patient or from submitting any medical report, findings or
evaluation prepared by a physician which the latter has acquired as a
result of his confidential and privileged relation with a patient." 12 She
says that the reason behind the prohibition is
. . . to facilitate and make safe, full and confidential
disclosure by a patient to his physician of all facts,
circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled
safely and efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on the contents
of the psychiatric evaluation report "will set a very bad and dangerous
precedent because it abets circumvention of the rule's intent in
preserving the sanctity, security and confidence to the relation of
physician and his patient." 14 Her thesis is that what cannot be done
directly should not be allowed to be done indirectly.
Petitioner submits that her Statement for the Record simply reiterates
under oath what she asserted in her Answer, which she failed to verify
as she had already left for Spain when her Answer was filed. She
maintains that her "Statement for the Record is a plain and simple
pleading and is not as it has never been intended to take the place of
her testimony;" 15 hence, there is no factual and legal basis whatsoever
to expunge it from the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules
are very explicit: the prohibition applies only to a physician. Thus . . .
the legal prohibition to testify is not applicable to the case at bar where
the person sought to be barred from testifying on the privileged
communication is the husband and not the physician of the

petitioner." 16 In fact, according to him, the Rules sanction his

testimony considering that a husband may testify against his wife in a
civil case filed by one against the other.
Besides, private respondent submits that privileged communication
may be waived by the person entitled thereto, and this petitioner
expressly did when she gave her unconditional consent to the use of
the psychiatric evaluation report when it was presented to the Tribunal
Metropolitanum Matrimoniale which took it into account among others
in deciding the case and declaring their marriage null and void. Private
respondent further argues that petitioner also gave her implied
consent when she failed to specifically object to the admissibility of the
report in her Answer where she merely described the evaluation report
as "either unfounded or irrelevant." At any rate, failure to interpose a
timely objection at the earliest opportunity to the evidence presented
on privileged matters may be construed as an implied waiver.
With regard to the Statement for the Record filed by petitioner, private
respondent posits that this in reality is an amendment of her Answer
and thus should comply with pertinent provisions of the Rules of Court,
hence, its exclusion from the records for failure to comply with the
Rules is proper.
The treatise presented by petitioner on the privileged nature of the
communication between physician and patient, as well as the reasons
therefor, is not doubted. Indeed, statutes making communications
between physician and patient privileged are intended to inspire
confidence in the patient and encourage him to make a full disclosure
to his physician of his symptoms and condition. 17 Consequently, this
prevents the physician from making public information that will result
in humiliation, embarrassment, or disgrace to the patient. 18 For, the
patient should rest assured with the knowledge that the law recognizes
the communication as confidential, and guards against the possibility
of his feelings being shocked or his reputation tarnished by their
subsequent disclosure. 19 The physician-patient privilege creates a
zone of privacy, intended to preclude the humiliation of the patient
that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient
relationship fall within the constitutionally protected zone of
privacy, 20 including a patient's interest in keeping his mental health
records confidential. 21 Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that
certain forms of antisocial behavior may be prevented by encouraging
those in need of treatment for emotional problems to secure the
services of a psychotherapist.

Petitioner's discourse while exhaustive is however misplaced. Lim

v. Court of Appeals 22 clearly lays down the requisites in order that the
privilege may be successfully invoked: (a) the privilege is claimed in a
civil case; (b) the person against whom the privilege is claimed is one
duly authorized to practice medicine, surgery or obstetrics; (c) such
person acquired the information while he was attending to the patient
in his professional capacity; (d) the information was necessary to
enable him to act in that capacity; and, (e) the information was
confidential and, if disclosed, would blacken the reputation
(formerly character) of the patient.
In the instant case, the person against whom the privilege is claimed is
not one duly authorized to practice medicine, surgery or obstetrics. He
is simply the patient's husband who wishes to testify on a document
executed by medical practitioners. Plainly and clearly, this does not fall
within the claimed prohibition. Neither can his testimony be considered
a circumvention of the prohibition because his testimony cannot have
the force and effect of the testimony of the physician who examined
the patient and executed the report.
Counsel for petitioner indulged heavily in objecting to the testimony of
private respondent on the ground that it was privileged. In his
Manifestation before the trial court dated 10 May 1991, he invoked the
rule on privileged communications but never questioned the testimony
as hearsay. It was a fatal mistake. For, in failing to object to the
testimony on the ground that it was hearsay, counsel waived his right
to make such objection and, consequently, the evidence offered may
be admitted.
The other issue raised by petitioner is too trivial to merit the full
attention of this Court. The allegations contained in the Statement for
the Records are but refutations of private respondent's declarations
which may be denied or disproved during the trial.
The instant appeal has taken its toll on the petition for annulment.
Three years have already lapsed and private respondent herein, as
petitioner before the trial court, has yet to conclude his testimony
thereat. We thus enjoin the trial judge and the parties' respective
counsel to act with deliberate speed in resolving the main action, and
avoid any and all stratagems that may further delay this case. If all
lawyers are allowed to appeal every perceived indiscretion of a judge
in the course of trial and include in their appeals depthless issues,
there will be no end to litigations, and the docket of appellate courts
will forever be clogged with inconsequential cases. Hence, counsel
should exercise prudence in appealing lower court rulings and raise
only legitimate issues so as not to retard the resolution of cases.

Indeed, there is no point in unreasonably delaying the resolution of the

petition and prolonging the agony of the wedded couple who after
coming out from a storm still have the right to a renewed blissful life
either alone or in the company of each other. 23
WHEREFORE, the instant petition for review is DENIED for lack of merit.
The assailed Decision of respondent Court of Appeals promulgated on
30 October 1992 is AFFIRMED.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON.
MANUEL D. VICTORIO, as Presiding Judge of RTC-Rosales,
Pangasinan, Branch 53, and JUAN SIM, Respondents.
Quisumbing, Torres & Evangelista for Petitioner.
Bince, Oficiana & Dancel for Private Respondent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED
COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; RATIONAL BEHIND
THE RULE. This rule on the physician-patient privilege is intended to
facilitate and make safe full and confidential disclosure by the patient
to the physician of all facts, circumstances and symptoms,
untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled safely and
efficaciously to treat his patient. It rests in public policy and is for the
general interest of the community.
2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. Since the object of the
privilege is to protect the patient, it may be waived if no timely
objection is made to the physicians testimony.
3. ID.; ID.; ID.; ID.; ID.; REQUISITES. In order that the privilege may
be successfully claimed, the following requisites must concur: "1. the
privilege is claimed in a civil case; 2. the person against whom the
privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics; 3. such person acquired the information while he
was attending to the patient in his professional capacity; 4. the

information was necessary to enable him to act in that capacity; and 5.

the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient."cralaw virtua1aw library
4. ID.; ID.; ID.; ID.; CONDITIONS. These requisites conform with the
four (4) fundamental conditions necessary for the establishment of a
privilege against the disclosure of certain communications, to wit: "1.
The communications must originate in a confidence that they will not
be disclosed. 2. This element of confidentiality must be essential to the
full and satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community
ought to be sedulously fostered 4. The injury that would inure to the
relation by the disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of litigation."cralaw
virtua1aw library
5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. The
physician may be considered to be acting in his professional capacity
when he attends to the patient for curative, preventive, or palliative
treatment. Thus, only disclosures which would have been made to the
physician to enable him "safely and efficaciously to treat his patient"
are covered by the privilege. It is to be emphasized that "it is the tenor
only of the communication that is privileged. The mere fact of making
a communication, as well as the date of a consultation and the number
of consultations, are therefore not privileged from disclosure, so long
as the subject communicated is not stated."cralaw virtua1aw library
6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO
CLAIMS PRIVILEGED COMMUNICATIONS MUST PROVE REQUISITES
THEREOF. One who claims this privilege must prove the presence of
these aforementioned requisites.
7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT
PRIVILEGE; INFORMATION GATHERED IN PRESENCE OF THIRD PARTIES,
NOT PRIVILEGED. There is authority to the effect that information
elicited during consultation with a physician in the presence of third
parties removes such information from the mantle of the privilege:
"Some courts have held that the casual presence of a third person
destroys the confidential nature of the communication between doctor
and patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached a
contrary result."cralaw virtua1aw library
8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. while it
may be true that counsel for the petitioner opposed the oral request
for the issuance of a subpoena ad testificandum to Dr. Acampado and

filed a formal motion for the quashal of the said subpoena a day before
the witness was to testify, the petitioner makes no claim in any of her
pleadings that her counsel had objected to any question asked of the
witness on the ground that it elicited an answer that would violate the
privilege, despite the trial courts advise that said counsel may
interpose his objection to the testimony "once it becomes apparent
that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes
of the testimony of Dr. Acampado quoted in the petitioners Petition
and Memorandum, and in the private respondents Memorandum, do
not at all show that any objections were interposed. Even granting ex
gratia that the testimony of Dr. Acampado could be covered by the
privilege, the failure to seasonably object thereto amounted to a
waiver thereof.
DECISION
DAVIDE, JR., J.:
This petition brings into focus the rule on the confidentiality of the
physician-patient relationship. Petitioner urges this Court to strike
down as being violative thereof the resolution of public respondent
Court of Appeals in C.A.-G.R. SP No. 16991 denying due course to a
petition to annul the order of the trial court allowing a Psychiatrist of
the National Mental Hospital to testify as an expert witness and not as
an attending physician of petitioner.
The parties are in agreement as to the following facts:chanrob1es
virtual 1aw library
Petitioner and private respondent are lawfully married to each other.
On 25 November 1987, private respondent filed with Branch 53 of the
Regional Trial Court (RTC) of Pangasinan a petition for annulment of
such marriage on the ground that petitioner has been allegedly
suffering from a mental illness called schizophrenia "before, during and
after the marriage and until the present." After the issues were joined
and the pre-trial was terminated, trial on the merits ensued. Private
respondent presented three (3) witnesses before taking the witness
stand himself to testify on his own behalf. On 11 January 1989, private
respondents counsel announced that he would present as his next
witness the Chief of the Female Services of the National Mental
Hospital, Dr. Lydia Acampado, a Doctor of Medicine who specializes in

Psychiatry. Said counsel forthwith orally applied for the issuance of a

subpoena ad testificandum requiring Dr. Acampado to testify on 25
January 1989. Petitioners counsel opposed the motion on the ground
that the testimony sought to be elicited from the witness is privileged
since the latter had examined the petitioner in a professional capacity
and had diagnosed her to be suffering from schizophrenia. Over such
opposition, the subpoena was issued on 12 January 1989.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
On 24 January 1989, petitioners counsel filed an urgent omnibus
motion to quash the subpoena and suspend the proceedings pending
resolution of the motion.
Before Dr. Acampado took the witness stand on 25 January 1989, the
court heard this urgent motion. Movant argued that having seen and
examined the petitioner in a professional capacity, Dr. Acampado is
barred from testifying under the rule on the confidentiality of a
physician-patient relationship. Counsel for private respondent
contended, however, that Dr. Acampado would be presented as an
expert witness and would not testify on any information acquired while
attending to the petitioner in a professional capacity. The trial court,
per respondent Judge, denied the motion and allowed the witness to
testify. Dr. Acampado thus took the witness stand, was qualified by
counsel for private respondent as an expert witness and was asked
hypothetical questions related to her field of expertise. She neither
revealed the illness she examined and treated the petitioner for nor
disclosed the results of her examination and the medicines she had
prescribed.
Since petitioners counsel insisted that the ruling of the court on the
motion be reduced to writing, respondent Judge issued the following
Order on the same date:jgc:chanrobles.com.ph
"In his omnibus motion filed with the Court only yesterday, January 24,
1989, petitioner seeks to prevent Dr. Lydia Acampado from testifying
because she saw and examined respondent Nelly Lim in her
professional capacity perforce her testimony is covered by the
privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is being presented as an expert
witness and that she will not testify on any information she acquired in
(sic) attending to Nelly Lim in her professional capacity.
Based on the foregoing manifestation of counsel for petitioner, the
Court denied the respondents motion and forthwith allowed Dr.
Acampado to testify. However, the Court advised counsel for

respondent to interpose his objection once it becomes apparent that

the testimony sought to be elicited is covered by the privileged
communication rule.
On the witness box, Dr. Acampado answered routinary (sic) questions
to qualify her as an expert in psychiatry; she was asked to render an
opinion as to what kind of illness (sic) are stelazine tablets applied to;
she was asked to render an opinion on a (sic) hypothetical facts
respecting certain behaviours of a person; and finally she admitted she
saw and treated Nelly Lim but she never revealed what illness she
examined and treated her (sic); nor (sic) the result of her examination
of Nelly Lim, nor (sic) the medicines she prescribed.
WHEREFORE, the omnibus motion dated January 19, 1989 is hereby
DENIED." 1
On 3 March 1989, petitioner filed with the public respondent Court of
Appeals a petition 2 forcertiorari and prohibition, docketed therein as
C.A.-G.R. SP No. 16991, to annul the aforesaid order of respondent
Judge on the ground that the same was issued with grave abuse of
discretion amounting to lack of jurisdiction, and to prohibit him from
proceeding with the reception of Dr. Acampados
testimony.chanrobles.com : virtual law library
On 18 September 1989, the Court of Appeals promulgated a resolution
3 denying due course to the petition on the ground that "the petitioner
failed in establishing the confidential nature of the testimony given by
or obtained from Dr. Acampado when she testified on January 25,
1989." Hence, the respondent Judge committed no grave abuse of
discretion. In support thereof, the respondent Court discussed the
conditions which would render as inadmissible testimonial evidence
between a physician and his patient under paragraph (c), Section 24,
Rule 130 of the Revised Rules of Court and made the following
findings:jgc:chanrobles.com.ph
"The present suit is a civil case for annulment of marriage and the
person whose testimony is sought to be stopped as a privileged
communication is a physician, who was summoned by the patient in
her professional capacity for curative remedy or treatment. The
divergence in views is whether the information given by the physician
in her testimony in open court on January 25, 1989 was a privileged
communication. We are of the opinion that they do not fall within the
realm of a privileged communication because the information were
(sic) not obtained from the patient while attending her in her
professional capacity and neither were (sic) the information necessary
to enable the physician to prescribe or give treatment to the patient

Nelly Lim. And neither does the information obtained from the
physician tend to blacken the character of the patient or bring disgrace
to her or invite reproach. Dr. Acampado is a Medical Specialist II and incharge (sic) of the Female Service of the National Center for Mental
Health a fellow of the Philippine Psychiatrist Association and a
Diplomate of the Philippine Board of Psychiatrists. She was summoned
to testify as an expert witness and not as an attending physician of
petitioner.
After a careful scrutiny of the transcript of Dr. Acampados testimony,
We find no declaration that touched (sic) or disclosed any information
which she has acquired from her patient, Nelly Lim, during the period
she attended her patient in a professional capacity. Although she
testified that she examined and interviewed the patient, she did not
disclose anything she obtained in the course of her examination,
interview and treatment of her patient. Given a set of facts and asked
a hypothetical question, Dr. Acampado rendered an opinion regarding
the history and behaviour of the fictitious character in the hypothetical
problem. The facts and conditions alleged in the hypothetical problem
did not refer and (sic) had no bearing to (sic) whatever information or
findings the doctor obtained from attending the (sic) patient. A
physician is not disqualified to testify as an expert concerning a
patients ailment, when he can disregard knowledge acquired in
attending such patient and make answer solely on facts related in (sic)
the hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme Court
of Arizona Jan. 7, 1926). Expert testimony of a physician based on
hypothetical question (sic) as to cause of illness of a person whom he
has attended is not privileged, provided the physician does not give
testimony tending to disclose confidential information related to him in
his professional capacity while attending to the patient. (Crago v. City
of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol. 3, p. 843, 3rd
Ed.).
The rule on privilege (sic) communication in the relation of physician
and patient proceeds from the fundamental assumption that the
communication to deserve protection must be confidential in their
origin. Confidentiality is not to be blindly implied from the mere
relation of physician and patient. It might be implied according to
circumstances of each case, taking into consideration the nature of the
ailment and the occasion of the consultation. The claimant of the
privilege has the burden of establishing in each instance all the facts
necessary to create the privilege, including the confidential nature of
the information given." 4
Her motion to reconsider the resolution having been denied, petitioner
took this recourse under Rule 45 of the Rules of Court. In her view, the

respondent Court of Appeals "seriously erred" :chanrob1es virtual 1aw

library
"I.
. . . in not finding that all the essential elements of the rule on
physician-patient privileged communication under Section 21, Rule 130
of the Rules of Court (Section 24, Rule 130 of the Revised Rules of
Evidence) exist in the case at bar.
II.
. . . in believing that Dr. Acampado was summoned as an expert
witness and not as an attending physician of petitioner.
III.
. . . in concluding that Dr. Acampado made no declaration that touched
(sic) or disclosed any information which she has acquired from her
patient, Nelly Lim, during the period she attended her patient in a
professional capacity.
IV.
. . . in declaring that the petitioner failed in establishing the
confidential nature of the testimony given by or obtained from Dr.
Acampado." 5
We gave due course to the petition and required the parties to submit
their respective Memoranda 6 after the private respondent filed his
Comment 7 and the petitioner submitted her reply 8 thereto. The
parties subsequently filed their separate Memoranda.
The petition is devoid of any merit. Respondent Court of Appeals
committed no reversible error in its challenged resolution.
The law in point is paragraph (c), Section 24 of the Revised Rules on
Evidence which reads:jgc:chanrobles.com.ph
"SECTION 24. Disqualification by reason of privileged communication.
The following persons cannot testify as to matters learned in
confidence in the following cases:chanrob1es virtual 1aw library

(c) A person authorized to practice medicine, surgery or obstetrics

cannot in a civil case, without the consent of the patient, be examined
as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the
patient." chanrobles virtual lawlibrary
This is a reproduction of paragraph (c), Section 21, Rule 130 of the
1964 Revised Rules of Court with two (2) modifications, namely: (a) the
inclusion of the phrase "advice or treatment given by him," and (b)
substitution of the word reputation for the word character. Said Section
21 in turn is a reproduction of paragraph (f), Section 26, Rule 123 of
the 1940 Rules of Court with a modification consisting in the change of
the phrase "which would tend to blacken" in the latter to "would
blacken." 9 Verily, these changes affected the meaning of the
provision. Under the 1940 Rules of Court, it was sufficient if the
information would tend to blacken the character of the patient. In the
1964 Rules of Court, a stricter requirement was imposed; it was
imperative that the information would blacken such character. With the
advent of the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with the
word reputation. There is a distinction between these two concepts."
Character is what a man is, and reputation is what he is supposed to
be in what people say he is.Character depends on attributes
possessed, and reputation on attributes which others believe one to
possess. The former signifies reality and the latter merely what is
accepted to be reality at present." 10
This rule on the physician-patient privilege is intended to facilitate and
make safe full and confidential disclosure by the patient to the
physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and
publication on the witness stand, to the end that the physician may
form a correct opinion, and be enabled safely and efficaciously to treat
his patient. 11 It rests in public policy and is for the general interest of
the community. 12
Since the object of the privilege is to protect the patient, it may be
waived if no timely objection is made to the physicians testimony. 13
In order that the privilege may be successfully claimed, the following
requisites must concur:jgc:chanrobles.com.ph

"1. the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics;
3. such person acquired the information while he was attending to the
patient in his professional capacity;
4. the information was necessary to enable him to act in that capacity;
and
5. the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient." 14
These requisites conform with the four (4) fundamental conditions
necessary for the establishment of a privilege against the disclosure of
certain communications, to wit:jgc:chanrobles.com.ph
"1. The communications must originate in a confidence that they will
not be disclosed.
2. This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community
ought to be sedulously fostered
4. The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for
the correct disposal of litigation." 15
The physician may be considered to be acting in his professional
capacity when he attends to the patient for curative, preventive, or
palliative treatment. Thus, only disclosures which would have been
made to the physician to enable him "safely and efficaciously to treat
his patient" are covered by the privilege. 16 It is to be emphasized that
"it is the tenor only of the communication that is privileged. The mere
fact of making a communication, as well as the date of a consultation
and the number of consultations, are therefore not privileged from
disclosure, so long as the subject communicated is not stated." 17
One who claims this privilege must prove the presence of these
aforementioned requisites. 18
Our careful evaluation of the submitted pleadings leads Us to no other

course of action but to agree with the respondent Courts observation

that the petitioner failed to discharge that burden. In the first place, Dr.
Acampado was presented and qualified as an expert witness. As
correctly held by the Court of Appeals, she did not disclose anything
obtained in the course of her examination, interview and treatment of
the petitioner; moreover, the facts and conditions alleged in the
hypothetical problem did not refer to and had no bearing on whatever
information or findings the doctor obtained while attending to the
patient. There is, as well, no showing that Dr. Acampados answers to
the questions propounded to her relating to the hypothetical problem
were influenced by the information obtained from the petitioner.
Otherwise stated, her expert opinion excluded whatever information or
knowledge she had about the petitioner which was acquired by reason
of the physician-patient relationship existing between them. As an
expert witness, her testimony before the trial court cannot then be
excluded. The rule on this point is summarized as follows:chanrobles
virtual lawlibrary
"The predominating view, with some scant authority otherwise, is that
the statutory physician-patient privilege, though duly claimed, is not
violated by permitting a physician to give expert opinion testimony in
response to a strictly hypothetical question in a lawsuit involving the
physical mental condition of a patient whom he has attended
professionally, where his opinion is based strictly upon the hypothetical
facts stated, excluding and disregarding any personal professional
knowledge he may have concerning such patient. But in order to avoid
the bar of the physician-patient privilege where it is asserted in such a
case, the physician must base his opinion solely upon the facts
hypothesized in the question, excluding from consideration his
personal knowledge of the patient acquired through the physician and
patient relationship. If he cannot or does not exclude from
consideration his personal professional knowledge of the patients
condition he should not be permitted to testify as to his expert
opinion." 19
Secondly, it is quite clear from Dr. Acampados testimony that the
petitioner was never interviewed alone. Said interviews were always
conducted in the presence of a third party, thus:jgc:chanrobles.com.ph
"Q I am asking you, doctor, whom did you interview?
A I interviewed the husband first, then the father and after having the
history, I interviewed the patient, Nelly.
Q How many times did Juan Sim and Nelly Lim go to your office?

A Now, the two (2) of them came three (3) times. As I have stated
before, once in the month of April of 1987 and two (2) times for the
month of June 1987, and after that, since July of 1987, it was the father
of Nelly, Dr. Lim, who was bringing Nelly to me until November of 1987.
Q Now, Dr. Lim is a fellow physician?
A Yes, I understand.
Q Was there anything that he told you when he visited with you in a
clinic?
A I would say that there was none. Even if I asked information about
Nelly, I could not get anything from Dr. Lim.
Q Now, when Dr. Lim and his daughter went to your clinic, was there
any doctor who was also present during that interview?
A No, sir, I dont remember any." 20
There is authority to the effect that information elicited during
consultation with a physician in the presence of third parties removes
such information from the mantle of the
privilege:jgc:chanrobles.com.ph
"Some courts have held that the casual presence of a third person
destroys the confidential nature of the communication between doctor
and patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached a
contrary result." 21
Thirdly, except for the petitioners sweeping claim that" (T)he
information given by Dr. Acampado brings disgrace and invite (sic)
reproach to petitioner by falsely making it appear in the eyes of the
trial court and the public that the latter was suffering from a mental
disturbance called schizophrenia which caused, and continues to
cause, irreparable injury to the name and reputation of petitioner and
her family," 22 which is based on a wrong premise, nothing specific
or concrete was offered to show that indeed, the information obtained
from Dr. Acampado would blacken the formers "character" (or
"reputation"). Dr. Acampado never disclosed any information obtained
from the petitioner regarding the latters ailment and the treatment
recommended therefor.chanrobles.com : virtual law library
Finally, while it may be true that counsel for the petitioner opposed the
oral request for the issuance of a subpoena ad testificandum to Dr.

Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes
no claim in any of her pleadings that her counsel had objected to any
question asked of the witness on the ground that it elicited an answer
that would violate the privilege, despite the trial courts advise that
said counsel may interpose his objection to the testimony "once it
becomes apparent that the testimony, sought to be elicited is covered
by the privileged communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in the
petitioners Petition 23 and Memorandum, 24 and in the private
respondents Memorandum, 25 do not at all show that any objections
were interposed. Even granting ex gratia that the testimony of Dr.
Acampado could be covered by the privilege, the failure to seasonably
object thereto amounted to a waiver thereof.
WHEREFORE, the instant petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on official leave.