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Torts 3

Cases for Torts 3 (Presumptions of


Negligence)
Contents
1. TISON VS. SPS. POMASIN ........................................... 2
2. SANITARY STEAM VS. CA ........................................... 7
3. ANONUEVO VS. CA .................................................... 13
4. PROFESSIONAL SERVICES VS. AGANA .................. 19
5. JOSEFA VS. MANILA ELECTRIC CO. ........................ 24
6. BJDC CONSTRUCTION VS. LANUZO ........................ 30
7. LAYUGAN VS IAC ....................................................... 38
8. TAN VS. JAM TRANSIT ............................................... 44
9. COLLEGE ASSURANCE VS. BELFRANLT ................ 51
10. DM CONSUNJU VS. CA .............................................. 55
11. CRUZ VS. CA ............................................................... 63
12. CASUMPANG VS. CORTEJO...................................... 70
13. BORROMEO VS. FAMILY CARE HOSPITAL INC ...... 85
14. CAYAO-LASAM VS. SPS. RAMOLETE ...................... 93
15. LUCAS VS. TUANO ................................................... 100
16. RAMOS VS. CA .......................................................... 110
17. CRUZ VS. AGAS ........................................................ 123
18. ROSIT VS. DAVAO DOCTORS HOSPITAL............... 126
19. SOLIDUM VS. PEOPLE ............................................. 131

1|P a g e

Torts 3

ALBERT TISON AND CLAUDIO L. JABON, PETITIONERS, VS.


SPS. GREGORIO POMASIN AND CONSORCIA PONCE

Albert Tison (Tison), the owner of the truck, extended financial

POMASIN, DIANNE POMASIN PAGUNSAN, CYNTHIA

assistance to respondents by giving them P1,000.00 each

POMASIN, SONIA PEROL, ANTONIO SESISTA, GINA

immediately after the accident and P200,000.00 to Cynthia

SESISTA, AND REYNALDO SESISTA, RESPONDENTS.

Pomasin (Cynthia), one of Gregorio's daughters. Cynthia, in turn,


executed an Affidavit of Desistance.

DECISION
On 14 November 1994, respondents filed a complaint for damages
PEREZ, J.:

against petitioners before the Regional Trial Court (RTC) of


Antipolo. They alleged that the proximate cause of the accident

Two vehicles, a tractor-trailer and a jitney,

[1]

figured in a vehicular

was the negligence, imprudence and carelessness of petitioners.

mishap along Maharlika Highway in Barangay Agos, Polangui,

Respondents prayed for indemnification for the heirs of those who

Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving

perished in the accident at P50,000.00 each; P500,000.00 for

the jitney towards the direction of Legaspi City while the tractor-

hospitalization, medical and burial expenses; P350,000.00 for

trailer, driven by Claudio Jabon (Jabon), was traversing the

continuous hospitalization and medical expenses of Spouses

opposite lane going towards Naga City.

[2]

Pomasin; P1,000,000.00 as moral damages; P250,000.00 as


exemplary damages; P30,000.00 for loss of income of Cynthia;

The opposing parties gave two different versions of the incident.

P100,000.00 as attorney's fees plus P1,000.00 per court


appearance; P50,000.00 for litigation expenses; and cost of suit.

[7]

Gregorio Pomasin (Gregorio), Laarni's father, was on board the


jitney and seated on the passenger's side. He testified that while

In their Answer, petitioners countered that it was Laarni's

the jitney was passing through a curve going downward, he saw a

negligence which proximately caused the accident. They further

tractor-trailer coming from the opposite direction and encroaching

claimed that Cynthia was authorized by Spouses Pomasin to enter

on the jitney's lane. The jitney was hit by the tractor-trailer and it

into an amicable settlement by executing an Affidavit of

was dragged further causing death and injuries to its

Desistance. Notwithstanding the affidavit, petitioners complained

passengers.

[3]

that respondents filed the instant complaint to harass them and


profit from the recklessness of Laarni. Petitioners counterclaimed

On the other hand, Jabon recounted that while he was driving the

for damages.

tractor-trailer, he noticed a jitney on the opposite lane falling off the


shoulder of the road. Thereafter, it began running in a zigzag

Petitioners subsequently filed a motion to dismiss the complaint in

manner and heading towards the direction of the truck. To avoid

view of the Affidavit of Desistance executed by Cynthia. The

collision, Jabon immediately swerved the tractor-trailer to the right

motion was denied for lack of merit.

[8]

where it hit a tree and sacks of palay. Unfortunately, the jitney still
hit the left fender of the tractor-trailer before it was thrown a few
meters away. The tractor-trailer was likewise damaged.

[4]

On 7 February 2000, the Regional Trial Court rendered judgment


in favor of petitioners dismissing the complaint for damages, the
dispositive portion of which reads:

Multiple death and injuries to those in the jitney resulted.


WHEREFORE, judgment is hereby rendered in favor of the
Gregorio was injured and brought to the Albay Provincial Hospital

defendants and against plaintiffs hereby DISMISSING the instant

in Legaspi City. His daughter, Andrea Pomasin Pagunsan, sister

complaint considering that plaintiffs have authorized Cynthia

Narcisa Pomasin Roncales and Abraham Dionisio Perol died on

Pomasin to settle the case amicably for P200,000.00; and that the

the spot. His other daughter Laarni, the jitney driver, and

proximate cause of the accident did not arise from the fault or

granddaughter Annie Jane Pomasin Pagunsan expired at the

negligence of defendants' driver/employee but from plaintiff's

hospital. His wife, Consorcia Pomasin, another granddaughter

driver.

[9]

Dianne Pomasin Pagunsan, Ricky Ponce, Vicente Pomasin, Gina


Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol
sustained injuries.

[5]

On the other hand, Jabon and one of the

passengers in the tractor-trailer were injured.

[6]

The trial court considered the testimony of Jabon regarding the


incident more convincing and reliable than that of Gregorio's, a
mere passenger, whose observation and attention to the road is
2|P a g e

Torts 3

not as focused as that of the driver. The trial court concluded that
Laarni caused the collision of the jitney and the tractor-trailer. The

d) Attorney's fees of 10% of the total award.

[10]

trial court likewise upheld the Affidavit of Desistance as having


been executed with the tacit consent of respondents.

Petitioners filed a Motion for Reconsideration, which was,


however, denied by the Court of Appeals in a Resolution

The Court of Appeals disagreed with the trial court and ruled that

[11]

dated

19 July 2006.

the reckless driving of Jabon caused the vehicular collision. In


support of such finding, the Court of Appeals relied heavily on

The petition for review raises mixed questions of fact and law

Gregorio's testimony that Jabon was driving the tractor-trailer

which lead back to the very issue litigated by the trial court: Who

downward too fast and it encroached the lane of the jitney. Based

is the negligent party or the party at fault?

on the gravity of the impact and the damage caused to the jitney
[12]

resulting in the death of some passengers, the Court of Appeals

The issue of negligence is factual in nature.

And the rule, and

inferred that Jabon must be speeding. The appellate court noted

the exceptions, is that factual findings of the Court of Appeals are

that the restriction in Jabon's driver's license was violated, thus,

generally conclusive but may be reviewed when: (1) the factual

giving rise to the presumption that he was negligent at the time of

findings of the Court of Appeals and the trial court are

the accident. Tison was likewise held liable for damages for his

contradictory; (2) the findings are grounded entirely on

failure to prove due diligence in supervising Jabon after he was

speculation, surmises or conjectures; (3) the inference made by

hired as driver of the truck. Finally, the appellate court

the Court of Appeals from its findings of fact is manifestly

disregarded the Affidavit of Desistance executed by Cynthia

mistaken, absurd or impossible; (4) there is grave abuse of

because the latter had no written power of attorney from

discretion in the appreciation of facts; (5) the appellate court, in

respondents and that she was so confused at the time when she

making its findings, goes beyond the issues of the case and such

signed the affidavit that she did not read its content.

findings are contrary to the admissions of both appellant and


appellee; (6) the judgment of the Court of Appeals is premised on

The dispositive portion of the assailed Decision states:

a misapprehension of facts; (7) the Court of Appeals fails to notice


certain relevant facts which, if properly considered, will justify a

WHEREFORE, the present appeal is granted, and the trial court's

different conclusion; and (8) the findings of fact of the Court of

Decision dated February 7, 2003 is set aside. Defendants-

Appeals are contrary to those of the trial court or are mere

appellees are ordered to pay plaintiffs-appellants or their heirs the

conclusions without citation of specific evidence, or where the

following:

facts set forth by the petitioner are not disputed by respondent, or


where the findings of fact of the Court of Appeals are premised on

a) Actual damages of P136,000.00 as above computed, to be

the absence of evidence but are contradicted by the evidence on

offset with the P200,000.00 received by plaintiff-appellant Cynthia

record.

[13]

Pomasin;
The exceptions to the rule underscore the substance and weight of
b) Civil indemnity of P50,000.00 for the death of each victim, to be

the findings of the trial court. They render inconclusive contrary

offset with the balance of P64,000.00 from the aforementioned

findings by the appellate court. The reason is now a fundamental

P200,000.00 of civil indemnity received by plaintiff-appellant

principle:

Cynthia Pomasin. Hence, the net amount is computed at


P37,200.00 each, as follows:

[A]ppellate courts do not disturb the findings of the trial courts with
regard to the assessment of the credibility of witnesses. The

Narcisa Pomasin

P37,200.00

Laarni Pomasin

P37,200.00

Andrea P. Pagunsan

P37,200.00

Dionisio Perol

P37,200.00

Annie Jane P. Pagunsan P37,200.00

reason for this is that trial courts have the `unique opportunity to
observe the witneses first hand and note their demeanor, conduct
and attitude under grilling examination.
The exceptions to this rule are when the trial court's findings of
facts and conclusions are not supported by the evidence on

c) Moral damages of P50,000.00 to each of the victims; and

record, or when certain facts of substance and value, likely to


change the outcome of the case, have been overlooked by the trial
3|P a g e

Torts 3

court, or when the assailed decision is based on a


misapprehension of facts.

[14]

be more reliable than the version of a mere passenger of Plaintiffs'


vehicle, simply because the attention of the passenger is not as
much concentrated on the driving as that of the driver,

This interplay of rules and exceptions is more pronounced in this

consequently the capacity for observation of the latter of the latter

case of quasi-delict in which, according to Article 2176 of the Civil

on the matter testified to which is the precise point of inquiry --- the

Code, whoever by act or omission causes damage to another,

proximate cause of the accident --- is more reasonably reliable.

there being fault or negligence, is obliged to pay for the damage

Moreover, the passenger's vision is not as good as that of the

done. To sustain a claim based on quasi-delict, the following

driver from the vantage point of the driver's seat especially in

requisites must concur: (a) damage suffered by the plaintiff; (b)

nighttime, thus rendering a passenger's opportunity for observation

fault or negligence of defendant; and (c) connection of cause and

on the antecedent causes of the collision lesser than that of the

effect between the fault or negligence of defendant and the

driver. This being so, this Court is more inclined to believe the

damage incurred by the plaintiff.

[15]

These requisites must be

proved by a preponderance of evidence.

[16]

The claimants,

story of defendant's driver Claudio Jabon that the jitney driven by


Laarni Pomasin fell off the shoulder of the curved road causing it

respondents in this case, must, therefore, establish their claim or

to run thereafter in a zigzag manner and in the process the two

cause of action by preponderance of evidence, evidence which is

vehicles approaching each other from opposite directions at

of greater weight, or more convincing than that which is offered in

highway speed came in contact with each other, the zigzagging

opposition to it.

[17]

jeep hitting the left fender of the truck all the way to the fuel tank,
the violent impact resulting in the lighter vehicle, the jitney, being

The trial court found that the jitney driver was negligent. We give

thrown away due to the disparate size of the truck.

[18]

weight to this finding greater than the opposite conclusion reached


by the appellate court that the driver of the tractor-trailer caused

The appellate court labelled the trial court's rationalization as a

the vehicular collision.

"sweeping conjecture"

[19]

and countered that Gregorio was actually

occupying the front seat of the jitney and had actually a clear view
One reason why the trial court found credible the version of Jabon

of the incident despite the fact that he was not driving.

was because his concentration as driver is more focused than that


of a mere passenger. The trial court expounded, thus:

While it is logical that a driver's attention to the road travelled is


keener than that of a mere passenger, it should also be

In the appreciation of the testimony of eye-witnesses, one

considered that the logic will hold only if the two are similarly

overriding consideration is their opportunity for observation in

circumstanced, and only as a general rule, so that, it does not

getting to know or actually seeing or observing the matter they

necessarily follow that between the opposing testimonies of a

testify to. This most particularly holds true in vehicular collision or

driver and a passenger, the former is more credible. The factual

accident cases which oftentimes happen merely momentarily or in

setting of the event testified on must certainly be considered.

the split of a second. In the case of a running or travelling vehicle,


especially in highway travel which doubtless involves faster speed

The trial court did just that in the instant case. Contrary to the

than in ordinary roads, the driver is concentrated on his driving

observation of the Court of Appeals, the relative positions of a

continuously from moment to moment even in long trips. While in

driver and a passenger in a vehicle was not the only basis of

the case of a mere passenger, he does not have to direct his

analysis of the trial court. Notably, aside from Jabon's alleged

attention to the safe conduct of the travelling vehicle, as in fact he

vantage point to clearly observe the incident, the trial court also

may converse with other passengers and pay no attention to the

took into consideration Gregorio's admission that prior to the

driving or safe conduct of the travelling vehicle, as he may even

accident, the jitney was running on the "curving and downward"

doze off to sleep if he wants to, rendering his opportunity for

portion of the highway. The appellate court, however, took into

observation on the precise cause of the accident or collision or

account the other and opposite testimony of Gregorio that it was

immediately preceding thereto not as much as that of the driver

their jitney that was going uphill and when it was about to reach a

whose attention is continuously focused on his driving. So that as

curve, he saw the incoming truck running very fast and

between the respective versions of the plaintiffs thru their

encroaching the jitney's lane.

passenger and that of the defendants thru their driver as to the


cause or antecedent causes that led to the vehicular collision in

We perused the transcript of stenographic notes and found that

this case, the version of the driver of defendant should ordinarily

the truck was actually ascending the highway when it collided with
4|P a g e

Torts 3

the descending jitney.

described the road condition where the collision took place as


"curving and downward," thus:

During the direct examination, Jabon narrated that the tractortrailer was ascending at a speed of 35 to 40 kilometers per hour

Q:

happened in so far as the road condition is concerned?

when he saw the jitney on the opposite lane running in a zigzag


manner, thus:
Q:

Could you please describe the place where the incident

A:

The road was curving and downward.

Q:

And the road was of course clear from traffic, is that

Now, when you passed by the municipality of Polangui,

correct?

Albay at about 5:00 of August 12, 1994, could you tell the

A:

Yes sir.

Court if there was any untoward incident that happened?

Q:

And practically, your jitney was the only car running at that

A:

There was sir.

time?

Q:

Could you please tell the Court?

A:

While on my way to Liboro coming from Sorsogon, I met on

A:

Yes sir.

[22]

(Emphasis supplied).

my way a vehicle going on a zigzag direction and it even fell Significantly, this is a confirmation of the testimony of Jabon.
on the shoulder and proceeded going on its way on a
Q:

zigzag direction.

However, on rebuttal, Gregorio turned around and stated that the

Could you describe to the Court what was the kind of

jitney was going uphill when he saw the tractor-trailer running

vehicle you saw running in zigzag direction?

down very fact and encroaching on their lane, to wit:

A:

A Toyota-jitney loaded with passengers with top-load.

Q:

You said that the top[-]load of the jeep is loaded?

A:

Yes, sir.

Q:

Could you please tell the Court what was your speed at the

Q:

with your owner jeepney that you were riding testified in


open Court on July 24, 1997 which I quote, `while on my
way to Liboro coming to Sorsogon I met a vehicle going on

time when you saw that jeepney with top[-]load running on a

a zig-zag direction and it even fell on the shoulder and

zigzag manner?
A:

Mr. Claudio Jabon, the driver of the trailer truck that collided

proceeded going on its way on zig-zag direction', what can

I was running 35 to 40 kilometers per hour because I was


ascending plain. (Emphasis supplied).

you say about this statement of this witness?

[20]

A:
In that same direct examination, Jabon confirmed that he was

We were no[t] zigzagging but because we were going


uphill and about to reach a curved (sic) we saw the oncoming vehicle going down very fast and encroaching on

ascending, viz:

our lane so our driver swerved our vehicle to the right but
Q:
A:

[23]

Could you please describe the condition in the area at the

still we were hit by the on-coming vehicle.

time of the incident, was it dark or day time?

supplied).

(Emphasis

It was still bright.

COURT:But it was not approaching sunset?

The declaration of Jabon with respect to the road condition was

A:

Yes, sir.

straightforward and consistent. The recollection of Gregorio veered

Q:

Was there any rain at that time?

from "curving and downward" to uphill.

A:

None sir.

his testimony is more credible.

Q:

So the road was dry?

A:

Yes sir.

Q:

You said you were ascending towards the direction of undebated fact, supports the trial court's conclusion that the jitney

A:

[24]

On this point, Jabon and

The fact that the jitney easily fell into the road shoulder, an

Liboro, Camarines Sur, is that correct at the time the

was indeed going downhill which, it may be repeated, was the

incident happened?

original testimony of Gregorio that the road was "curving and

Yes sir.

[21]

downward."

[25]

It is this conclusion, prodded by the inconsistency of

Gregorio's testimony, that gives credence to the further testimony


(Emphasis supplied).

of Jabon that the herein respondent's jitney, "loaded with


passengers with top-load" "was running in a zigzag manner."

[26]

Upon the other hand, Gregorio, during his direct examination


Going downward, the jitney had the tendency to accelerate. The

5|P a g e

Torts 3

fall into the shoulder of the road can result in the loss of control of

Instead, he relied on a putative presumption that these violations

the jitney, which explains why it was running in a zigzag manner

in themselves sufficiently established negligence appreciable

before it hit the tractor-trailer.

against the cyclist. Since the onus on Aonuevo is to conclusively


prove the link between the violations and the accident, we can

There was no showing that the tractor-trailer was speeding. There deem him as having failed to discharge his necessary burden of
is a preponderance of evidence that the tractor-trailer was in fact

proving the cyclist's own liability."

ascending. Considering its size and the weight of the tractor-

that:

[30]

We took the occasion to state

trailer, its speed could not be more than that of a fully loaded jitney
which was running downhill in a zigzagging manner.

The rule on negligence per se must admit qualifications that may


arise from the logical consequences of the facts leading to the

Neither can it be inferred that Jabon was negligent. In hindsight, it

mishap. The doctrine (and Article 2185, for that matter) is

can be argued that Jabon should have swerved to the right upon

undeniably useful as a judicial guide in adjudging liability, for it

seeing the jitney zigzagging before it collided with the tractor-

seeks to impute culpability arising from the failure of the actor to

trailer. Accidents, though, happen in an instant, and,

perform up to a standard established by a legal fiat. But the

understandably in this case, leaving the driver without sufficient

doctrine should not be rendered inflexible so as to deny relief

time and space to maneuver a vehicle the size of a tractor-trailer

when in fact there is no causal relation between the statutory

uphill and away from collision with the jitney oncoming downhill.

violation and the injury sustained. Presumptions in law, while


convenient, are not intractable so as to forbid rebuttal rooted in

Clearly, the negligence of Gregorio's daughter, Laarni was the

fact. After all, tort law is remunerative in spirit, aiming to provide

proximate cause of the accident.

compensation for the harm suffered by those whose interests have


been invaded owing to the conduct of other.

[31]

We did not lose sight of the fact that at the time of the incident,
Jabon was prohibited from driving the truck due to the restriction

In the instant case, no causal connection was established between

imposed on his driver's license, i.e., restriction code 2 and 3. As a

the tractor-trailer driver's restrictions on his license to the vehicular

matter of fact, Jabon even asked the Land Transportation Office to

collision. Furthermore, Jabon was able to sufficiently explain that

reinstate his articulated license containing restriction code 8 which

the Land Transportation Office merely erred in not including

would allow him to drive a tractor-trailer. The Court of Appeals

restriction code 8 in his license.

concluded therefrom that Jabon was violating a traffic regulation at


the time of the collision.

Petitioners presented the Affidavit of Desistance executed by


Cynthia to exonerate them from any liability. An affidavit of

Driving without a proper license is a violation of traffic regulation.

desistance is usually frowned upon by courts. Little or no

Under Article 2185 of the Civil Code, the legal presumption of

persuasive value is often attached to a desistance.

negligence arises if at the time of the mishap, a person was

affidavit does not deserve a second look more so that it appears

violating any traffic regulation. However, in Sanitary Steam

that Cynthia was not armed with a special power of attorney to

Laundry, Inc. v. Court of Appeals,

[27]

[32]

The subject

we held that a causal

enter into a settlement with petitioners. At any rate, it is an

connection must exist between the injury received and the

exercise of futility to delve into the effects of the affidavit of

violation of the traffic regulation. It must be proven that the

desistance executed by one of the respondents since it has

violation of the traffic regulation was the proximate or legal cause

already been established that petitioners are not negligent.

of the injury or that it substantially contributed thereto. Negligence,


consisting in whole or in part, of violation of law, like any other

WHEREFORE, the petition is GRANTED. The challenged

negligence, is without legal consequence unless it is a contributing Decision and Resolution of the Court of Appeals are REVERSED
cause of the injury.

[28]

Likewise controlling is our ruling in

Aonuevo v. Court of Appeals

[29]

where we reiterated that

negligence per se, arising from the mere violation of a traffic

and SET ASIDE. Civil Case No. 94-3418 lodged before the
Regional Trial Court of Antipolo City, Branch 74, is DISMISSED for
lack of merit.

statute, need not be sufficient in itself in establishing liability for


damages. In said case, Aonuevo, who was driving a car, did not

SO ORDERED.

attempt "to establish a causal connection between the safety


violations imputed to the injured cyclist, and the accident itself.
6|P a g e

Torts 3

SANITARY STEAM LAUNDRY, INC., PETITIONER, VS. THE


COURT OF APPEALS, NICANOR BERNABE III, JOSEFINA

The driver of the Cimarron, Rolando Hernandez, and two of his

BERNABE, IN THEIR INDIVIDUAL CAPACITIES AND AS HEIRS passengers, namely, Jason Bernabe and Dalmacio Salunoy, died.
OF JASON BERNABE, JOHN JOSEPH BERNABE, VICTOR
IGNACIO, JULIETA ENRIQUEZ AND RAMON ENRIQUEZ,

Several of the other passengers of the Cimarron were injured and


taken to various hospitals.

RENE TABLANTE, LEOMAR MACASPAC, JR., CHARITO


ESTOLANO, NENITA SALUNOY, IN THEIR INDIVIDUAL

On December 4, 1980, private respondents filed this civil case for

CAPACITIES AND AS HEIRS OF DALMACIO SALUNOY,

damages before the then Court of First Instance of Rizal, Pasig

RESPONDENTS.
DECISION

Branch, against petitioner.


On November 23, 1990, the Regional Trial Court of Makati, to
which the case was transferred following the reorganization of the

MENDOZA, J.:

judiciary, rendered judgment for private respondents. The


dispositive portion of its decision reads:

This case involves a collision between a Mercedes Benz panel

It is for the reasons stated above that the court is persuaded to

truck of petitioner Sanitary Steam Laundry and a Cimarron which

award the damages incurred by the plaintiffs as proved in the trial

caused the death of three persons and the injuries of several

as follows:

others. The accident took place at the Aguinaldo Highway in Imus,


Cavite on August 31, 1980. All the victims were riding in the

Actual or compensatory expenses:

Cimarron. One of those who died was the driver. The Regional
Trial Court of Makati found petitioners driver to be responsible for

a. Charito Estolano

the vehicular accident and accordingly held petitioner liable to

b. Nicanor Bernabe III

private respondents for P472,262.30 in damages and attorneys

& Josefina C. Bernabe

fees. Its decision was affirmed in toto by the Court of Appeals. It is

c. Julieta, Ailyn &

here for a review of the appellate courts decision.

Josefina Enriquez and Josefina Valeiro

P35,813.87 (Exh. J)
20,024.94
45,830.45 (Exh. QQ)

d. Leonor Macaspac 2,740.00


The passengers of the Cimarron were mostly employees of the

e. Victor Rey Ignacio

Project Management Consultants, Inc. (PMCI). They had just

f. Rene Tablante

visited the construction site of a company project at Lian,

g. Nenita Salonoy, widow;

14,820.64 (Exh. EEE)


10,032.40 (Exh. QQQ)
20,000.00

Batangas. The other passengers were family members and friends


whom they invited to an excursion to the beach after the visit to the and Manilyn, children Moral damages should also be awarded as
construction site. The group stayed at Lian beach until 5:30 p.m.,
follows:
when they decided to go back to Manila.

For the injuries sustained by:

The Cimarron, with Plate No. 840-4J, was owned by Salvador

a. Charito Estolano

Salenga, father of one of the employees of PMCI. Driving the

b. Julieta P. Enriquez

15,000.00 (Exh. MM)

vehicle was Rolando Hernandez. It appears that at about 8:00

c. Ailyn C. Enriquez

8,000.00 (Exh. NN)

p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite

d. Josefina R. Enriquez

on its way back to Manila, the Cimarron was hit on its front portion

e. Josefina P. Valerio

by petitioners panel truck, bearing Plate No. 581 XM, which was

f. Nenita Salonoy

traveling in the opposite direction. The panel truck was on its way

g. Nicanor Bernabe III

to petitioners plant in Dasmarias, Cavite after delivering some

h. Josephine Bernabe

2,000.00 (Exh. R)

linen to the Makati Medical Center. The driver, Herman

i. John Joseph Bernabe

10,000.00

Hernandez, claimed that a jeepney in front of him suddenly

j. Manilyn G. Salonoy

stopped. He said he stepped on the brakes to avoid hitting the

k. Jack Salonoy

jeepney and that this caused his vehicle to swerve to the left and

l. Leonor C. Macaspac

encroach on a portion of the opposite lane. As a result, his panel

m. Victor Ignacio

8,000.00 (Exh. DDD)

truck collided with the Cimarron on the north-bound lane.

n. Rene Tablanta

8,000.00 (Exh. FFF)

P10,000.00 (Exh. F)

10,000.00 (Exh. OO)


2,000.00 (Exh. PP)
20,000.00 (Exh. DD)
8,000.00 (Exh. Q)

10,000.00 (Exh. EE)


10,000.00 (Exh. JJ)
2,000.00 (Exh. AAA)

7|P a g e

Torts 3

Appeals,
and finally the heirs of Jason Bernabe should be awarded the sum

[1]

which allegedly held that the sudden swerving of a

vehicle caused by its driver stepping on the brakes is not

of P50,000.00 for the latters death. The heirs of Dalmacio Salunoy negligence per se. Petitioner further claims that even if petitioners
should be given the sum of P100,000.00 for moral damages and

swerving to the lane of respondents were considered proof of

unearned income.

negligence, this fact would not negate the presumption of


negligence on the part of the other driver arising from his violations

The foregoing considered, judgment is rendered in favor of

of traffic rules and regulations.

plaintiffs ordering defendant to pay the amounts aforecited and to


pay the further sum of P50,000.00 for attorneys fees and the

Petitioner likewise invokes the ruling in Mckee v. Intermediate

costs.

Appellate Court,

[2]

in which a driver who invaded the opposite lane

and caused a collision between his car and a truck coming from
SO ORDERED.

the opposite lane, was exonerated based on the doctrine of last

As already stated, the Court of Appeals, to which the decision of

clear chance, which states that a person who has the last clear

the trial court was appealed, affirmed the decision on January 26,

chance or opportunity of avoiding an accident, notwithstanding the

1995. Hence, this appeal.

negligent acts of his opponent, is solely responsible for the


consequences of the accident.

First. Petitioner contends that the driver of the Cimarron was guilty
of contributory negligence and, therefore, its liability should be

Petitioner contends that the ruling in that case should be applied to

mitigated, if not totally extinguished. It claims that the driver of the

the present case. According to petitioner, although the driver of the

Cimarron was guilty of violation of traffic rules and regulations at

panel truck was initially negligent, the driver of the Cimarron had

the time of the mishap. Hence, in accordance with Art. 2185 of the

the last opportunity to avoid the accident. However, because of his

Civil Code, he was presumed to be negligent.

negligence (i.e., the aforementioned violations of traffic rules and


regulations such as the use of only one headlight at night and the

According to petitioner, the negligence consisted of the following:

overcrowding at the front seat of the vehicle), he was not able to


avoid a collision with the panel truck.

1. The Cimarron was overloaded because there were from 20 to


25 passengers inside when the passenger capacity of the vehicle

We find the foregoing contention to be without merit.

was only 17.


First of all, it has not been shown how the alleged negligence of
2. The front seat of the Cimarron was occupied by four adults,

the Cimarron driver contributed to the collision between the

including the driver.

vehicles. Indeed, petitioner has the burden of showing a causal


connection between the injury received and the violation of the

3. The Cimarron had only one headlight on (its right headlight) as

Land Transportation and Traffic Code. He must show that the

its left headlight was not functioning.

violation of the statute was the proximate or legal cause of the


injury or that it substantially contributed thereto. Negligence,

Petitioner cites Art. III, 2 of R.A. No. 4136, known as the Land

consisting in whole or in part, of violation of law, like any other

Transportation and Traffic Code, which provides that "No person

negligence, is without legal consequence unless it is a contributing

operating any vehicle shall allow more passengers or more freight

cause of the injury.

or cargo in his vehicle than its registered carry capacity" and Art.

vehicle with only one functioning headlight during nighttime

IV, 3(e) which states that "Every motor vehicle of more than one

certainly increases the risk of accident,"

meter of projected width, while in use on any public highway shall

Cimarron had only one headlight, there was "decreased visibility,"

bear two headlights... which not later than one-half hour after

and that the fact that the vehicle was overloaded and its front seat

sunset and until at least one-half hour before sunrise and

overcrowded "decreased [its] maneuverability."

whenever weather conditions so require, shall both be lighted."

allegations such as these are not sufficient to discharge its burden

[3]

Petitioner says that "driving an overloaded


[4]

that because the

[5]

However, mere

of proving clearly that such alleged negligence was the


Petitioner asserts that the fact that its panel truck encroached on a

contributing cause of the injury.

portion of the lane of the Cimarron does not show that its driver
was negligent. Petitioner cites the case of Bayasen v. Court of

Furthermore, based on the evidence in this case, there was no


8|P a g e

Torts 3

way either driver could have avoided the collision. The panel truck
driver testified:

headlights of a certain panel owned by Sanitary Steam

[6]

Laundry, Inc.
....

You stated you were following a jeepney along the

You said that the lights were going towards you. Now, at
highway in Imus, Cavite, what happened afterwards, Q:
what pace did these lights come toward you?
if any?
A:
Fast pace."
The passenger jeepney I was following made a
Charito Estolano, another passenger who was seated in front of
sudden stop so I stepped on the brakes.

Q.

A.

Upon stepping on your brakes, what happened if

Q.

the Cimarron, similarly testified that they just saw the panel truck
hurtling toward them. She said:

any?
The Mercedes Benz (panel) suddenly swerved to

A.
Q.

the left, sir.

How big was the swerving to the left?

The distance which my vehicle swerved beyond the


middle line or center line to the left was about this

A.

distance, sir (witness demonstrating by using both


A

hands the distance).


ATTY.
ALILING:

GONZALES:
A little more, 1 1/2 feet.

What was that accident?


An approaching vehicle hit us.
Now, why do you know that there was the approaching
vehicle?
There was a light which glared us and I knew that it came
from a vehicle. We were blinded.
Where was this vehicle headed for?

Headed for Cavite.

Coming from?

Coming from Manila, I think.

ATTY.
A

ALILING:

Now, you said earlier that you were involved in an accident.

Q
Can we stipulate that it is 1 foot, Your Honor.

ATTY.

[8]

So that, actually, in relation to your vehicle, it was coming


from the opposite direction?
Yes, sir.
Now, you said that the light headed towards your vehicle.

1 1/4 feet.
Q

ATTY.

On which side of the highway was your Tamaraw vehicle


travelling at that time?

GONZALES:
A
Between 1 1/4 and 1 1/2 feet.
The panel truck drivers testimony is consistent with the

testimonies of private respondents that the panel truck went out of


control and simply smashed into the Cimarron in which they were
riding. Thus, Nicanor Bernabe III testified:

[7]

We were on the right lane.


Did you actually see this light from the vehicle coming from
the opposite direction heading towards your vehicle?

Yes, sir.

And what happened after that?

After that, there was an impact.

All right. Will you tell the Court which bumped which?

Q:

And did you see how the accident happened?

A:

I just saw a glare of light. That is all and then the impact.

Q:

Where did you see that glare of light?

A:

Coming in front ahead of us.

The foregoing testimonies show that the driver of the panel truck

Q:

When you say ahead of you, was it . . . ?

lost control of his vehicle and bumped the Cimarron. Hence, even

A:

Towards us.

if both headlights of the Cimarron were lighted, it would have been

....
Q:

And from what did those glare of light come from?

A:

Based on information I received, the light came from the

We were bumped by the vehicle which was coming from the


opposite direction.

bumped just the same because the driver of the panel truck could
not stop despite the fact that he applied the brakes. Petitioners
contention that because of "decreased visibility," caused by the
fact that the Cimarron allegedly had only one headlight on, its

9|P a g e

Torts 3

driver failed to see the Cimarron is without any basis in fact. Only

hour, the fact remains that the panel truck was overspeeding

its driver claimed that the Cimarron had only one headlight on. The because the maximum allowable speed for trucks and buses on
police investigator did not state in his report or in his testimony that open country roads, such as the Aguinaldo Highway in Imus,
[13]

the Cimarron had only one headlight on.

Cavite, is only 50 kilometers per hour.

Nor is there any basis in fact for petitioners contention that

The case of Bayasen, which petitioner invokes, cannot apply to

because of overcrowding in the front seat of the Cimarron there

this case. There was no swerving of the vehicle in that case but

was "decreased maneuverability" which prevented the Cimarron

skidding, and it was caused by the fact that the road was wet and

driver from avoiding the panel truck. There is absolutely no basis

slippery. In this case, the road was dry and safe. There was no

for this claim. There is nothing in the testimonies of the

reason for the vehicle to swerve because of road condition. The

passengers of the Cimarron, particularly Charito Estolano, who

only explanation for this occurrence was human error.

was seated in front, which suggest that the driver had no elbow
Petitioners reliance on the McKee case is also misplaced. In that

room for maneuvering the vehicle. To the contrary, from the


testimony of some of the witnesses,

[9]

it appears that the driver of

case, the driver of the vehicle at fault, a truck, had an opportunity

the Cimarron tried to avoid the collision but because of the

to avoid the collision but he ignored the signals from the other

emergency created by the speeding panel truck coming from the

vehicle, a car, to slow down and allow it to safely pass the bridge.

opposite direction he was not able to fully move his Cimarron away In this case, there was no such opportunity given the Cimarron on
from the path of the oncoming vehicle. We are convinced that no

the night of the mishap. Everything happened so quickly that

"maneuvering" which the Cimarron driver could have done would

before the passengers of the Cimarron knew it, the vehicle had

have avoided a collision with the panel truck, given the

been bumped by the truck.

suddenness of the events. Clearly, the overcrowding in the front


Second. On its liability as employer of the negligent driver,

seat was immaterial.

petitioner contends that the non-submission of the NBI clearance


All these point to the fact that the proximate cause of the accident

and police clearance of its driver does not mean that it failed to

was the negligence of petitioners driver. As the trial court noted,

exercise the diligence of a good father of the family in the selection

the swerving of petitioners panel truck to the opposite lane could

and supervision of its employees. It argues that there is no law

mean not only that petitioners driver was running the vehicle at a

requiring employees to submit NBI and police clearance prior to

very high speed but that he was tailgating the passenger jeepney

their employment. Hence, petitioners failure to require submission

ahead of it as well.

of these documents does not mean that it did not exercise due
diligence in the selection and supervision of its employees. On the

Petitioners driver claimed that the distance between the panel


truck and the passenger jeepney in front was about 12 meters.

other hand, it asserts that its employment of Herman Hernandez


[10]

as a driver means that he had passed the screening tests of the

If this was so, he would have had no difficulty bringing his panel

company, including submission of the aforementioned documents.

truck to a stop. It is very probable that the driver did not really

Petitioner maintains that the presumption is that the said driver

apply his brakes (which is why there were no skid marks) but that

submitted NBI and police clearance.

finding the jeepney in front of him to be in close proximity, he tried


to avoid hitting it by swerving his vehicle to the left. In the process,

Petitioner likewise contends that the Court of Appeals position that

however, he invaded a portion of the opposite lane and

it failed to exercise due diligence in the selection and supervision

consequently hit the Cimarron. Indeed, the panel truck driver

of its employees by not requiring its prospective employees to

testified that his vehicle was running at the speed of 60 miles per

undergo psychological and physical tests before employment has

hour.

[11]

He tried to correct himself when asked by petitioners

counsel whether the panel truck speedometer indicated miles or

no basis in law because there is no law requiring such tests prior


to hiring employees.

kilometers by saying that the speedometer measured kilometers


and not miles, but on cross examination his testimony got
[12]

muddled.

The petitioners contention has no merit. The Court of Appeals did


not say that petitioners failure to submit NBI and police clearances
of its driver was proof that petitioner failed to exercise due

Be that as it may, whether the driver meant 60 miles per hour

diligence in the selection of its employees. What the Court of

(which could be 96.77 kilometers per hour) or 60 kilometers per

Appeals said was that petitioners policy of requiring prospective


10 | P a g e

Torts 3

employees to submit NBI and police clearance and to have at least and necessary in view of the circumstances of this case. Moral
two (2) years experience as driver prior to employment was not

damages are awarded to allow the victims to obtain means,

enough to prove the exercise of due diligence and that even this

diversion, or amusement to alleviate the moral suffering they had

policy petitioner failed to prove by its failure to present the drivers

undergone due to the defendants culpable action.

NBI and police records during the trial.

private respondents doubtless suffered some ordeal because

[17]

In this case,

some of them lost their loved ones, while others lost their future.
With respect to the requirement of passing psychological and

Within the meaning of Art. 2217 of the Civil Code, they suffered

physical tests prior to his employment, although no law requires it,

sleepless nights, mental anguish, serious anxiety, and wounded

such circumstance would certainly be a reliable indicator of the

feelings. An award of moral damages in their favor is thus justified.

exercise of due diligence. As the trial court said:

[14]

The award of P50,000.00 to the heirs of Jason Bernabe as death


[18]

. . . No tests of skill, physical as well as mental and emotional,

indemnity is likewise in accordance with law.

However, the

were conducted on their would-be employees. No on-the-job

award of P100,000 to the heirs of Dalmacio Salunoy, denominated

training and seminars reminding employees, especially drivers, of

in the decision of the trial court as "moral damages and unearned

road courtesies and road rules and regulations were done. There

income" cannot be upheld. The heirs were already included among

were no instructions given to defendants drivers as to how to react those awarded moral damages. Marilyn Salunoy was ordered to
in cases of emergency nor what to do after an emergency occurs.

be paid P10,000, Jack Salunoy, P10,000, and their mother Nenita

There was even failure on the part of defendant to present its

Salunoy, P20,000, as moral damages. The amount of P100,000

concerned employees 204 file. All these could only mean failure

was presumably awarded primarily for loss of earning capacity but

on the part of defendant to exercise the diligence required of it of a

even then the amount must be modified. In accordance with our

good father of a family in the selection and supervision of its

cases

employees.

expectancy of Dalmacio Salunoy must be determined by applying

[19]

on this question, the formula for determining the life

the formula 2/3 multiplied by (80 minus the age of the deceased).
Since Salunoy was 46 years of age at the time of his death, as
Indeed, driving exacts a more than usual toll on the senses.

[15]

Accordingly, it behooves employers to exert extra care in the

stated in his death certificate, then his life expectancy was 22.6
years, or up to 68 years old.

selection and supervision of their employees. They must go


beyond the minimum requirements fixed by law. In this case,

Next, his net earnings must be computed. At the time of his death,

David Bautista, the office manager of petitioner in its Dasmarias

Dalmacio Salunoy was earning more than P900.00 a month as

plant, said that petitioner has a policy of requiring job applicants to

bookkeeper at the PMCI so that his annual gross earnings was

submit clearances from the police and the NBI. In the case of

about P11,000.00. From this amount, about 50% should be

applicants for the position of driver they are required to have at

deducted as reasonable and necessary living expenses because it

least two (2) years driving experience and to be holders of a

seems his wife occasionally finds work and thus helps in the

professional drivers license for at least two years. But the

household expenses.

supposed company policies on employment were not in writing.


Nor did Bautista show in what manner he supervised the drivers to

Based on the foregoing, his net earning capacity was P124,300.00

ensure that they drove their vehicles in a safe way.

computed as follows:

Third. With respect to the question of damages, we find no

net earning

[20]

life

reversible error committed in the award of actual damages to


private respondents. To justify an award of actual damages, there

capacity (x) = expectancy x [Gross annual income

must be competent proof of the actual amount of loss. Credence

reasonable & necessary living expenses]

less

can be given only to claims which are duly supported by


receipts.

[16]

Here, the actual damages claimed by private

[2 (80-46)]

22.6

[P11,000 - P5,500]

respondents were duly supported by receipts and appear to have


been really incurred.
As to the moral damages awarded, we find them to be reasonable

x
=

5,500
P124,300.00
11 | P a g e

Torts 3

In addition, the heirs of Dalmacio Salunoy should be paid


P50,000.00 as death indemnity.
Finally, the award of attorneys fees should be disallowed as the
trial court did not give any justification for granting it in its decision.
It is now settled that awards of attorneys fees must be based on
findings of fact and law, stated in the decision of the trial court.

[21]

WHEREFORE, the decision of the Court of Appeals is MODIFIED


in the sense that the award of P100,000.00 denominated "for
moral damages and unearned income" is deleted, and in lieu
thereof the amount of P124,300.00 for loss of earning capacity and
the further amount of P50,000.00 for death indemnity are awarded
to the heirs of Dalmacio Salunoy and the award of P50,000.00 for
attorneys fees is disallowed. In all other respects the appealed
decision is AFFIRMED.
SO ORDERED.

12 | P a g e

Torts 3

[2]

JONAS AONUEVO, PETITIONER VS. HON. COURT OF

RTC.

APPEALS AND JEROME VILLAGRACIA, RESPONDENT.

before the Metropolitan Trial Court of Mandaluyong, but the latter

He had also filed a criminal complaint against Aonuevo

was subsequently acquitted of the criminal charge.


DECISION

[3]

Trial on the

civil action ensued, and in a Decision dated 9 March 1990, the


RTC rendered judgment against Procter and Gamble and

TINGA, J,:

Aonuevo, ordering them to pay Villagracia the amounts of One


Hundred Fifty Thousand Pesos (P150, 000.00). for actual

The bicycle provides considerable speed and freedom of

damages, Ten Thousand Pesos (P10,000.00) for moral damages,

movement to the rider. It derives a certain charm from being

and Twenty Thousand Pesos (P20,000.00) for attorneys fees, as

unencumbered by any enclosure, affording the cyclist the

well as legal costs.

perception of relative liberty. It also carries some obvious risks on

Appeals.

[4]

Both defendants appealed to the Court of

the part of the user and has become the subject of regulation, if
not by the government, then by parental proscription.

[5]

In a Decision

dated 8 May 1997, the Court of Appeals Fourth


[6]

Division affirmed the RTC Decision in toto . After the Court of


[7]

The present petition seeks to bar recovery by an injured cyclist of

Appeals denied the Motion for Reconsideration in a Resolution

damages from the driver of the car which had struck him. The

dated 22 July 1997, Procter and Gamble and Aonuevo filed their

argument is hinged on the cyclists failure to install safety devices

respective petitions for review with this Court. Procter and

on his bicycle. However, the lower courts agreed that the motorist

Gambles petition was denied by this Court in a Resolution dated

himself caused the collision with his own negligence. The facts are

24 November 1997. Aonuevos petition,

deceptively simple, but the resolution entails thorough

given due course,

[9]

[8]

on the other hand, was

and is the subject of this Decision.

consideration of fundamental precepts on negligence.


In arriving at the assailed Decision, the Court of Appeals affirmed
The present petition raises little issue with the factual findings of

the factual findings of the RTC. Among them: that it was

the Regional Trial Court (RTC), Branch 160, of Pasig City, as

Aonuevos vehicle which had struck Villagracia;

affirmed by the Court of Appeals. Both courts adjudged petitioner,

Aonuevos vehicle had actually hit Villagracias left mid-thigh,

Jonas Aonuevo ( Aonuevo ), liable for the damages for the

thus causing a comminuted fracture;

injuries sustained by the cyclist, Jerome Villagracia (Villagracia).

eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo

Instead, the petition hinges on a sole legal question, characterized

was umaarangkada, or speeding as he made the left turn into

as novel by the petitioner: whether Article 2185 of the New Civil

Libertad;

Code, which presumes the driver of a motor vehicle negligent if he

jeepney was obstructing his path as he made the turn. Aonuevo

was violating a traffic regulation at the time of the mishap, should

had enough warning to control his speed;

apply by analogy to non-motorized vehicles.

[1]

[12]

[11]

[10]

that

that as testified by

that considering Aonuevos claim that a passenger


[13]

and that Aonuevo

failed to exercise the ordinary precaution, care and diligence


required of him in order that the accident could have been
[14]

As found by the RTC, and affirmed by the Court of Appeals, the

avoided.

accident in question occurred on 8 February 1989, at around nine

dispute the findings of tortious conduct on his part made by the

in the evening, at the intersection of Boni Avenue and Barangka

lower courts, hinging his appeal instead on the alleged negligence

Drive in Mandaluyong (now a city). Villagracia was traveling along

of Villagracia. Aonuevo proffers no exculpatory version of facts

Boni Avenue on his bicycle, while Aonuevo, traversing the

on his part, nor does he dispute the conclusions made by the RTC

opposite lane was driving his Lancer car with plate number PJJ

and the Court of Appeals. Accordingly, the Court, which is not a

359. The car was owned by Procter and Gamble Inc., the

trier of facts,

employer of Aonuevos brother, Jonathan. Aonuevo was in the

the lower courts, which following jurisprudence have to be

course of making a left turn towards Libertad Street when the

received with respect and are in fact generally binding.

Notably, Aonuevo, in his current petition, does not

[15]

is not compelled to review the factual findings of


[16]

collision occurred. Villagracia sustained serious injuries as a result,


which necessitated his hospitalization several times in 1989, and

Notwithstanding, the present petition presents interesting

forced him to undergo four (4) operations.

questions for resolution. Aonuevos arguments are especially


fixated on a particular question of law: whether Article 2185 of the

On 26 October 1989, Villagracia instituted an action for damages

New Civil Code should apply by analogy to non-motorized

against Procter and Gamble Phils., Inc. and Aonuevo before the

vehicles.

[17]

In the same vein, Aonuevo insists that Villagracias


13 | P a g e

Torts 3

own fault and negligence serves to absolve the former of any

consider the matter, it might as well examine whether Article 2185

liability for damages.

could be interpreted to include non-motorized vehicles.

Its is easy to discern why Aonuevo chooses to employ this line of

At the time Article 2185 was formulated, there existed a whole

argument. Aonuevo points out that Villagracias bicycle had no

array of non-motorized vehicles ranging from human-powered

safety gadgets such as a horn or bell, or headlights, as invoked by

contraptions on wheels such as bicycles, scooters, and animal-

a 1948 municipal ordinance.

[18]

Nor was it duly registered with the

drawn carts such as calesas and carromata. These modes of

Office of the Municipal Treasurer, as required by the same

transport were even more prevalent on the roads of the 1940s and

ordinance. Finally, as admitted by Villagracia, his bicycle did not

1950s than they are today, yet the framers of the New Civil Code

have foot brakes.

[19]

Before this Court, Villagracia does not dispute

chose then to exclude these alternative modes from the scope of

these allegations, which he admitted during the trial, but directs

Article 2185 with the use of the term motorized vehicles. If

our attention instead to the findings of Aonuevos own

Aonuevo seriously contends that the application of Article 2185

negligence.

[20]

Villagracia also contends that, assuming there was

be expanded due to the greater interaction today of all types of

contributory negligence on his part, such would not exonerate

vehicles, such argument contradicts historical experience. The

Aonuevo from payment of damages. The Court of Appeals

ratio of motorized vehicles as to non-motorized vehicles, as it

likewise acknowledged the lack of safety gadgets on Villagracias

stood in 1950, was significantly lower than as it stands today. This

bicycle, but characterized the contention as off-tangent and

will be certainly affirmed by statistical data, assuming such has

insufficient to obviate the fact that it was Aonuevos own

been compiled, much less confirmed by persons over sixty.

negligence that caused the accident.

[21]

Aonuevos characterization of a vibrant intra-road dynamic


between motorized and non-motorized vehicles is more apropos to

Aonuevo claims that Villagracia violated traffic regulations when

the past than to the present.

he failed to register his bicycle or install safety gadgets thereon.


He posits that Article 2185 of the New Civil Code applies by

There is a fundamental flaw in Aonuevos analysis of Art. 2185,

analogy. The provision reads:

as applicable today. He premises that the need for the distinction

Article 2185. Unless there is proof to the contrary, it is presumed

between motorized and non-motorized vehicles arises from the

that a person driving a motor vehicle has been negligent if at the

relative mass of number of these vehicles. The more pertinent

time of the mishap he was violating any traffic regulation.

basis for the segregate classification is the difference in type of

The provision was introduced for the first time in this jurisdiction

these vehicles. A motorized vehicle operates by reason of a motor

with the adoption in 1950 of the New Civil Code.

[22]

Its applicability

engine unlike a non-motorized vehicle, which runs as a result of a

is expressly qualified to motor vehicles only, and there is no

direct exertion by man or beast of burden of direct physical force.

ground to presume that the law intended a broader coverage.

A motorized vehicle, unimpeded by the limitations in physical


exertion. is capable of greater speeds and acceleration than non-

Still, Aonuevo hypothesizes that Article 2185 should apply by


analogy to all types of vehicles

[23]

. He points out that modern-day

motorized vehicles. At the same time, motorized vehicles are more


capable in inflicting greater injury or damage in the event of an

travel is more complex now than when the Code was enacted, the

accident or collision. This is due to a combination of factors

number and types of vehicles now in use far more numerous than

peculiar to the motor vehicle, such as the greater speed, its

as of then. He even suggests that at the time of the enactment of

relative greater bulk of mass, and greater combustability due to the

the Code, the legislators must have seen that only motor vehicles

fuels that they use.

were of such public concern that they had to be specifically


mentioned, yet today, the interaction of vehicles of all types and

There long has been judicial recognition of the peculiar dangers

nature has inescapably become matter of public concern so as to posed by the motor vehicle. As far back as 1912, in the U.S. v.
expand the application of the law to be more responsive to the
times.

[24]

Juanillo

[25]

, the Court has recognized that an automobile is capable

of great speed, greater than that of ordinary vehicles hauled by


animals, and beyond doubt it is highly dangerous when used on

What Aonuevo seeks is for the Court to amend the explicit

country roads, putting to great hazard the safety and lives of the

command of the legislature, as embodied in Article 2185, a task

mass of the people who travel on such roads.

beyond the pale of judicial power. The Court interprets, and not

case, the Court emphasized:

[26]

In the same

creates, the law. However, since the Court is being asked to


14 | P a g e

Torts 3

A driver of an automobile, under such circumstances, is required

Aonuevo is erroneous, his core contention that Villagracia was

to use a greater degree of care than drivers of animals, for the

negligent for failure to comply with traffic regulations warrants

reason that the machine is capable of greater destruction, and

serious consideration, especially since the imputed negligent acts

furthermore, it is absolutely under the power and control of the

were admitted by Villagracia himself.

driver; whereas, a horse or other animal can and does to some


extent aid in averting an accident. It is not pleasant to be obliged to The Civil Code characterizes negligence as the omission of that
slow down automobiles to accommodate persons riding, driving, or diligence which is required by the nature of the obligation and
walking. It is probably more agreeable to send the machine along

corresponds with the circumstances of the persons, of the time

and let the horse or person get out of the way in the best manner

and of the place.

possible; but it is well to understand, if this course is adopted and

given case is not determined by the personal judgment of the actor

an accident occurs, that the automobile driver will be called upon

in a given situation, but rather, it is the law which determines what

to account for his acts. An automobile driver must at all times use

would be reckless or negligent.

[30]

However, the existence of negligence in a

[31]

all the care and caution which a careful and prudent driver would
have exercised under the circumstances.

[27]

Aonuevo, asserts that Villagracia was negligent as the latter had

American jurisprudence has had occasion to explicitly rule on the

transgressed a municipal ordinance requiring the registration of

relationship between the motorist and the cyclist. Motorists are

bicycles and the installation of safety devices thereon. This view

required to exercise ordinary or reasonable care to avoid collision

finds some support if anchored on the long standing principle of

with bicyclists.

[28]

While the duty of using ordinary care falls alike

negligence per se.

on the motorist and the rider or driver of a bicycle, it is obvious, for


reasons growing out of the inherent differences in the two vehicles, The generally accepted view is that the violation of a statutory duty
that more is required from the former to fully discharge the duty
than from the latter.

[29]

constitutes negligence, negligence as a matter of law, or


negligence per se.

[32]

In Teague vs. Fernandez,

[33]

the Court cited

with approval American authorities elucidating on the rule:


The Code Commission was cognizant of the difference in the

The mere fact of violation of a statute is not sufficient basis for an

natures and attached responsibilities of motorized and non-

inference that such violation was the proximate cause of the injury

motorized vehicles. Art. 2185 was not formulated to compel or

complained. However, if the very injury has happened which was

ensure obeisance by all to traffic rules and regulations. If such

intended to be prevented by the statute, it has been held that

were indeed the evil sought to be remedied or guarded against,

violation of the statute will be deemed to be the proximate cause of

then the framers of the Code would have expanded the provision

the injury. (65 C.J.S. 1156)

to include non-motorized vehicles or for that matter, pedestrians.


Yet, that was not the case; thus the need arises to ascertain the

The generally accepted view is that violation of a statutory duty

peculiarities attaching to a motorized vehicle within the dynamics

constitutes negligence, negligence as a matter of law, or,

of road travel. The fact that there has long existed a higher degree

according to the decisions on the question, negligence per se, for

of diligence and care imposed on motorized vehicles, arising from

the reason that non-observance of what the legislature has

the special nature of motor vehicle, leads to the inescapable

prescribed as a suitable precaution is failure to observe that care

conclusion that the qualification under Article 2185 exists precisely

which an ordinarily prudent man would observe, and, when the

to recognize such higher standard. Simply put, the standards

state regards certain acts as so liable to injure others as to justify

applicable to motor vehicle are not on equal footing with other

their absolute prohibition, doing the forbidden act is a breach of

types of vehicles.

duty with respect to those who may be injured thereby; or, as it


has been otherwise expressed, when the standard of care is fixed

Thus, we cannot sustain the contention that Art. 2185 should apply by law, failure to conform to such standard is negligence,
to non-motorized vehicles, even if by analogy. There is factual and

negligence per se or negligence in and of itself, in the absence of

legal basis that necessitates the distinction under Art. 2185, and to

a legal excuse. According to this view it is immaterial, where a

adopt Aonuevos thesis would unwisely obviate this distinction.

statute has been violated, whether the act or omission constituting


such violation would have been regarded as negligence in the

Even if the legal presumption under Article 2185 should not apply

absence of any statute on the subject or whether there was, as a

to Villagracia, this should not preclude any possible finding of

matter of fact, any reason to anticipate that injury would result from

negligence on his part. While the legal argument as formulated by

such violation. x x x. (65 C.J.S. pp.623-628)


15 | P a g e

Torts 3

damages, and a simplistic interpretation of negligence per se


But the existence of an ordinance changes the situation. If a

might vindicate such an argument.

driver causes an accident by exceeding the speed limit, for


example, we do not inquire whether his prohibited conduct was

But this is by no means a simple case. There is the fact which we

unreasonably dangerous. It is enough that it was prohibited.

consider as proven, that Aonuevo was speeding as he made the

Violation of an ordinance intended to promote safety is negligence. left turn, and such negligent act was the proximate cause of the
If by creating the hazard which the ordinance was intended to

accident. This reckless behavior would have imperiled anyone

avoid it brings about the harm which the ordinance was intended

unlucky enough within the path of Aonuevos car as it turned into

to prevent, it is a legal cause of the harm. This comes only to

the intersection, whether they are fellow motorists, pedestrians, or

saying that in such circumstances the law has no reason to ignore

cyclists. We are hard put to conclude that Villagracia would have

the causal relation which obviously exists in fact. The law has

avoided injury had his bicycle been up to par with safety

excellent reason to recognize it, since it is the very relation which

regulations, especially considering that Aonuevo was already

the makers of the ordinance anticipated. This court has applied

speeding as he made the turn, or before he had seen Villagracia.

these principles to speed limits and other regulations of the

Even assuming that Aonuevo had failed to see Villagracia

manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

because the bicycle was not equipped with headlights, such lapse
on the cyclists part would not have acquitted the driver of his duty

x x x However, the fact that other happenings causing or

to slow down as he proceeded to make the left turn.

contributing toward an injury intervened between the violation of a


statute or ordinance and the injury does not necessarily make the

This court has appreciated that negligence per se, arising from the

result so remote that no action can be maintained. The test is to be mere violation of a traffic statute, need not be sufficient in itself in
found not in the number of intervening events or agents, but in

establishing liability for damages. In Sanitary Steam Laundry, Inc.

their character and in the natural and probable connection

v. Court of Appeals,

between the wrong done and the injurious consequence. The

owned Cimarron van caused the death of three of the vans

general principle is that the violation of a statute or ordinance is

passengers. The petitioner therein, the owner of the truck, argued

not rendered remote as the cause of an injury by the intervention

that the driver of the Cimarron was committing multiple violations

of another agency if the occurrence of the accident, in the manner

of the Land Transportation and Traffic Code

in which it happened, was the very thing which the statute or

accident. Among these violations: the Cimarron was overloaded at

ordinance was intended to prevent. (38 Am Jur 841)

[34]

[39]

a collision between a truck and a privately-

[40]

at the time of the

the time of the accident; the front seat of the van was occupied by

In Teague, the owner of a vocational school stricken by a fire

four adults, including the driver; and the van had only one

resulting in fatalities was found negligent, base on her failure to

functioning headlight. Similar as in this case, petitioner therein

provide adequate fire exits in contravention of a Manila city

invoked Article 2185 and argued that the driver of the Cimarron

ordinance.

[35]

In F.F. Cruz and Co., Inc. v. Court of Appeals

[36]

, the

failure of the petitioner to construct a firewall in accordance with


city ordinances sufficed to support a finding of negligence.
Cipriano v. Court of Appeals,

[38]

[37]

In

the Court found that the failure of

should be presumed negligent. The Court, speaking through


Justice Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of the
Cimarron driver contributed to the collision between the vehicles.

the petitioner to register and insure his auto rustproofing shop in

Indeed, petitioner has the burden of showing a causal connection

accordance with the statute constituted negligence per se, thus

between the injury received and the violation of the Land

holding him liable for the damages for the destruction by fire of a

Transportation and Traffic Code. He must show that the violation

customers vehicle garaged therein.

of the statute was the proximate or legal cause of the injury or that
it substantially contributed thereto. Negligence consisting in whole

Should the doctrine of negligence per se apply to Villagracia,

or in part, of violation of law, like any other negligence, is without

resulting from his violation of an ordinance? It cannot be denied

legal consequence unless it is a contributing cause of the injury.

that the statutory purpose for requiring bicycles to be equipped

Petitioner says that driving an overloaded vehicle with only one

with headlights or horns is to promote road safety and to minimize

functioning headlight during nighttime certainly increases the risk

the occurrence of road accidents involving bicycles. At face value,

of accident, that because the Cimarron had only one headlight,

Villagracias mishap was precisely the danger sought to be

there was decreased visibility, and that the fact that the vehicle

guarded against by the ordinance he violated. Aonuevo argues

was overloaded and its front seat overcrowded decreased its

that Villagracias violation should bar the latters recovery of

maneuverability. However, mere allegations such as these are not


16 | P a g e

Torts 3

sufficient to discharge its burden of proving clearly that such


alleged negligence was the contributing cause of the injury.
Sanitary Steam

[42]

[41]

is controlling in this case. The bare fact that

which clearly rendered the bicyclist visible,

[50]

if the motorist saw

the bicycle in spite of the absence of lights thereon,

[51]

or if the

motorist would have been unable to see the bicycle even if it had
[52]

Villagracia was violating a municipal ordinance at the time of the

been equipped with lights.

A bicycle equipped with defective or

accident may have sufficiently established some degree of

ineffective brakes may support a finding of negligence barring or

negligence on his part, but such negligence is without legal

diminishing recovery by an injured bicyclist where such condition

consequence unless it is shown that it was a contributing cause of

was a contributing cause of the accident.

[53]

the injury. If anything at all, it is but indicative of Villagracias failure


in fulfilling his obligation to the municipal government, which would

The above doctrines reveal a common thread. The failure of the

then be the proper party to initiate corrective action as a result. But bicycle owner to comply with accepted safety practices, whether or
such failure alone is not determinative of Villagracias negligence

not imposed by ordinance or statute, is not sufficient to negate or

in relation to the accident. Negligence is relative or comparative,

mitigate recovery unless a causal connection is established

dependent upon the situation of the parties and the degree of care

between such failure and the injury sustained. The principle

and vigilance which the particular circumstances reasonably

likewise finds affirmation in Sanitary Steam, wherein we declared

require.

[43]

To determine if Villagracia was negligent, it is not

that the violation of a traffic statute must be shown as the

sufficient to rely solely on the violations of the municipal ordinance, proximate cause of the injury, or that it substantially contributed
[54]

but imperative to examine Villagracias behavior in relation to the

thereto.

contemporaneous circumstances of the accident.

alleged negligence of Villagracia was the proximate or contributory

Aonuevo had the burden of clearly proving that the

cause of the latters injury.


The rule on negligence per se must admit qualifications that may
arise from the logical consequences of the facts leading to the

On this point, the findings of the Court of Appeals are well-worth

mishap. The doctrine (and Article 2185, for that matter) is

citing:

undeniably useful as a judicial guide in adjudging liability, for it

[As] admitted by appellant Aonuevo, he first saw appellee

seeks to impute culpability arising from the failure of the actor to

Villagracia at a distance of about ten (10) meters before the

perform up to a standard established by a legal fiat. But the

accident. Corrolarily, therefore, he could have avoided the

doctrine should not be rendered inflexible so as to deny relief

accident had he [stopped] alongside with an earlier (sic) jeep

when in fact there is no causal relation between the statutory

which was already at a full stop giving way to appellee. But

violation and the injury sustained. Presumptions in law, while

according to [eyewitness] Sorsano, he saw appellant Aonuevo

convenient, are not intractable so as to forbid rebuttal rooted in

umaarangkada and hit the leg of Villagracia (TSN March 14,

fact. After all, tort law is remunerative in spirit, aiming to provide

1990 p. 30). This earlier (sic) jeep at a full stop gave way to

compensation for the harm suffered by those whose interests have Villagracia to proceed but Aonuevo at an unexpected motion
been invaded owing to the conduct of others.

[44]

(umarangkada) came out hitting Villagracia (TSN March 9, 1990 p.


49). Appellant Aonuevo admitted that he did not blow his horn
[55]

Under American case law, the failures imputed on Villagracia are

when he crossed Boni Avenue (TSN March 21, 1990 p. 47).

not grievous enough so as to negate monetary relief. In the

By Aonuevos own admission, he had seen Villagracia at a good

absence of statutory requirement, one is not negligent as a matter

distance of ten (10) meters. Had he been decelerating, as he

of law for failing to equip a horn, bell, or other warning devise onto

should, as he made the turn, Aonuevo would have had ample

a bicycle.

[45]

In most cases, the absence of proper lights on a

bicycle does not constitute negligence as a matter of law

[46]

but is

a question for the jury whether the absence of proper lights played
a causal part in producing a collision with a motorist.

[47]

The

opportunity to avoid hitting Villagracia. Moreover, the fact that


Aonuevo had sighted Villagracia before the accident would
negate any possibility that the absence of lights on the bike
contributed to the cause of the accident.

[56]

A motorist has been

absence of proper lights on a bicycle at night, as required by

held liable for injury to or death of a bicyclist where the motorist

statute or ordinance, may constitute negligence barring or

turned suddenly into the bicyclist so as to cause a collision.

[57]

diminishing recovery if the bicyclist is struck by a motorist as long


as the absence of such lights was a proximate cause of the
collision;

[48]

however, the absence of such lights will not preclude

or diminish recovery if the scene of the accident was well


illuminated by street lights,

[49]

if substitute lights were present

Neither does Aonuevo attempt before this Court to establish a


causal connection between the safety violations imputed to
Villagracia and the accident itself. Instead, he relied on a putative
presumption that these violations in themselves sufficiently
17 | P a g e

Torts 3

established negligence appreciable against Villagracia. Since the


onus on Aonuevo is to conclusively prove the link between the
violations and the accident, we can deem him as having failed to
discharge his necessary burden of proving Villagracias own
liability.
Neither can we can adjudge Villagracia with contributory
negligence. The leading case in contributory negligence, Rakes v.
Atlantic Gulf

[58]

clarifies that damages may be mitigated if the

claimant in conjunction with the occurrence, [contributes] only to


his injury.

[59]

To hold a person as having contributed to his

injuries, it must be shown that he performed an act that brought


about his injuries in disregard of warnings or signs of an impending
danger to health and body.

[60]

To prove contributory negligence, it

is still necessary to establish a causal link, although not proximate,


between the negligence of the party and the succeeding injury. In
a legal sense, negligence is contributory only when it contributes
proximately to the injury, and not simply a condition for its
occurrence.

[61]

As between Aonuevo and Villagracia, the lower courts adjudged


Aonuevo as solely responsible for the accident. The petition does
not demonstrate why this finding should be reversed. It is hard to
imagine that the same result would not have occurred even if
Villagracias bicycle had been equipped with safety equipment.
Aonuevo himself admitted having seen Villagracia from ten (10)
meters away, thus he could no longer claim not having been
sufficiently warned either by headlights or safety horns. The fact
that Aonuevo was recklessly speeding as he made the turn
likewise leads us to believe that even if Villagracias bicycle had
been equipped with the proper brakes, the cyclist would not have
had opportunity to brake in time to avoid the speeding car.
Moreover, it was incumbent on Aonuevo to have established that
Villagracias failure to have installed the proper brakes contributed
to his own injury. The fact that Aonuevo failed to adduce proof to
that effect leads us to consider such causal connection as not
proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court
of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.

18 | P a g e

Torts 3

PROFESSIONAL SERVICES, INC., Petitioner, vs. THE COURT


OF APPEALS and NATIVIDAD and ENRIQUE AGANA,
Respondents,

Dr. Fuentes performed and completed the hysterectomy.


Afterwards, Dr. Ampil took over, completed the operation and
closed the incision. However, the operation appeared to be flawed.
In the corresponding Record of Operation dated April 11, 1984, the

G.R. No. 126467

attending nurses entered these remarks:

NATIVIDAD (Substituted by her children MARCELINO AGANA sponge count lacking 2


III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS
AGANA, and RAYMUND AGANA) and ENRIQUE AGANA,

announced to surgeon searched done (sic) but to no avail

Petitioners, vs. THE COURT OF APPEALS and JUAN


FUENTES, Respondents,
G.R. No. 127590

continue for closure.


After a couple of days, Natividad complained of excruciating pain
in her anal region. She consulted both Dr. Ampil and Dr. Fuentes

MIGUEL AMPIL, Petitioner, vs. THE COURT OF APPEALS and


NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

about it. They told her that the pain was the natural consequence
of the surgical operation performed upon her. Dr. Ampil
recommended that Natividad consult an oncologist to treat the

RESOLUTION

cancerous nodes which were not removed during the operation.

SANDOVAL-GUTIERREZ, J.:

On May 9, 1984, Natividad, accompanied by her husband, went to


the United States to seek further treatment. After four (4) months

As the hospital industry changes, so must the laws and

of consultations and laboratory examinations, Natividad was told

jurisprudence governing hospital liability. The immunity from

that she was free of cancer. Hence, she was advised to return to

medical malpractice traditionally accorded to hospitals has to be

the Philippines.

eroded if we are to balance the interest of the patients and


hospitals under the present setting.

On August 31, 1984, Natividad flew back to the Philippines, still


suffering from pains. Two (2) weeks thereafter, her daughter found

Before this Court is a motion for reconsideration filed by

a piece of gauze protruding from her vagina. Dr. Ampil was

Professional Services, Inc. (PSI), petitioner in G.R. No. 126297,

immediately informed. He proceeded to Natividads house where

assailing the Courts First Division Decision dated January 31,

he managed to extract by hand a piece of gauze measuring 1.5

2007, finding PSI and Dr. Miguel Ampil, petitioner in G.R. No.

inches in width. Dr. Ampil then assured Natividad that the pains

127590, jointly and severally liable for medical negligence.

would soon vanish.

A brief revisit of the antecedent facts is imperative.

Despite Dr. Ampils assurance, the pains intensified, prompting


Natividad to seek treatment at the Polymedic General Hospital.

On April 4, 1984, Natividad Agana was admitted at the Medical

While confined thereat, Dr. Ramon Gutierrez detected the

City General Hospital (Medical City) because of difficulty of bowel

presence of a foreign object in her vagina -- a foul-smelling gauze

movement and bloody anal discharge. Dr. Ampil diagnosed her to

measuring 1.5 inches in width. The gauze had badly infected her

be suffering from cancer of the sigmoid. Thus, on April 11, 1984,

vaginal vault. A recto-vaginal fistula had formed in her reproductive

Dr. Ampil, assisted by the medical staff

[1]

of Medical City,

organ which forced stool to excrete through the vagina. Another

performed an anterior resection surgery upon her. During the

surgical operation was needed to remedy the situation. Thus, in

surgery, he found that the malignancy in her sigmoid area had

October 1984, Natividad underwent another surgery.

spread to her left ovary, necessitating the removal of certain


portions of it. Thus, Dr. Ampil obtained the consent of Atty. Enrique On November 12, 1984, Natividad and her husband filed with the
Agana, Natividads husband, to permit Dr. Juan Fuentes,
Regional Trial Court, Branch 96, Quezon City a complaint for
respondent in G.R. No. 126467, to perform hysterectomy upon

damages against PSI (owner of Medical City), Dr. Ampil and Dr.

Natividad.

Fuentes.

19 | P a g e

Torts 3

On February 16, 1986, pending the outcome of the above case,

ruled that an employer-employee relationship in effect exists

Natividad died. She was duly substituted by her above-named

between the Medical City and Dr. Ampil. Consequently, both are

children (the Aganas).

jointly and severally liable to the Aganas. This ruling proceeds


from the following ratiocination in Ramos:

On March 17, 1993, the trial court rendered judgment in favor of

We now discuss the responsibility of the hospital in this particular

spouses Agana finding PSI, Dr. Ampil and Dr. Fuentes jointly and

incident. The unique practice (among private hospitals) of filling up

severally liable. On appeal, the Court of Appeals, in its Decision

specialist staff with attending and visiting consultants, who are

dated September 6, 1996, affirmed the assailed judgment with

allegedly not hospital employees, presents problems in

modification in the sense that the complaint against Dr. Fuentes

apportioning responsibility for negligence in medical malpractice

was dismissed.

cases. However, the difficulty is only more apparent than real.

PSI, Dr. Ampil and the Aganas filed with this Court separate

In the first place, hospitals exercise significant control in the

petitions for review on certiorari. On January 31, 2007, the Court,

hiring and firing of consultants and in the conduct of their

through its First Division, rendered a Decision holding that PSI is

work within the hospital premises. Doctors who apply for

jointly and severally liable with Dr. Ampil for the following reasons:

consultant slots, visiting or attending, are required to submit proof

first, there is an employer-employee relationship between Medical

of completion of residency, their educational qualifications;

City and Dr. Ampil. The Court relied on Ramos v. Court of

generally, evidence of accreditation by the appropriate board

Appeals,

[2]

holding that for the purpose of apportioning

(diplomate), evidence of fellowship in most cases, and references.

responsibility in medical negligence cases, an employer-employee

These requirements are carefully scrutinized by members of the

relationship in effect exists between hospitals and their attending

hospital administration or by a review committee set up by the

and visiting physicians; second, PSIs act of publicly displaying in

hospital who either accept or reject the application. This is

the lobby of the Medical City the names and specializations of its

particularly true with respondent hospital.

accredited physicians, including Dr. Ampil, estopped it from


denying the existence of an employer-employee relationship

After a physician is accepted, either as a visiting or attending

between them under the doctrine of ostensible agency or

consultant, he is normally required to attend clinico-

agency by estoppel; and third, PSIs failure to supervise Dr.

pathological conferences, conduct bedside rounds for clerks,

Ampil and its resident physicians and nurses and to take an active

interns and residents, moderate grand rounds and patient

step in order to remedy their negligence rendered it directly liable

audits and perform other tasks and responsibilities, for the

under the doctrine of corporate negligence.

privilege of being able to maintain a clinic in the hospital,


and/or for the privilege of admitting patients into the hospital.

In its motion for reconsideration, PSI contends that the Court erred

In addition to these, the physicians performance as a

in finding it liable under Article 2180 of the Civil Code, there being

specialist is generally evaluated by a peer review committee

no employer-employee relationship between it and its consultant,

on the basis of mortality and morbidity statistics, and

Dr. Ampil. PSI stressed that the Courts Decision in Ramos holding feedback from patients, nurses, interns and residents. A
that an employer-employee relationship in effect exists between

consultant remiss in his duties, or a consultant who regularly

hospitals and their attending and visiting physicians for the

falls short of the minimum standards acceptable to the

purpose of apportioning responsibility had been reversed in a

hospital or its peer review committee, is normally politely

subsequent Resolution.

[3]

Further, PSI argues that the doctrine of

terminated.

ostensible agency or agency by estoppel cannot apply because


spouses Agana failed to establish one requisite of the doctrine,

In other words, private hospitals hire, fire and exercise real control

i.e., that Natividad relied on the representation of the hospital in

over their attending and visiting consultant staff. While

engaging the services of Dr. Ampil. And lastly, PSI maintains that

consultants are not, technically employees, a point which

the doctrine of corporate negligence is misplaced because the

respondent hospital asserts in denying all responsibility for

proximate cause of Natividads injury was Dr. Ampils negligence.

the patients condition, the control exercised, the hiring, and


the right to terminate consultants all fulfill the important

The motion lacks merit.

hallmarks of an employer-employee relationship, with the


exception of the payment of wages. In assessing whether

As earlier mentioned, the First Division, in its assailed Decision,

such a relationship in fact exists, the control test is


20 | P a g e

Torts 3

rd

determining. Accordingly, on the basis of the foregoing, we

ostensible agency theory. [King v. Mitchell, 31 A.D.3 958, 819

rule that for the purpose of allocating responsibility in

N.Y. S.2d 169 (2006)].

medical negligence cases, an employer-employee


relationship in effect exists between hospitals and their

xxx

attending and visiting physicians. This being the case, the


question now arises as to whether or not respondent hospital is

The doctrine of apparent authority essentially involves two factors

solidarily liable with respondent doctors for petitioners condition.

to determine the liability of an independent contractor-physician.

The basis for holding an employer solidarily responsible for the

The first factor focuses on the hospitals manifestations and is

negligence of its employee is found in Article 2180 of the Civil

sometimes described as an inquiry whether the hospital acted in a

Code which considers a person accountable not only for his own

manner which would lead a reasonable person to conclude that

acts but also for those of others based on the formers

the individual who was alleged to be negligent was an employee or

responsibility under a relationship of partia ptetas.

agent of the hospital. (Diggs v. Novant Health, Inc., 628 S.E.2d

Clearly, in Ramos, the Court considered the peculiar relationship

851 (2006) citing Hylton v. Koontz, 138 N.C. App. 629 (2000). In

between a hospital and its consultants on the bases of certain

this regard, the hospital need not make express

factors. One such factor is the control test wherein the hospital

representations to the patient that the treating physician is an

exercises control in the hiring and firing of consultants, like Dr.

employee of the hospital; rather a representation may be

Ampil, and in the conduct of their work.

general and implied. (Id.)

Actually, contrary to PSIs contention, the Court did not reverse its

The doctrine of apparent authority is a specie of the doctrine of

ruling in Ramos. What it clarified was that the De Los Santos

estoppel. Article 1431 of the Civil Code provides that [t]hrough

Medical Clinic did not exercise control over its consultant, hence,

estoppel, an admission or representation is rendered conclusive

there is no employer-employee relationship between them. Thus,

upon the person making it, and cannot be denied or disproved as

despite the granting of the said hospitals motion for

against the person relying thereon. Estoppel rests on this rule:

reconsideration, the doctrine in Ramos stays, i.e., for the purpose

Whether a party has, by his own declaration, act, or omission,

of allocating responsibility in medical negligence cases, an

intentionally and deliberately led another to believe a particular

employer-employee relationship exists between hospitals and their thing true, and to act upon such belief, he cannot, in any litigation
consultants.

arising out of such declaration, act or omission, be permitted to


falsify it. (De Castro v. Ginete, 137 Phil. 453 [1969], citing Sec. 3,

In the instant cases, PSI merely offered a general denial of

par. A, Rule 131 of the Rules of Court. See also King v. Mitchell,

responsibility, maintaining that consultants, like Dr. Ampil, are

31 A.D.3 958, 819 N.Y.S.2d 169 [2006]).

rd

independent contractors, not employees of the hospital. Even


assuming that Dr. Ampil is not an employee of Medical City, but an

xxx

independent contractor, still the said hospital is liable to the


The second factor focuses on the patients reliance. It is

Aganas.

sometimes characterized as an inquiry on whether the plaintiff


In Nograles, et al. v. Capitol Medical Center, et al.,

[4]

through Mr.

acted in reliance upon the conduct of the hospital or its agent,

Justice Antonio T. Carpio, the Court held:

consistent with ordinary care and prudence. (Diggs v. Novant

The question now is whether CMC is automatically exempt from

Health, Inc.)

liability considering that Dr. Estrada is an independent contractor-

PSI argues that the doctrine of apparent authority cannot apply

physician.

to these cases because spouses Agana failed to establish proof of


their reliance on the representation of Medical City that Dr. Ampil

In general, a hospital is not liable for the negligence of an

is its employee.

independent contractor-physician. There is, however, an exception


to this principle. The hospital may be liable if the physician is the

The argument lacks merit.

ostensible agent of the hospital. (Jones v. Philpott, 702 F. Supp.


1210 [1988]) This exception is also known as the doctrine of

Atty. Agana categorically testified that one of the reasons why he

apparent authority. (Sometimes referred to as the apparent or


21 | P a g e

Torts 3

chose Dr. Ampil was that he knew him to be a staff member of


Medical City, a prominent and known hospital.

The challenged Decision also anchors its ruling on the doctrine of


corporate responsibility.

Q Will you tell us what transpired in your visit to


Dr. Ampil?

[7]

The duty of providing quality medical

service is no longer the sole prerogative and responsibility of the


physician. This is because the modern hospital now tends to

A Well, I saw Dr. Ampil at the Medical City, I

organize a highly-professional medical staff whose competence

know him to be a staff member there, and I

and performance need also to be monitored by the hospital

told him about the case of my wife and he

commensurate with its inherent responsibility to provide quality

asked me to bring my wife over so she could

medical care.

be examined. Prior to that, I have known Dr.

supervision of the members of its medical staff. Accordingly,

Ampil, first, he was staying in front of our

the hospital has the duty to make a reasonable effort to

house, he was a neighbor, second, my

monitor and oversee the treatment prescribed and

daughter was his student in the University of

administered by the physicians practicing in its premises.

[8]

Such responsibility includes the proper

the East School of Medicine at Ramon


Magsaysay; and when my daughter opted to

Unfortunately, PSI had been remiss in its duty. It did not conduct

establish a hospital or a clinic, Dr. Ampil was

an immediate investigation on the reported missing gauzes to

one of our consultants on how to establish that

the great prejudice and agony of its patient. Dr. Jocson, a member

hospital. And from there, I have known that he

of PSIs medical staff, who testified on whether the hospital

was a specialist when it comes to that illness.

conducted an investigation, was evasive, thus:

Atty. Agcaoili

We go back to the operative technique,

On that particular occasion, April 2, 1984,

this was signed by Dr. Puruganan, was

what was your reason for choosing to contact

this submitted to the hospital?

Dr. Ampil in connection with your wifes illness?

Yes, sir, this was submitted to the


hospital with the record of the patient.

A First, before that, I have known him to be a


specialist on that part of the body as a
surgeon; second, I have known him to be a

staff member of the Medical City which is a


prominent and known hospital. And third,

Was the hospital immediately informed


about the missing sponges?

That is the duty of the surgeon, sir.

As a witness to an untoward incident

because he is a neighbor, I expect more than


the usual medical service to be given to us,
than his ordinary patients.

[5]

in the operating room, was it not your


obligation, Dr., to also report to the
Clearly, PSI is estopped from passing the blame solely to Dr.

hospital because you are under the

Ampil. Its act of displaying his name and those of the other

control and direction of the hospital?

physicians in the public directory at the lobby of the hospital


amounts to holding out to the public that it offers quality medical

The hospital already had the record of


the two OS missing, sir.

service through the listed physicians. This justifies Atty. Aganas


belief that Dr. Ampil was a member of the hospitals staff. It must
be stressed that under the doctrine of apparent authority, the

question in every case is whether the principal has by his


voluntary act placed the agent in such a situation that a

If you place yourself in the position of


the hospital, how will you recover.

person of ordinary prudence, conversant with business

You do not answer my question with


another question.

usages and the nature of the particular business, is justified


in presuming that such agent has authority to perform the
particular act in question.

[6]

In these cases, the circumstances

yield a positive answer to the question.

Did the hospital do anything about the


missing gauzes?

22 | P a g e

Torts 3

The hospital left it up to the surgeon

of the Civil Code, but also directly liable for its own negligence

who was doing the operation, sir.

under Article 2176.

Did the hospital investigate the


surgeon who did the operation?

I am not in the position to answer that,


sir.

Moreover, there is merit in the trial courts finding that the failure of
PSI to conduct an investigation established PSIs part in the
dark conspiracy of silence and concealment about the
gauzes. The following testimony of Atty. Agana supports such
findings, thus:
Q

You never did hear the hospital


investigating the doctors involved in

Ampil and despite the promise you were

this case of those missing sponges, or

not able to obtain the said record. Did you

did you hear something?

go back to the record custodian?


A

xxx

You said you relied on the promise of Dr.

I did not because I was talking to Dr.


Ampil. He promised me.

xxx
Q

I think we already made a report by

After your talk to Dr. Ampil, you went


to the record custodian?

just saying that two sponges were


A

missing, it is up to the hospital to

I went to the record custodian to get


the clinical record of my wife, and I

make the move.

was given a portion of the records


consisting of the findings, among
Atty. Agana

them, the entries of the dates, but not


the operating procedure and operative
report.

Precisely, I am asking you if the

[10]

hospital did a move, if the hospital did


a move.
A

In sum, we find no merit in the motion for reconsideration.

I cannot answer that.


WHEREFORE, we DENY PSIs motion for reconsideration with
finality.

Court
By that answer, would you mean to tell

SO ORDERED.

the Court that you were aware if there


was such a move done by the
hospital?
A

I cannot answer that, your honor,


because I did not have any more
follow-up of the case that happened
until now.

[9]

The above testimony obviously shows Dr. Jocsons lack of


concern for the patients. Such conduct is reflective of the
hospitals manner of supervision. Not only did PSI breach its
duty to oversee or supervise all persons who practice
medicine within its walls, it also failed to take an active step in
fixing the negligence committed. This renders PSI, not only
vicariously liable for the negligence of Dr. Ampil under Article 2180
23 | P a g e

Torts 3

VICENTE JOSEFA, PETITIONER, VS. MANILA ELECTRIC

On January 11, 1994, Meralco amended its complaint to correct

COMPANY, RESPONDENT.

the name Pablo Manoco to Pablo Manojo Bautista (Bautista),

[11]

but soon dropped him as a party defendant in the case for failure
DECISION

to serve him summons.

BRION, J.:

[12]

A. Evidence for Meralco

We resolve the petition for review on certiorari

[1]

filed by petitioner

During trial, Meralco offered the testimonies of six witnesses as

Vicente Josefa, doing business under the name and style of 747

well as documentary evidence to substantiate its claim for

Lumber and Construction Supply, to challenge the January 31,

damages against Josefa:

2008 decision

[2]

and the April 29, 2008 resolution

[3]

of the Court of

Appeals (CA) in CA-G.R. CV No. 87512.

Juan Fernandez, Meralcos senior legal investigator, testified that


he arrived at the scene of the accident at around 2:30 p.m. on that

The Factual Antecedents

fateful day and saw Meralco employees installing a new electricity


post. He interviewed the people in the vicinity who told him that it
[13]

At around 1:45 p.m. on April 21, 1991, a dump truck, a jeepney

was the truck that rammed the electricity post.

and a car figured in a vehicular accident along Ortigas Avenue,

proceeded to the police station at Caruncho Complex, Pasig City

Pasig City.

[4]

He thus

As a result of the accident, a 45-foot wooden

and talked to SPO2 Alexander Galang who informed him that the
electricity post, three 75 KVA transformers, and other electrical line owner of the offending vehicle was Josefa.[14] Fernandez also
[5]
attachments were damaged. Upon investigation, respondent
identified and authenticated the investigation report dated April 21,
Manila Electric Company (Meralco) discovered that it was the truck 1991[15] (Exhibit A) summarizing the result of his investigation. [16]
with plate number PAK-874 and registered in Josefas name that
hit the electricity post.

[6]

Elmer Albio identified himself as the driver of the jeepney that was
involved in the accident. He testified that a truck suddenly hit the

In a letter dated April 19, 1993, Meralco demanded from Josefa

rear of his jeepney while he was driving along Ortigas Avenue,

reimbursement for the replacement cost of the electricity post and

Pasig City; he thus lost control of the jeepney and hit a Nissan car

its attachments, but Josefa refused to pay.

[7]

Thus, on September

28, 1993, Meralco sued Josefa and Pablo Manoco, the truck

on the other lane of the road. Thereafter, the truck hit the electricity
post.

driver, for damages before the Regional Trial Court (RTC) of Pasig
City.

[8]

SPO2 Manuel Valiente testified that he immediately went to the


scene of the accident after a concerned citizen went to the police
Proceedings before the RTC

station and informed him about the accident.

[17]

However, he could

no longer recall the trucks exact position with reference to the


In its complaint, Meralco alleged that Manocos reckless driving

electricity post at the time of his arrival at the scene of the


resulted in damage to its properties. It also imputed primary liability accident.[18]
on Josefa for his alleged negligence in the selection and
supervision of Manoco. It thus prayed for the indemnification of the SPO2 Galang stated that one of his functions as a traffic accident
amount of P384,846.00 as actual damages, P50,000.00 as
investigator was to record vehicular accidents in the police blotter
attorneys fees, P10,000.00 as litigation expenses, and the costs
of the suit.

[9]

book. He identified and authenticated a certified true copy of the


police blotter dated January 7, 1994 (Exhibit B) but admitted that
he neither saw nor investigated the accident.

[19]

In defense, Josefa denied that Manoco was his employee when


the accident occurred. He also maintained that he exercised the

Vitaliano Espiritu, Meralcos foreman, testified that he replaced the

diligence of a good father of a family in the selection and

damaged electricity post, transformers, and other electrical line

supervision of all his employees. As a counterclaim, he sought the

attachments after receiving an emergency radio call from a

payment of attorneys fees for Meralcos filing of a baseless

Meralco personnel.

complaint.

[20]

[10]

Carlos Zapanta, Meralcos supervising accountant, affirmed that


24 | P a g e

Torts 3

Meralco incurred actual damages totaling P384,846.00. To support was Josefas employee when the accident occurred since Josefa
his finding, he identified and authenticated two pieces of evidence,

did not specifically deny this material allegation in the amended

the memorandum dated October 7, 1992 (Exhibit C) and the

complaint. It likewise noted that the sheriffs return stated that

document dated March 29, 1993 (Exhibit D). Exhibit C is a letter Bautista was under Josefas employ until 1993.
from Meralcos legal department requesting the accounting
department for a computation of actual damages.

[21]

On the other

hand, Exhibit D provides a detailed computation of actual


damages that Meralco allegedly suffered.

[22]

On cross-

The CA concluded that the fact that the truck hit the electricity post
was sufficient to hold Josefa vicariously liable regardless of
whether Bautista was negligent in driving the truck. In the same

examination, Zapanta stated that the computation was based on

breath, the CA also stated that the employers presumptive liability

supplementary time sheets, trip tickets, and other documents

in quasi-delicts was anchored on injuries caused by the

provided by Meralcos distribution office;

[23]

however, Meralco did

not present these documents during trial.

employees negligence. It further ruled that Josefa failed to rebut


the presumption that he negligently selected and supervised
Bautista in employment since he did not present his evidence-in-

In an order dated January 15, 1997, the RTC admitted all

chief during trial. Even assuming that Bautista was not Josefas

documentary evidence that Meralco offered after its presentation

employee, the CA maintained that Josefa would still be liable for

of testimonial evidence.

[24]

damages since the law presumes that the registered owner has
control of his vehicle and its driver at the time of the accident. It

B. Evidence for Josefa

thus ordered Josefa to pay Meralco: (1) P384,846.00 as actual


damages; (2) P50,000.00 as attorneys fees; (3) P10,000.00 as

Upon Meralcos presentment of evidence, Josefa filed a demurrer


to evidence

[25]

, but was denied by the RTC.

[26]

Josefa assailed the

denial of his demurrer in a petition for certiorari before the CA


which, however, affirmed the RTC rulings.

[27]

expenses of litigation; and (4) double the costs of the suit.

Thereafter, Josefa

Josefa filed the present petition after the CA denied


for reconsideration.

[31]

his motion

[32]

filed a motion for extension to file a petition for review on certiorari


The Petition

before the Court. After we denied the motion for its procedural
[28]

infirmities,

the RTC ordered Josefa to present his evidence-in-

chief. The RTC eventually declared the case as submitted for

Josefa argues that the CA gravely erred in reversing the RTCs

decision without Josefas evidence-in-chief due to the numerous

factual findings. He insists that the finding that it was the truck that

and unreasonable delays that he incurred in the presentation of

hit the electricity post lacks evidentiary support. Furthermore,

evidence.

[29]

Meralco failed to substantiate its claim for actual damages by


competent testimonial and documentary evidence. Josefa likewise
The RTC Ruling

asserts that Meralco is not entitled to attorneys fees since it also


contributed to the delay in the proceedings. He points out that

In a decision dated April 10, 2006, the RTC dismissed the

Meralco sought for postponements of hearings during trial and

complaint for insufficiency of evidence. The RTC held that Meralco

failed to assist the sheriff in serving the summons to Bautista.

[33]

failed to establish that it was the truck that hit the electricity post.
The Respondents Position

The RTC ruled that SPO2 Galangs account of the accident was
merely hearsay since he did not personally witness the incident. It
also did not give probative value to the police blotter entry dated

In its Comment, Meralco takes the opposite view that it is the RTC

January 7, 1994 since the accident had long occurred in 1991. The ruling that is unsupported by evidence. Meralco maintains that the
RTC likewise denied Meralcos claim for actual damages for lack
of evidentiary support.

[30]

RTC erroneously ruled in favor of Josefa who did not present his
evidence-in-chief during trial. Meralco also posits that Josefas
vicariously liability finds support in Articles 2176 and 2180 of the

The CA Ruling

Civil Code which hold the employer primarily liable for damages
caused by the employee who acted within the scope of his

The CA reversed the RTC ruling and held that the RTC erred in

assigned tasks. It also asserts that Josefas unjustified refusal to

disregarding the parties stipulation at the pre-trial that it was the

pay its just and valid claim for actual damages warrants the award

truck that hit the electricity post. The CA also found that Bautista

of attorneys fees.

[34]

25 | P a g e

Torts 3

The Issues

relation between the parties, is called quasi-delict.

[36]

Thus, for a

quasi-delict case to prosper, the complainant must establish: (1)


This case presents to us the following issues:

damages to the complainant; (2) negligence, by act or omission, of


the defendant or by some person for whose acts the defendant

(1) Whether the truck with plate number PAK-874 hit the electricity

must respond, was guilty; and (3) the connection of cause and

post;

effect between such negligence and the damages.

[37]

With

respect to the third element, the negligent act or omission must be


(2) Whether Bautista exercised due diligence in driving when the

the proximate cause of the injury.

truck hit the electricity post;


Contrary to the CAs finding, the parties did not stipulate that the
(3) Whether Josefa is vicariously liable for Bautistas negligence

truck hit the electricity post. The pre-trial order shows that the

under paragraph 5, Article 2180 of the Civil Code;

parties merely agreed that the truck was involved in an accident

(a) Whether there is an employer-employee relationship between

on April 21, 1991 at around 1:45 oclock in the afternoon along

Bautista and Josefa;

Ortigas Avenue, Rosario, Pasig City. The parties in fact posed


the issue of whether the truck rammed the electricity post as one

(b) Whether Josefa exercised the diligence of a good father of a

of the factual questions to be resolved by the trial court during the

family in the selection and supervision of Bautista; and

pre-trial conference.

[38]

(4) Whether Meralco is entitled to actual damages, attorneys fees,


We also agree with Josefa that Fernandez and SPO2 Galangs

and expenses of litigation.

testimonies regarding the truck hitting the electricity post are


Our Ruling

hearsay and should not be given credence. Fernandez and SPO2


Galang merely testified and conveyed to the court matters only
narrated to them by other people who were not presented in court.

We partially affirm the CAs ruling.

Hearsay evidence has no probative value because it is merely the


witness recitation of what someone else has told him, whether

I. The Court may review factual

orally or in writing. A witness can testify only to those facts which

questions in a petition for review on

are derived from his own perception.

[39]

certiorari when a conflict exists in


findings of the lower courts

Nonetheless, Meralco has sufficiently established the direct causal


link between the truck and the electricity post through Abios

We are aware that the issues before us involve factual questions

testimony. Abio categorically stated during trial that he saw the

which require us to review the presented pieces of evidence

truck hit the electricity post. We find his first-hand account of the

before the trial court. While a petition for review on certiorari

incident during the direct-examination frank and straightforward.

precludes this Court from entertaining factual issues, we can

More importantly, Josefa failed to impeach the veracity of Abios

review the pieces of evidence, by way of exception, when a

testimony during the cross-examination. Abio even reiterated that

conflict exists in the findings of the RTC and the CA.

[35]

We see

it was Josefas truck that rammed the electricity post.

[40]

We thus

this exceptional situation here and thus examine the relevant

give full faith and credence to his positive, unrebutted, and

pieces of evidence presented before the trial court.

categorical declaration on the witness stand, made under solemn


oath, that it was the truck that caused damage to Meralcos

II. Bautistas negligence was the

property.

proximate cause of the property


damage caused to Meralco

Even without Abios testimony, it does not escape this Courts


attention that Josefa judicially admitted in his motions and

A.

The truck hit the electricity post

pleading that his truck hit the electricity post. In a motion to dismiss
dated March 17, 1997, Josefa stated:

Whoever by act or omission causes damage to another, there


being fault or negligence, is obliged to pay for the damage done.

1. This action was commenced by plaintiff to recover from

This fault or negligence, if there is no pre-existing contractual

defendant the sum of P384,846.00 as actual damages resulting


26 | P a g e

Torts 3

from the vehicular mishap which occurred on April 21, 1991 along

negligence and the damage was not shown. Neither was it proved

Ortigas Avenue, Rosario, Pasig City, Metro Manila, whereby

to be the proximate cause of the damage.

defendants dump truck with plate No. PAK 874 hit and

underlines ours)

bumped plaintiffs 45-foot wooden pole;

[41]

[43]

(Emphases and

(emphasis and
These statements constitute deliberate, clear and unequivocal

underline ours)

admissions of the causation in fact between the truck and the


Josefa further declared in his motion for reconsideration dated

electricity post. Judicial admissions made by the parties in the

February 22, 2008:

pleadings or in the course of the trial or other proceedings in the


same case are conclusive and do not require further evidence to

[T]he manner who and why the accident occurred was not

prove them. These admissions cannot be contradicted unless

explained. In the absence of any description on such important

previously shown to have been made through palpable mistake or

aspect, fault or negligence cannot be properly imputed to Pablo

that no such admission was made.

[44]

A party who judicially admits

Manojo Bautista simply because the truck he was then driving a fact cannot later challenge this fact for the reason that judicial
bumped to electric post. The causal connection between the

admissions remove an admitted fact from the field of

fault or negligence and the damage must be shown. x x x

controversy.

Analyzing the testimony of Elmer Abio, what was established is the

[45]

B.

Bautista is presumed to be negligent


in driving the truck under

following:

the doctrine of res ipsa loquitur


a) Somebody bumped the back of the jeepney he was driving on
Contrary to the CAs opinion, the finding that it was the truck that

April 21, 1991;

hit the electricity post would not immediately result in Josefas


b) When his back was bumped, he had no control because it was

liability. It is a basic rule that it is essentially the wrongful or

so sudden;

negligent act or omission that creates the vinculum juris in extracontractual obligations.

[46]

In turn, the employees negligence

c) He bumped the approaching car, while the truck bumped

established to be the proximate cause of the damage would give

into the Meralco post that three (3) transformers;

rise to the disputable presumption that the employer did not


exercise the diligence of a good father of a family in the selection
[47]

d) The pole with 3 transformers fell on the truck.

and supervision of the erring employee.

It may be asked: Who was that somebody that bumped the back

Nonetheless, in some cases where negligence is difficult to

of Abio What was the reason why the truck bumped the

prove, the doctrine of res ipsa loquitur permits an inference of

post?What happened to the car that was bumped by Abio

negligence on the part of the defendant or some other person

because he had no control? Which happened first, the bumping

who is charged with negligence where the thing or

of the back of Abio or the bumping of the post by the truck?

transaction speaks for itself.

Was the bumping of the back of Abio and the bumping of the car

a matter of common knowledge and experience and in the

the proximate cause why the truck hit the Meralco post?

[42]

(Emphases and underlines ours)

[48]

This doctrine postulates that, as

absence of some explanation by the defendant who is charged


with negligence, the very nature of occurrences may justify an
inference of negligence on the part of the person who controls the

Lastly, Josefa pleaded in his petition before this Court:

instrumentality causing the injury. In other words, res ipsa loquitur


is grounded on the superior logic of ordinary human experience

Nowhere in the records was it shown how and why the accident

that negligence may be deduced from the mere occurrence of the

occurred on April 21, 1991.

accident itself.

In the absence of any description on such important aspect,

The procedural effect of res ipsa loquitur in quasi-delict cases

fault or negligence cannot be properly imputed to petitioner,

is that the defendants negligence is presumed. In other

simply because his truck bumped into Meralcos electricity

words, the burden of evidence shifts to the defendant to

post. The causal connection between the petitioners supposed

prove that he did not act with negligence.

[49]

[50]

This doctrine thus


27 | P a g e

Torts 3

effectively furnishes a bridge by which the complainant, without

Civil Code which holds the employer vicariously liable for damages

knowledge of the cause of the injury, reaches over to the

caused by his employees within the scope of their assigned tasks.

defendant, who knows or should know the cause, for any


explanation of care exercised by him to prevent the injury.

In the present case, Josefa avoids the application of this provision


[51]

For

this doctrine to apply, the complainant must show that: (1) the

by denying that Bautista was his employee at the time of the


incident.

accident is of such character as to warrant an inference that it


would not have happened except for the defendants negligence;

Josefa cannot evade his responsibility by mere denial of his

(2) the accident must have been caused by an agency or

employment relations with Bautista in the absence of proof that his

instrumentality within the exclusive management or control of the

truck was used without authorization or that it was stolen when the

person charged with the negligence complained of; and (3) the

accident occurred.

accident must not have been due to any voluntary action or

a motor vehicle is the employer of its driver in contemplation of

contribution on the part of the person injured.

law.

[54]

[53]

In quasi-delict cases, the registered owner of

The registered owner of any vehicle, even if not used for

public service, would primarily be responsible to the public or to


The present case satisfies all the elements of res ipsa loquitur. It

third persons for injuries caused while the vehicle was being driven

is very unusual and extraordinary for the truck to hit an electricity

on highways or streets. The purpose of motor vehicle registration

post, an immovable and stationary object, unless Bautista, who

is precisely to identify the owner so that if any injury is caused by

had the exclusive management and control of the truck, acted with

the vehicle, responsibility can be imputed to the registered

fault or negligence. We cannot also conclude that Meralco

owner.

[55]

contributed to the injury since it safely and permanently installed


the electricity post beside the street. Thus, in Republic v. Luzon
Stevedoring Corp.,

[52]

B.

we imputed vicarious responsibility to Luzon

Josefa failed to show that he exercised


the diligence of a good father of a family
in the selection and supervision of Bautista

Stevedoring Corp. whose barge rammed the bridge, also an


immovable and stationary object. In that case, we found it highly
unusual for the barge to hit the bridge which had adequate
openings for the passage of water craft unless Luzon Stevedoring

In order for Josefa to be relieved of his vicarious liability, he must

Corp.s employee had acted with negligence.

show that he exercised due diligence in the selection and


supervision of Bautista. In concrete terms, Josefa should show by

In his pleadings, Josefa raises the possibility that the fault or

competent object or documentary evidence that he examined

negligence of the jeepney and/or the car drivers may have been

Bautista as to the latters qualifications, experience and service

the proximate cause of the damage. As a matter of defense,

records prior to employment. He should likewise prove by

Josefa should have substantiated this theory considering that the

competent object or documentary evidence that he formulated

burden of evidence has shifted against him after Meralco had

standard operating procedures, monitored their implementation

established that it was the truck that hit the electricity post.

and imposed disciplinary measures for breach of these

However, Josefa did not adduce any evidence in support of his

procedures.

defense during trial. Consequently, we sustain the CAs finding

presumption of negligence against him since he waived his right to

that there is a direct and proximate causal link between the truck

present evidence during trial. We are thus left with no other

and the injury that Meralco suffered.

conclusion other than to rule that Josefa is primarily liable for all

[56]

However, Josefa failed to overcome the

natural and probable consequences of Bautistas negligence.

[57]

III. Josefa is vicariously liable


under paragraph 5, Article 2180

IV. Meralco is only entitled to temperate

of the Civil Code

damages with interest at legal rate

A.

A.

There is an employer-employee

Meralco failed to prove its entitlement


to actual damages

relations between Bautista and Josefa

Despite Josefas vicarious liability in this case, Meralco failed to


The finding that Bautista acted with negligence in driving the truck

point out the specific facts that afford a basis for its claim for actual

gives rise to the application of paragraph 5, Article 2180 of the

damages.

[58]

Actual damages cannot be presumed; they must be


28 | P a g e

Torts 3

D.

pleaded and proven in court in order to be recoverable. One is

The award of temperate damages is

entitled to an adequate compensation only for the pecuniary loss

subject to 6% per annum reckoned

that he has adequately proved based upon competent proof and

from the promulgation of the decision

on the best evidence obtainable by him.

[59]

until fully paid

We cannot give weight to Exhibit D as to the amount of actual


damages for being hearsay. Exhibit D constitutes hearsay

Finally, we impose an interest rate of 6% per annum on temperate

evidence since it was derived on alleged pieces of documentary

damages pursuant to the guidelines enunciated in Eastern

evidence that were not identified and authenticated in court during

Shipping Lines v. CA,

trial. The trial court thus erred in even admitting Exhibit D in

Frames.

evidence whose contents were offered without any other

promulgation of this decision, the date when the amount of

[65]

[64]

as modified by Nacar v. Gallery

The interest rate shall commence to run from the

competent evidence to corroborate them. Consequently, we delete temperate damages has been determined with certainty.
the CAs award of actual damages for lack of evidentiary support.
WHEREFORE, premises considered, we PARTIALLY GRANT the
B.

Meralco is entitled to temperate damages

petition. The January 31, 2008 decision and the April 29, 2008

because it clearly suffered pecuniary

resolution of the Court of Appeals in CA-G.R. CV. No. 87512 is

loss as a result of Bautista and Josefas

AFFIRMED with MODIFICATION. Petitioner Vicente Josefa is

negligence

ordered to pay respondent Manila Electric Company the amount of


P200,000.00 as temperate damages with legal interest at 6% per
annum from the promulgation of this decision until full payment

Nonetheless, Meralco is entitled to temperate damages because

has been effected. Costs against petitioner Vicente Josefa.

there is no doubt that it suffered pecuniary loss as a result of


Bautista and Josefas negligence.

[60]

When the court finds that

SO ORDERED.

some pecuniary loss has been suffered but the amount cannot,
from the nature of the case, be proven with certainty, the court
may award temperate damages in the exercise of its sound
discretion.

[61]

Considering the attendant circumstances of this

case, we find the amount of P200,000.00 to be a fair and sufficient


award by way of temperate damages.
C.

Meralco is not entitled to attorneys


fees and expenses of litigation

The CA likewise erred in awarding Meralco attorneys fees and


expenses of litigation without explaining its basis. In Buan v.
Camaganacan,

[62]

we held that the text of the decision should

state the reason why attorney's fees are being awarded;


otherwise, the award should be disallowed. Besides, no bad faith
has been imputed to Josefa that would warrant the award of
attorneys fees under Article 2208 (5) of the Civil Code. It is a
settled rule that attorney's fees shall not be recovered as cost
where the partys persistence in litigation is based on his mistaken
belief in the righteousness of his cause.

[63]

There is also no

factual, legal, or equitable justification that would justify the Courts


award of attorneys fees under Article 2208 (11) of the Civil Code.

29 | P a g e

Torts 3

BJDC CONSTRUCTION, REPRESENTED BY ITS

company be held liable for damages, to wit: (a) P5,000.00 as the

MANAGER/PROPRIETOR JANET S. DELA CRUZ,

actual damage to Balbinos motorcycle; (b) P100,000.00 as funeral

PETITIONER, VS. NENA E. LANUZO, CLAUDETTE E. LANUZO, and burial expenses; (c) P559,786.00 representing the unearned
JANET E. LANUZO, JOAN BERNABE E. LANUZO, AND RYAN
JOSE E. LANUZO, RESPONDENTS.

income in expectancy of Balbino; (d) P100,000.00 as moral


damages; (e) P75,000.00 as attorneys fees, plus P1,500.00 per
court appearance; and (f) P20,000.00 as litigation costs and other

DECISION
BERSAMIN, J.:

incidental expenses.
In its answer,

[2]

the company denied Nenas allegations of

negligence, insisting that it had installed warning signs and lights


The party alleging the negligence of the other as the cause of

along the highway and on the barricades of the project; that at the

injury has the burden to establish the allegation with competent

time of the incident, the lights were working and switched on; that

evidence. If the action based on negligence is civil in nature, the

its project was duly inspected by the Department of Public Works

proof required is preponderance of evidence.

and Highways (DPWH), the Office of the Mayor of Pili, and the Pili
Municipal Police Station; and that it was found to have

This case involves a claim for damages arising from the death of a

satisfactorily taken measures to ensure the safety of motorists.

motorcycle rider in a nighttime accident due to the supposed


negligence of a construction company then undertaking re-

The company further alleged that since the start of the project in
blocking work on a national highway. The plaintiffs insisted that the September 1997, it installed several warning signs, namely: (a) big
accident happened because the construction company did not
overhead streamers containing the words SLOW DOWN ROAD
provide adequate lighting on the site, but the latter countered that

UNDER REPAIR AHEAD hung approximately 100 meters before

the fatal accident was caused by the negligence of the motorcycle

the re-blocking site, one facing the Pili-bound motorists and

rider himself. The trial court decided in favor of the construction

another facing the Naga-bound motorists; (b) road signs

company, but the Court of Appeals (CA) reversed the decision and containing the words SLOW DOWN ROAD UNDER REPAIR 100
ruled for the plaintiffs.
METERS AHEAD placed on the road shoulders below the
streamers; (c) road signs with the words SLOW DOWN ROAD
Hence, this appeal.

UNDER REPAIR 50 METERS AHEAD placed 50 meters before


the project site; (d) barricades surrounded the affected portion of
Antecedents

the highway, and a series of 50-watt light bulbs were installed and
switched on daily from 6:00 p.m. until the following morning; (e) big

On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for


damages

[1]

against BJDC Construction (company), a single

warning signs containing the words SLOW DOWN ROAD UNDER


REPAIR and SLOW DOWN MEN WORKING were displayed at

proprietorship engaged in the construction business under its

both ends of the affected portion of the highway with illumination

Manager/Proprietor Janet S. de la Cruz. The company was the

from two 50-watt bulbs from 6:00 p.m. until the following morning;

contractor of the re-blocking project to repair the damaged portion

and (f) the unaffected portion of the highway was temporarily

of one lane of the national highway at San Agustin, Pili, Camarines widened in the adjacent road shoulder to allow two-way vehicular
Sur from September 1997to November 1997.
traffic.
Nena alleged that she was the surviving spouse of the late Balbino The company insisted that the death of Balbino was an accident
Los Baos Lanuzo (Balbino) who figured in the accident that
brought about by his own negligence, as confirmed by the police
transpired at the site of the re-blocking work at about 6:30 p.m. on

investigation report that stated, among others, that Balbino was


October 30, 1997; that Balbinos Honda motorcycle sideswiped the not wearing any helmet at that time, and the accident occurred
road barricade placed by the company in the right lane portion of
while Balbino was overtaking another motorcycle; and that the
the road, causing him to lose control of his motorcycle and to

police report also stated that the road sign/barricade installed on

crash on the newly cemented road, resulting in his instant death;

the road had a light. Thus, it sought the dismissal of the complaint

and that the companys failure to place illuminated warning signs

and prayed, by way of counterclaim, that the Nena be ordered to

on the site of the project, especially during night time, was the

pay P100,000.00 as attorneys fees, as well as moral damages to

proximate cause of the death of Balbino. She prayed that the

be proven in the course of trial.


30 | P a g e

Torts 3

Decision of the CA

The RTC subsequently directed the amendment of the complaint


to include the children of Nena and Balbino as co-plaintiffs,
namely: Janet, Claudette, Joan Bernabe and Ryan Jose, all

The Lanuzo heirs appealed to the CA.

surnamed Lanuzo. Hence, the plaintiffs are hereinafter be referred


to as the Lanuzo heirs.

On August 11, 2003, the CA promulgated its decision declaring


that the issue was whether the company had installed adequate

Decision of the RTC

lighting in the project so that motorists could clearly see the


barricade placed on the newly cemented lane that was then still
[4]

On October 8, 2001, the RTC rendered judgment in favor of the

closed to vehicular traffic,

company, as follows:

RTC, and holding thusly:

thereby reversing the judgment of the

Plaintiffs are the survivors of Balbino Los Baos Lanuzo who met

WHEREFORE, premises considered, the present appeal is hereby

a traumatic death on 30 October, 1997 at about 6:30 p.m., when

GRANTED and the decision appealed from in Civil Case No. P-

he bumped his motorcycle on a barricade that was lighted with an

2117 is hereby REVERSED and SET ASIDE. A new judgment is

electric bulb, protecting from traffic the newly-reblocked cement

hereby entered ordering the defendant-appellee to pay the

road between San Agustin and San Jose, Pili, Camarines Sur;

plaintiff-appellants, heirs of the victim Balbino L. B. Lanuzo, the

they claim defendants OMISSION in lighting up the barricaded

sums of P50,000.00 as death indemnity, P20,000.00 by way of

portion of the reblocking project being undertaken by defendant

temperate damages and P939,736.50 as loss of earning capacity

was the proximate cause of the accident, leaving them bereaved

of the deceased Balbino L. B. Lanuzo.

and causing them actual and moral damages.


[5]

SO ORDERED.
Defendant DENIED the claim of plaintiffs; both parties offered
testimonial and documentary evidence, from which this Court,

The CA ruled that the following elements for the application of the
doctrine of res ipsa loquitur were present, namely: (1) the accident

FINDS

was of such character as to warrant an inference that it would not


have happened except for the defendants negligence; (2) the

that: plaintiff DID NOT present an eyewitness account of the death

accident must have been caused by an agency or instrumentality

of their decedent; on the contrary, the flagman of defendant was

within the exclusive management or control of the person charged

present when the accident occurred, which was caused by the

with the negligence complained of; and (3) the accident must not

decedent having overtaken a motorcycle ahead of [him] and on

have been due to any voluntary action or contribution on the part

swerving, to avoid the barricade, hit it, instead, breaking the lighted of the person injured.
electric bulb on top of the barricade, resulting in the fall of the
decedent about 18 paces from where his motorcycle fell on the

The CA regarded as self-serving the testimony of Eduardo

reblocked pavement; the police investigator, policeman Corporal,

Zamora, an employee of the company who testified that there was

by Exh. 1, confirmed the tale of the flagman, aside from confirming

an electric bulb placed on top of the barricade on the area of the

the presence of the warning devices placed not only on the

accident. It held that Zamoras statement was negated by the

premises but at places calculated to warn motorists of the ongoing

statements of Ernesto Alto and Asuncion Sandia to the effect that

reblocking project.

they had passed by the area immediately before the accident and
had seen the road to be dark and lit only by a gas lamp. It noted
OPINION

that SPO1 Corporal, the police investigator, had noticed the


presence of lighted electric bulbs in the area, but the same had

From the foregoing findings, it is the opinion of this Court that the

been installed on the other side of the street opposite the

plaintiffs were unable to make out a case for damages, with a

barricade.

preponderance of evidence.
The CA ruled that the placing of road signs and streamers alone
WHEREFORE, Judgment is hereby rendered, DISMISSING the
complaint.

[3]

did not prove that the electric bulbs were in fact switched on at the
time of the accident as to sufficiently light up the newly re-blocked
31 | P a g e

Torts 3

portion of the highway. It opined that [t]he trial court gave undue

motorcycle at a fast speed trying to overtake another motorcycle

weight to the self-serving statement of appellees employee,

rider before hitting the barricade. On the other hand, it insists that

Eduardo Zamora, which was supposedly corroborated by SPO1

its documentary and testimonial evidence proved its exercise of

Pedro Corporal. SPO1 Corporal arrived at the scene only after the

due care and observance of the legally prescribed safety

accident occurred, and thus the electric bulbs could have already

requirements for contractors.

been switched on by Zamora who was at the area of the project. It


concluded that the negligence of the company was the proximate

The company maintains that Balbino was familiar with the re-

cause of Balbinos death; hence, the company was liable for

blocking project that had been going on for months because he

damages.

had been passing the area at least four times a day during
weekdays in going to and from his place of work in the morning

The company filed a motion for reconsideration,

[6]

but the CA

denied the motion in the resolution promulgated on November 13,

and in the afternoon; and that he could have avoided the accident
had he exercised reasonable care and prudence.

2003.
The company assails the application of the doctrine of res ipsa
Issues

loquitur, positing that the Lanuzo heirs did not establish all the
requisites for the doctrine to apply.

In this appeal, the company submits the following issues, namely:


Anent the first requisite, the company states that the Lanuzo heirs
I. The application by the Honorable Court of Appeals of the

did not successfully counter its documentary and testimonial

doctrine of res ipsa loquitur to the case at bar, despite and

evidence showing that Balbinos own negligence had caused the

contrary to the finding, among others, by the trial court that the

accident. It cites the fact that Balbino was familiar with the road

proximate cause of the accident is the victims own negligence, is

conditions and the re-blocking project because he had been

not in accord with the law or with the applicable decisions of the

passing there daily; and that Balbino had been driving too fast and

Supreme Court [Sec. 6 (a), Rule 45, Rules of Court].

not wearing the required helmet for motorcycle drivers, which were
immediately evident because he had been thrown from his

II. The Honorable Court of Appeals, by substituting its own findings motorcycle and had landed 18 paces away from the barricade
of fact and conclusion with those of the trial court despite the lack

that he had hit.

of strong or cogent reasons therefor, has so far departed from


the accepted and usual course of judicial proceedings ... as to call

On the second requisite, the company argues that Balbinos

for an exercise of the power of supervision by this Honorable

driving and operation of his motorcycle on the day of the accident

Supreme Court [Sec. 6 (b), Ibid.].

indicated that the accident was not within its exclusive


management and control; and that as to the matters that were

III. The findings by the Honorable Court of Appeals that

within its control, it sufficiently showed its observance of due and

respondents (appellants therein) had satisfactorily presented a

reasonable care and its compliance with the legally prescribed

prima facie case of negligence which the appellee (petitioner

safety requirements.

herein) had not overcome with an adequate explanation and


which alleged negligence is the proximate cause of death of

Regarding the third requisite, the company reminds that Zamora

Lanuzo are manifestations of grave abuse of discretion in the

and SPO1 Corporal revealed that Balbino was overtaking another

appreciation of facts, and constitute a judgment based on a

motorcycle rider before hitting the barricade. The credibility of said

misinterpretation of facts, which justify a review by this Honorable

witnesses was not challenged, and their testimonies not rebutted;

Supreme Court.

[7]

hence, the CA erred in relying on the recollections of Asuncion


Sandia and Ernesto Alto who were not present when the incident

The company reiterates the categorical finding of the RTC that the

took place. Sandia and Altos testimonies could not be accorded

proximate cause of the accident was Balbinos own negligence,

more weight than Zamoras eyewitness account, considering that

and that such finding was based on the conclusion stated by

the latter was believed by the trial judge who had the first-hand

SPO1 Corporal in his investigation report to the effect that the

opportunity to observe the demeanor of the witnesses.

incident was purely self accident, and on the unrebutted


testimony of Zamora to the effect that Balbino was driving his
32 | P a g e

Torts 3

Whose negligence was the proximate cause of the death of


Negligence, the Court said in Layugan v. Intermediate Appellate

Balbino?

Court,
Ruling of the Court

[17]

is the omission to do something which a reasonable

man, guided by those considerations which ordinarily regulate the


conduct of human affairs, would do, or the doing of something
[18]

Inasmuch as the RTC and the CA arrived at conflicting findings of

which a prudent and reasonable man would not do,

fact on who was the negligent party, the Court holds that an

Cooley defines it, (t)he failure to observe for the protection of the

examination of the evidence of the parties needs to be undertaken

interests of another person, that degree of care, precaution, and

to properly determine the issue.

[8]

or as Judge

The Court must ascertain whose vigilance which the circumstances justly demand, whereby such

evidence was preponderant, for Section 1, Rule 133 of the Rules

other person suffers injury.

[19]

In order that a party may be held

of Court mandates that in civil cases, like this one, the party having liable for damages for any injury brought about by the negligence
the burden of proof must establish his case by a preponderance of
evidence.

[9]

of another, the claimant must prove that the negligence was the
immediate and proximate cause of the injury. Proximate cause is
defined as that cause, which, in natural and continuous sequence,

Burden of proof is the duty of a party to present evidence on the

unbroken by any efficient intervening cause, produces the injury

facts in issue necessary to establish his claim or defense by the

and without which the result would not have occurred.

amount of evidence required by law.

[10]

It is basic that whoever

alleges a fact has the burden of proving it because a mere


allegation is not evidence.
no burden to prove.

[12]

[11]

[20]

Generally, the party who denies has

In civil cases, the burden of proof is on the

The test by which the existence of negligence in a particular case


is determined is aptly stated in the leading case of Picart v.
Smith,

[21]

as follows:

party who would be defeated if no evidence is given on either


side.

[13]

The burden of proof is on the plaintiff if the defendant

The test by which to determine the existence of negligence in a

denies the factual allegations of the complaint in the manner

particular case may be stated as follows: Did the defendant in

required by the Rules of Court, but it may rest on the defendant if

doing the alleged negligent act use that reasonable care and

he admits expressly or impliedly the essential allegations but

caution which an ordinarily prudent person would have used in the

raises affirmative defense or defenses, which if proved, will

same situation? If not, then he is guilty of negligence. The law here

exculpate him from liability.

[14]

in effect adopts the standard supposed to be supplied by the


imaginary conduct of the discreet paterfamilias of the Roman law.

By preponderance of evidence, according to Raymundo v.


Lunaria:

[15]

The existence of negligence in a given case is not determined by


reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless,

x x x is meant that the evidence as a whole adduced by one side is blameworthy, or negligent in the man of ordinary intelligence and
superior to that of the other. It refers to the weight, credit and value prudence and determines liability by that.
of the aggregate evidence on either side and is usually considered
to be synonymous with the term greater weight of evidence or

The question as to what would constitute the conduct of a prudent

greater weight of the credible evidence. It is evidence which is

man in a given situation must of course be always determined in

more convincing to the court as worthy of belief than that which is

the light of human experience and in view of the facts involved in

offered in opposition thereto.

the particular case. Abstract speculation cannot here be of much


value but this much can be profitably said: Reasonable men

In addition, according to United Airlines, Inc. v. Court of


Appeals,

[16]

the plaintiff must rely on the strength of his own

evidence and not upon the weakness of the defendants.

govern their conduct by the circumstances which are before them


or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care
only when there is something before them to suggest or warn of

Upon a review of the records, the Court affirms the findings of the

danger. Could a prudent man, in the case under consideration,

RTC, and rules that the Lanuzo heirs, the parties carrying the

foresee harm as a result of the course actually pursued? If so, it

burden of proof, did not establish by preponderance of evidence

was the duty of the actor to take precautions to guard against that

that the negligence on the part of the company was the proximate

harm. Reasonable foresight of harm, followed by the ignoring of

cause of the fatal accident of Balbino.

the suggestion born of this prevision, is always necessary before


33 | P a g e

Torts 3

negligence can be held to exist. Stated in these terms, the proper


criterion for determining the existence of negligence in a given

Secondly, the company presented as its documentary evidence

case is this: Conduct is said to be negligent when a prudent man

the investigation report dated December 3, 1997 of SPO1 Corporal

in the position of the tortfeasor would have foreseen that an effect

(Annex 1), the relevant portions of which indicated the finding of

harmful to another was sufficiently probable to warrant his

the police investigator on the presence of illumination at the project

foregoing the conduct or guarding against its consequences.

site, viz:

First of all, we note that the Lanuzo heirs argued in the trial and

SUBJECT: Investigation Report Re: Homicide Thru Reckless

appellate courts that there was a total omission on the part of the

Imprudence (Self Accident)

company to place illuminated warning signs on the site of the


project, especially during night time, in order to warn motorists of

xxxx

the project. They claim that the omission was the proximate cause
of the death of Balbino.

[22]

In this appeal, however, they contend

II. MATTERS INVESTIGATED:

that the negligence of the company consisted in its omission to put


up adequate lighting and the required signs to warn motorists of

1. To determine how the incident happened.

the project, abandoning their previous argument of a total omission 2. To determine the vehicle involved.
to illuminate the project site.
III. FACTS OF THE CASE:
During the trial, the Lanuzo heirs attempted to prove inadequacy of
illumination instead of the total omission of illumination. Their first

3.

At 6:45 P.M. October 30, 1997, Elements of Pili

witness was Cesar Palmero, who recalled that lights had been

Municipal Police Station led by SPO2 Melchor

actually installed in the site of the project. The next witness was

Estallo, SPO2 Cesar Pillarda, both members of

Ernesto Alto, who stated that he had seen three light bulbs

the patrol section and SPO1 Pedro D. Corporal,

installed in the site, placed at intervals along the stretch of the road

investigator reported having conducted an on

covered by the project. Alto further stated that he had passed the

the spot investigation re: vehicular incident (Self

site on board his tricycle on October 30, 1997 prior to the accident,

Accident) that happened on or about 6:30

and had seen only a gas lamp, not light bulbs, on his approach.

oclock in the evening of October 30, 1997 along

Another witness of the plaintiffs, Asuncion Sandia, claimed that

national highway, San Agustin, Pili, Camarines

she had also passed the site on board a bus on the night just prior

Sur, wherein one Balbino Lanuzo y Doe, of legal

to the accident, and had seen the site to be dark, with only one

age, married, a public school teacher, a resident

lane open to traffic, with no light at all. Obviously, the witnesses of

of San Jose, Pili, Camarines Sur while driving

the plaintiffs were not consistent on their recollections of the

his Honda motorcycle 110 CC enroute to San

significant detail of the illumination of the site.

Jose, Pili, Camarines Sur from Poblacion, this


municipality and upon reaching at road re:

In contrast, the company credibly refuted the allegation of

blocking portion of the national highway at

inadequate illumination. Zamora, its flagman in the project,

barangay San Agustin, Pili, Camarines Sur and

rendered an eyewitness account of the accident by stating that the

while overtaking another motorcycle ahead

site had been illuminated by light bulbs and gas lamps, and that

incidentally side-swiped a road sign/barricade

Balbino had been in the process of overtaking another motorcycle

installed at the lane road re: blocking of the

rider at a fast speed when he hit the barricade placed on the newly

national highway, causing said motorcycle rider

cemented road. On his part, SPO1 Corporal, the police

to swerved his ridden motorcycle to the right

investigator who arrived at the scene of the accident on October

and stumble down and fell to the concrete

30, 1997, recalled that there were light bulbs on the other side of

cemented road. Victim was rushed to Bicol

the barricade on the lane coming from Naga City; and that the light

Medical Center, Naga City for treatment but was

bulb on the lane where the accident had occurred was broken

pronounced dead on arrival.

because it had been hit by the victims motorcycle. Witnesses


Gerry Alejo and Engr. Victorino del Socorro remembered that light
bulbs and gas lamps had been installed in the area of the project.
34 | P a g e

Torts 3

4.

That upon arrival at the scene of the incident

11. Basing on the above discussion and facts

it was noted that road sign/barricade

surroundings the case was purely self accident

installed on the road has a light.

resulting to Homicide Thru Reckless


Imprudence and the case must be closed.

5.

(Emphasis ours.)

That said road was under repair for almost a

[23]

month which one lane portion of the national


highway is possible of all passing vehicles from
south and north bound.

Additionally, the company submitted the application for lighting


permit covering the project site (Annex 7) to prove the fact of

6.

That said motorcycle stumble down on the

installation of the electric light bulbs in the project site.

newly repair portion of the national highway and


the driver lying down beside the motorcycle.

In our view, the RTC properly gave more weight to the testimonies
of Zamora and SPO1 Corporal than to those of the witnesses for

xxxx

the Lanuzo heirs. There was justification for doing so, because the
greater probability pertained to the former. Moreover, the trial

7.

That one of the passerby revealed that the

courts assessment of the credibility of the witnesses and of their

victim possibly be miscalculated the road block

testimonies is preferred to that of the appellate courts because of

that made him to tumble down when he applied

the trial courts unique first-hand opportunity to observe the

sudden brake.

witnesses and their demeanor as such. The Court said in Cang v.


Cullen:

[24]

IV. FINDINGS/DISCUSSION:
The findings of the trial court on the credibility of witnesses are
8.

The time of the incident was at about 6:30

accorded great weight and respect - even considered as

oclock in the evening a time wherein dark of the conclusive and binding on this Court - since the trial judge had the
night is approaching the vision of the driver is

unique opportunity to observe the witness firsthand and note his

affected with the changing condition and it is all

demeanor, conduct and attitude under grueling examination. Only

the time when driver should lights his driven

the trial judge can observe the furtive glance, blush of conscious

vehicle, as to this case, the driver Balbino

shame, hesitation, flippant or sneering tone, calmness, sigh of a

Lanuzo y Doe (victim has exercise all

witness, or his scant or full realization of an oath - all of which are

precautionary measures to avoid accident but

useful aids for an accurate determination of a witness' honesty and

due to self accident he incidentally sideswiped

sincerity. He can thus be expected to determine with reasonable

the road sign/barricade of the re: Blocking

discretion which testimony is acceptable and which witness is

portion of the national highway resulting him to

worthy of belief.

stumble down his motorcycle and fell down to


the concrete cement road.

Absent any showing that the trial court's calibration of the


credibility of the witnesses was flawed, we are bound by its

9.

The driver/victim met unexpectedly (sic) along

assessment. This Court will sustain such findings unless it can be

that one lane potion of the re: blocking and

shown that the trial court ignored, overlooked, misunderstood,

considering it was night time, confusion

misappreciated, or misapplied substantial facts and

overthrew him and because of sudden impulse,

circumstances, which, if considered, would materially affect the

he lost control on the motorcycle he was driving. result of the case.

[25]

10. That the driver/victim has no crush (sic) helmet

The Court observes, too, that SPO1 Corporal, a veteran police

at the time of the incident considering that it

officer detailed for more than 17 years at the Pili Police Station,

should be a basic requirement as to prevent

enjoyed the presumption of regularity in the performance of his

from any accident.

official duties.

[26]

The presumption, although rebuttable, stands

because the Lanuzo heirs did not adduce evidence to show any
V. RECOMMENDATION:

deficiency or irregularity in the performance of his official duty as


35 | P a g e

Torts 3

[31]

the police investigator of the accident. They also did not show that

The Court has warned in Reyes v. Sisters of Mercy Hospital,

he was impelled by any ill motive or bias to testify falsely.

however, that res ipsa loquitur is not a rigid or ordinary doctrine to


be perfunctorily used but a rule to be cautiously applied,

Thirdly, the CA unreasonably branded the testimonies of Zamora

depending upon the circumstances of each case.

and SPO1 Corporal as self-serving. They were not. Self-serving


evidence refers to out-of-court statements that favor the
declarants interest;

[27]

Based on the evidence adduced by the Lanuzo heirs, negligence

it is disfavored mainly because the adverse

party is given no opportunity to dispute the statement and their


admission would encourage fabrication of testimony.

[28]

cannot be fairly ascribed to the company considering that it has


shown its installation of the necessary warning signs and lights in

But court

the project site. In that context, the fatal accident was not caused

declarations are not self-serving considering that the adverse party by any instrumentality within the exclusive control of the company.
is accorded the opportunity to test the veracity of the declarations

In contrast, Balbino had the exclusive control of how he operated

by cross-examination and other methods.

and managed his motorcycle. The records disclose that he himself


did not take the necessary precautions. As Zamora declared,

There is no question that Zamora and SPO1 Corporal were

Balbino overtook another motorcycle rider at a fast speed, and in

thoroughly cross-examined by the counsel for the Lanuzo heirs.

the process could not avoid hitting a barricade at the site, causing

Their recollections remained unchallenged by superior contrary

him to be thrown off his motorcycle onto the newly cemented road.

evidence from the Lanuzo heirs.

SPO1 Corporals investigation report corroborated Zamoras


declaration. This causation of the fatal injury went uncontroverted

Fourthly, the doctrine of res ipsa loquitur had no application here.


In Tan v. JAM Transit, Inc.,

[29]

by the Lanuzo heirs.

the Court has discussed the doctrine

thusly:

Moreover, by the time of the accident, the project, which had


commenced in September 1997, had been going on for more than

Res ipsa loquitur is a Latin phrase that literally means the thing or

a month and was already in the completion stage. Balbino, who

the transaction speaks for itself. It is a maxim for the rule that the

had passed there on a daily basis in going to and from his

fact of the occurrence of an injury, taken with the surrounding

residence and the school where he then worked as the principal,

circumstances, may permit an inference or raise a presumption of

was thus very familiar with the risks at the project site. Nor could

negligence, or make out a plaintiff's prima facie case, and present

the Lanuzo heirs justly posit that the illumination was not

a question of fact for defendant to meet with an explanation.

adequate, for it cannot be denied that Balbinos motorcycle was

Where the thing that caused the injury complained of is shown to

equipped with headlights that would have enabled him at dusk or

be under the management of the defendant or his servants; and

night time to see the condition of the road ahead. That the

the accident, in the ordinary course of things, would not happen if

accident still occurred surely indicated that he himself did not

those who had management or control used proper care, it affords

exercise the degree of care expected of him as a prudent motorist.

reasonable evidence in the absence of a sufficient, reasonable


and logical explanation by defendant that the accident arose

According to Dr. Abilay, the cause of death of Balbino was the fatal

from or was caused by the defendant's want of care. This rule is

depressed fracture at the back of his head, an injury that Dr. Abilay

grounded on the superior logic of ordinary human experience, and

opined to be attributable to his head landing on the cemented road

it is on the basis of such experience or common knowledge that

after being thrown off his motorcycle. Considering that it was

negligence may be deduced from the mere occurrence of the

shown that Balbino was not wearing any protective head gear or

accident itself. Hence, the rule is applied in conjunction with the

helmet at the time of the accident, he was guilty of negligence in

doctrine of common knowledge.

that respect. Had he worn the protective head gear or helmet, his
untimely death would not have occurred.

For the doctrine to apply, the following requirements must be


shown to exist, namely: (a) the accident is of a kind that ordinarily

The RTC was correct on its conclusions and findings that the

does not occur in the absence of someones negligence; (b) it is

company was not negligent in ensuring safety at the project site.

caused by an instrumentality within the exclusive control of the

All the established circumstances showed that the proximate and

defendant or defendants; and (c) the possibility of contributing


conduct that would make the plaintiff responsible is eliminated.

immediate cause of the death of Balbino was his own negligence.


[30]

Hence, the Lanuzo heirs could not recover damages.

[32]

36 | P a g e

Torts 3

WHEREFORE, the Court GRANTS the petition for review on


certiorari; REVERSES and SETS ASIDE the decision promulgated
on August 11, 2003 by the Court of Appeals; REINSTATES the
decision rendered on October 8, 2001 by the Regional Trial Court,
Branch 32, in Pili, Camarines Sur dismissing the complaint; and
MAKES no pronouncements on costs of suit.
SO ORDERED.

37 | P a g e

Torts 3

PEDRO T. LAYUGAN, PETITIONER, VS. INTERMEDIATE

accident driven by Daniel Serrano. Defendant countered that the

APPELLATE COURT, GODOFREDO ISIDRO, AND

plaintiff was merely a bystander, not a truck helper being a

TRAVELLERS MULTI-INDEMNITY CORPORATION,

brother-in-law of the driver of said truck; that the truck allegedly

RESPONDENTS.

being repaired was parked, occupying almost half of the right lane
towards Solano, Nueva Vizcaya, right after the curve; that the

DECISION

proximate cause of the incident was the failure of the driver of the
parked truck in installing the early warning device, hence the driver

SARMIENTO, J.:

of the parked car should be liable for damages sustained by the


truck of the herein defendant in the amount of more than

Assailed in this petition for review on certiorari are 1) the


[1]

decision of the then Intermediate Appellate Court

[2]

in AC-G.R.

P20,000.00; that plaintif being a mere bystander and hitchhiker


must suffer all the damages he incurred. By way of counterclaim

CV No. 01055, entitled "Pedro T. Layugan, Plaintiff- Appellee,

defendant alleged that due to plaintiff's baseless complaint he was

versus Godofredo Isidro, Defendant-Appellant and Third-Party

constrained to engage the services of counsel for P5,000.00 and

Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation,

P200.00 per court appearance; that he suffered sleepless nights,

Third Party Defendant-Appellant," which reversed and set aside

humiliation, wounded feelings which may be estimated at

the decision

[3]

of the Regional Trial Court, Third Judicial Region,

P30,000.00.

Branch XXVI, Cabanatuan City, and also dismissed the complaint,


third party complaint, and the counter claims of the parties and 2)
[4]

On May 29, 1981, a third-party complaint was filed by the

the resolution , denying the plaintiff-appellee's (herein petitioner)

defendant against his insurer, the Travellers Multi Indemnity

motion for reconsideration, for lack of merit.

Corporation; that the third-party plaintiff, without admitting his


liability to the plaintiff, claimed that the third-party defendant is

The findings of fact by the trial court which were adopted by the
appellate court are as follows:

[5]

liable to the former for contribution, indemnity and subrogation by


virtue of their contract under Insurance Policy No. 11723 which
covers the insurer's liability for damages arising from death, bodily

xxx xxx xxx

injuries and damage to property.

"Pedro T. Layugan filed an action for damages against Godofredo


Isidro, alleging that on May 15, 1979 while at Baretbet, Bagabag,

Third-party defendant answered that, even assuming that the

Nueva Vizcaya, the plaintiff and a companion were repairing the

subject matter of the complaint is covered by a valid and existing

tire of their cargo truck with Plate No. SU-730 which was parked

insurance policy, its liability shall in no case exceed the limit

along the right side of the National Highway; that defendant's truck

defined under the terms and conditions stated therein; that the

bearing plate No. PW-583, driven recklessly by Daniel Serrano

complaint is premature as no claim has been submitted to the third

bumped the plaintiff; that as a result, plaintiff was injured and

party defendant as prescribed under the Insurance Code; that the

hospitalized at Dr. Paulino J. Garcia Research and Medical Center

accident in question was proximately caused by the carelessness

and the Our Lady Of Lourdes Hospital; that he spent TEN

and gross negligence of the plaintiff; that by reason of the third-

THOUSAND PESOS (P10,000.00) and will incur more expenses

party complaint, third-party defendant was constrained to engage

as he recuperates from said injuries; that because of said injuries

the services of counsel for a fee of P3,000.00.

he would be deprived of lifetime income in the sum of SEVENTY


THOUSAND pesos (P70,000.00); and that he agreed to pay his

Pedro Layugan declared that he is a married man with one (1)

lawyer the sum of TEN THOUSAND PESOS (P10,000.00).

child. He was employed as security guard in Mandaluyong, Metro

As prayed for by the plaintiff's counsel, the Court declared the

Manila, with a salary of SIX HUNDRED PESOS (P600.00) a

defendant in default on October 12, 1979, and plaintiff's evidence

month. When he is off-duty, he worked as a truck helper and while

was received ex-parte on January 11, 1978 and February 19,

working as such, he sustained injuries as a result of the bumping

1980. The decision on behalf of the plaintiff was set aside to give a of the cargo truck they were repairing at Baretbet, Bagabag,
Nueva Vizcaya by the driver of the defendant. He used to earn
chance to the defendant to file his answer and later on, a thirdparty complaint.

TWO HUNDRED PESOS (P200.00) to THREE HUNDRED


PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS

Defendant admitted his ownership of the vehicle involved in the

(P100.00) per trip. Due to said injuries, his left leg was amputated
so he had to use crutches to walk. Prior to the incident, he
38 | P a g e

Torts 3

supported his family sufficiently, but after getting injured, his family

d) To pay the costs of this suit.

is now being supported by his parents and brother.

On the third party complaint, the third-party defendant is ordered to


indemnify the defendant/third party plaintiff:

GODOFREDO ISIDRO, defendant/third party plaintiff, testified that


his truck involved in this vehicular accident is insured with the
Travellers Multi Indemnity Corporation covering own damage and

a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual


and compensatory damages; and

third-party liability, under vehicle policy no. 11723 (Exh. '1') dated
May 30,1978; that after he filed the insurance claim the insurance
company paid him the sum of P18,000.00 for the damages
sustained by this truck but not the third party liability.

b) The costs of this suit.


The Intermediate Appellate Court as earlier stated reversed the
decision of the trial court and dismissed the complaint, the thirdparty complaint, and the counter-claims of both appellants.

[7]

DANIEL SERRANO, defendant driver, declared that he gave a


statement before the municipal police of Bagabag, Nueva Vizcaya

Hence, this petition.

on May 16, 1979; that he knew the responsibilities of a driver; that


before leaving, he checked the truck. The truck owner used to

The petitioner alleges the following errors.

[8]

instruct him to be careful in driving. He bumped the truck being


repaired by Pedro Layugan, plaintiff, while the same was at a stop

1.

WHETHER UPON THE GIVEN FACTS, THE


INTERMEDIATE APPELLATE COURT ACTED

position.

CORRECTLY IN REVERSING AND SETTING


ASIDE AND DISMISSING THE PLAINTIFF-

From the evidence presented, it has been established clearly that

APPELLEE'S COMPLAINT.

the injuries sustained by the plaintiff was caused by defendant's


driver, Daniel Serrano. The police report confirmed the allegation
of the plaintiff and admitted by Daniel Serrano on crossexamination. The collision dislodged the jack from the parked truck
and pinned the plaintiff to the ground. As a result thereof, plaintiff
sustained injuries on his left forearm and left foot. The left leg of
the plaintiff from below the knee was later on amputated (Exh. 'C')
when gangrene had set in, thereby rendering him incapacitated for
work depriving him of his income." (pp. 118 to 120, Record on
Appeal.)

WHETHER THE INTERMEDIATE APPELLATE


COURT ACTED CORRECTLY IN APPLYING
THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS-PRUDENTIAL (sic)
BASIS.

The crux of the controversy lies in the correctness or error of the


decision of the respondent court finding the petitioner negligent
under the doctrine of Res ipsa loquitur (The thing speaks for itself).

xxx xxx xxx


Upon such findings, amply supported by the evidence on record,
the trial court rendered its decision, the dispositive part of which
reads as follows:

2.

[6]

WHEREFORE, premises considered, the defendant is hereby


ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00)
PESOS actual and compensatory damages;

Corollary thereto, is the question as to who is negligent, if the


doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the
petition being factual, the same is not reviewable by this Court in a
[9]

petition for review by certiorari.

Indeed, it is an elementary rule in the review of decisions of the


Court of Appeals that its findings of fact are entitled to great
respect and will not ordinarily be disturbed by this Court.

[10]

For if

we have to review every question of fact elevated to us, we would


hardly have any more time left for the weightier issues compelling

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

and deserving our preferential attention.

[11]

Be that as it may, this

rule is not inflexible. Surely there are established exceptions


c) FIVE THOUSAND (P5,000,00) PESOS for moral damages;
and

[12]

--

when the Court should review and rectify the findings of fact of the
lower court, such as:

39 | P a g e

Torts 3

1) when the conclusion is a finding grounded entirely on

1986, "to file the necessary petition or pleading before the

speculation, surmise, or conjecture; 2) the inference made is

Supreme Court". Also, on April 1, 1986, an appearance of a new

manifestly mistaken; 3) there is grave abuse of discretion; 4) the

lawyer for the petitioner before the Supreme Court" with motion

judgment is based on misapprehension of facts; 5) the Court of

was filed, again erroneously, with the Court of Appeals, requesting

Appeals went beyond the issues of the case if the findings are

for 20 days extension "to file the Petition for Review on Certiorari."

contrary to the admission of both the appellant and the appellee;

Likewise a similar motion

6) the findings of fact of the Court of Appeals are contrary to those

1, 1986. On the other hand, the instant petition for review was filed

of the trial court; 7) the said findings of fact are conclusions without on April 17, 1986

[22]

[21]

[20]

was filed with this Court also on April

but it was only after three months, on August


[23]

citation of specific evidence on which they are based; 8) the facts

1, 1986, in its comment,

that the respondent corporation raised

set forth in the petition as well as in the petitioner's main and reply

the issue of tardiness. The respondent corporation should not

briefs are not disputed by the respondents; and 9) when the

have waited in ambush before the comment was required and

findings of fact of the Court of Appeals are premised on the

before due course was given. In any event, to exact its "a pound of

absence of evidence and are contradicted on record.

flesh", so to speak, at this very late stage, would cause a grave


miscarriage of justice. Parenthetically, it must be noted that private

Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant

respondent Isidro did not raise this issue of late filing.

a deviation from the general rule.


We now come to the merits of this petition.
From its finding that the parked truck was loaded with ten (10) big
round logs,

[13]

the Court of Appeals inferred that because of its

The question before us is who was negligent? Negligence is the

weight the truck could not have been driven to the shoulder of the

omission to do something which a reasonable man, guided by

road and concluded that the same was parked on a portion of the

those considerations which ordinarily regulate the conduct of

road

[14]

at the time of the accident. Consequently, the respondent

court inferred that the mishap was due to the negligence of the
driver of the parked truck.

[15]

The inference or conclusion is

human affairs, would do, or the doing of something which a


prudent and reasonable man would not do,

[24]

or as Judge Cooley

defines it, "(T)he failure to observe for the protection of the

manifestly erroneous. In a large measure, it is grounded on

interests of another person, that degree of care, precaution, and

speculation, surmise, or conjecture. How the respondent court

vigilance which the circumstances justly demand, whereby such

could have reversed the finding of the trial court that a warning

other person suffers injury."

device was installed

[16]

[25]

escapes us because it is evident from the


[26]

record that really such a device, in the form of a lighted kerosene

In Picart vs. Smith,

lamp, was installed by the driver of the parked truck three to four

still a sound rule, we held:

meters from the rear of his parked truck.

[17]

We see this negative

decided more than seventy years ago but

The test by which to determine the existence of negligence in a

finding of the respondent appellate court as a misreading of the

particular case may be stated as follows: Did the defendant in

facts and the evidence on record and directly contravening the

doing the alleged negligent act use that reasonable care and

positive finding of the trial court that an early warning device was

caution which an ordinarily prudent person would have used in the

in proper place when the accident happened and that the driver of

same situation? If not, then he is guilty of negligence. The law here

the private respondent was the one negligent. On the other hand,

in effect adopts the standard supposed to be supplied by the

the respondent court, in refusing to give its "imprimatur to the trial

imaginary conduct of the discreet paterfamilias of the Roman law.

court's finding and conclusion that Daniel Serrano (private

The existence of negligence in a given case is not determined by

respondent Isidro's driver) was negligent in driving the truck that

reference to the personal judgment of the actor in the situation

bumped the parked truck", did not cite specific evidence to support

before him. The law considers what would be reckless,

its conclusion. In cavalier fashion, it simply and nebulously

blameworthy, or negligent in the man of ordinary intelligence and

adverted to unspecified "scanty evidence on record."

[18]

prudence and determines liability by that.


Respondent Isidro posits that any immobile object along the

On the technical aspect of the case, the respondent corporation

highway, like a parked truck, poses serious danger to a moving

would want us to dismiss this petition on the ground that it was

vehicle which has the right to be on the highway. He argues that

filed out of time. It must be noted that there was a motion for

since the parked cargo truck in this case was a threat to life and

extension,

[19]

albeit filed erroneously with the respondent court,

dated March 19, 1986, requesting for 30 days from March 20,

limb and property, it was incumbent upon the driver as well as the
petitioner, who claims to be a helper of the truck driver, to exercise
40 | P a g e

Torts 3

extreme care so that the motorist negotiating the road would be


properly forewarned of the peril of a parked vehicle. Isidro submits

It is clear from the foregoing disquisition that the absence or want

that the burden of proving that care and diligence were observed is of care of Daniel Serrano has been established by clear and
shifted to the petitioner, for, as previously claimed, his (Isidro's)

convincing evidence. It follows that in stamping its imprimatur upon

Isuzu truck had a right to be on the road, while the immobile cargo

the invocation by respondent Isidro of the doctrine of Res ipsa

truck had no business, so to speak, to be there. Likewise, Isidro

loquitur to escape liability for the negligence of his employee, the

proffers that the petitioner must show to the satisfaction of a

respondent court committed reversible error.

reasonable mind that the driver and he (petitioner) himself,


provided an early warning device, like that required by law, or, by

The respondent court ruled:

[32]

some other adequate means that would properly forewarn vehicles


of the impending danger that the parked vehicle posed considering

xxx xxx xxx

the time, place, and other peculiar circumstances of the occasion.


Absent such proof of care, as in the case at bar, Isidro concludes,

In addition to this, we agree with the following arguments of

would, under the doctrine of Res ipsa loquitur, evoke the

appellant Godofredo Isidro which would show that the accident

presumption of negligence on the part of the driver of the parked

was caused due to the negligence of the driver of the cargo truck:

cargo truck as well as his helper, the petitioner herein, who was
fixing the flat tire of the said truck.

[27]

xxx xxx xxx


"x x x In the case at bar, the burden of proving that care and

Respondent Isidro's contention is untenable.

diligence was (sic) observed is shifted evidently to the plaintiff, for,


as adverted to, the motorists have the right to be on the road,

The evidence on record discloses that three or four meters from

while the immobile truck has no business, so to speak, o be there.

the rear of the parked truck, a lighted kerosene lamp was

It is thus for the plaintiff to show to the satisfaction of a reasonable

placed.

[28]

Moreover, there is the admission of respondent Isidro's

driver, Daniel Serrano, to wit:

[29]

mind that the driver and he himself did employ early warning
device such as that required by law or by some other adequate

"Question No. 8 (by Patrolman Josefino Velasco) - Will you narrate means or device that would properly forewarn vehicles of the
to me in brief how the accident happens (sic) if you can still

impending danger that the parked vehicle posed considering the

remember?

time, place and other peculiar circumstances of the occasion.

Answer: (by Daniel Serrano)

Absent such proof of care, as in the case at bar, will evoke the pre-

That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck sumption of negligence under the doctrine of res ipsa loquitor, on
at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met

the part of the driver of the parked cargo truck as well as plaintiff

another vehicle who (sic) did not dim his (sic) lights which cause

who was fixing the flat tire of said truck. (pp. 14-17, Appellant's

(sic) me to be blinded with intense glare of the light that's why I did

Brief)." (Italics in the text)

not notice a parked truck who (sic) was repairing a front flat tire.
When I was a few meters away, I saw the truck which was loaded
with round logs. I step (sic) on my foot brakes but it did not

At this juncture, it may be enlightening and helpful in the proper


resolution of the issue of negligence to examine the doctrine of
Res ipsa loquitur.

function with my many attempts. I have (sic) found out later that
the fluid pipe on the rear right was cut that's why the brakes did not
function." (Italics in the text).

is shown to be under the management of the defendant, and the

Whether the cargo truck was parked along the road or on half the
shoulder of the right side of the road would be no moment taking
into account the warning device consisting of the lighted kerosene
lamp placed three or four meters from the back of the truck

[30]

But

despite this warning, which we rule as sufficient, the Isuzu truck


driven by Daniel Serrano, an employee of the private respondent,
still bumped the rear of the parker cargo truck. As a direct
consequence of such accident the petitioner sustained injuries on
his left forearm and left foot. His left leg was later amputated from
below the knee when gangrene had set in.

This doctrine is stated thus: "Where the thing which causes injury

[31]

accident is such as in the ordinary course of things does not


happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of an explanation by
the defendant, that the accident arose from want of care."
Black's Law Dictionary

[34]

[33]

Or as

puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon
proof that instrumentality causing injury was in defendant's
exclusive control, and that the accident was one which ordinarily

41 | P a g e

Torts 3

does not happen in absence of negligence. Res ipsa loquitur is

is caused by the negligence of a servant or employee there

rule of evidence whereby negligence of alleged wrongdoer may be

instantly arises a presumption of law that there was negligence on

inferred from mere fact that accident happened provided character

the part of the master or employer either in the selection of the

of accident and circumstances attending it lead reasonably to

servant or employee, or in supervision over him after selection, or

belief that in absence of negligence it would not have occurred and both. Such presumption is juris tantum and not juris et de jure and
that thing which caused injury is shown to have been under

consequently, may be rebutted. It follows necessarily that if the

management and control of alleged wrong-doer. Hillen v. Hooker

employer shows to the satisfaction of the court that in the selection

Const. Co., Tex. Civ. App., 484 S.W. 2d 113, 115. Under doctrine

and in the supervision he has exercised the care and diligence of a

of "res ipsa loquitur" the happening of an injury permits an

good father of a family, the presumption is overcome and he is

inference of negligence where plaintiff produces substantial

relieved from liability.

evidence that injury was caused by an agency or instrumentality

private respondent stresses that the negligence of his employee

under exclusive control and management of defendant, and that

has already been adequately overcome by his driver's statement

the occurrence was such that in the ordinary course of things

that he knew his responsibilities as a driver and that the truck

would not happen if reasonable care had been used.

owner used to instruct him to be careful in driving.

[45]

In disclaiming liability for the incident, the

[46]

In this jurisdiction we have applied this doctrine in quite a number


of cases, notably in Africa et al. vs. Caltex, Inc., et al.,
latest is in the case of F.F. Cruz and Co. Inc. vs. C.A.

[35]

and the

[36]

We do not agree with the private respondent in his submission. In


the first place, it is clear that the driver did not know his
responsibilities because he apparently did not check his vehicle

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar

before he took it on the road. If he did he could have discovered

to the law of negligence which recognizes that prima facie

earlier that the brake fluid pipe on the right was cut, and could

negligence may be established without direct proof and furnishes a have repaired it and thus the accident could have been avoided.
substitute for specific proof of negligence.
[38]

rule of substantive law

procedural convenience.

[37]

The doctrine is not a

but merely a mode of proof or a mere

[39]

Moreover, to our mind, the fact that the private respondent used to
instruct his driver to be careful in his driving, that the driver, was

The rule, when applicable to the facts

licensed, and the fact that he had no record of any accident, as

and circumstances of a particular case, is not intended to and

found by the respondent court, are not sufficient to destroy the

does not dispense with the requirement of proof of culpable

finding of negligence of the Regional Trial Court given the facts

negligence on the part of the party charged.

[40]

It merely

established at the trial.

[47]

The private respondent or his mechanic,

determines and regulates what shall be prima facie evidence

who must be competent, should have conducted a thorough

thereof and facilitates the burden of plaintiff of proving a breach of

inspection of his vehicle before allowing his driver to drive it. In the

the duty of due care.

[41]

The doctrine can be invoked when and

light of the circumstances obtaining in the case, we hold that Isidro

only when, under the circumstances involved, direct evidence is


absent and not readily available.

[42]

Hence, it has generally been

failed to prove the diligence of a good father of a family in the


supervision of his employees which would exculpate him from

held that the presumption of inference arising from the doctrine

solidary liability with his driver to the petitioner. But even if we

cannot be availed of, or is overcome, where plaintiff has

concede that the diligence of a good father of a family was

knowledge and testifies or presents evidence as to the specific act

observed by Isidro in the supervision of his driver, there is not an

of negligence which is the cause of the injury complained of or

iota of evidence on record of the observance by Isidro of the same

where there is direct evidence as to the precise cause of the

quantum of diligence in the supervision of his mechanic, if any,

accident and all the facts and circumstances attendant on the

who would be directly in charge in maintaining the road worthiness

occurrence clearly appear.

[43]

Finally, once the actual cause of

of his (Isidro's) truck. But that is not all. There is paucity of proof

injury is established beyond controversy, whether by the plaintiff or that Isidro exercised the diligence of a good father of a family in
by the defendant, no presumptions will be involved and the

the selection of his driver, Daniel Serrano, as well as in the

doctrine becomes inapplicable when the circumstances have been

selection of his mechanic, if any, in order to insure the safe

so completely eludicated that no inference of defendant's liability

operation of his truck and thus prevent damage to others.

can reasonably be made, whatever the source of the evidence,

[44]

Accordingly, the responsibility of Isidro as employer treated in

as in this case.

Article 2180, paragraph 5, of the Civil Code has not ceased.

The private respondent is sued under Art. 2176 in relation to Art.

WHEREFORE, the petition is hereby GRANTED. The Decision of

2180, paragraph 5, of the Civil Code. In the latter, when an injury

the respondent court as well as its Resolution denying the


42 | P a g e

Torts 3

petitioner's motion for reconsideration are hereby SET ASIDE and


the decision of the trial court, dated January 20, 1983, is hereby
REINSTATED in toto. With costs against the private respondents.
SO ORDERED.

43 | P a g e

Torts 3

LUZ PALANCA TAN, PETITIONER, VS. JAM TRANSIT, INC.,


RESPONDENT.

Ramirez. As counterclaim, JAM sought payment of P100,000.00


for the damages sustained by the bus, P100,000.00 for loss of

DECISION

income, and P50,000.00 as attorney's fees plus P3,000.00 per


court appearance of counsel.

NACHURA, J.:
After pretrial, trial on the merits ensued.
This is a petition for review on certiorari

[1]

under Rule 45 of the

Rules of Court, seeking the reversal of the Decision

[2]

dated June

2, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 89046


and the reinstatement of the Decision

[3]

Tan proffered testimonial evidence, summarized by the RTC, and


quoted by the CA, as follows:

dated December 20, 2006

of the Regional Trial Court (RTC), Branch 27, Santa Cruz, Laguna

LUZ PALANCA TAN, 47 years old, married, a resident of Sta.

in Civil Case No. SC-3838.

Cruz, Laguna and a businesswoman, testified to the facts stated in


the complaint that: She is engaged in the business of nets and

The antecedents are as follows--

ropes, and egg dealership based [in] Santa Cruz, Laguna. She
supplies her products to her customers [in] San Pablo and Lucena.

In her Complaint, petitioner Luz Palanca Tan (Tan) alleged that

On March 14, 1997, while at home, she was informed by her

she was the owner of a passenger-type jitney with plate number

husband that one of their jeepneys, which was loaded with eggs,

DKF-168. On March 14, 1997, at around 5:00 a.m., the said jitney

was bumped by a JAM Transit bus when the latter overtook the

figured in an accident at an intersection along Maharlika Highway,

jeepney. The vehicle was driven by one Alexander Ramirez, who

Barangay Bangyas, Calauan, Laguna, as it collided with a JAM

has one "Monching" as a companion. As a result of the accident,

Transit passenger bus bound for Manila, bearing plate number

she incurred damages in the amount of P650,000.00 based on the

DVG-557 and body number 8030. The bus was driven by Eddie

following computation: P400,000.00 as actual damage sustained

Dimayuga (Dimayuga).

by the jeepney, from an estimate (Exhibit "D") furnished by


Plantilla Motors; P142,000.00 for the lost value of the egg

At the time of the collision, Tan's jitney was loaded with quail eggs

shipment, based on a certification issued by the Calauan Police

and duck eggs (balot and salted eggs). It was driven by Alexander

Station; and P15,000.00, for the hospitalization and treatment of

M. Ramirez (Ramirez). Tan alleged that Dimayuga was reckless,

the driver and his companion. The jeepney is duly registered as

negligent, imprudent, and not observing traffic rules and

evidenced by its registration receipt (Exhibit "G"). On cross

regulations, causing the bus to collide with the jitney which was

examination, she testified that Ramirez, the jeepney driver when

then, with care and proper light direction signals, about to

the accident occurred, was under her employ since 1993 and is

negotiate a left turn towards the feeder or barangay road of

still working for her.

Barangay Bangyas, Calauan, Laguna going to the Poblacion. The


jitney turned turtle along the shoulder of the road and the cargo of

On redirect, the plaintiff testified that prior to March 13, 1997, the

eggs was destroyed. Ramirez and his helper were injured and

day the accident happened, Ramirez has not met any vehicular

hospitalized, incurring expenses for medical treatment at the

accident and that it was only in the aforestated date when he

Pagamutang Pangmasa in Bay, Laguna. Tan prayed for damages

figured in one. On re-cross, she testified that she has no


in the amount of P400,000.00 for the damaged jitney, P142,210.00 knowledge of Ramirez' prior experience as a driver. She did not
for the destroyed shipment, P20,000.00 for moral damages,
ask Ramirez for his NBI or police clearance prior to her hiring the
attorney's fees of P20,000.00 plus P1,000.00 per court

said driver. On additional redirect, the plaintiff testified that she is

appearance of counsel, and other reliefs warranted under the

satisfied with the performance of Ramirez as a driver as he is kind.

premises.
ALEXANDER RAMIREZ, 35 years old, married, resident of Sta.
In its Answer with Counterclaim, respondent JAM Transit, Inc.

Cruz, Laguna, and a driver testified that: He knows the plaintiff Luz

(JAM) admitted ownership of the subject passenger bus and that

Palanca Tan because she is his manager. He worked for her as a

Dimayuga was under its employ. However, it denied the

driver sometime in 1993. He sometimes drove a jeepney or a

allegations in the Complaint, and claimed that the accident

truck.

occurred due to the gross negligence of


44 | P a g e

Torts 3

On March 13, 1997, at around 4:00 o'clock in the morning, he

road, per his approximation, was about 10 meters wide, with the

reported for work at his employer's warehouse located [in]

shoulder about 5 meters except that it was diminished to about 2

Pagsawitan, Sta. Cruz. He got the passenger jeep loaded with

meters on account of some encroachment. The highway has a

salted eggs, "balot" and quail eggs for delivery to Lucena City

painted crosswalk. It also has a yellow line without any cut which

upon instruction of Tan. In going to Lucena City, he chose to drive

means no vehicle could overtake from both sides of the road. He

on the Maharlika Road at San Isidro, Brgy. Bangyas, Calauan,

showed in the sketch the spot where the jitney and the bus were at

Laguna because it is better than the road along Brgy. Dayap of the the time of the incident. Shown the photographs (Exhibits "E" to
same municipality. However, while at the Maharlika Road, he met

"E-6"), he stated that they are truly reflective of the scene of the

an accident at around 5:00 a.m. The jitney turned turtle.

incident, the damages in both the jeepney and the bus, as of


March 13, 1997.

PO3 DANIEL C. ESCARES, 37 years old, married, resident of


Calauan, Laguna, and a member of PNP-Calauan, Laguna,

On cross, he stated that what he saw was the situation after the

testified that: He was on police duty as of March 14, 1997. On that

incident. He came to learn of the accident at around 5:10 in the

day, he issued a certification (Exhibit "B") pertaining to a vehicular

morning from a report received by their office, as relayed by a

accident which occurred earlier. He came to know of the accident

concerned citizen. He remembers that SPO4 Rogelio Medina, now

as relayed to their office by a concerned citizen. He proceeded to

retired, as one of his companions at the accident site. The site is

the place of the accident, which was at Maharlika Highway, in an

about a kilometer away from their police station. He can recall the

intersection at Brgy. Bangyas, Calauan, Laguna for an

scene of the incident because of the photographs. The persons he

investigation. Upon reaching the place, as a rule followed by police investigated were the jitney driver, his "pahinante" (helper) and
officers, he inquired from some of the residents about the incident.

some people in the vicinity. He could not remember the names of

As relayed to him, the jeepney with Plate No. 168 was going

those persons but they were listed in the police blotter.

towards the direction of San Isidro, followed by another jeepney, a


truck and then by a JAM Transit bus. The bus overtook the

RODRIGO CONDINO, 38 years old, married, resident of Victoria,

jeepney it was following then side swept the jeepney (which

Laguna and a mechanic, testified that: He is a mechanic of

figured in the accident) dragging it along ("nakaladkad") towards

Plantilla Motors at Bubucal, Sta. Cruz, Laguna. He knows the

the sampaguita gardens. [NOTE: The testimony of the witness

plaintiff Luz Tan as he and his chief (mechanic) repaired the

regarding the information gathered was ordered by the Court

jeepney owned by the latter after it figured in an accident on March

to be deleted.] Then, he went personally to the place where the

13, 1997. He came to know of the accident when the said vehicle

incident happened.

was brought to their motor shop. They made an estimate (Exhibit


"D") of the damage sustained by the said vehicle, which amounted

He stated it was cloudy that day. He described the highway where

to P450,000.00.

[4]

the incident happened as having a double straight yellow line


which prohibits overtaking on both sides of the road. The said

Tan also formally offered as exhibits the following documents:

place is near the intersection of Maharlika Highway and the


barangay road leading to Brgy. San Isidro.

Exhibit "A" - Articles of Incorporation of JAM Transit, Inc.;


Exhibit "B" - Certification issued by the Calauan Municipal Police

On cross examination, he stated he cannot remember if he was

Station regarding the vehicular accident;

with other police officers during the investigation of the incident but Exhibit "C" - PNP-Calauan Police Report regarding the jitney
he can recall having interviewed a certain Mercy Ponteiros and

shipment;

one Rodel, who are both residents of the place.

Exhibit "D" - Estimate of damages sustained by the jitney, from A.


Plantilla Motors Repair Shop;

On redirect, he stated that the witness Mercy Ponteiros is still

Exhibit "E" - Six (6) photographs depicting the site of the vehicular

residing at Brgy. Bangyas[.]

accident;
Exhibit "F" - Four (4) pages of receipts representing hospital and

On additional direct examination, he stated that the accident site is

medical expenses paid by the plaintiff for injuries sustained by her

still fresh in his mind and he drew a sketch (Exhibit "F" to "F-7") of

driver and helper in the accident;

the said place. He identified in the sketch the direction of the

Exhibit "G" - Certificate of Registration of plaintiff's jitney;

highway which leads to Manila and to Sta. Cruz, Laguna. The

Exhibit "H" - Driver's license of Eddie Dimayuga, defendant's bus


45 | P a g e

Torts 3

driver;

destroyed jitney; P1,327.00 medical expenses

Exhibit "I" - Sketch of the site where the vehicular accident


occurred.

of the jitney driver and his companion, for a total

[5]

amount of [P543,537.00];
2.

P10,000.00 as moral damages;

On the other hand, JAM offered the following testimonial evidence

3.

P10,000.00 as attorney's fees[;]

4.

Costs of suit[.]

EDGARDO DIMAYUGA, 49 years old, married, resident of Sta.

[7]

SO ORDERED.

Cruz, Laguna and bus driver of JAM Transit Inc., testified that: He
has been a passenger bus driver since 1983. He was previously

Aggrieved, JAM appealed to the CA. The CA granted the appeal

employed with the Batangas Laguna Tayabas Bus Company

and dismissed the complaint on the ground that there was nothing

(BLTB). He was employed with JAM Transit since 1992. He has a

on record that supported the RTC's finding that the JAM

professional driver's license, D-12-78-008462562.

passenger bus was overtaking Tan's jitney. The CA noted that


Ramirez only testified that, on March 14, 1997, he met an accident

On March 14, 1997, he reported for work. He met an accident

at around 5:00 a.m., while transporting eggs along Maharlika Road

while driving a bus. The other vehicle involved, a jitney, belongs to

in San Isidro, Barangay Bangyas, Calauan, Laguna, causing the

Luz Palanca Tan and driven by Alexander Ramirez. The accident

jitney he was driving to turn turtle. The CA also observed that the

happened along the intersection of Maharlika Highway, Brgy.

Certification (Exhibit "B") made no mention that the JAM

Bangyas at around 5:00 o'clock in the morning. He was driving the

passenger bus was overspeeding or that it was overtaking the

bus with a speed of 40 km/h when suddenly, a vehicle overtook

jitney; and, thus, there was no evidence as to who between

the bus from the right side going to Calauan. He was not able to

Ramirez and Dimayuga was negligent in connection with the

evade the vehicle as there was no way for him to do so. The front

vehicular accident. The CA held that the doctrine of res ipsa

portion of the bus and the mirror were destroyed.

loquitur can only be invoked when direct evidence is nonexistent


or not accessible. It further said that Tan had access to direct

On cross examination, he stated that his route as of March 14,

evidence as to the precise cause of the mishap, such that the

1997 was Sta. Cruz-Lawton. He cannot recall the bus conductor

circumstances of the vehicular accident or the specific act

who was on Bangyas, Calauan. He stated he was not able to

constituting the supposed negligence of Dimayuga could have

evade the jitney as there was no way for him to avoid the situation, been testified to by Ramirez or by the latter's companion. The CA
causing the jitney to be dragged to the side. Nothing else

concluded that res ipsa loquitur could not apply in this case

happened after the bus hit the jeepney. He and other persons took because the doctrine does not dispense with the requirement of
the driver from the jeepney and brought him to a hospital.

establishing proof of negligence.

On redirect, he stated that bus conductors change duties every

Hence, this petition, with petitioner positing that the doctrine of res

two or three days.

[6]

JAM did not offer any documentary counter-evidence.

ipsa loquitur is applicable given the circumstances of the case.


Res ipsa loquitur is a Latin phrase that literally means "the thing or
the transaction speaks for itself." It is a maxim for the rule that the

Applying the doctrine of res ipsa loquitur, the RTC found the JAM

fact of the occurrence of an injury, taken with the surrounding

passenger bus driver at fault as he was then violating a traffic

circumstances, may permit an inference or raise a presumption of

regulation when the collision took place. Thus, the RTC ruled in

negligence, or make out a plaintiff's prima facie case, and present

favor of Tan and disposed as follows--

a question of fact for defendant to meet with an explanation.


Where the thing that caused the injury complained of is shown to

WHEREFORE, judgment is hereby rendered against the

be under the management of the defendant or his servants; and

defendants who are hereby adjudged to pay the plaintiff jointly and

the accident, in the ordinary course of things, would not happen if

solidarily, the following:

those who had management or control used proper care, it affords


reasonable evidence -- in the absence of a sufficient, reasonable

1.

actual damages of P142,210.00 for the lost and

and logical explanation by defendant -- that the accident arose

damaged cargoes; P400,000.00 for the

from or was caused by the defendant's want of care. This rule is


46 | P a g e

Torts 3

grounded on the superior logic of ordinary human experience, and

We cannot agree with the CA when it said that how the incident

it is on the basis of such experience or common knowledge that

happened could not be established, neither from the photographs

negligence may be deduced from the mere occurrence of the

offered in evidence in favor of petitioner, nor from the

accident itself. Hence, the rule is applied in conjunction with the

Certification

doctrine of common knowledge.

[8]

[11]

that quoted an excerpt from the records on the

Police Blotter of the Calauan Municipal Police Station. The CA,


likewise, discounted the probative value of the Police Blotter

However, res ipsa loquitur is not a rule of substantive law and

because, although prepared in the regular performance of official

does not constitute an independent or separate ground for liability.

duty, it was not conclusive proof of the truth of its entries, since

Instead, it is considered as merely evidentiary, a mode of proof, or

police blotters are usually incomplete and inaccurate; and

a mere procedural convenience, since it furnishes a substitute for,

sometimes based on partial suggestion, inaccurate reporting and

and relieves a plaintiff of, the burden of producing a specific proof

hearsay.

[12]

of negligence. In other words, mere invocation and application of


the doctrine do not dispense with the requirement of proof of

It is worth noting, however, that photographs are in the nature of

negligence. It is simply a step in the process of such proof,

physical evidence

permitting plaintiff to present, along with the proof of the accident,

ranking high in the hierarchy of trustworthy evidence.

enough of the attending circumstances to invoke the doctrine,

verified and shown by extrinsic evidence to be faithful

creating an inference or presumption of negligence, and thereby


placing on defendant the burden of going forward with the proof.

[13]

-- a mute but eloquent manifestation of truth


[14]

When duly

representations of the subject as of the time in question, they are,


[9]

in the discretion of the trial court, admissible in evidence as aids in

Still, before resort to the doctrine may be allowed, the following

arriving at an understanding of the evidence, the situation or

requisites must be satisfactorily shown:

condition of objects or premises, or the circumstances of an


accident.

1.

2.

3.

[15]

The accident is of a kind which ordinarily does


[16]

not occur in the absence of someone's

The photographs

negligence;

relative positions of her jitney and of the JAM passenger bus

It is caused by an instrumentality within the

immediately after the accident took place. An examination of the

exclusive control of the defendant or

photographs would readily show that the highway where the

defendants; and

accident occurred was marked by two yellow continuous parallel

The possibility of contributing conduct which

lines at the center, separating the right lane from the left. Based on

would make the plaintiff responsible is

evidence, the JAM passenger bus was moving along the highway

eliminated.

[10]

proffered by petitioner indeed depicted the

towards Manila, and the jitney was going along the same route,
until it was about to turn left to the barangay road towards the
Poblacion. After the incident, the photographs would show that

Was petitioner able to establish the above requisites? We answer

both vehicles were found on the opposite lane of the highway. The

in the affirmative. We do not subscribe to the finding of the CA that

front right portion of the bus was shown to have collided with or hit

petitioner had direct access to the evidence surrounding the

the left portion of the jitney with such an impact, causing the latter

accident, but since she failed to present it, the doctrine would not

to turn turtle with extensive damage, injuring its driver and his

operate to apply. While Ramirez took the witness stand, he was

companion, and completely destroying its cargo.

[17]

only able to testify that he drove along Maharlika Highway in San


Isidro, Barangay Bangyas, Calauan, Laguna, Tan's passenger

Although the person who took the pictures was not able to testify

jitney loaded with salted eggs, balot and quail eggs for delivery at

because he predeceased the trial, Senior Police Officer II Daniel

around 5:00 a.m. when he met an accident, causing the vehicle to

Escares (Escares) was recalled to the witness stand to

turn turtle. Obviously, Ramirez had no vivid recollection of how the

authenticate the said pictures. He testified that the pictures were

passenger jitney was actually hit by the JAM passenger bus.

faithful representations of the circumstances immediately after the

Further, for some unknown reasons, the other possible

accident.

eyewitnesses to the mishap were not available to testify. With the

of the situation after the collision, and testified as to the physical

dearth of testimonial or direct evidence, should petitioner now be

circumstances thereof, including the width of the road and the road

left without remedy? The answer is NO.

shoulder, especially the double yellow lines at the center of the


highway.

[18]

Escares also made an appropriately labeled sketch

[19]

[20]

47 | P a g e

Torts 3

From the said exhibits, the plaintiff postulates that her jitney then
As regards police blotters, it should be remembered that although

being driven by Alexander Ramirez, as well as the bus driven by

they are of little probative value, they are nevertheless admitted

defendant Dimayuga were heading the same direction towards

and considered in the absence of competent evidence to refute the Manila, but when the jitney was about to negotiate the left side
facts stated therein. Entries in police records made by a police

road intersection towards the feeder/Barangay road of Brgy.

officer in the performance of a duty especially enjoined by law are

Bangyas, Calauan, Laguna, it was bumped by the

prima facie evidence of the facts therein stated, and their probative oncoming/overtaking bus driven by Dimayuga, that caused the
value may be either substantiated or nullified by other competent
evidence.

[21]

In this case, the Certification,

[22]

whose entries were

adopted from the police blotter of the Calauan Municipal Police


Station, the sketch

[23]

prepared by Escares, and the photographs,

taken together would prove that the jitney and the bus were going

jitney to turn turtle at the road shoulder causing damages on the


jitney, the cargoes and injuries to the jitney driver and his
companion. It was allegedly improper for the bus to overtake as
the road bears a double yellow line at the middle which prohibits
overtaking.

along the same way; that the jitney was about to negotiate the
intersection going to the left towards the feeder road in the

On the other hand, the bus driver who is the lone witness/evidence

direction of the Poblacion; and that the bus hit the left-turning jitney for the defendant testified he was driving at the Maharlika Highway
causing the smaller vehicle to turn turtle.

at 40 km/hr when the jitney "overtook" from the right and that there
was no way for him to evade the latter so it was dragged to the

Indeed, no two motor vehicles traversing the same lane of a

side [TSN, May 18, 2006, p. 13]. In its memorandum, defendants

highway with double yellow center lines will collide as a matter of

postulate that it was the jitney driver who was negligent as it

course, both ending up on the opposite lane, unless someone is

overtook the bus from the right which is not proper. Plaintiff

negligent. Dimayuga was driving the JAM passenger bus which,

allegedly could not claim damages for its failure to prove the bus

from the evidence adduced, appears to have precipitated the

driver's negligence, and it was the jitney's own negligence that is

collision with petitioner's jitney. Driving the bus gave Dimayuga

the proximate cause of his injury.

exclusive management and control over it. Despite the claim of


JAM to the contrary, no contributory negligence could be attributed No direct evidence was presented with respect to the exact road
to Ramirez relative to the incident on the basis of the available

position of the bus and the jitney at the time of the collision such

evidence. Inevitably, the requisites being present, the doctrine of

that the same can only be inferred from the pictures of the colliding

res ipsa loquitur applies.

vehicles taken immediately after the incident [Exhibits "E"].

We, thus, quote with concurrence the findings of the RTC--

At this juncture, it was established from exhibits "E-5" and "E-6"


that the jitney's left side portion was directly hit by the front-right

As both parties are asserting claim for the damages each has

portion of the bus. This is consistent with the plaintiff's theory that

respectively sustained from the subject collision, the negligence of

the jitney was then negotiating the left portion of the road when it

either driver of the bus or of the jitney must be shown, and the

was hit by the oncoming bus causing the jitney to have a 90-

burden to prove the negligence, by preponderance of evidence,

degree turn around. The bus and the jitney were almost

lies upon both who are alleging the other's negligence.

perpendicular to each other when the collision took place, with the

Preponderance of evidence is "evidence as a whole which is

bus directly hitting the jitney head on.

superior to that of the defendant {or the other}" [Pacific Banking


Employees Organization vs. CA, 286 SCRA 495].

The statement of the bus driver that the jitney "overtook" from the
right only presumes that at the point of collision, the bus was at the

To prove negligence of the bus driver, plaintiff relies heavily upon

left lane of the road overtaking the vehicle/s at the right. This

the testimony of PO3 DANIEL C. ESCARES, who identified the

scenario, in fact, was affirmed by the police report of the incident

police report of the incident [Exhibit "B"] as well as the sketch of

[Exhibit "B"]. It is not quite logical that the jitney, in allegedly

the site [Exhibit "I"] and the pictures taken as reflective of the

overtaking the bus from the right came from the right shoulder of

scene of the incident [Exhibits "E" with sub-markings], invoking [in

the road, a rough road merely 5 meters in width [Exhibit "F"] and

plaintiff's memorandum] the application of the doctrine of "res ipsa even diminished by two (2) meters because of the encroachment
loquitor."

at the sides [TSN, 11-6-02]. No evidence was shown that the jitney
came from the right shoulder. The jitney then loaded with eggs for
48 | P a g e

Torts 3

delivery, was about to negotiate the left lane towards the

employees and household helpers acting within the scope of their

feeder/barangay road intersection, and it would be illogical in such

assigned tasks, even though the former are not engaged in any

a situation that the jitney driver would take the right shoulder. The

business or industry.

foregoing suggest the fact that the bus overtook the passing
vehicles at the right lane and in the course thereof, the jitney in
front that was about to negotiate the left lane, was hit.

xxxx

[24]

The responsibility treated of in this article shall cease when the


Verily, although there was no direct evidence that the JAM

persons herein mentioned prove that they observed all the

passenger bus was overtaking the vehicles running along the right

diligence of a good father of a family to prevent damage.

lane of the highway from the left lane, the available evidence
readily points to such fact. There were two continuous yellow lines

Whenever an employee's negligence causes damage or injury to

at the center of the highway, which meant that no vehicle in the

another, there instantly arises a presumption juris tantum that the

said area should overtake another on either side of the road. The

employer failed to exercise diligentissimi patris families in the

"double yellow center lines" regulation, which this Court takes

section (culpa in eligiendo) or supervision (culpa in vigilando) of its

judicial notice of as an internationally recognized pavement

employees.

regulation, was precisely intended to avoid accidents along

employee, an employer must overcome the presumption, by

highways, such as what happened in this case. This prohibition

presenting convincing proof that he exercised the care and

[27]

To avoid liability for a quasi-delict committed by its

finds support in Republic Act (R.A.) No. 4136 (Land Transportation diligence of a good father of a family in the selection and
and Traffic Code), Section 41(e).

[25]

Furthermore, it is observed

that the area of collision was an intersection. Section 41(c)

[26]

supervision of his employee.

[28]

of

R.A. No. 4136, likewise, prohibits overtaking or passing any other

In this case, aside from the testimony of Dimayuga, JAM did not

vehicle proceeding in the same direction at any intersection of

present any other evidence, whether documentary or testimonial,

highways, among others. Thus, by overtaking on the left lane,

in its favor. Inevitably, the presumption of its negligence as

Dimayuga was not only violating the "double yellow center lines"

Dimayuga's employer stands and it is, thus, solidarily liable for the

regulation, but also the prohibition on overtaking at highway

damages sustained by petitioner.

intersections. Consequently, negligence can be attributed only to


him, which negligence was the proximate cause of the injury

As regards the award for actual damages, we, however, concur

sustained by petitioner. This prima facie finding of negligence was

with respondent that the award of P400,000.00 for the damage to

not sufficiently rebutted or contradicted by Dimayuga. Therefore, a

the jitney is not warranted, considering that the evidence submitted

finding that he is liable for damages to petitioner is warranted.

to support this claim was merely an estimate made by A. Plantilla


Motors. The same reason holds true with respect to the amount of

The liability of Dimayuga is solidary with JAM, pursuant to Article

damages for the destroyed cargo of eggs, considering that the

2176, in relation to Article 2180 of the Civil Code of the Philippines, document submitted by petitioner to support the claim of
which provides--

P142,210.00 was merely a Certification,

[29]

as the information

found thereon was supplied by petitioner herself per the number of


Art. 2176. Whoever by act or omission causes damage to

pieces of the different eggs and the corresponding price per piece.

another, there being fault or negligence is obliged to pay for


the damage done. Such fault or negligence, if there is no pre-

To warrant an award of actual or compensatory damages for

existing contractual relation between the parties, is called a quasi-

repair to damage sustained, the best evidence should be the

delict and is governed by the provisions of this Chapter.

receipts or other documentary proofs of the actual amount


expended.

[30]

However, considering that it was duly proven that the

Art. 2180. The obligation imposed by Article 2176 is demandable

jitney was damaged and had to be repaired, as it was repaired,

not only for one's own acts or omissions, but also for those of

and that the cargo of eggs was indeed destroyed, but the actual

persons for whom one is responsible.

amounts expended or lost were not proven, we deem it


appropriate to award P250,000.00 by way of temperate damages.

xxxx

Under Article 2224 of the Civil Code, temperate damages may be


recovered when pecuniary loss has been suffered but its amount

Employers shall be liable for the damages caused by their

cannot be proved with certainty.

[31]

We, however, sustain the trial


49 | P a g e

Torts 3

court's award of P1,327.00 as regards the medical expenses


incurred by petitioner, the same being duly supported by
receipts.

[32]

The award of P10,000.00 as moral damages, P10,000.00 as


attorney's fees, and the costs of suit are sustained, the same being
in order and authorized by law. Although the basis for the award of
attorney's fees was not indicated in the trial court's Decision, we
deem it justified as petitioner was compelled to litigate before the
courts and incur expenses in order to vindicate her rights under
the premises.

[33]

WHEREFORE, the petition is GRANTED. The Decision dated


June 2, 2008 of the Court of Appeals in CA-G.R. CV No. 89046 is
REVERSED and SET ASIDE. The Decision dated December 20,
2006 of the Regional Trial Court, Branch 27, Sta. Cruz, Laguna in
Civil Case No. SC-3838 is REINSTATED with the MODIFICATION
that the award of actual damages is reduced to P1,327.00, and, in
lieu of actual damages with respect to the damage or loss
sustained with respect to the passenger jitney and the cargo of
eggs, the amount of P250,000.00 is awarded by way of temperate
damages.
SO ORDERED.

50 | P a g e

Torts 3

COLLEGE ASSURANCE PLAN AND COMPREHENSIVE

P2 million.

ANNUITY PLAN AND PENSION CORPORATION,

[7]

It also clarified that, as the leased units on the second

floor were not affected by the fire, petitioners had no reason to

PETITIONERS, VS. BELFRANLT DEVELOPMENT INC.,

vacate the same; hence, their lease on said units is deemed still
[8]

RESPONDENT.

subsisting, along with their obligation to pay for the rent.

DECISION

In reply, petitioners explained that they could no longer re-occupy


the units on the second floor of the building for they had already

AUSTRIA-MARTINEZ, J.:

moved to a new location and entered into a binding contract with a


new lessor. Petitioners also disclaimed liability for reparation,

Before this Court is a Petition for Review on Certiorari under Rule

pointing out that the fire was a fortuitous event for which they could

45 of the Rules of Court, assailing the February 28, 2002

not be held responsible.

Decision

[1]

[9]

of the Court of Appeals (CA) in CA-G.R. CV No. 63283,

which modified the April 14, 1999 Decision

[2]

of the Regional Trial

After its third demand

[10]

went unheeded, respondent filed with the

Court (Branch 221), Quezon City (RTC) in Civil Case No. Q-95-

RTC a complaint against petitioners for damages. The RTC

23118.

rendered a Decision dated April 14, 1999, the dispositive portion of


which reads:

The antecedent facts are as summarized by the RTC.


WHEREFORE, premises considered, judgment is hereby rendered
Belfranlt Development, Inc. (respondent) is the owner of Belfranlt

in favor of the plaintiff [respondent] and against the herein

Building in Angeles City, Pampanga. It leased to petitioners

defendants [petitioners]. Defendants are ordered to pay the

College Assurance Plan Phil., Inc. (CAP) and Comprehensive

plaintiff joint[sic] and severally the following amounts:

Annuity Plans and Pension Corporation (CAPP) several units on


the second and third floors of the building.

[3]

1)

P2.2 Million Pesos cost of rehabilitation (repairs,


replacements and renovations) of the Belfranlt building by
way of Actual and Compensatory damages;

On October 8, 1994, fire destroyed portions of the building,


including the third floor units being occupied by petitioners. An

2)

P14,000.00 per month of unpaid rentals on the third floor of

October 20, 1994 field investigation report by an unnamed arson

the Belfranlt building for the period from October 1994 until

investigator assigned to the case disclosed:

the end of the two year lease contract on May 10, 1996 by
way of Actual and Compensatory damages;

0.5

Origin of Fire: Store room occupied by CAP, located at the


3rd floor of the bldg.

0.6

Cause of Fire: Accidental (overheated coffee percolator).

3)

of the Belfanlt building for the period from October 1994

[4]

until the end of the two year lease contract on May 10,

These findings are reiterated in the October 21, 1994 certification


which the BFP City Fire Marshal, Insp. Teodoro D. del Rosario

1996 by way of Actual or Compensatory damages;


4)

issued to petitioners as supporting document for the latter's


insurance claim.

P18,000.00 per month of unpaid rentals on the second floor

P8,400.00 per month as reimbursement of unpaid rentals


on the other leased areas occupied by other tenants for the

[5]

period from October 1994 until the time the vacated leased
areas were occupied by new tenants;

Citing the foregoing findings, respondent sent petitioners on


November 3, 1994 a notice to vacate the leased premises to make
way for repairs, and to pay reparation estimated at P1.5 million.

5)

P200,000.00 as moral damages;

6)

P200,000.00 as exemplary damages;

7)

P50,000.00 plus 20% of Actual damages awarded as


reasonable Attorney's fees; and

On November 11, 1994, petitioners vacated the leased premises,


including the units on the second floor,

[6]

but they did not act on the 8)

Costs of suit.

demand for reparation.


[11]

SO ORDERED.
Respondent wrote petitioners another letter, reiterating its claim for
reparation, this time estimated by professionals to be no less than

Petitioners appealed to the CA which, in its February 28, 2002


Decision, modified the RTC Decision, thus:

51 | P a g e

Torts 3

WHEREFORE, the appealed decision is MODIFIED in that the


award of (i) actual and compensatory damages in the amounts of

Article 1174 of the Civil Code defines a fortuitous event as that

P2.2 Million as cost of rehabilitation of Belfranlt Building and

which could not be foreseen, or which, though foreseen, was

P8,400.00 per month as reimbursement of unpaid rentals on the

inevitable. Whether an act of god

areas leased by other tenants, (ii) moral damages, (iii) exemplary

constitute a fortuitous event, it must be shown that: a) the cause of

damages and (iv) attorney's fees is DELETED, while defendants-

the unforeseen and unexpected occurrence or of the failure of the

appellants are ordered to pay to plaintiff-appellee, jointly and

obligor to comply with its obligations was independent of human

severally, the amount of P500,000.00 as temperate damages. The

will; b) it was impossible to foresee the event or, if it could have

appealed judgment is AFFIRMED in all other respects.

been foreseen, to avoid it; c) the occurrence rendered it impossible

[16]

[17]

or an act of man,

to

for the obligor to fulfill its obligations in a normal manner; and d)


SO ORDERED.

[12]

said obligor was free from any participation in the aggravation of

Respondent did not appeal from the CA decision.

[13]

the injury or loss.

[18]

If the negligence or fault of the obligor

coincided with the occurrence of the fortuitous event, and caused


Petitioners filed the present petition, questioning the CA decision

the loss or damage or the aggravation thereof, the fortuitous event

on the following grounds:

cannot shield the obligor from liability for his negligence.


I

[19]

In the present case, it was fire that caused the damage to the units

The honorable Court of Appeals erred in not holding that the fire

being occupied by petitioners. The legal presumption therefore is

that partially burned respondent's building was a fortuitous event.

that petitioners were responsible for the damage. Petitioners insist,


however, that they are exempt from liability for the fire was a

II

fortuitous event that took place without their fault or negligence.

[20]

The honorable Court of Appeals erred in holding that petitioner

The RTC saw differently, holding that the proximate cause of the

failed to observe the due diligence of a good father of a family.

fire was the fault and negligence of petitioners in using a coffee


percolator in the office stockroom on the third floor of the building

III

and in allowing the electrical device to overheat:


Plaintiff has presented credible and preponderant evidence that

The honorable Court of Appeals erred in holding petitioners liable

the fire was not due to a fortuitous event but rather was due to an

for certain actual damages despite plaintiffs' failure to prove the

overheated coffee percolator found in the leased premises

damage as alleged.

occupied by the defendants. The certification issued by the Bureau


of Fire Protection Region 3 dated October 21, 1994 clearly
IV

indicated that the cause of the fire was an overheated coffee


percolator. This documentary evidence is credible because it was

The honorable Court of Appeals erred in holding petitioners liable


for temperate damages.

[14]

The petition lacks merit.

issued by a government office which conducted an investigation of


the cause and circumstances surrounding the fire of October 8,
1994. Under Section 4, Rule 131 of the Revised Rules of Court,
there is a legal presumption that official duty has been regularly

Article 1667 of the Civil Code, which provides:


The lessee is responsible for the deterioration or loss of the thing
leased, unless he proves that it took place without his fault. This
burden of proof on the lessee does not apply when the destruction
is due to earthquake, flood, storm or other natural calamity.
creates the presumption that the lessee is liable for the
deterioration or loss of a thing leased. To overcome such legal
presumption, the lessee must prove that the deterioration or loss
was due to a fortuitous event which took place without his fault or
negligence.

[15]

performed. The defendants have failed to present countervailing


evidence to rebut or dispute this presumption. The defendants did
not present any credible evidence to impute any wrongdoing or
false motives on the part of Fire Department Officials and Arson
investigators in the preparation and finalization of this certification.
This Court is convinced that the Certification is genuine, authentic,
valid and issued in the proper exercise and regular performance of
the issuing authority's official duties. The written certification
cannot be considered self-serving to the plaintiff because as
clearly indicated on its face the same was issued not to the plaintiff
but to the defendant's representative Mr. Jesus V. Roig for
52 | P a g e

Torts 3

purposes of filing their insurance claim. This certification was

Bureau of Fire Protection (BFP), Angeles City, who admitted to

issued by a government office upon the request of the defendant's

having no participation in the investigation of the fire incident or

authorized representative. The plaintiff also presented

personal knowledge about said incident,

preponderant evidence that the fire was caused by an overheated

incompetent to testify thereon. Petitioners argue that, with Exh. P-

coffee percolator when plaintiff submitted in evidence not only

2 and Exh. P-3 and the testimony of Fireman Sitchon that are

photographs of the remnants of a coffee percolator found in the

flawed, there is virtually no evidence left that the cause of the fire

burned premises but the object evidence itself. Defendants did not

was an overheated coffee percolator. Petitioners insist that they

dispute the authenticity or veracity of these evidence. Defendants

own no such percolator.

[23]

making him

[24]

merely presented negative evidence in the form of denials that


defendants maintained a coffee percolator in the premises testified We find no cogent reason to disturb the finding of the RTC and
to by employees of defendants who cannot be considered totally
disinterested.

[21]

CA.

(Citations omitted)

The CA concurred with the RTC and noted additional evidence of

The finding that the negligence of petitioners was the proximate

the negligence of petitioners:

cause of the fire that destroyed portions of the leased units is a

The records disclose that the metal base of a heating device which purely factual matter which we cannot pass upon,

[25]

lest we

the lower court found to be the base of a coffee percolator, was

overstep the restriction that review by certiorari under Rule 45 be

retrieved from the stockroom where the fire originated. The metal

limited to errors of law only.

[26]

base contains the inscription CAUTION DO NOT OPERATE


WHEN EMPTY, which is a warning against the use of such

Moreover, the established rule is that the factual findings of the CA

electrical device when empty and an indication that it is a water-

affirming those of the RTC are conclusive and binding on us.

heating appliance. Its being an instrument for preparing coffee is

We are not wont to review them, save under exceptional

demonstrated by its retrieval from the stockroom, particularly

circumstances as: (1) when the inference made is manifestly

beside broken drinking glasses, Nescafe bottle, metal dish rack

mistaken, absurd or impossible; (2) when there is grave abuse of

and utensils.

discretion; (3) when the findings are grounded entirely on

[27]

speculations, surmises or conjectures; (4) when the judgment of


Appellants assert that it had an airpot not a coffee percolator -

the CA is based on misapprehension of facts; (5) when the CA, in

near the Administration Office on the third floor. For unexplained

making its findings, went beyond the issues of the case and the

reasons, however, they did not present the airpot to disprove the

same is contrary to the admissions of both appellant and appellee;

existence of the coffee percolator. The fire did not raze the entire

(6) when the findings of fact are conclusions without citation of

third floor and the objects therein. Even the stack of highly

specific evidence on which they are based; (7) when the CA

combustible paper on the third floor was not totally gutted by the

manifestly overlooked certain relevant facts not disputed by the

fire. Consequently, it is not farfetched that the burnt airpot, if any,

parties and which, if properly considered, would justify a different

could have been recovered by appellants from the area where it

conclusion; and (8) when the findings of fact of the CA are

was supposedly being kept.

premised on the absence of evidence and are contradicted by the


evidence on record.

[28]

xxxx
The exceptions do not obtain in the present case. In fact, the
The defense that the fire was a fortuitous event is untenable. It is

findings of the RTC and CA are fully supported by the evidence.

undisputed that the fire originated from appellants' stockroom


located on the third floor leased premises. Said stockroom was

Contrary to petitioners' claim, Fireman Sitchon is competent to

under the control of appellants which, on that fateful day (a

identify and testify on Exh. P-2 and Exh. P-3 because, although

Saturday), conducted a seminar in the training room which was

he did not sign said documents, he personally prepared the

adjoining the stockroom. Absent an explanation from appellants on same.


the cause of the fire, the doctrine of res ipsa loquitur applies.

[22]

[29]

What Fireman Sitchon did not prepare were the

documents which his investigation witnesses presented.

[30]

Petitioners impugn both findings. They claim that the BFP field

However, Fireman Sitchon emphasized that he interviewed said

investigation report (Exh. P-2) and the BFP certification (Exh. P-

investigation witnesses namely, Ronald Estanislao, the security

3) are hearsay evidence because these were presented during

guard on duty at the time of fire; and Dr. Zenaida Arcilla, manager

the testimony of Fireman Gerardo Sitchon (Fireman Sitchon) of the of CAPP, before he prepared Exh. P-2 and Exh. P-3.

[31]

Hence,

53 | P a g e

Torts 3

while Fireman Sitchon may have had no personal knowledge of

pecuniary loss has been suffered but its amount cannot, from the

the fire incident, Exh. P-2 and Exh. P-3, which he prepared

nature of the case, be proved with certainty.

based on the statements of his investigation witnesses, especially

is usually left to the discretion of the courts but the same should be

[39]

The amount thereof

that of Ronald Estanislao whose official duty it was to report on the reasonable, bearing in mind that temperate damages should be
incident, are exceptions to the hearsay rule because these are
[32]

entries in official records.

Consequently, his testimony on said

documents are competent evidence of the contents thereof.

[33]

more than nominal but less than compensatory.

[40]

Without a

doubt, respondent suffered some form of pecuniary loss for the


impairment of the structural integrity of its building as a result of
the fire. However, as correctly pointed out by the CA, because of

Furthermore, the petitioners are estopped from contesting the

respondent's inability to present proof of the exact amount of such

veracity of Exh. P-3 because, as the CA correctly pointed out,

pecuniary loss, it may only be entitled to temperate damages in

the aforesaid certification was used by appellants [petitioners] in

the amount of P500,000.00,

[41]

which we find reasonable and just.

claiming insurance for their office equipment which were destroyed


by the fire.

[34]

WHEREFORE, the petition is DENIED for lack of merit.

Even without the testimony of Fireman Sitchon and the documents

SO ORDERED.

he prepared, the finding of the RTC and CA on the negligence of


petitioners cannot be overturned by petitioners' bare denial. The
CA correctly applied the doctrine of res ipsa loquitur under which
expert testimony may be dispensed with

[35]

to sustain an allegation

of negligence if the following requisites obtain: a) the accident is of


a kind which does not ordinarily occur unless someone is
negligent; b) the cause of the injury was under the exclusive
control of the person in charge and c) the injury suffered must not
have been due to any voluntary action or contribution on the part
of the person injured.

[36]

The fire that damaged Belfranlt Building

was not a spontaneous natural occurrence but the outcome of a


human act or omission. It originated in the store room which
petitioners had possession and control of. Respondent had no
hand in the incident. Hence, the convergence of these facts and
circumstances speaks for itself: petitioners alone having
knowledge of the cause of the fire or the best opportunity to
ascertain it, and respondent having no means to find out for itself,
it is sufficient for the latter to merely allege that the cause of the
fire was the negligence of the former and to rely on the occurrence
of the fire as proof of such negligence.

[37]

It was all up to

petitioners to dispel such inference of negligence, but their bare


denial only left the matter unanswered.
The CA therefore correctly affirmed the RTC in holding petitioners
liable to respondent for actual damages consisting of unpaid
rentals for the units they leased.
The CA deleted the award of actual damages of P2.2 million which
the RTC had granted respondent to cover costs of building repairs.
In lieu of actual damages, temperate damages in the amount of
P500,000.00 were awarded by the CA. We find this in order.

[38]

Temperate or moderate damages may be availed when some


54 | P a g e

Torts 3

D.M. CONSUNJI, INC., PETITIONER, VS. COURT OF APPEALS WHEREFORE, judgment is hereby rendered ordering defendant to
AND MARIA J. JUEGO, RESPONDENTS.
DECISION

pay plaintiff, as follows:


1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.

KAPUNAN, J.:

3. P464,000.00 for the loss of Jose A. Juego's earning capacity.


4. P100,000.00 as moral damages.

At around 1:30 p.m., November 2, 1990, Jose Juego, a

5. P20,000.00 as attorney's fees, plus the costs of suit.

construction worker of D.M. Consunji, Inc., fell 14 floors from the


[2]

Renaissance Tower, Pasig City to his death.

SO ORDERED.

PO3 Rogelio Villanueva of the Eastern Police District investigated

On appeal by D.M. Consunji, the Court of Appeals (CA) affirmed

the tragedy and filed a report dated November 25, 1990, stating

the decision of the RTC in toto.

that:
D.M. Consunji now seeks the reversal of the CA decision on the
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in

following grounds:

Pasig, Metro Manila where he was pronounced dead on arrival


(DOA) by the attending physician, Dr. Errol de Yzo[,] at around

THE APPELLATE COURT ERRED IN HOLDING THAT THE

2:15 p.m. of the same date.

POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE


ALLEGED NEGLIGENCE OF PETITIONER.

Investigation disclosed that at the given time, date and place, while
victim Jose A. Juego together with Jessie Jaluag and Delso

THE APPELLATE COURT ERRED IN HOLDING THAT THE


Destajo [were] performing their work as carpenter[s] at the elevator DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO
th
core of the 14 floor of the Tower D, Renaissance Tower Building PROVE NEGLIGENCE ON THE PART OF PETITIONER.
on board a [p]latform made of channel beam (steel) measuring 4.8
meters by 2 meters wide with pinulid plywood flooring and cable

THE APPELLATE COURT ERRED IN HOLDING THAT

wires attached to its four corners and hooked at the 5 ton chain

PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE

block, when suddenly, the bolt or pin which was merely inserted to

2180 OF THE CIVIL CODE, AND

connect the chain block with the [p]latform, got loose xxx causing
the whole [p]latform assembly and the victim to fall down to the

THE APPELLATE COURT ERRED IN HOLDING THAT

basement of the elevator core, Tower D of the building under

RESPONDENT IS NOT PRECLUDED FROM RECOVERING

construction thereby crushing the victim to death, save his two (2)

DAMAGES UNDER THE CIVIL CODE.

[3]

companions who luckily jumped out for safety.


Petitioner maintains that the police report reproduced above is
It is thus manifest that Jose A. Juego was crushed to death when

hearsay and, therefore, inadmissible. The CA ruled otherwise. It

the [p]latform he was then on board and performing work, fell. And held that said report, being an entry in official records, is an
the falling of the [p]latform was due to the removal or getting loose exception to the hearsay rule.
of the pin which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety lock.

[1]

The Rules of Court provide that a witness can testify only to those
facts which he knows of his personal knowledge, that is, which are
[4]

On May 9, 1991, Jose Juego's widow, Maria, filed in the Regional

derived from his perception.

Trial Court (RTC) of Pasig a complaint for damages against the

as what he merely learned from others either because he was told

deceased's employer, D.M. Consunji, Inc. The employer raised,

or read or heard the same. Such testimony is considered hearsay

among other defenses, the widow's prior availment of the benefits

and may not be received as proof of the truth of what he has

from the State Insurance Fund.

learned.

[5]

A witness, therefore, may not testify

This is known as the hearsay rule.

After trial, the RTC rendered a decision in favor of the widow Maria Hearsay is not limited to oral testimony or statements; the general
Juego. The dispositive portion of the RTC decision reads:
rule that excludes hearsay as evidence applies to written, as well
55 | P a g e

Torts 3

as oral statements.

[6]

The theory of the hearsay rule is that the

based on their sworn statements (which were annexed to the

many possible deficiencies, suppressions, sources of error and

Report) as well as the latter, having been included in the first

untrustworthiness, which lie underneath the bare untested

purpose of the offer [as part of the testimony of Major Enriquez],

assertion of a witness, may be best brought to light and exposed

may then be considered as independently relevant statements

by the test of cross-examination.

[7]

The hearsay rule, therefore,

excludes evidence that cannot be tested by cross-examination.


The Rules of Court allow several exceptions to the rule,

[9]

which were gathered in the course of the investigation and may


[8]

among

thus be admitted as such, but not necessarily to prove the truth


thereof. It has been said that:

which are entries in official records. Section 44, Rule 130


provides:

"Where regardless of the truth or falsity of a statement, the fact


that it has been made is relevant, the hearsay rule does not apply,

Entries in official records made in the performance of his duty

but the statement may be shown. Evidence as to the making of

made in the performance of his duty by a public officer of the

such statement is not secondary but primary, for the statement

Philippines, or by a person in the performance of a duty specially

itself may constitute a fact in issue, or be circumstantially relevant

enjoined by law are prima facie evidence of the facts therein

as to the existence of such a fact."

stated.
When Major Enriquez took the witness stand, testified for
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,

[10]

this Court, citing the

petitioners on his Report and made himself available for cross-

work of Chief Justice Moran, enumerated the requisites for

examination by the adverse party, the Report, insofar as it proved

admissibility under the above rule:

that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section

(a) that the entry was made by a public officer or by another

44 of Rule 130. Properly understood, this section does away with

person specially enjoined by law to do so;

the testimony in open court of the officer who made the official
record, considers the matter as an exception to the hearsay rule

(b) that it was made by the public officer in the performance of his

and makes the entries in said official record admissible in evidence

duties, or by such other person in the performance of a duty

as prima facie evidence of the facts therein stated. The underlying

specially enjoined by law; and

reasons for this exceptionary rule are necessity and


trustworthiness, as explained in Antillon v. Barcelon.

(c) that the public officer or other person had sufficient knowledge
of the facts by him stated, which must have been acquired by him

The litigation is unlimited in which testimony by officials is daily

personally or through official information.

needed; the occasions in which the officials would be summoned


from his ordinary duties to declare as a witness are numberless.

The CA held that the police report meets all these requisites.

The public officers are few in whose daily work something is not

Petitioner contends that the last requisite is not present.

done in which testimony is not needed from official sources. Were


there no exception for official statements, hosts of officials would

The Court notes that PO3 Villanueva, who signed the report in

be found devoting the greater part of their time to attending as

question, also testified before the trial court. In Rodriguez vs. Court witnesses in court or delivering deposition before an officer. The
of Appeals,

[11]

which involved a Fire Investigation Report, the

work of administration of government and the interest of the public

officer who signed the fire report also testified before the trial

having business with officials would alike suffer in consequence.

court. This Court held that the report was inadmissible for the

For these reasons, and for many others, a certain verity is

purpose of proving the truth of the statements contained in the

accorded such documents, which is not extended to private

report but admissible insofar as it constitutes part of the testimony

documents. (3 Wigmore on Evidence, Sec. 1631).

of the officer who executed the report.


The law reposes a particular confidence in public officers that it
x x x. Since Major Enriquez himself took the witness stand and

presumes they will discharge their several trusts with accuracy and

was available for cross-examination, the portions of the report

fidelity; and, therefore, whatever acts they do in discharge of their

which were of his personal knowledge or which consisted of his

duty may be given in evidence and shall be taken to be true under

perceptions and conclusions were not hearsay. The rest of the

such a degree of caution as to the nature and circumstances of

report, such as the summary of the statements of the parties

each case may appear to require.


56 | P a g e

Torts 3

While negligence is not ordinarily inferred or presumed, and while


It would have been an entirely different matter if Major Enriquez

the mere happening of an accident or injury will not generally give

was not presented to testify on his report. In that case the

rise to an inference or presumption that it was due to negligence

applicability of Section 44 of Rule 143 would have been ripe for

on defendant's part, under the doctrine of res ipsa loquitur, which

determination, and this Court would have agreed with the Court of

means, literally, the thing or transaction speaks for itself, or in one

Appeals that said report was inadmissible since the

jurisdiction, that the thing or instrumentality speaks for itself, the

aforementioned third requisite was not satisfied. The statements

facts or circumstances accompanying an injury may be such as to

given by the sources of information of Major Enriquez failed to

raise a presumption, or at least permit an inference of negligence

qualify as "official information," there being no showing that, at the

on the part of the defendant, or some other person who is charged

very least, they were under a duty to give the statements for

with negligence.

record.
x x x where it is shown that the thing or instrumentality which
Similarly, the police report in this case is inadmissible for the

caused the injury complained of was under the control or

purpose of proving the truth of the statements contained therein

management of the defendant, and that the occurrence resulting in

but is admissible insofar as it constitutes part of the testimony of

the injury was such as in the ordinary course of things would not

PO3 Villanueva.

happen if those who had its control or management used proper


care, there is sufficient evidence, or, as sometimes stated,

In any case, the Court holds that portions of PO3 Villanueva's

reasonable evidence, in the absence of explanation by the

testimony which were of his personal knowledge suffice to prove

defendant, that the injury arose from or was caused by the

that Jose Juego indeed died as a result of the elevator crash. PO3 defendant's want of care.
Villanueva had seen Juego's remains at the morgue,

[12]

[21]

making the

latter's death beyond dispute. PO3 Villanueva also conducted an

One of the theoretical bases for the doctrine is its necessity, i.e.,

ocular inspection of the premises of the building the day after the

that necessary evidence is absent or not available.

[13]

incident

and saw the platform for himself.

the platform was crushed

[15]

[14]

[22]

He observed that

and that it was totally damaged.

[16]

The res ipsa loquitur doctrine is based in part upon the theory that

PO3 Villanueva also required Garcia and Fabro to bring the chain

the defendant in charge of the instrumentality which causes the

block to the police headquarters. Upon inspection, he noticed that

injury either knows the cause of the accident or has the best

the chain was detached from the lifting machine, without any pin or opportunity of ascertaining it and that the plaintiff has no such
bolt.

[17]

knowledge, and therefore is compelled to allege negligence in


general terms and to rely upon the proof of the happening of the

What petitioner takes particular exception to is PO3 Villanueva's

accident in order to establish negligence. The inference which the

testimony that the cause of the fall of the platform was the

doctrine permits is grounded upon the fact that the chief evidence

loosening of the bolt from the chain block. It is claimed that such

of the true cause, whether culpable or innocent, is practically

portion of the testimony is mere opinion. Subject to certain

accessible to the defendant but inaccessible to the injured person.

exceptions,
admissible.

[18]

the opinion of a witness is generally not

[19]

It has been said that the doctrine of res ipsa loquitur furnishes a
bridge by which a plaintiff, without knowledge of the cause,

Petitioner's contention, however, loses relevance in the face of the

reaches over to defendant who knows or should know the cause,

application of res ipsa loquitur by the CA. The effect of the doctrine for any explanation of care exercised by the defendant in respect
is to warrant a presumption or inference that the mere fall of the

of the matter of which the plaintiff complains. The res ipsa loquitur

elevator was a result of the person having charge of the

doctrine, another court has said, is a rule of necessity, in that it

instrumentality was negligent. As a rule of evidence, the doctrine

proceeds on the theory that under the peculiar circumstances in

of res ipsa loquitur is peculiar to the law of negligence which

which the doctrine is applicable, it is within the power of the

recognizes that prima facie negligence may be established without defendant to show that there was no negligence on his part, and
direct proof and furnishes a substitute for specific proof of
negligence.

[20]

The concept of res ipsa loquitur has been

explained in this wise:

direct proof of defendant's negligence is beyond plaintiff's power.


Accordingly, some courts add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement
that for the res ipsa loquitur doctrine to apply, it must appear that
57 | P a g e

Torts 3

[25]

the injured party had no knowledge or means of knowledge as to

presumed or inferred

the cause of the accident, or that the party to be charged with

requisites for the application of res ipsa loquitur. Once the plaintiff

negligence has superior knowledge or opportunity for explanation

makes out a prima facie case of all the elements, the burden then

of the accident.

[23]

when the plaintiff establishes the

shifts to defendant to explain.

[26]

The presumption or inference

may be rebutted or overcome by other evidence and, under


The CA held that all the requisites of res ipsa loquitur are present

appropriate circumstances a disputable presumption, such as that

in the case at bar:

of due care or innocence, may outweigh the inference.

[27]

It is not

for the defendant to explain or prove its defense to prevent the


There is no dispute that appellee's husband fell down from the

presumption or inference from arising. Evidence by the defendant

14th floor of a building to the basement while he was working with

of say, due care, comes into play only after the circumstances for

appellant's construction project, resulting to his death. The

the application of the doctrine has been established.

construction site is within the exclusive control and management of


appellant. It has a safety engineer, a project superintendent, a

In any case, petitioner cites the sworn statement of its leadman

carpenter leadman and others who are in complete control of the

Ferdinand Fabro executed before the police investigator as

situation therein. The circumstances of any accident that would

evidence of its due care. According to Fabro's sworn statement,

occur therein are peculiarly within the knowledge of the appellant

the company enacted rules and regulations for the safety and

or its employees. On the other hand, the appellee is not in a

security of its workers. Moreover, the leadman and the bodegero

position to know what caused the accident. Res ipsa loquitur is a

inspect the chain block before allowing its use.

rule of necessity and it applies where evidence is absent or not


readily available, provided the following requisites are present: (1)

It is ironic that petitioner relies on Fabro's sworn statement as

the accident was of a kind which does not ordinarily occur unless

proof of its due care but, in arguing that private respondent failed

someone is negligent; (2) the instrumentality or agency which

to prove negligence on the part of petitioner's employees, also

caused the injury was under the exclusive control of the person

assails the same statement for being hearsay.

charged with negligence; and (3) the injury suffered must not have
been due to any voluntary action or contribution on the part of the

Petitioner is correct. Fabro's sworn statement is hearsay and

person injured. x x x.

inadmissible. Affidavits are inadmissible as evidence under the


hearsay rule, unless the affiant is placed on the witness stand to
[28]

No worker is going to fall from the 14th floor of a building to the

testify thereon.

The inadmissibility of this sort of evidence is

basement while performing work in a construction site unless

based not only on the lack of opportunity on the part of the

someone is negligent[;] thus, the first requisite for the application

adverse party to cross-examine the affiant, but also on the

of the rule of res ipsa loquitur is present. As explained earlier, the

commonly known fact that, generally, an affidavit is not prepared

construction site with all its paraphernalia and human resources

by the affiant himself but by another who uses his own language in

that likely caused the injury is under the exclusive control and

writing the affiant's statements which may either be omitted or

management of appellant[;] thus[,] the second requisite is also

misunderstood by the one writing them.

present. No contributory negligence was attributed to the

cannot use said statement as proof of its due care any more than

appellee's deceased husband[;] thus[,] the last requisite is also

private respondent can use it to prove the cause of her husband's

present. All the requisites for the application of the rule of res ipsa

death. Regrettably, petitioner does not cite any other evidence to

[29]

Petitioner, therefore,

loquitur are present, thus a reasonable presumption or inference of rebut the inference or presumption of negligence arising from the
appellant's negligence arises. x x x.

[24]

application of res ipsa loquitur, or to establish any defense relating


to the incident.

Petitioner does not dispute the existence of the requisites for the
application of res ipsa loquitur, but argues that the presumption or

Next, petitioner argues that private respondent had previously

inference that it was negligent did not arise since it "proved that it

availed of the death benefits provided under the Labor Code and

exercised due care to avoid the accident which befell respondent's

is, therefore, precluded from claiming from the deceased's

husband."

employer damages under the Civil Code.

Petitioner apparently misapprehends the procedural effect of the

Article 173 of the Labor Code states:

doctrine. As stated earlier, the defendant's negligence is


58 | P a g e

Torts 3

ART. 173. Extent of liability. - Unless otherwise provided, the

cumulatively of both actions, i.e., collect the limited compensation

liability of the State Insurance Fund under this Title shall be

under the Workmen's Compensation Act and sue in addition for

exclusive and in place of all other liabilities of the employer to the

damages in the regular courts.

employee, his dependents or anyone otherwise entitled to receive


damages on behalf of the employee or his dependents. The

In disposing of a similar issue, this Court in Pacaa vs. Cebu

payment of compensation under this Title shall not bar the

Autobus Company, 32 SCRA 442, ruled that an injured worker has

recovery of benefits as provided for in Section 699 of the Revised

a choice of either to recover from the employer the fixed amounts

Administrative Code, Republic Act Numbered Eleven hundred

set by the Workmen's Compensation Act or to prosecute an

sixty-one, as amended, Republic Act Numbered Six hundred ten,

ordinary civil action against the tortfeasor for higher damages but

as amended, Republic Act Numbered Forty-eight hundred sixty-

he cannot pursue both courses of action simultaneously.

four as amended, and other laws whose benefits are administered

[Underscoring supplied.]

by the System or by other agencies of the government.


Nevertheless, the Court allowed some of the petitioners in said
The precursor of Article 173 of the Labor Code, Section 5 of the

case to proceed with their suit under the Civil Code despite having

Workmen's Compensation Act, provided that:

availed of the benefits provided under the Workmen's


Compensation Act. The Court reasoned:

SEC. 5. Exclusive right to compensation. - The rights and


remedies granted by this Act to an employee by reason of a

With regard to the other petitioners, it was alleged by Philex in its

personal injury entitling him to compensation shall exclude all

motion to dismiss dated May 14, 1968 before the court a quo, that

other rights and remedies accruing to the employee, his personal

the heirs of the deceased employees, namely Emerito Obra, Larry

representatives, dependents or nearest of kin against the

Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted

employer under the Civil Code and other laws because of said

notices and claims for compensation to the Regional Office No.1 of

injury x x x.

the then Department of Labor and all of them have been paid in
full as of August 25, 1967, except Saturnino Martinez whose heirs

Whether Section 5 of the Workmen's Compensation Act allowed

decided that they be paid in installments x x x. Such allegation

recovery under said Act as well as under the Civil Code used to be was admitted by herein petitioners in their opposition to the motion
the subject of conflicting decisions. The Court finally settled the
[30]

matter in Floresca vs. Philex Mining Corporation,

to dismiss dated May 27, 1968 x x x in the lower court, but they

which involved set up the defense that the claims were filed under the Workmen's

a cave-in resulting in the death of the employees of the Philex

Compensation Act before they learned of the official report of the

Mining Corporation. Alleging that the mining corporation, in

committee created to investigate the accident which established

violation of government rules and regulations, failed to take the

the criminal negligence and violation of law by Philex, and which

required precautions for the protection of the employees, the heirs

report was forwarded by the Director of Mines to then Executive

of the deceased employees filed a complaint against Philex Mining Secretary Rafael Salas in a letter dated October 19, 1967 only x x
in the Court of First Instance (CFI). Upon motion of Philex Mining,

x.

the CFI dismissed the complaint for lack of jurisdiction. The heirs
sought relief from this Court.

WE hold that although the other petitioners had received the


benefits under the Workmen's Compensation Act, such may not

Addressing the issue of whether the heirs had a choice of


remedies, majority of the Court En Banc,

[31]

following the rule in

Pacaa vs. Cebu Autobus Company, held in the affirmative.

preclude them from bringing an action before the regular court


because they became cognizant of the fact that Philex has been
remiss in its contractual obligations with the deceased miners only
after receiving compensation under the Act. Had petitioners been

WE now come to the query as to whether or not the injured

aware of said violation of government rules and regulations by

employee or his heirs in case of death have a right of selection or

Philex, and of its negligence, they would not have sought redress

choice of action between availing themselves of the worker's right

under the Workmen's Compensation Commission which awarded

under the Workmen's Compensation Act and suing in the regular

a lesser amount for compensation. The choice of the first remedy

courts under the Civil Code for higher damages (actual, moral and

was based on ignorance or a mistake of fact, which nullifies the

exemplary) from the employers by virtue of the negligence or fault

choice as it was not an intelligent choice. The case should

of the employers or whether they may avail themselves

therefore be remanded to the lower court for further proceedings.


59 | P a g e

Torts 3

However, should the petitioners be successful in their bid before

office. This is a standard operating procedure for police

the lower court, the payments made under the Workmen's

investigators which appellee may not have even known. This may

Compensation Act should be deducted from the damages that

explain why no complainant is mentioned in the preliminary

may be decreed in their favor. [Underscoring supplied.]

statement of the public prosecutor in her memorandum dated


February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are

The ruling in Floresca providing the claimant a choice of remedies


was reiterated in Ysmael Maritime Corporation vs. Avelino,
de Severo vs. Feliciano-Go,
Abeleda.

[34]

[33]

[32]

being charged by complaint of "Simple Negligence Resulting to

Vda. Homicide." It is also possible that the appellee did not have a

and Marcopper Mining Corp. vs.

In the last case, the Court again recognized that a

chance to appear before the public prosecutor as can be inferred


from the following statement in said memorandum: "Respondents

claimant who had been paid under the Act could still sue under the who were notified pursuant to Law waived their rights to present
Civil Code. The Court said:

controverting evidence," thus there was no reason for the public


prosecutor to summon the appellee. Hence, notice of appellant's

In the Robles case, it was held that claims for damages sustained

negligence cannot be imputed on appellee before she applied for

by workers in the course of their employment could be filed only

death benefits under ECC or before she received the first payment

under the Workmen's Compensation Law, to the exclusion of all

therefrom. Her using the police investigation report to support her

further claims under other laws. In Floresca, this doctrine was

complaint filed on May 9, 1991 may just be an afterthought after

abrogated in favor of the new rule that the claimants may invoke

receiving a copy of the February 6, 1991 Memorandum of the

either the Workmen's Compensation Act or the provisions of the

Prosecutor's Office dismissing the criminal complaint for

Civil Code, subject to the consequence that the choice of one

insufficiency of evidence, stating therein that: "The death of the

remedy will exclude the other and that the acceptance of

victim is not attributable to any negligence on the part of the

compensation under the remedy chosen will preclude a claim for

respondents. If at all and as shown by the records this case is civil

additional benefits under the other remedy. The exception is where in nature." (Underscoring supplied.) Considering the foregoing, We
a claimant who has already been paid under the Workmen's

are more inclined to believe appellee's allegation that she learned

Compensation Act may still sue for damages under the Civil Code

about appellant's negligence only after she applied for and

on the basis of supervening facts or developments occurring after

received the benefits under ECC. This is a mistake of fact that will

he opted for the first remedy. (Underscoring supplied.)

make this case fall under the exception held in the Floresca
ruling.

[35]

Here, the CA held that private respondent's case came under the
exception because private respondent was unaware of petitioner's

The CA further held that not only was private respondent ignorant

negligence when she filed her claim for death benefits from the

of the facts, but of her rights as well:

State Insurance Fund. Private respondent filed the civil complaint


for damages after she received a copy of the police investigation

x x x. Appellee [Maria Juego] testified that she has reached only

report and the Prosecutor's Memorandum dismissing the criminal

elementary school for her educational attainment; that she did not

complaint against petitioner's personnel. While stating that there

know what damages could be recovered from the death of her

was no negligence attributable to the respondents in the

husband; and that she did not know that she may also recover

complaint, the prosecutor nevertheless noted in the Memorandum

more from the Civil Code than from the ECC. x x x.

[36]

that, "if at all," the "case is civil in nature." The CA thus applied the
exception in Floresca:

Petitioner impugns the foregoing rulings. It contends that private


respondent "failed to allege in her complaint that her application

x x x We do not agree that appellee has knowledge of the alleged

and receipt of benefits from the ECC were attended by ignorance

negligence of appellant as early as November 25, 1990, the date

or mistake of fact. Not being an issue submitted during the trial,

of the police investigator's report. The appellee merely executed

the trial court had no authority to hear or adjudicate that issue."

her sworn statement before the police investigator concerning her


personal circumstances, her relation to the victim, and her

Petitioner also claims that private respondent could not have been

knowledge of the accident. She did not file the complaint for

ignorant of the facts because as early as November 28, 1990,

"Simple Negligence Resulting to Homicide" against appellant's

private respondent was the complainant in a criminal complaint for

employees. It was the investigator who recommended the filing of

"Simple Negligence Resulting to Homicide" against petitioner's

said case and his supervisor referred the same to the prosecutor's

employees. On February 6, 1991, two months before the filing of


60 | P a g e

Torts 3

the action in the lower court, Prosecutor Lorna Lee issued a


resolution finding that, although there was insufficient evidence

That lack of knowledge of a fact that nullifies the election of a

against petitioner's employees, the case was "civil in nature."

remedy is the basis for the exception in Floresca.

These purportedly show that prior to her receipt of death benefits


from the ECC on January 2, 1991 and every month thereafter,

It is in light of the foregoing principles that we address petitioner's

private respondent also knew of the two choices of remedies

contentions.

available to her and yet she chose to claim and receive the
benefits from the ECC.

Waiver is a defense, and it was not incumbent upon private


respondent, as plaintiff, to allege in her complaint that she had

When a party having knowledge of the facts makes an election

availed of benefits from the ECC. It is, thus, erroneous for

between inconsistent remedies, the election is final and bars any

petitioner to burden private respondent with raising waiver as an

action, suit, or proceeding inconsistent with the elected remedy, in

issue. On the contrary, it is the defendant who ought to plead

the absence of fraud by the other party. The first act of election

waiver, as petitioner did in pages 2-3 of its Answer;

acts as a bar.

[37]

Equitable in nature, the doctrine of election of

[41]

otherwise,

the defense is waived. It is, therefore, perplexing for petitioner to

remedies is designed to mitigate possible unfairness to both

now contend that the trial court had no jurisdiction over the issue

parties. It rests on the moral premise that it is fair to hold people

when petitioner itself pleaded waiver in the proceedings before the

responsible for their choices. The purpose of the doctrine is not to

trial court.

prevent any recourse to any remedy, but to prevent a double


redress for a single wrong.

[38]

Does the evidence show that private respondent knew of the facts
that led to her husband's death and the rights pertaining to a

The choice of a party between inconsistent remedies results in a

choice of remedies?

waiver by election. Hence, the rule in Floresca that a claimant


cannot simultaneously pursue recovery under the Labor Code and

It bears stressing that what negates waiver is lack of knowledge or

prosecute an ordinary course of action under the Civil Code. The

a mistake of fact. In this case, the "fact" that served as a basis for

claimant, by his choice of one remedy, is deemed to have waived

nullifying the waiver is the negligence of petitioner's employees, of

the other.

which private respondent purportedly learned only after the


prosecutor issued a resolution stating that there may be civil
[39]

Waiver is the intentional relinquishment of a known right.

liability. In Floresca, it was the negligence of the mining


corporation and its violation of government rules and regulations.

[It] is an act of understanding that presupposes that a party has

Negligence, or violation of government rules and regulations, for

knowledge of its rights, but chooses not to assert them. It must be

that matter, however, is not a fact, but a conclusion of law, over

generally shown by the party claiming a waiver that the person

which only the courts have the final say. Such a conclusion binds

against whom the waiver is asserted had at the time knowledge,

no one until the courts have decreed so. It appears, therefore, that

actual or constructive, of the existence of the party's rights or of all

the principle that ignorance or mistake of fact nullifies a waiver has

material facts upon which they depended. Where one lacks

been misapplied in Floresca and in the case at bar.

knowledge of a right, there is no basis upon which waiver of it can


rest. Ignorance of a material fact negates waiver, and waiver

In any event, there is no proof that private respondent knew that

cannot be established by a consent given under a mistake or

her husband died in the elevator crash when on November 15,

misapprehension of fact.

1990 she accomplished her application for benefits from the ECC.
The police investigation report is dated November 25, 1990, 10

A person makes a knowing and intelligent waiver when that person days after the accomplishment of the form. Petitioner filed the
knows that a right exists and has adequate knowledge upon which

application in her behalf on November 27, 1990.

to make an intelligent decision. Waiver requires a knowledge of


the facts basic to the exercise of the right waived, with an

There is also no showing that private respondent knew of the

awareness of its consequences. That a waiver is made knowingly

remedies available to her when the claim before the ECC was

and intelligently must be illustrated on the record or by the

filed. On the contrary, private respondent testified that she was

evidence.

[40]

not aware of her rights.

61 | P a g e

Torts 3

Petitioner, though, argues that under Article 3 of the Civil Code,


ignorance of the law excuses no one from compliance therewith.
As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil
Code), private respondent cannot claim ignorance of this Court's
ruling in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited
to mandatory and prohibitory laws.

[42]

This may be deduced from

the language of the provision, which, notwithstanding a person's


ignorance, does not excuse his or her compliance with the laws.
The rule in Floresca allowing private respondent a choice of
remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of
damages. The records do not indicate the total amount private
respondent ought to receive from the ECC, although it appears
from Exhibit "K"

[43]

that she received P3,581.85 as initial payment

representing the accrued pension from November 1990 to March


1991. Her initial monthly pension, according to the same Exhibit
"K," was P596.97 and present total monthly pension was
P716.40. Whether the total amount she will eventually receive
from the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to speculation, and
the case is remanded to the trial court for such determination.
Should the trial court find that its award is greater than that of the
ECC, payments already received by private respondent under the
Labor Code shall be deducted from the trial court's award of
damages. Consistent with our ruling in Floresca, this adjudication
aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial
Court of Pasig City to determine whether the award decreed in its
decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC,
payments already made to private respondent pursuant to the
Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

62 | P a g e

Torts 3

DR. NINEVETCH CRUZ, PETITIONER, VS. COURT OF


APPEALS AND LYDIA UMALI, RESPONDENTS.

The petitioner appealed her conviction to the Regional Trial Court


(RTC) which affirmed in toto the decision of the MTCC

[7]

prompting

the petitioner to file a petition for review with the Court of Appeals
DECISION

but to no avail. Hence this petition for review on certiorari assailing


the decision promulgated by the Court of Appeals on October 24,

FRANCISCO, J.:

1995 affirming petitioner's conviction with modification that she is


further directed to pay the heirs of Lydia Umali P50,000.00 as

The present case against petitioner is in the nature of a medical

indemnity for her death.

[8]

malpractice suit, which in simplest term is the type of claim which a


victim has available to him or her to redress a wrong committed by
a medical professional which has cause bodily harm.

[2]

In this

jurisdiction, however, such claims are most often brought as a civil


action for damages under Article 2176 of the Civil Code,

[3]

and in

In substance, the petition brought before this Court raises the


issue of whether or not petitioner's conviction of the crime of
reckless imprudence resulting in homicide, arising from an alleged
medical malpractice, is supported by the evidence on record.

some instances, as a criminal case under Article 365 of the


Revised Penal Code

[4]

with which the civil action for damages is

First the antecedent facts.

impliedly instituted. It is via the latter type of action that the heirs
of the deceased sought redress for the petitioner's alleged

On March 22, 1991, prosecution witness, Rowena Umali De

imprudence and negligence in treating the deceased thereby

Ocampo, accompanied her mother to the Perpetual Help Clinic


causing her death. The petitioner and one Dr. Lina Ercillo who was and General Hospital situated in Balagtas Street, San Pablo City,
the attending anaesthesiologist during the operation of the
Laguna. They arrived at the said hospital at around 4:30 in the
deceased were charged with "reckless imprudence and negligence afternoon of the same day.[9] Prior to March 22, 1991, Lydia was
[10]
resulting to (sic) homicide" in an information which reads:
examined by the petitioner who found a "myoma" in her uterus,
"That on or about March 23, 1991, in the City of San Pablo,

and scheduled her for a hysterectomy operation on March 23,

Republic of the Philippines and within the jurisdiction of this

1991.

Honorable Court, the accused abovenamed, being then the

of March 22, 1991 as the latter was to be operated on the next day

attending anaesthesiologist and surgeon, respectively, did then

at 1:00 o'clock in the afternoon.

and there, in a negligence (sic), careless, imprudent, and

noticed that the clinic was untidy and the window and the floor

incompetent manner, and failing to supply or store sufficient

were very dusty prompting her to ask the attendant for a rag to

provisions and facilities necessary to meet any and all exigencies

wipe the window and the floor with.

incompetence, and causing by such failure, including the lack of

wheeled into the operating room, Rowena asked the petitioner if

preparation and foresight needed to avert a tragedy, the untimely

the operation could be postponed. The petitioner called Lydia into

death of said Lydia Umali on the day following said surgical

her office and the two had a conversation. Lydia then informed

[11]

Rowena and her mother slept in the clinic on the evening


[12]

According to Rowena, she

[13]

Because of the untidy state


apt to arise before, during and/or after a surgical operation causing of the clinic, Rowena tried to persuade her mother not to proceed
[14]
by such negligence, carelessness, imprudence, and
with the operation. The following day, before her mother was

operation."

[5]

Rowena that the petitioner told her that she must be operated on

Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded

as scheduled.

[15]

not guilty to the above-mentioned charge. On March 4, 1994, the


Municipal Trial Court in Cities (MTCC) of San Pablo City rendered

Rowena and her other relatives, namely her husband, her sister

a decision, the dispositive portion of which is hereunder quoted as

and two aunts waited outside the operating room while Lydia

follows:

underwent operation. While they were waiting, Dr. Ercillo went out

"WHEREFORE, the court finds the accused Dr. Lina Ercillo not

of the operating room and instructed them to buy tagamet ampules

guilty of the offense charged for insufficiency of evidence while her

which Rowena's sister immediately bought. About one hour had

co-accused Dra. Ninevetch Cruz is hereby held responsible for the

passed when Dr. Ercillo came out again this time to ask them to

death of Lydia Umali on March 24, 1991, and therefore guilty

buy blood for Lydia. They bought type "A" blood from the St.

under Art. 365 of the Revised Penal Code, and she is hereby

Gerald Blood Bank and the same was brought by the attendant

sentenced to suffer the penalty of 2 months and 1 day

into the operating room. After the lapse of a few hours, the

imprisonment of arresto mayor with costs."

[6]

petitioner informed them that the operation was finished. The


operating staff then went inside the petitioner's clinic to take their
63 | P a g e

Torts 3

snacks. Some thirty minutes after, Lydia was brought out of the

operation, accused Dr. Cruz had conducted a cardio pulmonary

operating room in a stretcher and the petitioner asked Rowena

clearance or any typing of the blood of the patient. It was (sic) said

and the other relatives to buy additional blood for Lydia.

in medical parlance that the "abdomen of the person is a temple of

Unfortunately, they were not able to comply with petitioner's order

surprises" because you do not know the whole thing the moment it

as there was no more type "A" blood available in the blood bank.

was open (sic) and surgeon must be prepared for any eventuality

Thereafter, a person arrived to donate blood which was later

thereof. The patient (sic) chart which is a public document was not

transfused to Lydia. Rowena then noticed her mother, who was

presented because it is only there that we could determine the

attached to an oxygen tank, gasping for breath. Apparently the

condition of the patient before the surgery. The court also noticed

oxygen supply had run out and Rowena's husband together with

in Exh. "F-1" that the sister of the deceased wished to postpone

the driver of the accused had to go to the San Pablo District

the operation but the patient was prevailed upon by Dra. Cruz to

Hospital to get oxygen. Lydia was given the fresh supply of oxygen proceed with the surgery. The court finds that Lydia Umali died
as soon as it arrived.

[16]

But at around 10:00 o'clock P.M. she went

because of the negligence and carelessness of the surgeon Dra.

into shock and her blood pressure dropped to 60/50. Lydia's

Ninevetch Cruz because of loss of blood during the operation of

unstable condition necessitated her transfer to the San Pablo

the deceased for evident unpreparedness and for lack of skill, the

District Hospital so she could be connected to a respirator and

reason why the patient was brought for operation at the San Pablo

further examined.

[17]

The transfer to the San Pablo City District

City District Hospital. As such, the surgeon should answer for such

Hospital was without the prior consent of Rowena nor of the other

negligence. With respect to Dra. Lina Ercillo, the

relatives present who found out about the intended transfer only

anaesthesiologist, there is no evidence to indicate that she should

when an ambulance arrived to take Lydia to the San Pablo District

be held jointly liable with Dra. Cruz who actually did the

Hospital. Rowena and her other relatives then boarded a tricycle

operation."

and followed the ambulance.

[18]

[23]

The RTC reiterated the abovementioned findings of the MTCC and


upheld the latter's declaration of "incompetency, negligence and

Upon Lydia's arrival at the San Pablo District Hospital, she was

lack of foresight and skill of appellant (herein petitioner) in handling

wheeled into the operating room and the petitioner and Dr. Ercillo

the subject patient before and after the operation."

re-operated on her because there was blood oozing from the

affirming the petitioner's conviction, the Court of Appeals echoed

abdominal incision.

[19]

The attending physicians summoned Dr.

[24]

And likewise

similar observations, thus:

Bartolome Angeles, head of the Obstetrics and Gynecology

"x x x. While we may grant that the untidiness and filthiness of the

Department of the San Pablo District Hospital. However, when Dr.

clinic may not by itself indicate negligence, it nevertheless shows

Angeles arrived, Lydia was already in shock and possibly dead as

the absence of due care and supervision over her subordinate

her blood pressure was already 0/0. Dr. Angeles then informed

employees. Did this unsanitary condition permeate the operating

petitioner and Dr. Ercillo that there was nothing he could do to help room? Were the surgical instruments properly sterilized? Could the
save the patient.

[20]

While petitioner was closing the abdominal

wall, the patient died.

[21]

Thus, on March 24, 1991, at 3:00 o'clock

conditions in the OR have contributed to the infection of the


patient? Only the petitioner could answer these, but she opted not

in the morning, Lydia Umali was pronounced dead. Her death

to testify. This could only give rise to the presumption that she has

certificate states "shock" as the immediate cause of death and

nothing good to testify on her defense. Anyway, the alleged

"Disseminated Intravascular Coagulation (DIC)" as the antecedent

"unverified statement of the prosecution witness" remains

cause.

[22]

unchallenged and unrebutted.

In convicting the petitioner, the MTCC found the following

Likewise undisputed is the prosecution's version indicating the

circumstances as sufficient basis to conclude that she was indeed

following facts: that the accused asked the patient's relatives to

negligent in the performance of the operation:

buy Tagamet capsules while the operation was already in


progress; that after an hour, they were also asked to buy type "A"

"x x x, the clinic was untidy, there was lack of provision like blood

blood for the patient; that after the surgery, they were again asked

and oxygen to prepare for any contingency that might happen

to procure more type "A" blood, but such was not anymore

during the operation. The manner and the fact that the patient was

available from the source; that the oxygen given to the patient was

brought to the San Pablo District Hospital for reoperation indicates

empty; and that the son-in-law of the patient, together with a driver

that there was something wrong in the manner in which Dra. Cruz

of the petitioner, had to rush to the San Pablo City District Hospital

conducted the operation. There was no showing that before the

to get the much-needed oxygen. All these conclusively show that


64 | P a g e

Torts 3

[28]

the petitioner had not prepared for any unforeseen circumstances

the treatment and care falls below such standard.

Further,

before going into the first surgery, which was not emergency in

inasmuch as the causes of the injuries involved in malpractice

nature, but was elective or pre-scheduled; she had no ready

actions are determinable only in the light of scientific knowledge, it

antibiotics, no prepared blood, properly typed and cross-matched,

has been recognized that expert testimony is usually necessary to

and no sufficient oxygen supply.

support the conclusion as to causation.

Moreover, there are a lot of questions that keep nagging Us. Was

Immediately apparent from a review of the records of this case is

the patient given any cardio-pulmonary clearance, or at least a

the absence of any expert testimony on the matter of the standard

clearance by an internist, which are standard requirements before

of care employed by other physicians of good standing in the

a patient is subjected to surgery. Did the petitioner determine as

conduct of similar operations. The prosecution's expert witnesses

part of the pre-operative evaluation, the bleeding parameters of

in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of

the patient, such as bleeding time and clotting time? There is no

the National Bureau of Investigation (NBI) only testified as to the

showing that these were done. The petitioner just appears to have

possible cause of death but did not venture to illuminate the court

been in a hurry to perform the operation, even as the family

on the matter of the standard of care that petitioner should have

wanted the postponement to April 6, 1991. Obviously, she did not

exercised.

[29]

prepare the patient; neither did she get the family's consent to the
operation. Moreover, she did not prepare a medical chart with

All three courts below bewail the inadequacy of the facilities of the

instructions for the patient's care. If she did all these, proof thereof

clinic and its untidiness; the lack of provisions such as blood,

should have been offered. But there is none. Indeed, these are

oxygen, and certain medicines; the failure to subject the patient to

overwhelming evidence of recklessness and imprudence."

[25]

a cardio-pulmonary test prior to the operation; the omission of any

This court, however, holds differently and finds the foregoing

form of blood typing before transfusion; and even the subsequent

circumstances insufficient to sustain a judgment of conviction

transfer of Lydia to the San Pablo Hospital and the reoperation

against the petitioner for the crime of reckless imprudence

performed on her by the petitioner. But while it may be true that

resulting in homicide. The elements of reckless imprudence are:

the circumstances pointed out by the courts below seemed beyond

(1) that the offender does or fails to do an act; (2) that the doing or

cavil to constitute reckless imprudence on the part of the surgeon,

the failure to do that act is voluntary; (3) that it be without malice;

this conclusion is still best arrived at not through the educated

(4) that material damage results from the reckless imprudence;

surmises nor conjectures of laymen, including judges, but by the

and (5) that there is inexcusable lack of precaution on the part of

unquestionable knowledge of expert witnesses. For whether a

the offender, taking into consideration his employment or

physician or surgeon has exercised the requisite degree of skill

occupation, degree of intelligence, physical condition, and other

and care in the treatment of his patient is, in the generality of

circumstances regarding persons, time and place.

cases, a matter of expert opinion.

[30]

The deference of courts to the

expert opinion of qualified physicians stems from its realization


Whether or not a physician has committed an "inexcusable lack of

that the latter possess unusual technical skills which laymen in

precaution" in the treatment of his patient is to be determined

most instances are incapable of intelligently evaluating.

according to the standard of care observed by other members of

testimony should have been offered to prove that the

the profession in good standing under similar circumstances

circumstances cited by the courts below are constitutive of conduct

bearing in mind the advanced state of the profession at the time of

falling below the standard of care employed by other physicians in

treatment or the present state of medical science.

[26]

In the recent

case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,

[27]

this

[31]

Expert

good standing when performing the same operation. It must be


remembered that when the qualifications of a physician are

Court stated that in accepting a case, a doctor in effect represents

admitted, as in the instant case, there is an inevitable presumption

that, having the needed training and skill possessed by physicians

that in proper cases he takes the necessary precaution and

and surgeons practicing in the same field, he will employ such

employs the best of his knowledge and skill in attending to his

training, care and skill in the treatment of his patients. He therefore clients, unless the contrary is sufficiently established.

[32]

This

has a duty to use at least the same level of care that any other

presumption is rebuttable by expert opinion which is so sadly

reasonably competent doctor would use to treat a condition under

lacking in the case at bench.

the same circumstances. It is in this aspect of medical malpractice


that expert testimony is essential to establish not only the standard Even granting arguendo that the inadequacy of the facilities and
of care of the profession but also that the physician's conduct in

untidiness of the clinic; the lack of provisions; the failure to conduct


65 | P a g e

Torts 3

pre-operation tests on the patient; and the subsequent transfer of

A.

Lydia to the San Pablo Hospital and the reoperation performed on

sir.

There was incision wound (sic) the area just below the navel,

her by the petitioner do indicate, even without expert testimony,


that petitioner was recklessly imprudent in the exercise of her

Q. And the last paragraph of the postmortem findings which I

duties as a surgeon, no cogent proof exists that any of these

read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm,

circumstances caused petitioner's death. Thus, the absence of the

with some surface nodulation of the fundic area posteriorly. Cut-

fourth element of reckless imprudence: that the injury to the

section shows diffusely pale myometrium with areas of streak

person or property was a consequence of the reckless

induration. The ovaries and adnexal structures are missing with

imprudence.

the raw surfaces patched with clotted blood. Surgical sutures were
noted on the operative site.

In litigations involving medical negligence, the plaintiff has the


burden of establishing appellant's negligence and for a reasonable

Intestines and mesenteries are pale with blood clots noted

conclusion of negligence, there must be proof of breach of duty on

between the mesentric folds.

the part of the surgeon as well as a casual connection of such


breach and the resulting death of his patient.
St Luke's Hospital, Inc.,

[34]

[33]

In Chan Lugay v.

Hemoperitonium: 300 s.s.,

where the attending physician was

absolved of liability for the death of the complainant's wife and

right paracolic gutter,

newborn baby, this court held that:


50 c.c., left paracolic gutter
"In order that there may be a recovery for an injury, however, it
must be shown that the 'injury for which recovery is sought must

200 c.c., mesentric area,

be the legitimate consequence of the wrong done; the connection


between the negligence and the injury must be a direct and natural 100 c.c., right pelvic gutter
sequence of events, unbroken by intervening efficient causes.' In
other words, the negligence must be the proximate cause of the

stomach empty.

injury. For, 'negligence, no matter in what it consists, cannot create


a right of action unless it is the proximate cause of the injury

Other visceral organs, pale.',

complained of.' And 'the proximate cause of an injury is that cause,


which, in natural and continuous sequence, unbroken by any

will you please explain that on (sic) your own language or in

efficient intervening cause, produces the injury, and without which

ordinary

the result would not have occurred.'''

[35]

(Underscoring supplied.)

Dr. Arizala who conducted an autopsy on the body of the

A.

There was a uterus which was not attached to the adnexal

deceased summarized his findings as follows:

structures namely ovaries which were not present and also sign of
previous surgical operation and there were (sic) clotted blood, sir.

Atty. Cachero:
Q. How about the ovaries and adnexal structures?
Q. You mentioned about your Autopsy Report which has been

A.

They are missing, sir.

marked as Exh. "A-1-b". There appears here a signature above


the typewritten name Floresto Arizala, Jr., whose signature is that? Q. You mean to say there are no ovaries?
A.

That is my signature, sir.

A.

During that time there are no ovaries, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

Q. And there were likewise sign of surgical sutures?

A.

A.

Only as to the autopsy report no. 91-09, the time and place

Yes, sir.

and everything after the post mortem findings, sir.


Q. How about the intestines and mesenteries are place (sic) with
Q. You mentioned on your "Post Mortem Findings" about surgical blood clots noted between the mesenteric folds, will you please
incision, 14:0 cm., infraumbilical area, anterior abdominal area,

explain on (sic) this?

midline, will you please explain that in your own language?

A.

In the peritoneal cavity, they are mostly perritonial


66 | P a g e

Torts 3

blood.

or may be (sic) he died after the operation. Of course there are


other cause (sic).

Q. And what could have caused this blood?


A.

Well, ordinarily blood is found inside the blood vessel. Blood

Atty. Cachero:

were (sic) outside as a result of the injuries which destroyed the


integrity of the vessel allowing blood to sip (sic) out, sir.

Q. Especially so doctor when there was no blood replacement?


A.

Yes, sir."

[37]

(Underscoring supplied.)

Q. By the nature of the postmortem findings indicated in Exh. A-

The testimonies of both doctors establish hemorrhage or

1-B, can you tell the court the cause of death?

hemorrhagic shock as the cause of death. However, as likewise

A.

testified to by the expert witnesses in open court, hemorrhage or

Yes, sir. The cause of death is: Gross findings are compatible

with hemorrhagic shock.

hemorrhagic shock during surgery may be caused by several


different factors. Thus, Dr. Salvador's elaboration on the matter:

Q. Can you tell the us what could have caused this hemorrhagic

Atty. Pascual:

shock?
A.

Well hemorrhagic shock is the result of blood loss.

Q. Doctor, among the causes of hemorrhage that you mentioned


you said that it could be at the moment of operation when one

Q. What could have the effect of that loss of blood?


A.

Unattended hemorrhage, sir.

[36]

(Underscoring supplied.)

losses (sic) control of the presence, is that correct? During the


operation there is lost (sic) of control of the cut vessel?
A.

Yes, sir.

The foregoing was corroborated by Dr. Nieto Salvador:


Q. And were you able to determine the cause of death by virtue of

Q. Or there is a failure to ligate a vessel of considerable size?

the examination of the specimen submitted by Dr. Arizala?

A.

A.

Yes, sir.

Without knowledge of the autopsy findings it would be difficult

for me to determine the cause of death, sir.

Q. Or even if the vessel were ligated the knot may have slipped
later on?

Q. Have you examined the post mortem of Dr. Arizala?


A.

A.

Yes, sir.

Yes, sir, and by virtue of the autopsy report in connection with

your pathology report.

Q. And you also mentioned that it may be possible also to some


clotting defect, is that correct?

Q. What could have caused the death of the victim?


A.

A.

May be (sic)."

[38]

(Underscoring supplied).

This pathologic examination are (sic) compatible with the

person who died, sir.

Defense witness, Dr. Bu C. Castro also gave the following expert


opinion:

Q. Will you explain to us the meaning of hemorrhagic


compatible?

Q. Doctor even a patient after an operations (sic) would suffer

A.

hemorrage what would be the possible causes of such hemorrage

It means that a person died of blood loss. Meaning a person

died of non-replacement of blood and so the victim before she died (sic)?
there was shock of diminish of blood of the circulation. She died

A.

most probably before the actual complete blood loss, sir.

and this is the reason for the bleeding, sir, which cannot be

Among those would be what we call Intravascular Coagulation

prevented by anyone, it will happen to anyone, anytime and to any


Court: Is it possible doctor that the loss of the blood was due on

persons (sic), sir.

(sic) operation?
A.

Based on my pathology findings, sir.

COURT:

Q. What could have caused this loss of blood?

What do you think of the cause of the bleeding, the cutting or the

A.

operations done in the body?

Many, sir. A patient who have undergone surgery. Another

may be a blood vessel may be cut while on operation and this

A.

Not related to this one, the bleeding here is not related to any

cause (sic) bleeding, or may be set in the course of the operation,

cutting or operation that I (sic) have done.


67 | P a g e

Torts 3

complication of surgery leaving raw surface, major hemorrhage


[42]

Q. Aside from the DIC what could another causes (sic) that could

occurs.

be the cause for the hemorrhage or bleeding in a patient by an

hemorrhage due to DIC "cannot be prevented, it will happen to

operations (sic)?

anyone, anytime."

A.

Q. Now, under the circumstance one of the possibility as you

In general sir, if there was an operations (sic) and it is

And as testified to by defense witness, Dr. Bu C. Castro,


[43]

He testified further:

possible that the ligature in the suture was (sic) become (sic)

mentioned in (sic) DIC?

loose, it is (sic) becomes loose if proven.

A.

Q. If the person who performed an autopsy does not find any

Q. And you mentioned that it cannot be prevented?

untight (sic) clot (sic) blood vessel or any suture that become (sic)

A.

Yes, sir.

Yes, sir.

loose the cause of the bleeding could not be attributed to the fault
of the subject?
A.

Q. Can you even predict if it really happen (sic)?

Definitely, sir."

[39]

(Underscoring supplied.)

A.

Possible, sir.

Q. Are there any specific findings of autopsy that will tell you
According to both doctors, the possible causes of hemorrhage

whether this patient suffered among such things as DIC?

during an operation are: (1) the failure of the surgeon to tie or

A.

Well, I did reserve because of the condition of the patient.

suture a cut blood vessel; (2) allowing a cut blood vessel to get out
of control; (3) the subsequent loosening of the tie or suture applied Q. Now, Doctor you said that you went through the record of the
to a cut blood vessel; and (4) and a clotting defect known as DIC.

deceased Lydia Umali looking for the chart, the operated (sic)

It is significant to state at this juncture that the autopsy conducted

records, the post mortem findings on the histophanic (sic)

by Dr. Arizala on the body of Lydia did not reveal any untied or

examination based on your examination of record, doctor, can you

unsutured cut blood vessel nor was there any indication that the tie more or less says (sic) what part are (sic) concerned could have
or suture of a cut blood vessel had become loose thereby causing
the hemorrhage.

[40]

Hence the following pertinent portion of Dr.

been the caused (sic) of death of this Lydia Umali?


A. As far as the medical record is concern (sic) the caused (sic)

Arizala's testimony:

of death is dessimulated (sic) Intra Vascular Coagulation or the

Q: Doctor, in examining these structures did you know whether

DIC which resulted to hemorrhage or bleedings, sir.

these were sutured ligature or plain ligature


A:

Ligature, sir.

Q. Doctor based on your findings then there is knowing (sic) the


doctor would say whether the doctor her (sic) has been (sic) fault?

Q: We will explain that later on. Did you recall if the cut structures
were tied by first suturing it and then tying a knot or the tie was

ATTY. MALVEDA:

merely placed around the cut structure and tied?


A:

I cannot recall, sir.

We will moved (sic) to strike out the (sic) based on finding they just
read the chart as well as the other record.

Q: As a matter of fact, you cannot recall because you did not


even bothered (sic) to examine, is that correct?
A:

ATTY. PASCUAL:

Well, I bothered enough to know that they were sutured, sir.


Precisely based on this examination.

Q: So, therefore, Doctor, you would not know whether any of the
cut structures were not sutured or tied neither were you able to

ATTY. MALVEDA:

determine whether any loose suture was found in the peritoneal


cavity?
A:

I could not recall any loose sutured (sic), sir."

Not finding, there was no finding made.


[41]

On the other hand, the findings of all three doctors do not preclude

COURT:

the probability that DIC caused the hemorrhage and consequently,


Lydia's death. DIC which is a clotting defect creates a serious

He is only reading the record.

bleeding tendency and when massive DIC occurs as a


68 | P a g e

Torts 3

ATTY. PASCUAL:
Yes, sir.
A.

No, sir, there is no fault on the part of the surgeon, sir."

[44]

This court has no recourse but to rely on the expert testimonies


rendered by both prosecution and defense witnesses that
substantiate rather than contradict petitioner's allegation that the
cause of Lydia's death was DIC which, as attested to by an expert
witness, cannot be attributed to the petitioner's fault or negligence.
The probability that Lydia's death was caused by DIC was
unrebutted during trial and has engendered in the mind of this
Court a reasonable doubt as to the petitioner's guilt. Thus, her
acquittal of the crime of reckless imprudence resulting in homicide.
While we condole with the family of Lydia Umali, our hands are
bound by the dictates of justice and fair dealing which hold
inviolable the right of an accused to be presumed innocent until
proven guilty beyond reasonable doubt. Nevertheless, this Court
finds the petitioner civilly liable for the death of Lydia Umali, for
while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish
civil liability.

[45]

The petitioner is a doctor in whose hands a patient puts his life and
limb. For insufficiency of evidence this Court was not able to
render a sentence of conviction but it is not blind to the reckless
and imprudent manner in which the petitioner carried out her
duties. A precious life has been lost and the circumstances leading
thereto exacerbated the grief of those left behind. The heirs of the
deceased continue to feel the loss of their mother up to the
present time

[46]

and this Court is aware that no amount of

compassion and commiseration nor words of bereavement can


suffice to assuage the sorrow felt for the loss of a loved one.
Certainly, the award of moral and exemplary damages in favor of
the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH
CRUZ is hereby ACQUITTED of the crime of reckless imprudence
resulting in homicide but is ordered to pay the heirs of the
deceased Lydia Umali the amount of FIFTY THOUSAND PESOS
(P50,000.00) as civil liability, ONE HUNDRED THOUSAND
PESOS (P100,000.00) as moral damages, and FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages.
Let the copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action.
SO ORDERED.

69 | P a g e

Torts 3

[6]

NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN

body temperature, and blood pressure.

JUAN DE DIOS HOSPITAL, PETITIONERS, VS. NELSON

examinations and the chest x-ray test that followed, Dr. Livelo

CORTEJO, RESPONDENT.

Based on these initial

diagnosed Edmer with "bronchopneumonia."

[7]

Edmer's blood was

also taken for testing, typing, and for purposes of administering


[G.R. No. 171217]

antibiotics. Afterwards, Dr. Livelo gave Edmer an antibiotic


medication to lessen his fever and to loosen his phlegm.

DRA. RUBY SANGA-MIRANDA, PETITIONER, VS. NELSON


CORTEJO, RESPONDENT.

Mrs. Cortejo did not know any doctor at SJDH. She used her
Fortune Care card and was referred to an accredited Fortune Care

[G.R. No. 171228]

coordinator, who was then out of town. She was thereafter


assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician

SAN JUAN DE DIOS HOSPITAL, PETITIONER, VS. NELSON

also accredited with Fortune Care.

[8]

CORTEJO, RESPONDENT.
At 5:30 in the afternoon of the same day, Dr. Casumpang for the
DECISION

first time examined Edmer in his room. Using only a stethoscope,


[9]

he confirmed the initial diagnosis of "Bronchopneumonia."


BRION, J.:

At that moment, Mrs. Cortejo recalled entertaining doubts on the


We resolve the three (3) consolidated petitions for review on
certiorari

[1]

doctor's diagnosis. She immediately advised Dr. Casumpang that

involving medical negligence, commonly assailing the

October 29, 2004 decision

[2]

and the January 12, 2006 resolution

Edmer had a high fever, and had no colds or cough


[3]

[10]

but Dr.

Casumpang merely told her that her son's "bloodpressure is just


[11]

of the Court of Appeals (CA) in CA-G.R. CV No. 56400. This CA

being active,"

decision affirmed en toto the ruling of the Regional Trial Court

bronchopneumonia, no colds, no phlegm."

and remarked that "that's the usual


[12]

(RTC), Branch 134, Makati City.


Dr. Casumpang next visited and examined Edmer at 9:00 in the
[13]

The RTC awarded Nelson Cortejo (respondent) damages in the

morning the following day.

total amount of P595,000.00, for the wrongful death of his son

illness, Mrs. Cortejo again called Dr. Casumpang's attention and

allegedly due to the medical negligence of the petitioning doctors

stated that Edmer had a fever, throat irritation, as well as chest

and the hospital.

and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about

Still suspicious about his son's

the traces of blood in Edmer's sputum. Despite these pieces of


Factual Antecedents

information, however, Dr. Casumpang simply nodded, inquired if


Edmer has an asthma, and reassured Mrs. Cortejo that Edmer's

The common factual antecedents are briefly summarized below.

illness is bronchopneumonia.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa

At around 11:30 in the morning of April 23, 1988, Edmer vomited

Cortejo brought her 11-year old son, Edmer Cortejo (Edmer), to

"phlegm with blood streak"

the Emergency Room of the San Juan de Dios Hospital (SJDH)

father) to request for a doctor at the nurses' station.

[15]

[14]

prompting the respondent (Edmer's


[16]

because of difficulty in breathing, chest pain, stomach pain, and


fever.

[4]

Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda),

one of the resident physicians of SJDH, arrived. She claimed that


Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined although aware that Edmer had vomited "phlegm with blood
Edmer. In her testimony, Mrs. Cortejo narrated that in the morning streak," she failed to examine the blood specimen because the
of April 20, 1988, Edmer had developed a slight fever that lasted

respondent washed it away. She then advised the respondent to

for one day; a few hours upon discovery, she brought Edmer to

preserve the specimen for examination.

their family doctor; and two hours after administering medications,


Edmer's fever had subsided.

[5]

Thereafter, Dr. Miranda conducted a physical check-up covering


Edmer's head, eyes, nose, throat, lungs, skin and abdomen; and

After taking Edmer's medical history, Dr. Livelo took his vital signs,

found that Edmer had a low-grade non-continuing fever, and


70 | P a g e

Torts 3

rashes that were not typical of dengue fever.

[17]

Her medical

findings state:

At 12:00 midnight, Edmer, accompanied by his parents and by Dr.

the patient's rapid breathing and then the lung showed sibilant and

Casumpang, was transferred to Makati Medical Center.

the patient's nose is flaring which is a sign that the patient is in


respiratory distress; the abdomen has negative finding; the patient

Dr. Casumpang immediately gave the attending physician the

has low grade fever and not continuing; and the rashes in the

patient's clinical history and laboratory exam results. Upon

patient's skin were not "Herman's Rash" and not typical of dengue

examination, the attending physician diagnosed "Dengue Fever

fever.

[18]

Stage IV" that was already in its irreversible stage.

At 3:00 in the afternoon, Edmer once again vomited blood. Upon


[24]

seeing Dr. Miranda, the respondent showed her Edmer's blood

Edmer died at 4:00 in the morning of April 24, 1988.

specimen, and reported that Edmer had complained of severe

Certificate indicated the cause of death as "Hypovolemic

stomach pain and difficulty in moving his right leg.

[19]

His Death

Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage


IV."

Dr. Miranda then examined Edmer's "sputum with blood" and


noted that he was bleeding. Suspecting that he could be afflicted

Believing that Edmer's death was caused by the negligent and

with dengue, she inserted a plastic tube in his nose, drained the

erroneous diagnosis of his doctors, the respondent instituted an

liquid from his stomach with ice cold normal saline solution, and

action for damages against SJDH, and its attending physicians:

gave an instruction not to pull out the tube, or give the patient any

Dr. Casumpang and Dr. Miranda (collectively referred to as the

oral medication.

"petitioners") before the RTC of Makati City.


The Ruling of the Regional Trial Court

Dr. Miranda thereafter conducted a tourniquet test, which turned


out to be negative.

[20]

She likewise ordered the monitoring of the

patient's blood pressure and some blood tests. Edmer's blood


pressure was later found to be normal.

[21]

In a decision

[25]

dated May 30, 1997, the RTC ruled in favor of the

respondent, and awarded actual and moral damages, plus


attorney's fees and costs.

At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at


his clinic and told him about Edmer's condition.

[22]

Upon being

In ruling that the petitioning doctors were negligent, the RTC found

informed, Dr. Casumpang ordered several procedures done

untenable the petitioning doctors' contention that Edmer's initial

including: hematocrit, hemoglobin, blood typing, blood transfusion

symptoms did not indicate dengue fever. It faulted them for heavily

and tourniquet tests.

relying on the chest x-ray result and for not considering the other
manifestations that Edmer's parents had relayed. It held that in

The blood test results came at about 6:00 in the evening.

diagnosing and treating an illness, the physician's conduct should


be judged not only by what he/she saw and knew, but also by what

Dr. Miranda advised Edmer's parents that the blood test results

he/she could have reasonably seen and known. It also observed

showed that Edmer was suffering from "Dengue Hemorrhagic

that based on Edmer's signs and symptoms, his medical history

Fever." One hour later, Dr. Casumpang arrived at Edmer's room

and physical examination, and also the information that the

and he recommended his transfer to the Intensive Care Unit (ICU), petitioning doctors gathered from his family members, dengue
fever was a reasonably foreseeable illness; yet, the petitioning
to which the respondent consented. Since the ICU was then full,
Dr. Casumpang suggested to the respondent that they hire a

doctors failed to take a second look, much less, consider these

private nurse. The respondent, however, insisted on transferring

indicators of dengue.

his son to Makati Medical Center.


The trial court also found that aside from their self-serving
After the respondent had signed the waiver, Dr. Casumpang, for

testimonies, the petitioning doctors did not present other evidence

the last time, checked Edmer's condition, found that his blood

to prove that they exercised the proper medical attention in

pressure was stable, and noted that he was "comfortable." The

diagnosing and treating the patient, leading it to conclude that they

respondent requested for an ambulance but he was informed that

were guilty of negligence.

the driver was nowhere to be found. This prompted him to hire a


private ambulance that cost him P600.00.

[23]

The RTC also held SJDH solidarity liable with the petitioning
71 | P a g e

Torts 3

doctors for damages based on the following findings of facts: first,

the petitioning doctors should not have solely relied on the chest-x-

Dr. Casumpang, as consultant, is an ostensible agent of SJDH

ray result, as it was not conclusive.

because before the hospital engaged his medical services, it


scrutinized and determined his fitness, qualifications, and

On SJDH's solidary liability, the CA ruled that the hospital's liability

competence as a medical practitioner; and second, Dr. Miranda,

is based on Article 2180 of the Civil Code. The CA opined that the

as resident physician, is an employee of SJDH because like Dr.

control which the hospital exercises over its consultants, the

Casumpang, the hospital, through its screening committee,

hospital's power to hire and terminate their services, all fulfill the

scrutinized and determined her qualifications, fitness, and

employer-employee relationship requirement under Article 2180.

competence before engaging her services; the hospital also


exercised control over her work.

Lastly, the CA held that SJDH failed to adduce evidence showing


that it exercised the diligence of a good father of a family in the

The dispositive portion of the decision reads:

hiring and the supervision of its physicians.

WHEREFORE, judgment is hereby rendered in favor of the plaintiff


and against the defendants, ordering the latter to pay solidarity

The petitioners separately moved to reconsider the CA decision,

and severally plaintiff the following:

but the CA denied their motion in its resolution of January 12,


2006; hence, the present consolidated petitions pursuant to Rule

(1) Moral damages in the amount of P500,000.00;

45 of the Rules of Court.

(2) Costs of burial and funeral in the amount of P45,000.00;

The Petitions

(3) Attorney's fees of P50,000.00; and

I. Dr. Casumpang's Position (G.R. No. 171127)

(4) Cost of this suit.

Dr. Casumpang contends that he gave his patient medical


treatment and care to the best of his abilities, and within the proper

SO ORDERED.

standard of care required from physicians under similar

The petitioners appealed the decision to the CA.

circumstances. He claims that his initial diagnosis of


bronchopneumonia was supported by the chest x-ray result.

The Ruling of the Court of Appeals


Dr. Casumpang also contends that dengue fever occurs only after
In its decision dated October 29, 2004, the CA affirmed en toto the

several days of confinement. He alleged that when he had

RTC's ruling, finding that SJDH and its attending physicians failed

suspected that Edmer might be suffering from dengue fever, he

to exercise the minimum medical care, attention, and treatment

immediately attended and treated him.

expected of an ordinary doctor under like circumstances.


Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's
The CA found the petitioning doctors' failure to read even the most

credibility, arguing that the CA erred in appreciating his testimony

basic signs of "dengue fever" expected of an ordinary doctor as

as an expert witness since he lacked the necessary training, skills,

medical negligence. The CA also considered the petitioning

and experience as a specialist in dengue fever cases.

doctors' testimonies as self-serving, noting that they presented no


other evidence to prove that they exercised due diligence in

II. Dr. Miranda's Position (G.R. No. 171217)

diagnosing Edmer's illness.


In her petition, Dr. Miranda faults the CA for holding her
The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian)
testimony admissible. It gave credence to his opinion

[26]

that: (1)

responsible for Edmer's wrong diagnosis, stressing that the


function of making the diagnosis and undertaking the medical

given the exhibited symptoms of the patient, dengue fever should

treatment devolved upon Dr. Casumpang, the doctor assigned to

definitely be considered, and bronchopneumonia could be

Edmer, and who confirmed "bronchopneumonia."

reasonably ruled out; and (2) dengue fever could have been
detected earlier than 7:30 in the evening of April 23, 1988 because Dr. Miranda also alleged that she exercised prudence in
the symptoms were already evident; and agreed with the RTC that

performing her duties as a physician, underscoring that it was her


72 | P a g e

Torts 3

professional intervention that led to the correct diagnosis of

SJDH cannot still be held solidarity liable under Article 2180 of the

"Dengue Hemorrhagic Fever." Furthermore, Edmer's Complete

Civil Code because it observed the diligence of a good father of a

Blood Count (CBC) showed leukopenia and an increase in

family in their selection and supervision as shown by the following:

balance as shown by the differential count, demonstrating that

(1) the adequate measures that the hospital undertakes to

Edmer's infection, more or less, is of bacterial and not viral in

ascertain the petitioning doctors' qualifications and medical

nature.

competence; and (2) the documentary evidence that the


petitioning doctors presented to prove their competence in the field

Dr. Miranda as well argued that there is no causal relation

of pediatrics.

[27]

between the alleged erroneous diagnosis and medication for


"Bronchopneumonia," and Edmer's death due to "Dengue

SJDH likewise faults the CA for ruling that the petitioning doctors

Hemorrhagic Fever."

are its agents, claiming that this theory, aside from being
inconsistent with the CA's finding of employment relationship, is

Lastly, she claimed that Dr. Jaudian is not a qualified expert

unfounded because: first, the petitioning doctors are independent

witness since he never presented any evidence of formal

contractors, not agents of SJDH; and second, as a medical

residency training and fellowship status in Pediatrics.

institution, SJDH cannot practice medicine, much more, extend its


personality to physicians to practice medicine on its behalf.

III. SJDH's Position (G.R. No. 171228)


Lastly, SJDH maintains that the petitioning doctors arrived at an
SJDH, on the other hand, disclaims liability by asserting that Dr.

intelligently deduced and correct diagnosis. It claimed that based

Casumpang and Dr. Miranda are mere independent contractors

on Edmer's signs and symptoms at the time of admission (i.e., one

and "consultants" (not employees) of the hospital. SJDH alleges

day fever,

[28]

bacterial infection,
[30]

[29]

and lack of hemorrhagic

that since it did not exercise control or supervision over the

manifestations

consultants' exercise of medical profession, there is no employer-

was suffering from dengue fever, and accordingly, their failure to

), there was no reasonable indication yet that he

employee relationship between them, and consequently, Article

diagnose dengue fever, does not constitute negligence on their

2180 of the Civil Code does not apply.

part.
The Case for the Respondent

SJDH likewise anchored the absence of, employer-employee


relationship on the following circumstances: (1) SJDH does not
hire consultants; it only grants them privileges to admit patients in

In his comment, the respondent submits that the issues the

the hospital through accreditation; (2) SJDH does not pay the

petitioners raised are mainly factual in nature, which a petition for

consultants wages similar to an ordinary employee; (3) the

review on certiorari under Rule 45 of the Rules of Court does not

consultants earn their own professional fees directly from their

allow.

patients; SJDH does not fire or terminate their services; and (4)
SJDH does not control or interfere with the manner and the means

In any case, he contends that the petitioning doctors were

the consultants use in the treatment of their patients. It merely

negligent in conducting their medical examination and diagnosis

provides them with adequate space in exchange for rental

based on the following: (1) the petitioning doctors failed to timely

payment.

diagnose Edmer's correct illness due to their non-observance of


the proper and acceptable standard of medical examination; (2)

Furthermore, SJDH claims that the CA erroneously applied the

the petitioning doctors' medical examination was not

control test when it treated the hospital's practice of accrediting

comprehensive, as they were always in a rush; and (3) the

consultants as an exercise of control. It explained that the control

petitioning doctors employed a guessing game in diagnosing

contemplated by law is that which the employer exercises over

bronchopneumonia.

the: (i) end result; and the (ii) manner and means to be used to
reach this end, and not any kind of control, however significant, in

The respondent also alleges that there is a causal connection

accrediting the consultants.

between the petitioning doctors' negligence and Edmer's untimely


death, warranting the claim for damages.

SJDH moreover contends that even if the petitioning doctors are


considered employees and not merely consultants of the hospital,

The respondent, too, asserted that SJDH is also negligent


73 | P a g e

Torts 3

because it was not equipped with proper paging system, has no

doctors were grossly negligent in diagnosing the patient's illness,

bronchoscope, and its doctors are not proportionate to the number

whether there is causal relation between the petitioners'

of its patients. He also pointed out that out of the seven resident

act/omission and the patient's resulting death, and whether Dr.

physicians in the hospital, only two resident physicians were doing

Jaudian is qualified as an expert witness - must necessarily be

rounds at the time of his son's confinement.

resolved. We resolve these factual questions solely for the


purpose of determining the legal issues raised.

The Issues
Medical Malpractice Suit as a Specialized Area of Tort Law
The case presents to us the following issues:
The claim for damages is based on the petitioning doctors'
1.

Whether or not the petitioning doctors had

negligence in diagnosing and treating the deceased Edmer, the

committed "inexcusable lack of precaution" in

child of the respondent. It is a medical malpractice suit, an action

diagnosing and in treating the patient;

available to victims to redress a wrong committed by medical


professionals who caused bodily harm to, or the death of, a

2.

Whether or not the petitioner hospital is

patient.

solidarity liable with the petitioning doctors;


3.

Whether or not there is a causal connection


between the petitioners' negligent act/omission
and the patient's resulting death; and

4.

[33]

As the term is used, the suit is brought whenever a

medical practitioner or health care provider fails to meet the


standards demanded by his profession, or deviates from this
standard, and causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in
this case, the deceased patient's heir) must prove that the doctor

Whether or not the lower courts erred in


considering Dr. Rodolfo Tabangcora Jaudian as

either failed to do what a reasonably prudent doctor would have


done, or did what a reasonably prudent doctor would not have

an expert witness.

done; and the act or omission had caused injury to the patient.

[34]

The patient's heir/s bears the burden of proving his/her cause of

Our Ruling

action.
We find the petition partly meritorious.
The Elements of a Medical Malpractice Suit
A Petition for Review on Certiorari under Rule 45 of the Rules
The elements of medical negligence are: (1) duty; (2) breach; (3)

of Court is Limited to Questions of Law.

injury; and (4) proximate causation.


The settled rule is that the Court's jurisdiction in a petition for
review on certiorari under Rule 45 of the Rules of Court is limited
only to the review of pure questions of law. It is not the Court's
function to inquire on the veracity of the appellate court's factual
findings and conclusions; this Court is not a trier of facts.

Duty refers to the standard of behavior that imposes restrictions on


one's conduct.

[35]

It requires proof of professional relationship

between the physician and the patient. Without the professional


relationship, a physician owes no duty to the patient, and cannot

[31]

therefore incur any liability.


A question of law arises when there is doubt as to what the law is
on a certain state of facts, while there is a question of fact when
the doubt arises as to the truth or falsity of the alleged facts.

[32]

A physician-patient relationship is created when a patient engages


[36]

and the latter accepts or agrees to

[37]

The establishment of this

[38]

and the acceptance by the physician

the services of a physician,


provide care to the patient.

These consolidated petitions before us involve mixed questions


of fact and law. As a rule, we do not resolve questions of fact.
However, in determining the legal question of whether the
respondent is entitled to claim damages under Article 2176 of the

relationship is consensual,

essential. The mere fact that an individual approaches a physician


and seeks diagnosis, advice or treatment does not create the duty
of care unless the physician agrees.

[39]

Civil Code for the petitioners' alleged medical malpractice, the


determination of the factual issues - i.e., whether the petitioning

The consent needed to create the relationship does not always


need to be express.

[40]

In the absence of an express agreement, a


74 | P a g e

Torts 3

physician-patient relationship may be implied from the physician's


affirmative action to diagnose and/or treat a patient, or in his
participation in such diagnosis and/or treatment.

[41]

The usual

With respect to Dr. Miranda, her professional relationship with


Edmer arose when she assumed the obligation to provide resident

illustration would be the case of a patient who goes to a hospital or supervision over the latter. As second year resident doctor tasked
a clinic, and is examined and treated by the doctor. In this case,

to do rounds and assist other physicians, Dr. Miranda is deemed

we can infer, based on the established and customary practice in

to have agreed to the creation of physician-patient relationship

the medical community that a patient-physician relationship exists.

with the hospital's patients when she participated in the diagnosis


and prescribed a course of treatment for Edmer.

Once a physician-patient relationship is established, the legal duty


of care follows. The doctor accordingly becomes duty-bound to

The undisputed evidence shows that Dr. Miranda examined Edmer

use at least the same standard of care that a reasonably

twice (at around 12:00 and 3:30 in the afternoon of April 23, 1988),

competent doctor would use to treat a medical condition under

and in both instances, she prescribed treatment and participated in

similar circumstances.

the diagnosis of Edmer's medical condition. Her affirmative acts


amounted to her acceptance of the physician-patient relationship,

Breach of duty occurs when the doctor fails to comply with, or

and incidentally, the legal duty of care that went with it.

improperly performs his duties under professional standards. This


determination is both factual and legal, and is specific to each
individual case.

[42]

[46]

In Jarcia, Jr. v. People of the Philippines,

the Court found the

doctors who merely passed by and were requested to attend to the


patient, liable for medical malpractice. It held that a physician-

If the patient, as a result of the breach of duty, is injured in body or

patient relationship was established when they examined the

in health, actionable malpractice is committed, entitling the patient

patient, and later assured the mother that everything was fine.

to damages.

[43]

In the US case of Mead v. Legacy Health System,

[47]

the Court

To successfully claim damages, the patient must lastly prove the

also considered the rendering of an opinion in the course of the

causal relation between the negligence and the injury. This

patient's care as the doctor's assent to the physician-patient

connection must be direct, natural, and should be unbroken by any relationship. It ruled that the relationship was formed because of
intervening efficient causes. In other words, the negligence must
be the proximate cause of the injury.

[44]

the doctor's affirmative action.

The injury or damage is

proximately caused by the physician's negligence when it appears, Likewise, in Wax v. Johnson,
based on the evidence and the expert testimony, that the

[48]

the court found that a physician-

patient relationship was formed between a physician who

negligence played an integral part in causing the injury or damage, "contracts, agrees, undertakes, or otherwise assumes" the
and that the injury or damage was either a direct result, or a

obligation to provide resident supervision at a teaching hospital,

reasonably probable consequence of the physician's

and the patient with whom the doctor had no direct or indirect

negligence.

[45]

contract.

a. The Relationship Between Dr. Casumpang and Edmer

Standard of Care and Breach of Duty

In the present case, the physician-patient relationship between Dr.

A determination of whether or not the petitioning doctors met the

Casumpang and Edmer was created when the latter's parents

required standard of care involves a question of mixed fact and

sought the medical services of Dr. Casumpang, and the latter

law; it is factual as medical negligence cases are highly technical

knowingly accepted Edmer as a patient. Dr. Casumpang's

in nature, requiring the presentation of expert witnesses to provide

acceptance is implied from his affirmative examination, diagnosis

guidance to the court on matters clearly falling within the domain of

and treatment of Edmer. On the other hand, Edmer's parents, on

medical science, and legal, insofar as the Court, after evaluating

their son's behalf, manifested their consent by availing of the

the expert testimonies, and guided by medical literature, learned

benefits of their health care plan, and by accepting the hospital's

treatises, and its fund of common knowledge, ultimately

assigned doctor without objections.

determines whether breach of duty took place.

b. The Relationship Between Dr. Miranda and Edmer

Whether or not Dr. Casumpang and Dr. Miranda committed a


75 | P a g e

Torts 3

breach of duty is to be measured by the yardstick of professional

regarding a patient's illness is 90% based on the physical

standards observed by the other members of the medical

examination, the information given by the patient or the latter's

profession in good standing under similar circumstances.

[49]

It is in

this aspect of medical malpractice that expert testimony is

parents, and the patient's medical history.

[55]

He testified that he

did not consider either dengue fever or dengue hemorrhagic fever

essential to establish not only the professional standards observed because the patient's history showed that Edmer had low breath
in the medical community, but also that the physician's conduct in
the treatment of care falls below such standard.

[50]

and voluntary submission, and that he was up and about playing


[56]

basketball.

He based his diagnosis of bronchopneumonia on the

following observations: "difficulty in breathing, clearing run nostril,


In the present case, expert testimony is crucial in determining first, harsh breath sound, tight air, and sivilant sound."

[57]

the standard medical examinations, tests, and procedures that the


attending physicians should have undertaken in the diagnosis and

It will be recalled that during Dr. Casumpang's first and second

treatment of dengue fever; and second, the dengue fever signs

visits to Edmer, he already had knowledge of Edmer's laboratory

and symptoms that the attending physicians should have noticed

test result (CBC), medical history, and symptoms (i.e., fever,

and considered.

rashes, rapid breathing, chest and stomach pain, throat irritation,


difficulty in breathing, and traces of blood in the sputum).

Both the RTC and the CA relied largely on Dr. Jaudian's expert

However, these information did not lead Dr. Casumpang to

testimony on dengue diagnosis and management to support their

the possibility that Edmer could be suffering from either

finding that the petitioning doctors were guilty of breach of duty of

dengue fever, or dengue hemorrhagic fever, as he clung to

care.

his diagnosis of broncho pneumonia. This means that given the


symptoms exhibited, Dr. Casumpang already ruled out the

Dr. Jaudian testified that Edmer's rapid breathing, chest and

possibility of other diseases like dengue.

stomach pain, fever, and the presence of blood in his saliva are
classic symptoms of dengue fever. According to him, if the patient

In other words, it was lost on Dr. Casumpang that the

was admitted for chest pain, abdominal pain, and difficulty in

characteristic symptoms of dengue (as Dr. Jaudian testified) are:

breathing coupled with fever, dengue fever should definitely be

patient's rapid breathing; chest and stomach pain; fever; and the

considered;

[51]

if the patient spits coffee ground with the presence

presence of blood in his saliva. All these manifestations were

of blood, and the patient's platelet count drops to 47,000, it

present and known to Dr. Casumpang at the time of his first and

becomes a clear case of dengue fever, and bronchopneumonia

second visits to Edmer. While he noted some of these symptoms

can be reasonably ruled out.

[52]

in confirming bronchopneumonia, he did not seem to have


considered the patient's other manifestations in ruling out dengue
[58]

Furthermore, the standard of care according to Dr. Jaudian is to

fever or dengue hemorrhagic fever.

administer oxygen inhalation, analgesic, and fluid infusion or

Casumpang selectively appreciated some, and not all of the

dextrose.

[53]

If the patient had twice vomited fresh blood and

To our mind, Dr.

symptoms; worse, he casually ignored the pieces of information

thrombocytopenia has already occurred, the doctor should order

that could have been material in detecting dengue fever. This is

blood transfusion, monitoring of the patient every 30 minutes,

evident from the testimony of Mrs. Cortejo:

hemostatic to stop bleeding, and oxygen if there is difficulty in


breathing.

[54]

TSN, Mrs. Cortejo, November 27, 1990


Q: Now, when Dr. Casumpang visited your son for the first time at

We find that Dr. Casumpang, as Edmer's attending physician,


did not act according to these standards and, hence, was
guilty of breach of duty. We do not find Dr. Miranda liable for
the reasons discussed below.

5:30 p.m., what did he do, if any?


A: He examined my son by using stethoscope and after that, he
confirmed to me that my son was suffering from broncho
pneumonia.
Q: After he confirmed that your son was suffering broncho

Dr. Casumpang's Negligence

pneumonia, what did you say if any?


A: Again, I told Dr. Casumpang, how come it was broncho

a. Negligence in the Diagnosis

pneumonia when my son has no cough or colds.


Q: What was the answer of Dr. Casumpang to your

At the trial, Dr. Casumpang declared that a doctor's impression

statement?
76 | P a g e

Torts 3

xxxx

examination was not comprehensive enough to reasonably lead to

A: And then, Dr. Casumpang answered "THAT'S THE USUAL


BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM."

a correct diagnosis.

[60]

Dr. Casumpang only used a stethoscope in

coming up with the diagnosis that Edmer was suffering from

Q: How long did Dr. Casumpang stay in your son's room?

bronchopneumonia; he never confirmed this finding with the use of

A: He stayed for a minute or 2.

a bronchoscope. Furthermore, Dr. Casumpang based his


xxxx

diagnosis largely on the chest x-ray result that is generally

Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April

inconclusive.

[61]

23, what did you tell him, if any?


xxxx

Significantly, it was only at around 5:00 in the afternoon of April 23,

A: I told Dr. Casumpang... After examining my son using

1988 (after Edmer's third episode of bleeding) that Dr. Casumpang

stethoscope and nothing more, I told Dr. Casumpang

ordered the conduct of hematocrit, hemoglobin, blood typing,

about the traces of blood in my son's sputum and I told

blood transfusion and tourniquet tests. These tests came too late,

him what is all about and he has throat irritation.

as proven by: (1) the blood test results that came at about 6:00 in

Q: What did he tell you?

the evening, confirming that Edmer's illness had developed to

A: He just nodded his head but he did not take the initiative of "Dengue Hemorrhagic Fever" and (2) Dr. Jaudian's testimony that
looking at the throat of my son.

"dengue fever could have been detected earlier than 7:30 in the

Q: So what happened after that?

evening of April 23, 1988 because the symptoms were already

A: I also told Dr. Casumpang about his chest pain and also

evident."

[62]

stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all
these complaints of your son?

In Spouses Flores v. Spouses Pineda,

[63]

a case involving a

medical malpractice suit, the Court ruled that the petitioner doctors

A: Nothing. He also noticed the rapid breathing of my son and were negligent because they failed to immediately order tests to
my son was almost moving because of rapid breathing and confirm the patient's illness. Despite the doctors' suspicion that the
he is swaying in the bed.

patient could be suffering from diabetes, the former still proceeded

Q: Do you know what action was taken by Dr. Casumpang

to the D&C operation. In that case, expert testimony showed that

when you told him that your son is experiencing a rapid

tests should have been ordered immediately on admission to the

breathing?

hospital in view of the symptoms presented. The Court held:

A: No action. He just asked me if my son has an asthma but I


said none.

When a patient exhibits symptoms typical of a particular disease,


these symptoms should, at the very least, alert the physician of the

Q: So how long did Dr. Casumpang stay and attended your


son on April 23?

possibility that the patient may be afflicted with the suspected


disease.

A: More or less two (2) minutes then I followed him up to the


door and I repeated about the fever of my son.

The Court also ruled that reasonable prudence would have shown
that diabetes and its complications were foreseeable harm.

Q: What did he tell you, if any, regarding that information you


gave him that your son had a fever?

However, the petitioner doctors failed to take this into


consideration and proceeded with the D&C operation. Thus, the

A: He said, that is broncho pneumonia, It's only being active


now. [Emphasis supplied]

Court ruled that they failed to comply with their duty to observe the
standard of care to be given to hyperglycemic/diabetic patients.

We also find it strange why Dr. Casumpang did not even bother to
[64]

check Edmer's throat despite knowing that as early as 9:00 in the

Similarly, in Jarcia,

morning of April 23, 1988, Edmer had blood streaks in his sputum.

failing to exercise reasonable prudence in ascertaining the extent

Neither did Dr. Casumpang order confirmatory tests to confirm the

of the patient's injuries, this Court declared that:

source of bleeding. The Physician's Progress Notes

[59]

stated:

involving the negligence of the doctors in

In failing to perform an extensive medical examination to

"Blood streaks on phlegm can be due to bronchial irritation or

determine the extent of Roy Jr.'s injuries, Dr. Jarcia and Dr.

congestion" which clearly showed that Dr. Casumpang merely

Bastan were remiss of their duties as members of the medical

assumed, without confirmatory physical examination, that

profession. Assuming for the sake of argument that they did not

bronchopneumonia caused the bleeding.

have the capacity to make such thorough evaluation at that stage,


they should have referred the patient to another doctor with

Dr. Jaudian likewise opined that Dr. Casumpang's medical


77 | P a g e

Torts 3

[67]

sufficient training and experience instead of assuring him and his

fluids or dextrose;

mother that everything was all right. [Emphasis supplied]

blood, the doctor should have ordered: blood transfusion,

and once the patient had twice vomited fresh

Even assuming that Edmer's symptoms completely coincided with

monitoring of the patient every 30 minutes, hemostatic to stop

the diagnosis of bronchopneumonia (so that this diagnosis could

bleeding, and oxygen if there is difficulty in breathing.

[68]

not be considered "wrong"), we still find Dr. Casumpang guilty of


negligence.

Dr. Casumpang failed to measure up to these standards. The


evidence strongly suggests that he ordered a transfusion of

First, we emphasize that we do not decide the correctness of

platelet concentrate instead of blood transfusion. The tourniquet

a doctor's diagnosis, or the accuracy of the medical findings

test was only conducted after Edmer's second episode of bleeding,

and treatment. Our duty in medical malpractice cases is to decide

and the medical management (as reflected in the records) did not

- based on the evidence adduced and expert opinion presented -

include antibiotic therapy and complete physical examination.

whether a breach of duty took place.


Dr. Casumpang's testimony states:
Second, we clarify that a wrong diagnosis is not by itself
medical malpractice.

[65]

Physicians are generally not liable for

Q: Now, after entertaining - After considering that the patient


Edmer Cortero was already suffering from dengue hemorrhagic

damages resulting from a bona fide error of judgment.


Nonetheless, when the physician's erroneous diagnosis was the
result of negligent conduct (e.g., neglect of medical history, failure
to order the appropriate tests, failure to recognize symptoms), it

fever, what did you do, if any?


A: We ordered close monitoring of the blood pressure, the
cardiac rate and respiratory rate of the patient.
Q: Now, was your instructions carried on?

becomes an evidence of medical malpractice.

A: Yes, sir.
[66]

Third, we also note that medicine is not an exact science;

and

doctors, or even specialists, are not expected to give a 100%


accurate diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is
called for in considering and reading the exhibited symptoms, the
results of tests, and in arriving at definitive conclusions. But in
doing all these, the doctor must have acted according to
acceptable medical practice standards.

Q: What was the blood pressure of the patient?


A: During those times, the blood pressure of the patient was even
normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the
beginning since admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time,
we monitor [sic] the patient.

In the present case, evidence on record established that in


confirming the diagnosis of bronchopneumonia, Dr. Casumpang
selectively appreciated some and not all of the symptoms
presented, and failed to promptly conduct the appropriate tests to
confirm his findings. In sum, Dr. Casumpang failed to timely detect
dengue fever, which failure, especially when reasonable prudence
would have shown that indications of dengue were evident and/or
foreseeable, constitutes negligence.

Q: Then, who monitor [sic] the patient?


A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were ________;
his blood pressure was normal so we continued with the
supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988,1 stayed in the hospital and I
was informed by the pediatric resident on duty at around 11:15

a. Negligence in the Treatment and Management of Dengue

in the evening that the blood pressure of the patient went down
to .60 palpatory.

Apart from failing to promptly detect dengue fever, Dr.


Casumpang also failed to promptly undertake the proper
medical management needed for this disease.

Q: What did you do upon receipt of that information?


A: I immediately went up to the room of the patient and we
changed the IV fluid from the present fluid which was D5
0.3 sodium chloride to lactated ringers solution.

As Dr. Jaudian opined, the standard medical procedure once the


patient had exhibited the classic symptoms of dengue fever should
have been: oxygen inhalation, use of analgesic, and infusion of

Q: You mean to say you increased the dengue [sic] of the


intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was
78 | P a g e

Torts 3

necessary to resume the volume and to bring back the

the diagnosis and treatment of the patient, the standards

blood pressure, to increase the blood pressure. [Emphasis

applicable to and the liability of the resident for medical

supplied]

malpractice is theoretically less than that of the attending

Although Dr. Casumpang presented the testimonies of Dr. Rodolfo

physician. These relative burdens and distinctions, however, do

Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel Officer

not translate to immunity from the legal duty of care for

and Medical Director of SJDH, respectively as well as the

residents,

testimonies of Dr. Livelo and Dr. Reyes (the radiologist who read

negligent act.

[76]

or from the responsibility arising from their own

Edmer's chest x-ray result), these witnesses failed to dispute the


[77]

standard of action that Dr. Jaudian established in his expert

In Jenkins v. Clark,

opinion. We cannot consider them expert witnesses either for the

applicable standard of care in medical malpractice cases involving

sole reason that they did not testify on the standard of care in

first-year residents was that of a reasonably prudent physician and

dengue cases.

[69]

the Ohio Court of Appeals held that the

not that of interns. According to Jenkins:


It is clear that the standard of care required of physicians is not an

On the whole, after examining the totality of the adduced evidence, individualized one but of physicians in general in the community. In
we find that the lower courts correctly did not rely on Dr.

order to establish medical malpractice, it must be shown by a

Casumpang's claim that he exercised prudence and due diligence

preponderance of the evidence that a physician did some

in handling Edmer's case. Aside from being self-serving, his claim

particular thing or things that a physician or surgeon of ordinary

is not supported by competent evidence. As the lower courts did,

skill, care and diligence would not have done under like or similar

we rely on the uncontroverted fact that he failed, as a medical

conditions or circumstances, or that he failed or omitted to do

professional, to observe the most prudent medical procedure

some particular thing or things that a physician or surgeon of

under the circumstances in diagnosing and treating Edmer.

ordinary skill, care and diligence would have done under like or
similar conditions or circumstances, and that the inquiry

Dr. Miranda is Not Liable for Negligence

complained of was the direct result of such doing or failing to do


such thing or things.

In considering the case of Dr. Miranda, the junior resident


physician who was on-duty at the time of Edmer's confinement, we We note that the standard of instruction given by the court was
see the need to draw distinctions between the responsibilities and

indeed a proper one. It clearly informed the jury that the

corresponding liability of Dr. Casumpang, as the attending

medical care required is that of reasonably careful physicians

physician, and that of Dr. Miranda.

or hospital emergency room operators, not of interns or


residents. [Emphasis supplied]
[78]

In his testimony, Dr. Pasion declared that resident applicants are

A decade later, Centman v. Cobb,

generally doctors of medicine licensed to practice in the

and held that interns and first-year residents are "practitioners of

Philippines and who would like to pursue a particular specialty.

[70]

affirmed the Jenkins ruling

medicine required to exercise the same standard of care

They are usually the front line doctors responsible for the first

applicable to physicians with unlimited licenses to practice." The

contact with the patient. During the scope of the residency

Indiana Court held that although a first-year resident practices

program,

[71]

resident physicians (or "residents")

the supervision of attending physicians

[73]

[72]

function under

or of the hospital's

under a temporary medical permit, he/she impliedly contracts that


he/she has the reasonable and ordinary qualifications of her

teaching staff. Under this arrangement, residents operate merely

profession and that he/she will exercise reasonable skill, diligence,

as subordinates who usually defer to the attending physician on

and care in treating the patient.

the decision to be made and on the action to be taken.


We find that Dr. Miranda was not independently negligent.
The attending physician, on the other hand, is primarily

Although she had greater patient exposure, and was' subject to the

responsible for managing the resident's exercise of duties. While

same standard of care applicable to attending physicians, we

attending and resident physicians share the collective

believe that a finding of negligence should also depend on several

responsibility to deliver safe and appropriate care to the

competing factors, among them, her authority to make her own

[74]

patients,

it is the attending physician who assumes the principal

responsibility of patient care.

[75]

Because he/she exercises a

supervisory role over the resident, and is ultimately responsible for

diagnosis, the degree of supervision of the attending physician


over her, and the shared responsibility between her and the
attending physicians.
79 | P a g e

Torts 3

coughing of the blood because I presumed that it was a


In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo

mucous (sic) produced by broncho pneumonia, And

and Dr. Casumpang had diagnosed Edmer with

besides the patient did not even show any signs of any

bronchopneumonia. In her testimony, Dr. Miranda admitted that

other illness at that time.

she had been briefed about Edmer's condition, his medical history,
and initial diagnosis;

[79]

and based on these pieces of information,

[83]

Based on her statements we find that Dr. Miranda was not entirely
faultless. Nevertheless, her failure to discern the import of
Edmer's second bleeding does not necessarily amount to

she confirmed the, finding of bronchopneumonia.

negligence as the respondent himself admitted that Dr. Miranda


Dr. Miranda likewise duly reported to Dr. Casumpang, who
admitted receiving updates regarding Edmer's condition.

[80]

failed to examine the blood specimen because he washed it away.


There

In addition, considering the diagnosis previously made by two

is also evidence supporting Dr. Miranda's claim that she extended

doctors, and the uncontroverted fact that the burden of final

diligent care to Edmer. In fact, when she suspected - during

diagnosis pertains to the attending physician (in this case, Dr.

Edmer's second episode of bleeding - that Edmer could be

Casumpang), we believe that Dr. Miranda's error was merely an

suffering from dengue fever, she wasted no time in conducting the

honest mistake of judgment influenced in no small measure by her

necessary tests, and promptly notified Dr. Casumpang about the

status in the hospital hierarchy; hence, she should not be held

incident. Indubitably, her medical assistance led to the finding of

liable for medical negligence.

dengue fever.
Dr. Jaudian 's Professional Competence and Credibility
We note however, that during Edmer's second episode of
bleeding,

[81]

Dr. Miranda failed to immediately examine and note

One of the critical issues the petitioners raised in the proceedings

the cause of the blood specimen. Like Dr. Casumpang, she merely before the lower court and before this Court was Dr. Jaudian's
assumed that the blood in Edmer's phlegm was caused by

competence and credibility as an expert witness. The petitioners

bronchopneumonia. Her testimony states:

tried to discredit his expert testimony on the ground that he lacked


the proper training and fellowship status in pediatrics.

TSN, June 8, 1993:


Q: Let us get this clear, you said that the father told you the

Criteria in Qualifying as an Expert Witness

patient cocked [sic] out phlegm.


A: With blood streak.

The competence of an expert witness is a matter for the trial court

Q: Now, you stated specimen, were you not able to examine


the specimen?

to decide upon in the exercise of its discretion. The test of


qualification is necessarily a relative one, depending upon the

A: No, sir, I did not because according to the father he wash


[sic] his hands.

subject matter of the investigation, and the fitness of the expert


witness.

xxxx
Q: Now, from you knowledge, what does that indicate if the patient
expels a phlegm and blood streak?

[84]

In our jurisdiction, the criterion remains to be the expert

witness' special knowledge experience and practical training


that qualify him/her to explain highly technical medical
matters to the Court.

A: If a patient cocked [sic] out phlegm then the specimen could


have come from the lung alone.

[82]

[Emphasis supplied]

xxxx
TSN, June 17, 1993:

[85]

In Ramos v. Court of Appeals,

the Court found the expert

witness, who is a pulmonologist, not qualified to testify on the field


of anesthesiology. Similarly, in Cereno v. Court of Appeals,

Q: Now, in the first meeting you had, when that was relayed to you
by the father that Edmer Cortejo had coughed out blood, what
medical action did you take?

[86]

2012 case involving medical negligence, the Court excluded the


testimony of an expert witness whose specialty was
anesthesiology, and concluded that an anesthesiologist cannot be

A: I examined the patient and I thought that, that coughed out


phlegm was a product of broncho pneumonia.

considered an expert in the field of surgery or even in surgical


practices and diagnosis.

xxxx
Q: So what examination did you specifically conduct to see that
there was no internal bleeding?
A: At that time I did not do anything to determine the cause of

Interestingly in this case, Dr. Jaudian, the expert witness was


admittedly not a pediatrician but a practicing physician who
specializes in pathology.

[87]

He likewise does not possess any


80 | P a g e

Torts 3

formal residency training in pediatrics. Nonetheless, both the lower expressed by plaintiffs' doctors, e.g., the immediate need for a
courts found his knowledge acquired through study and practical

decompression in the light of certain neurological deficits in a post-

experience sufficient to advance an expert opinion on dengue-

laminectomy patient. As stated above, there was no issue as to

related cases.

the proper execution of the neurosurgery. The medical testimony


supported plaintiffs' theory of negligence and causation. (Citations

We agree with the lower courts.

omitted)
In another case,

[90]

the court declared that it is the specialist's

A close scrutiny of Ramos and Cereno reveals that the Court

knowledge of the requisite subject matter, rather than his/her

primarily based the witnesses' disqualification to testify as an

specialty that determines his/her qualification to testify.

expert on their incapacity to shed light on the standard of care that


[91]

must be observed by the defendant-physicians. That the expert

Also in Evans v. Ohanesian,

the court set a guideline in

witnesses' specialties do not match the physicians' practice area

qualifying an expert witness:

only constituted, at most, one of the considerations that should not

To qualify a witness as a medical expert, it must be shown that the

be taken out of context. After all, the sole function of a medical

witness (1) has the required professional knowledge, learning

expert witness, regardless of his/her specialty, is to afford

and skill of the subject under inquiry sufficient to qualify him

assistance to the courts on medical matters, and to explain the

to speak with authority on the subject; and (2) is familiar with

medical facts in issue.

the standard required of a physician under similar


circumstances; where a witness has disclosed sufficient

Furthermore, there was no reasonable indication in Ramos and

knowledge of the subject to entitle his opinion to go to the jury, the

Cereno that the expert witnesses possess a sufficient familiarity

question of the degree of his knowledge goes more to the weight

with the standard of care applicable to the physicians' specialties.

of the evidence than to its admissibility.


xxxx

US jurisprudence on medical malpractice demonstrated the trial


courts' wide latitude of discretion in allowing a specialist from
another field to testify against a defendant specialist.

Nor is it critical whether a medical expert is a general practitioner


or a specialist so long as he exhibits knowledge of the subject.

[88]

In Brown v. Sims,

a neurosurgeon was found competent to give

Where a duly licensed and practicing physician has gained

expert testimony regarding a gynecologist's standard of pre-

knowledge of the standard of care applicable to a specialty in

surgical care. In that case, the court held that since negligence

which he is not directly engaged but as to which he has an

was not predicated on the gynecologist's negligent performance of

opinion based on education, experience, observation, or

the operation, but primarily on the claim that the pre-operative

association wit that specialty, his opinion is competent.

histories and physicals were inadequate, the neurosurgeon was

(Emphasis supplied)

competent to testify as an expert.

Finally, Brown v. Mladineo

[92]

adhered to the principle that the

witness' familiarity, and not the classification by title or specialty,


Frost v. Mayo Clinic

[89]

also allowed an orthopedic surgeon to

which should control issues regarding the expert witness'

testify against a neurologist in a medical malpractice action. The

qualifications:

court considered that the orthopedic surgeon's opinion on the

The general rule as to expert testimony in medical malpractice

"immediate need for decompression" need not come from a

actions is that "a specialist in a particular branch within a

specialist in neurosurgery. The court held that:

profession will not be required." Most courts allow a doctor to

It is well established that "the testimony of a qualified medical

testify if they are satisfied of his familiarity with the standards of a

doctor cannot be excluded simply because he is not a specialist x

specialty, though he may not practice the specialty himself. One

x x." The matter of "x x x training and specialization of the witness

court explained that "it is the scope of the witness' knowledge and

goes to the weight rather than admissibility x x x."

not the artificial classification by title that should govern the


threshold question of admissibility. (Citations omitted)

xxxx

Application to the Present Case

It did not appear to the court that a medical doctor had to be a

In the case and the facts before us, we find that Dr. Jaudian is

specialist in neurosurgery to express the opinions permitted to be

competent to testify on the standard of care in dengue fever cases.


81 | P a g e

Torts 3

diagnosis and management of dengue is critical in reducing the


Although he specializes in pathology, it was established during trial risk of complications and avoiding further spread of the virus.

[96]

that he had attended not less than 30 seminars held by the

That Edmer later died of "Hypovolemic Shock/hemorrhagic shock,"

Pediatric Society, had exposure in pediatrics, had been practicing

"Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of

medicine for 16 years, and had handled not less than 50 dengue

dengue fever, established the causal link between Dr.

related cases.

Casumpang's negligence and the injury.

As a licensed medical practitioner specializing in pathology, who

Based on these considerations, we rule that the respondent

had practical and relevant exposure in pediatrics and dengue

successfully proved the element of causation.

related cases, we are convinced that Dr. Jaudian demonstrated


sufficient familiarity with the standard of care to be applied in

Liability of SJDH

dengue fever cases. Furthermore, we agree that he possesses


knowledge and experience sufficient to qualify him to speak with

We now discuss the liability of the hospital.

authority on the subject.


The respondent submits that SJDH should not only be held
The Causation Between Dr. Casumpang's Negligent

vicariously liable for the petitioning doctors' negligence but also for

Act/Omission, and the Patient's Resulting Death was

its own negligence. He claims that SJDH fell short of its duty of

Adequately Proven

providing its patients with the necessary facilities and equipment


as shown by the following circumstances:

Dr. Jaudian's testimony strongly suggests that due to Dr.


Casumpang's failure to timely diagnose Edmer with dengue, the
latter was not immediately given the proper treatment. In fact, even
after Dr. Casumpang had discovered Edmer's real illness, he still
failed to promptly perform the standard medical procedure. We

(a) SJDH was not equipped with proper paging system;


(b) the number of its doctors is not proportionate to the number of
patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer's oxygen was removed, the medical staff did not

agree with these findings.

immediately provide him with portable oxygen;


As the respondent had pointed out, dengue fever, if left untreated,
could be a life threatening disease. As in any fatal diseases, it
requires immediate medical attention.

[93]

With the correct and

timely diagnosis, coupled with the proper medical management,


dengue fever is not a life-threatening disease and could easily be
cured.

(e) when Edmer was about to be transferred to another hospital,


SJDH's was not ready and had no driver; and
(f) despite Edmer's critical condition, there was no doctor
attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of April
23, 1988.
SJDH on the other hand disclaims liability by claiming that the

[94]

petitioning doctors are not its employees but are mere consultants
Furthermore, as Dr. Jaudian testified, with adequate intensive

and independent contractors.

care, the mortality rate of dengue fever should fall to less than
2%. Hence, the survival of the patient is directly related to early
and proper management of the illness.

[95]

We affirm the hospital's liability not on the basis of Article 2180 of


the Civil Code, but on the basis of the doctrine of apparent
authority or agency by estoppel.

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with


dengue fever despite the presence of its characteristic symptoms;
and as a consequence of the delayed diagnosis, he also failed to

There is No Employer-Employee Relationship Between SJDH


and the Petitioning Doctors

promptly manage Edmer's illness. Had he immediately conducted


confirmatory tests, (i.e., tourniquet tests and series of blood tests)
and promptly administered the proper care and management
needed for dengue fever, the risk of complications or even death,
could have been substantially reduced.

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

Furthermore, medical literature on dengue shows that early

end.

[97]

82 | P a g e

Torts 3

conduct of the hospital or its agent, consistent with ordinary


Control, which is the most crucial among the elements, is not

care and prudence. (Emphasis supplied)

present in this case.

The doctrine was applied in Nogales v. Capitol Medical Center

[101]

where this Court, through the ponencia of Associate Justice


Based on the records, no evidence exists showing that SJDH

Antonio T. Carpio, discussed the two factors in determining

exercised any degree of control over the means, methods of

hospital liability as follows:

procedure and manner by which the petitioning doctors conducted

The first factor focuses on the hospital's manifestations and is

and performed their medical profession. SJDH did not control their

sometimes described as an inquiry whether the hospital acted in a

diagnosis and treatment. Likewise, no evidence was presented to

manner which would lead a reasonable person to conclude that

show that SJDH monitored, supervised, or directed the petitioning

the individual who was alleged to be negligent was an employee or

doctors in the treatment and management of Edmer's case. In

agent of the hospital. In this regard, the hospital need not make

these lights, the petitioning doctors were not employees of SJDH,

express representations to the patient that the treating physician is

but were mere independent contractors.

an employee of the hospital; rather a representation may be


general and implied.

SJDH is Solidarity Liable Based on The Principle of Agency or


xxxx

Doctrine of Apparent Authority


Despite the absence of employer-employee relationship between
SJDH and the petitioning doctors, SJDH is not free from liability.

[98]

The second factor focuses on the patient's reliance. It is


sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or its agent,

As a rule, hospitals are not liable for the negligence of its

consistent with ordinary care and prudence. (Citation omitted)

independent contractors. However, it may be found liable if the

In sum, a hospital can be held vicariously liable for the negligent

physician or independent contractor acts as an ostensible agent of

acts of a physician (or an independent contractor) providing care

the hospital. This exception is also known as the "doctrine of

at the hospital if the plaintiff can prove these two factors: first, the

apparent authority."

[99]

The US case of Gilbert v. Sycamore Municipal Hospital

hospital's manifestations; and second, the patient's reliance.


[100]

a. Hospital's manifestations

abrogated the hospitals' immunity to vicarious liability of


independent contractor physicians. In that case, the Illinois

It involves an inquiry on whether the hospital acted in a manner

Supreme Court held that under the doctrine of apparent authority,

that would lead a reasonable person to conclude that the individual

hospitals could be found vicariously liable for the negligence of an

alleged to be negligent was an employee or agent of the hospital.

independent contractor:

As pointed out in Nogales, the hospital need not make express

Therefore, we hold that, under the doctrine of apparent authority, a representations to the patient that the physician or independent
contractor is an employee of the hospital; representation may be
hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the

general and implied.

[102]

physician is an independent contractor, unless the patient knows,


[103]

or should have known, that the physician is an independent

In Pamperin v. Trinity Memorial Hospital,

contractor. The elements of the action have been set out as

on "what acts by the hospital or its agent are sufficient to lead a

follows:

reasonable person to conclude that the individual was an agent of

For a hospital to be liable under the doctrine of apparent authority,

the hospital." In ruling that the hospital's manifestations can be

a plaintiff must show that: (1) the hospital, or its agent, acted in

proven without the express representation by the hospital, the

a manner that would lead a reasonable person to conclude

court relied on several cases from other jurisdictions, and held

that the individual who was alleged to be negligent was an

that:

employee or agent of the hospital; (2) where the acts of the


agent create the appearance of authority, the plaintiff must
also prove that the hospital had knowledge of and acquiesced
in them; and (3) the plaintiff acted in reliance upon the

questions were raised

(1) the hospital, by providing emergency room care and by failing


to advise patients that they were being treated by the hospital's
agent and not its employee, has created the appearance of
agency; and
83 | P a g e

Torts 3

(2) patients entering the hospital through the emergency room,

contractor.

could properly assume that the treating doctors and staff of the
hospital were acting on its behalf.

Mrs. Cortejo accepted Dr. Casumpang's services on the

In this case, the court considered the act of the hospital of holding

reasonable belief that such were being provided by SJDH or its

itself out as provider of complete medical care, and considered the

employees, agents, or servants. By referring Dr. Casumpang to

hospital to have impliedly created the appearance of authority.

care and treat for Edmer, SJDH impliedly held out Dr.
Casumpang, not only as an accredited member of Fortune

b. Patient's reliance

Care, but also as a member of its medical staff. SJDH cannot


now disclaim liability since there is no showing that Mrs. Cortejo or

It involves an inquiry on whether the plaintiff acted in reliance on

the respondent knew, or should have known, that Dr. Casumpang

the conduct of the hospital or its agent, consistent with ordinary

is only an independent contractor of the hospital. In this case,

care and prudence.

[104]

In Pamperin, the court held that the important consideration in

estoppel has already set in.


We also stress that Mrs. Cortejo's use of health care plan (Fortune

determining the patient's reliance is: whether the plaintiff is seeking Care) did not affect SJDH's liability. The only effect of the
care from the hospital itself or whether the plaintiff is looking to the

availment of her Fortune Care card benefits is that her choice of

hospital merely as a place for his/her personal physician to provide physician is limited only to physicians who are accredited with
medical care.

[105]

Fortune Care. Thus, her use of health care plan in this case only
limited the choice of doctors (or coverage of services, amount etc.)

Thus, this requirement is deemed satisfied if the plaintiff can prove

and not the liability of doctors or the hospital.

that he/she relied upon the hospital to provide care and treatment,
rather than upon a specific physician. In this case, we shall limit

WHEREFORE, premises considered, this Court PARTLY

the determination of the hospital's apparent authority to Dr.

GRANTS the consolidated petitions. The Court finds Dr. Noel

Casumpang, in view of our finding that Dr. Miranda is not liable for

Casumpang and San Juan de Dios Hospital solidarity liable for

negligence.

negligent medical practice. We SET ASIDE the finding of liability


as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00 as

SJDH Clothed Dr. Casumpang With Apparent Authority

actual damages and P500,000.00 as moral damages should each


earn legal interest at the rate of six percent (6%) per annum

SJDH impliedly held out and clothed Dr. Casumpang with

computed from the date of the judgment of the trial court. The

apparent authority leading the respondent to believe that he is an

Court AFFIRMS the rest of the Decision dated October 29, 2004

employee or agent of the hospital.

and the Resolution dated January 12, 2006 in CA-G.R. CV No.


56400.

Based on the records, the respondent relied on SJDH rather than


upon Dr. Casumpang, to care and treat his son Edmer. His

SO ORDERED.

testimony during trial showed that he and his wife did not know
any doctors at SJDH; they also did not know that Dr.
Casumpang was an independent contractor. They brought their
son to SJDH for diagnosis because of their family doctor's referral.
The referral did not specifically point to Dr. Casumpang or even to
Dr. Miranda, but to SJDH.
Significantly, the respondent had relied on SJDH's representation
of Dr. Casumpang's authority. To recall, when Mrs. Cortejo
presented her Fortune Care card, she was initially referred to the
Fortune Care coordinator, who was then out of town. She was
thereafter referred to Dr. Casumpang, who is also accredited with
Fortune Care. In both instances, SJDH through its agent failed to
advise Mrs. Cortejo that Dr. Casumpang is an independent
84 | P a g e

Torts 3

CARLOS BORROMEO, PETITIONER, VS. FAMILY CARE


HOSPITAL, INC. AND RAMON S. INSO, M.D., RESPONDENTS.
DECISION

lower right side, had also extended to her lower left side. Lilian
abruptly developed an acute surgical abdomen.
On July 15, 1999, Dr. Inso decided to conduct an exploratory
laparotomy on Lilian because of the findings on her abdomen and

BRION, J.:

his fear that she might have a ruptured appendix. Exploratory


laparotomy is a surgical procedure involving a large incision on the

Carlos Borromeo lost his wife Lillian when she died after

abdominal wall that would enable Dr. Inso to examine the

undergoing a routine appendectomy. The hospital and the

abdominal cavity and identify the cause of Lilian's symptoms. After

attending surgeon submit that Lillian bled to death due to a rare,

explaining the situation, Dr. Inso obtained the patient's consent to

life-threatening condition that prevented her blood from clotting

the laparotomy.

normally. Carlos believes, however, that the hospital and the


surgeon were simply negligent in the care of his late wife.

At around 3:45 P.M., Lilian was brought to the operating room


where Dr. Inso conducted the surgery. During the operation, Dr.

On January 22, 2010, the Court of Appeals (CA) in CA-G.R. CV


No. 89096

[1]

dismissed Carlos' complaint and thus reversed the

April 10, 2007 decision of the Regional Trial Court (RTC) in Civil
[2]

Case No. 2000-603-MK

Inso confirmed that Lilian was suffering from acute appendicitis.


He proceeded to remove her appendix which was already infected
and congested with pus.

which found the respondents liable for

medical negligence.

The operation was successful. Lilian's appearance and vital signs


improved. At around 7:30 P.M., Lilian was brought back to her

The present petition for review on certiorari seeks to reverse the

private room from the recovery room.

CA's January 22, 2010 decision.


At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian
ANTECEDENTS

was brought back to her room, Dr. Inso was informed that her
blood pressure was low. After assessing her condition, he ordered

The petitioner, Carlos Borromeo, was the husband of the late

the infusion of more intravenous (IV) fluids which somehow raised

Lilian V. Borromeo (Lilian). Lilian was a patient of the respondent

her blood pressure.

Family Care Hospital, Inc. (Family Care) under the care of


respondent Dr. Ramon Inso (Dr. Inso).

Despite the late hour, Dr. Inso remained in the hospital to monitor
Lilian's condition. Subsequently, a nurse informed him that Lilian

On July 13, 1999, the petitioner brought his wife to the Family

was becoming restless. Dr. Inso immediately went to Lilian and

Care Hospital because she had been complaining of acute pain at

saw that she was quite pale. He immediately requested a blood

the lower stomach area and fever for two days. She was admitted

transfusion.

at the hospital and placed under the care of Dr. Inso.


Lilian did not respond to the blood transfusion even after receiving
Dr. Inso suspected that Lilian might be suffering from acute

two 500 cc-units of blood. Various drugs, such as adrenaline or

appendicitis. However, there was insufficient data to rule out other

epinephrine, were administered.

possible causes and to proceed with an appendectomy. Thus, he


ordered Lilian's confinement for testing and evaluation.

Eventually, an endotracheal tube connected to an oxygen tank


was inserted into Lilian to ensure her airway was clear and to

Over the next 48 hours, Lilian underwent multiple tests such as

compensate for the lack of circulating oxygen in her body from the

complete blood count, urinalysis, stool exam, pelvic ultrasound,

loss of red blood cells. Nevertheless, her condition continued to

and a pregnancy test. However, the tests were not conclusive

deteriorate.

enough to confirm that she had appendicitis.


Dr. Inso observed that Lilian was developing petechiae in various
Meanwhile, Lilian's condition did not improve. She suffered from

parts of her body. Petechiae are small bruises caused by bleeding

spiking fever and her abdominal pain worsened. The increasing

under the skin whose presence indicates a blood-coagulation

tenderness of her stomach, which was previously confined to her

problem - a defect in the ability of blood to clot. At this point, Dr.


85 | P a g e

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Inso suspected that Lilian had Disseminated Intravascular

hemorrhagic areas. Noted absent is the appendix at the ileo-colic

Coagulation (DIC), a blood disorder characterized by bleeding in

area but there were continuous suture repair done thereat.

many parts of her body caused by the consumption or the loss of

However, there was a 0.5 x 0.5 cm opening or left unrepaired at

the clotting factors in the blood. However, Dr. Inso did not have the that time. There was an opening on that repair site. Meaning it was
luxury to conduct further tests because the immediate need was to

not repaired. There were also at that time clot and unclot blood

resuscitate Lilian.

found adherent thereon. The liver and the rest of the visceral
organs were noted exhibit [sic] some degree of pallor but were

Dr. Inso and the nurses performed cardiopulmonary resuscitation

otherwise normal. The stomach contains one glassful about 400 to

(CPR) on Lilian. Dr. Inso also informed her family that there may

500 ml.

be a need to re-operate on her, but she would have to be put in an

Dr. Reyes concluded that the cause of Lilian's death was

Intensive Care Unit (ICU). Unfortunately, Family Care did not have

hemorrhage due to bleeding petechial blood vessels: internal

an ICU because it was only a secondary hospital and was not

bleeding. He further concluded that the internal bleeding was

required by the Department of Health to have one. Dr. Inso

caused by the 0.5 x 0.5 cm opening in the repair site. He opined

informed the petitioner that Lilian would have to be transferred to

that the bleeding could have been avoided if the site was repaired

another hospital.

with double suturing instead of the single continuous suture repair

[3]

that he found.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help
Medical Center to arrange Lilian's transfer, but the latter had no

Based on the autopsy, the petitioner filed a complaint for damages

available bed in its ICU. Dr. Inso then personally coordinated with

against Family Care and against Dr. Inso for medical negligence.

the Muntinlupa Medical Center (MMC) which had an available bed.


During the trial, the petitioner presented Dr. Reyes as his expert
At around 4:00 A.M., Lilian was taken to the MMC by ambulance

witness. Dr. Reyes testified as to his findings during the autopsy

accompanied by the resident doctor on duty and a nurse. Dr. Inso

and his opinion that Lilian's death could have been avoided if Dr.

followed closely behind in his own vehicle.

Inso had repaired the site with double suture rather than a single
suture.

Upon reaching the MMC, a medical team was on hand to


resuscitate Lilian. A nasogastric tube (NGT) was inserted and IV

However, Dr. Reyes admitted that he had very little experience in

fluids were immediately administered to her. Dr. Inso asked for a

the field of pathology and his only experience was an on-the-job

plasma expander. Unfortunately, at around 10:00 A.M., Lilian

training at the V. Luna Hospital where he was only on observer

passed away despite efforts to resuscitate her.

status. He further admitted that he had no experience in


appendicitis or appendectomy and that Lilian's case was his first

At the request of the petitioner, Lilian's body was autopsied at the

autopsy involving a death from appendectomy.

Philippine National Police (PNP) Camp Crame Crime Laboratory.


Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to

Moreover, Dr. Reyes admitted that he was not intelligently guided

the laboratory, conducted the autopsy. Dr. Reyes summarized his

during the autopsy because he was not furnished with clinical,

notable findings as:

physical, gross, histopath, and laboratory information that were

x x x I opened up the body and inside the abdominal cavity which

important for an accurate conclusion. Dr. Reyes also admitted that

you call peritoneal cavity there were 3,000 ml of clot and unclot

an appendical stump is initially swollen when sutured and that the

blood accumulated thereat. The peritoneal cavity was also free

stitches may loosen during the healing process when the initial

from any adhesion. Then, I opened up the head and the brain

swelling subside.

revealed paper white in color and the heart revealed abundant


petechial hemorrhages from the surface and it was normal. The

In their defense, Dr. Inso and Family Care presented Dr. Inso, and

valvular leaflets were soft and pliable, and of course, the normal

expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio

color is reddish brown as noted. And the coronary arteries which

Hernandez (Dr. Hernandez).

supply the heart were normal and unremarkable. Next, the lungs
appears [sic] hemorrhagic. That was the right lung while the left

Dr. Ramos is a practicing pathologist with over 20 years of

lung was collapsed and paled. For the intestines, I noted

experience. He is an associate professor at the Department of

throughout the entire lengths of the small and large intestine were

Surgery of the Fatima Medical Center, the Manila Central


86 | P a g e

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University, and the Perpetual Help Medical Center. He is a Fellow


of the Philippine College of Surgeons, a Diplomate of the

On April 10, 2007, the RTC rendered its decision awarding the

Philippine Board of Surgery, and a Fellow of the Philippine Society

petitioner P88,077.50 as compensatory damages; P50,000.00 as

of General Surgeons.

death indemnity; P3,607,910.30 as loss of earnings; P50,000.00


as moral damages; P30,000.00 as exemplary damages;

Dr. Ramos discredited Dr. Reyes' theory that the 0.5 x 0.5 cm

P50,000.00 as attorney's fees, and the costs of the suit.

opening at the repair site caused Lilian's internal bleeding.


According to Dr. Ramos, appendical vessels measure only 0.1 to

The RTC relied on Dr. Avila's opinion and gave more weight to Dr.

0.15 cm, a claim that was not refuted by the petitioner. If the 0.5 x

Reyes' findings regarding the cause of Lilian's death. It held that

0.5 cm opening had caused Lilian's hemorrhage, she would not

Dr. Inso was negligent in using a single suture on the repair site

have survived for over 16 hours; she would have died immediately, causing Lilian's death by internal hemorrhage. It applied the
doctrine of res ipsa loquitur, holding that a patient's death does not

within 20 to 30 minutes, after surgery.

ordinarily occur during an appendectomy.


Dr. Ramos submitted that the cause of Lilian's death was
hemorrhage due to DIC, a blood disorder that leads to the failure

The respondents elevated the case to the CA and the appeal was

of the blood to coagulate; Dr. Ramos considered the abundant

docketed as CA-G.R. CV No. 89096.

petechial hemorrhage in the myocardic sections and the


hemorrhagic right lung; the multiple bleeding points indicate that

On January 22, 2010, the CA reversed the RTC's decision and

Lilian was afflicted with DIC.

dismissed the complaint. The CA gave greater weight to the


testimonies of Dr. Hernandez and Dr. Ramos over the findings of

Meanwhile, Dr. Hernandez is a general surgeon and a hospital

Dr. Reyes because the latter was not an expert in pathology,

administrator who had been practicing surgery for twenty years as

appendectomy, nor in surgery. It disregarded Dr. Avila's opinion

of the date of his testimony.

because the basic premise of his testimony was that the doctor
who conducted the autopsy is a pathologist of equal or of greater

Dr. Hernandez testified that Lilian's death could not be attributed to expertise than Dr. Ramos or Dr. Hernandez.
the alleged wrong suturing. He submitted that the presence of
blood in the lungs, in the stomach, and in the entire length of the

The CA held that there was no causal connection between the

bowels cannot be reconciled with Dr. Reyes' theory that the

alleged omission of Dr. Inso to use a double suture and the cause

hemorrhage resulted from a single-sutured appendix.

of Lilian's death. It also found that Dr. Inso did, in fact, use a
double suture ligation with a third silk reinforcement ligation on the

Dr., Hernandez testified that Lilian had uncontrollable bleeding in

repair site which, as Dr. Reyes admitted on cross-examination,

the microcirculation as a result of DIC. In DIC, blood oozes from

loosened up after the initial swelling of the stump subsided.

very small blood vessels because of a problem in the clotting


factors of the blood vessels. The microcirculation is too small to be

The CA denied the applicability of the doctrine of res ipsa loquitur

seen by the naked eye; the red cell is even smaller than the tip of

because the element of causation between the instrumentality

a needle. Therefore, the alleged wrong suturing could not have

under the control and management of Dr. Inso and the injury that

caused the amount of hemorrhaging that caused Lilian's death.

caused Lilian's death was absent; the respondents sufficiently


established that the cause of Lilian's death was DIC.

Dr. Hernandez further testified that the procedure that Dr. Inso
performed was consistent with the usual surgical procedure and
he would not have done anything differently.

[4]

The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a

On March 18, 2010, the petitioner filed the present petition for
review on certiorari.
THE PETITION

rebuttal witness. Dr. Avila, also a lawyer, was presented as an


expert in medical jurisprudence. Dr. Avila testified that between Dr. The petitioner argues: (1) that Dr. Inso and Family Care were
negligent in caring for Lilian before, during, and after her
Reyes who autopsied the patient and Dr. Ramos whose findings
were based on medical records, greater weight should be given to

appendectomy and were responsible for her death; and (2) that

Dr. Reyes' testimony.

the doctrine of res ipsa loquitur is applicable to this case.


87 | P a g e

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justice.
In their Comment, the respondents counter: (1) that the issues
raised by the petitioner are not pure questions of law; (2) that they

The requisites of establishing medical malpractice

exercised utmost care and diligence in the treatment of Lilian; (3)


that Dr. Inso did not deviate from the standard of care observed

Whoever alleges a fact has the burden of proving it. This is a basic

under similar circumstances by other members of the profession in legal principle that equally applies to civil and criminal cases. In a
good standing; (4) that res ipsa loquitur is not applicable because

medical malpractice case, the plaintiff has the duty of proving its

direct evidence as to the cause of Lilian's death and the

elements, namely: (1) a duty of the defendant to his patient; (2) the

presence/absence of negligence is available; and (5) that doctors

defendant's breach of this duty; (3) injury to the patient; and (4)

are not guarantors of care and cannot be held liable for the death

proximate causation between the breach and the injury suffered.

of their patients when they exercised diligence and did everything

In civil cases, the plaintiff must prove these elements by a

to save the patient.

preponderance of evidence.
OUR RULING

[17]

A medical professional has the duty to observe the standard of


care and exercise the degree of skill, knowledge, and training

The petition involves factual questions.

ordinarily expected of other similarly trained medical professionals


acting under the same circumstances.

[18]

A breach of the accepted

Under Section 1 of Rule 45, a petition for review on certiorari shall

standard of care constitutes negligence or malpractice and renders

only raise questions of law. The Supreme Court is not a trier of

the defendant liable for the resulting injury to his patient.

[19]

facts and it is not our function to analyze and weigh evidence that
the lower courts had already passed upon.

The standard is based on the norm observed by other reasonably


competent members of the profession practicing the same field

The factual findings of the Court of Appeals are, as a general rule,

of medicine.

[20]

Because medical malpractice cases are often

conclusive upon this Court. However, jurisprudence has also

highly technical, expert testimony is usually essential to establish:


to this rule, to wit: (1) when the (1) the standard of care that the defendant was bound to observe
findings are grounded entirely on speculation, surmises, or
under the circumstances; (2) that the defendant's conduct fell
carved out recognized exceptions
conjectures;

[5]

[6]

(2) when the inference made is manifestly mistaken, below the acceptable standard; and (3) that the defendant's failure
[7]
[21]
absurd, or impossible; (3) when there is grave abuse of
to observe the industry standard caused injury to his patient.
discretion;

[8]

(4) when the judgment is based on a

misapprehension of facts;
conflicting;

[10]

[9]

(5) when the findings of facts are

(6) when in making its findings the Court of Appeals

went beyond the issues of the case, or its findings are contrary to

The expert witness must be a similarly trained and experienced


physician. Thus, a pulmonologist is not qualified to testify as to the
[22]

and an autopsy
(7) when expert is not qualified to testify as a specialist in infectious
[12]
[23]
the findings are contrary to those of the trial court's; (8)
diseases.
the admissions of both the appellant and the appellee;

standard of care required of an anesthesiologist

[11]

when the findings are conclusions without citation of specific


evidence on which they are based;

[13]

(9) when the facts set forth

The petitioner failed to present an expert witness.

in the petition as well as in the petitioner's main and reply briefs


are not disputed by the respondent;

[14]

(10) when the findings of

fact are premised on the supposed absence of evidence and


contradicted by the evidence on record;

[15]

and (11) when the

In ruling against the respondents, the RTC relied on the findings of


Dr. Reyes in the light of Dr. Avila's opinion that the former's
testimony should be given greater weight than the findings of Dr.

Court of Appeals manifestly overlooked certain relevant facts not

Ramos and Dr. Hernandez. On the other hand, the CA did not

disputed by the parties, which, if properly considered, would justify

consider Dr. Reyes or Dr. Avila as expert witnesses and

a different conclusion.

[16]

disregarded their testimonies in favor of Dr. Ramos and Dr.


Hernandez. The basic issue, therefore, is whose testimonies

Considering that the CA's findings with respect to the cause of

should carry greater weight?

Lilian's death contradict those of the RTC, this case falls under one
of the exceptions. The Court will thus give due course to the

We join and affirm the ruling of the CA.

petition to dispel any perception that we denied the petitioner


88 | P a g e

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Other than their conclusion on the culpability of the respondents,


the CA and the RTC have similar factual findings. The RTC ruled

year course.
Atty.

Did you call that what you call a post graduate internship?

against the respondents based primarily on the following testimony Castro:


of Dr. Reyes.

Witness:Residency.
Atty.

Witness:Well, if I remember right during my residency in my


extensive training, during the operation of the appendix,
your Honor, it should really be sutured twice which we call
double.
Court:

Witness:I did.
Atty.

Where did you undergo a post graduate internship?

Witness:Before I took the board examination in the year 1984, sir.

blood vessels, your Honor.


suture?
Witness:It is possible.

That was where?

Witness:MCU Hospital, sir.


Atty.

[24]

After the post graduate internship that was the time you

Castro: took the board examination?

Dr. Reyes testified that he graduated from the Manila Central


University (MCU) College of Medicine and passed the medical
[25]

Atty.
Castro:

So, the bleeding of the patient was caused by the single

board exams in 1994.

Castro: post graduate? [sic]

Castro:

What would be the result if there is only single?

Witness:We cannot guarranty [sic] the bleeding of the sutured


Court:

Since you call that a post graduate, you were not undergo

He established his personal practice at

his house clinic before being accepted as an on-the-job trainee in


the Department of Pathology at the V. Luna Hospital in 1994. In
January 1996, he joined the PNP Medico-Legal Division and was
assigned to the Crime Laboratory in Camp Crame. He currently
heads the Southern Police District Medico-Legal division.

[26]

His

primary duties are to examine victims of violent crimes and to


conduct traumatic autopsies to determine the cause of death.

Witness:Yes, sir.
Atty.
Castro:
Witness:Yes, sir.
Atty.

Witness:Yes, sir.
Atty.

After you took the board examination, did you pursue any

Castro: study?
Witness:During that time, no sir.
You also testified during the last hearing that "page 6 of

Castro: March 5, 2002, answer of the witness: then I was

Reyes can be considered an expert in traumatic autopsies or

accepted as on the job training at the V. Luna Hospital at

autopsies involving violent deaths. However, his expertise in

the Department of Pathologist in 1994", could you explain

traumatic autopsies does not necessarily make him an expert in


clinical and pathological autopsies or in surgery.

Are you sure of that?

Castro:

Atty.
After having conducted over a thousand traumatic autopsies, Dr.

And I supposed that you did it for the first take?

briefly all of this Mr. witness?


Witness:I was given an order that I could attend the training only
as a civilian not as a member of the AFP because at that

Moreover, Dr. Reyes' cross-examination reveals that he was less

time they were already in the process of discharging

than candid about his qualifications during his initial testimony:


Atty.

Dr. Reyes, you mentioned during your direct testimony

Castro: last March 5, 2002 that you graduated in March of 1994,


is that correct?
Witness:Yes, sir.
Atty.

You were asked by Atty. Fajardo, the counsel for the

Castro: plaintiff, when did you finish your medical works, and you
answered the following year of your graduation which was
in 1994?

civilian from undergoing training.


Atty.

Castro: assigned to?


Witness:Only as an observer status.
Atty.

Witness:Yes, sir.
Atty.

right during my residency in my extensive training during


the operation of the appendix," what do you mean by that
Mr. witness?

Castro: study that you undergo after graduation? [sic]


that I was given the chance to attend the training, one

And on the same date during your direct testimony on

Castro: March 5, 2002, part of which reads "well if I remember

And after you graduated Mr. Witness, were there further

Witness:It was during my service only at the police organization

So you only observed.

Castro:

Witness:Not in 1994, it was in 1984, sir.


Atty.

So in the Department of Pathology, what were you

Witness:I was referring to my internship, sir.


Atty.

So this is not a residency training?

Castro:
89 | P a g e

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Witness:No, sir.

Atty.

Atty.

Fajardo:

This is not a specialty training?

Your honor, what is the materiality?

Castro:

Atty.

Witness:No, sir.

Castro: procedure which could more or less measure his

Atty.

That is according to his background, your honor. This is a

This was the time the year before you took the board

knowledge in autopsy proceedings when he was in

Castro: examination?

medical school and compared to what he is actually doing

Witness:That's right, sir. Yes, sir.

now.

Atty.

You were not then a license[d] doctor?

Castro:

The witness is not an expert witness, your honor.

Atty.
Fajardo:

Witness:No, sir.

Atty.

Atty.

Castro: honor.

And you also mentioned during the last hearing shown by

Castro: page 8 of the same transcript of the stenographic notes,

He is being presented as an expert witness, your


[29]

When Atty. Castro attempted to probe Dr. Reyes about his

dated March 5,2002 and I quote "and that is your

knowledge on the subject of medical or pathological autopsies, Dr.

residence assignment?", and you answered "yes, sir."

Fajardo objected on the ground that Dr. Reyes was not an expert

What was the meaning of your answer? What do you

in the field. His testimony was offered to prove that Dr. Inso was

mean when you say yes, sir?

negligent during the surgery without necessarily offering him as an

xxxx

expert witness.

Witness:Okay, I stayed at the barracks of the Southern Police


District Fort Bonifacio.
Atty.

So this is not referring to any kind of training?

Atty.

Fajardo:was negligence on the surgical operation of the appendix


or in the conduct of the appendectomy by the defendant

Castro:

doctor on the deceased Lilian Villaran Borromeo.

Witness:No, sir.
Atty.

x x x The purpose of this witness is to establish that there

This is not in anyway related to appendicitis?

[30]

Dr. Reyes is not an expert witness who could prove Dr. Inso's
alleged negligence. His testimony could not have established the

Castro:

standard of care that Dr. Inso was expected to observe nor

[27]

Witness:No, sir.

Atty. Reyes appears to have inflated his qualifications during his


direct testimony. First, his "extensive training during [his]
residency" was neither extensive actual training, nor part of
medical residency. His assignment to the V. Luna Hospital was not
as an on-the-job trainee but as a mere observer. This assignment
was also before he was actually licensed as a doctor. Dr. Reyes

assessed Dr. Inso's failure to observe this standard. His testimony


cannot be relied upon to determine if Dr. Inso committed errors
during the operation, the severity of these errors, their impact on
Lilian's probability of survival, and the existence of other
diseases/conditions that might or might not have caused or
contributed to Lilian's death.

also loosely used the terms "residence" and "residency" - terms


that carry a technical meaning with respect to medical practice during his initial testimony

[28]

to refer to (1) his physical place of

dwelling and (2) his internship before taking the medical board
exams. This misled the trial court into believing that he was more
qualified to give his opinion on the matter than he actually was.
Perhaps nothing is more telling about Dr. Reyes' lack of expertise
in the subject matter than the petitioner's counsel's own admission
during Dr. Reyes' cross examination.
Atty.

How long were you assigned to observe with the

The testimony of Dr. Avila also has no probative value in


determining whether Dr. Inso was at fault. Dr. Avila testified in his
capacity as an expert in medical jurisprudence, not as an expert in
medicine, surgery, or pathology. His testimony fails to shed any
light on the actual cause of Lilian's death.
On the other hand, the respondents presented testimonies from
Dr. Inso himself and from two expert witnesses in pathology and
surgery.
Dr. Ramos graduated from the Far Eastern University, Nicanor

Castro: Department of Pathology?

Reyes Medical Foundation, in 1975. He took up his post-graduate

Witness:Only 6 months, sir.

internship at the Quezon Memorial Hospital in Lucena City, before

Atty.

During your studies in the medical school, Mr. Witness, do taking the board exams. After obtaining his professional license,

Castro: you recall attending or having participated or [sic] what


you call motivity mortality complex?

he underwent residency training in pathology at the Jose R. Reyes


Memorial Center from 1977 to 1980. He passed the examination in
90 | P a g e

Torts 3

Anatomic, Clinical, and Physical Pathology in 1980 and was

due care is not immediately apparent to the layman.

inducted in 1981. He also took the examination in anatomic


pathology in 1981 and was inducted in 1982.

[31]

The petitioner cannot invoke the doctrine of res ipsa loquitur to


shift the burden of evidence onto the respondent. Res ipsa

At the time of his testimony, Dr. Ramos was an associate

loquitur, literally, "the thing speaks for itself;" is a rule of evidence

professor in pathology at the Perpetual Help Medical School in

that presumes negligence from the very nature of the accident

Bian, Laguna, and at the De La Salle University in Dasmarias,

itself using common human knowledge or experience.

Cavite. He was the head of the Batangas General Hospital


Teaching and Training Hospital where he also headed the

The application of this rule requires: (1) that the accident was of a

Pathology Department. He also headed the Perpetual Help

kind which does not ordinarily occur unless someone is negligent;

General Hospital Pathology department.

[32]

(2) that the instrumentality or agency which caused the injury was
under the exclusive: control of the person charged with

Meanwhile, Dr. Hernandez at that time was a General Surgeon

negligence; and (3) that the injury suffered must not have been

with 27 years of experience as a General Practitioner and 20 years due to any voluntary action or contribution from the injured
[38]

of experience as a General Surgeon. He obtained his medical

person.

The concurrence of these elements creates a

degree from the University of Santo Tomas before undergoing five

presumption of negligence that, if unrebutted, overcomes the

years of residency training as a surgeon at the Veterans Memorial

plaintiffs burden of proof.

Center hospital. He was certified as a surgeon in 1985. He also


holds a master's degree in Hospital Administration from the Ateneo This doctrine is used in conjunction with the doctrine of common
de Manila University.

[33]

knowledge. We have applied this doctrine in the following cases


involving medical practitioners:

He was a practicing surgeon at the: St. Luke's Medical Center,


Fatima Medical Center, Unciano Medical Center in Antipolo,

a.

cholecystectomy (removal of gall stones) but

Manila East Medical Center of Taytay, and Perpetual Help Medical


Center in Bian.

[34]

Where a patient who was scheduled for a


was otherwise healthy suffered irreparable brain

He was also an associate professor at the

Department of Surgery at the Fatima Medical Center, the Manila

damage after being administered anesthesia

Central University, and the Perpetual Help Medical Center. He

prior to the operation.

[39]

also chaired the Department of Surgery at the Fatima Medical


Center.

b.

[35]

Where after giving birth, a woman woke up with


a gaping burn wound close to her left armpit;

[40]

Dr. Hernandez is a Fellow of the American College of Surgeons,


the Philippine College of Surgeons, and the Philippine Society of

c.

operation; and

General Surgeons. He is a Diplomate of the Philippine Board of


Surgery and a member of the Philippine Medical Association and
the Antipolo City Medical Society.

[36]

Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual
surgical procedure.

[37]

Both experts agreed that Lilian could not

have died from bleeding of the appendical vessel. They identified


Lilian's cause of death as massive blood loss resulting from DIC.
To our mind, the testimonies of expert witnesses Dr. Hernandez
and Dr. Ramos carry far greater weight than that of Dr. Reyes. The
petitioner's failure to present expert witnesses resulted in his
failure to prove the respondents' negligence. The preponderance
of evidence clearly tilts in favor of the respondents.
Res ipsa loquitur is not applicable when the failure to observe

The removal of the wrong body part during the

d.

Where an operating surgeon left a foreign object


(i.e., rubber gloves) inside the body of the
patient.

[41]

The rule is not applicable in cases such as the present one where
the defendant's alleged failure to observe due care is not
immediately apparent to a layman.

[42]

These instances require

expert opinion to establish the culpability of the defendant doctor.


It is also not applicable to cases where the actual cause of the
injury had been identified or established.

[43]

While this Court sympathizes with the petitioner's loss, the


petitioner failed to present sufficient convincing evidence to
establish: (1) the standard of care expected of the respondent and
91 | P a g e

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(2) the fact that Dr. Inso fell short of this expected standard.
Considering further that the respondents established that the
cause of Lilian's uncontrollable bleeding (and, ultimately, her
death) was a medical disorder - Disseminated Intravascular
Coagulation we find no reversible errors in the CA's dismissal of
the complaint on appeal.
WHEREFORE, we hereby DENY the petition for lack of merit. No
costs.
SO ORDERED.

92 | P a g e

Torts 3

FE CAYAO-LASAM, PETITIONER, VS. SPOUSES CLARO AND


EDITHA RAMOLETE, RESPONDENTS.

of negligence were: first, petitioner's failure to check up, visit or


administer medication on Editha during her first day of
confinement at the LMC;

DECISION

[9]

second, petitioner recommended that a

D&C procedure be performed on Editha without conducting any


internal examination prior to the procedure;

AUSTRIA-MARTINEZ, J.:

[10]

third, petitioner

immediately suggested a D&C procedure instead of closely


monitoring the state of pregnancy of Editha.

[11]

Before the Court is a Petition for Review on Certiorari under Rule


45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner)
seeking to annul the Decision

[1]

dated July 4, 2003 of the Court of

Appeals (CA) in CA-G.R. SP No. 62206.

In her Answer,

[12]

petitioner denied the allegations of negligence

and incompetence with the following explanations: upon Editha's


confirmation that she would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the arrival of Editha

The antecedent facts:

and ordered through the telephone the medicines Editha needed


to take, which the nurses carried out; petitioner visited Editha on

On July 28, 1994, respondent, three months pregnant Editha

the morning of July 28, 1994 during her rounds; on July 29, 1994,

Ramolete (Editha) was brought to the Lorma Medical Center

she performed an internal examination on Editha and she

(LMC) in San Fernando, La Union due to vaginal bleeding. Upon

discovered that the latter's cervix was already open, thus,

advice of petitioner relayed via telephone, Editha was admitted to

petitioner discussed the possible D&C procedure, should the

the LMC on the same day. A pelvic sonogram

[2]

was then

conducted on Editha revealing the fetus' weak cardiac pulsation.


The following day, Editha's repeat pelvic sonogram

[4]

bleeding become more profuse; on July 30 1994, she conducted


[3]

showed that

another internal examination on Editha, which revealed that the


latter's cervix was still open; Editha persistently complained of her

aside from the fetus' weak cardiac pulsation, no fetal movement

vaginal bleeding and her passing out of some meaty mass in the

was also appreciated. Due to persistent and profuse vaginal

process of urination and bowel movement; thus, petitioner advised

bleeding, petitioner advised Editha to undergo a Dilatation and

Editha to undergo D&C procedure which the respondents

Curettage Procedure (D&C) or "raspa."

consented to; petitioner was very vocal in the operating room


about not being able to see an abortus;

[13]

taking the words of


On July 30, 1994, petitioner performed the D&C procedure. Editha Editha to mean that she was passing out some meaty mass and
was discharged from the hospital the following day.
clotted blood, she assumed that the abortus must have been
expelled in the process of bleeding; it was Editha who insisted that
On September 16, 1994, Editha was once again brought at the

she wanted to be discharged; petitioner agreed, but she advised

LMC, as she was suffering from vomiting and severe abdominal

Editha to return for check-up on August 5, 1994, which the latter

pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B.

failed to do.

Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed


Editha that there was a dead fetus in the latter's womb. After,
[5]

Petitioner contended that it was Editha's gross negligence and/or

Editha underwent laparotomy, she was found to have a massive

omission in insisting to be discharged on July 31, 1994 against

intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha

doctor's advice and her unjustified failure to return for check-up as

had to undergo a procedure for hysterectomy

[6]

and as a result,

she has no more chance to bear a child.

directed by petitioner that contributed to her life-threatening


condition on September 16, 1994; that Editha's hysterectomy was
brought about by her very abnormal pregnancy known as placenta

On November 7, 1994, Editha and her husband Claro Ramolete


(respondents) filed a Complaint

[7]

for Gross Negligence and

increta, which was an extremely rare and very unusual case of


abdominal placental implantation. Petitioner argued that whether

Malpractice against petitioner before the Professional Regulations

or not a D&C procedure was done by her or any other doctor,

Commission (PRC).

there would be no difference at all because at any stage of


gestation before term, the uterus would rupture just the same.

Respondents alleged that Editha's hysterectomy was caused by


petitioner's unmitigated negligence and professional incompetence On March 4, 1999, the Board of Medicine (the Board) of the PRC
[14]
in conducting the D&C procedure and the petitioner's failure to
rendered a Decision, exonerating petitioner from the charges
remove the fetus inside Editha's womb.

[8]

Among the alleged acts

filed against her. The Board held:


93 | P a g e

Torts 3

1.

Based on the findings of the doctors who conducted the

THE COURT OF APPEALS ERRED ON A

laparotomy on Editha, hers is a case of Ectopic Pregnancy

QUESTION OF LAW IN HOLDING THAT THE

Interstitial. This type of ectopic pregnancy is one that is being

PROFESSIONAL REGULATION[S]

protected by the uterine muscles and manifestations may take

COMMISSION (PRC) WAS EXCLUDED

later than four (4) months and only attributes to two percent (2%)

AMONG THE QUASI-JUDICIAL AGENCIES

of ectopic pregnancy cases.

CONTEMPLATED UNDER RULE 43 OF THE


RULES OF CIVIL PROCEDURE;

When complainant Editha was admitted at Lorma Medical Center


2.

on July 28, 1994 due to vaginal bleeding, an ultra-sound was

EVEN ASSUMING, ARGUENDO, THAT PRC

performed upon her and the result of the Sonogram Test reveals a

WAS EXCLUDED FROM THE PURVIEW OF

morbid fetus but did not specify where the fetus was located.

RULE 43 OF THE RULES OF CIVIL

Obstetricians will assume that the pregnancy is within the uterus

PROCEDURE, THE PETITIONER WAS NOT

unless so specified by the Sonologist who conducted the ultra-

PRECLUDED FROM FILING A PETITION FOR

sound. Respondent (Dr. Lasam) cannot be faulted if she was not

CERTIORARI WHERE THE DECISION WAS

able to determine that complainant Editha is having an ectopic

ALSO ISSUED IN EXCESS OF OR WITHOUT

pregnancy interstitial. The D&C conducted on Editha is necessary

JURISDICTION, OR WHERE THE DECISION

considering that her cervix is already open and so as to stop the

WAS A PATENT NULLITY;

profuse bleeding. Simple curettage cannot remove a fetus if the


patient is having an ectopic pregnancy, since ectopic pregnancy is

3.

HEREIN RESPONDENTS-SPOUSES ARE

pregnancy conceived outside the uterus and curettage is done

NOT ALLOWED BY LAW TO APPEAL FROM

only within the uterus. Therefore, a more extensive operation

THE DECISION OF THE BOARD OF

needed in this case of pregnancy in order to remove the fetus.

[15]

MEDICINE TO THE PROFESSIONAL

Feeling aggrieved, respondents went to the PRC on appeal. On


November 22, 2000, the PRC rendered a Decision

[16]

reversing the

findings of the Board and revoking petitioner's authority or license


to practice her profession as a physician.

REGULATION[S] COMMISSION;
4.

[17]

THE COURT OF APPEALS COMMITTED


GRAVE ABUSE OF DISCRETION IN DENYING
FOR IMPROPER FORUM THE PETITION FOR

Petitioner brought the matter to the CA in a Petition for Review

REVIEW/PETITION FOR CERTIORARI

under Rule 43 of the Rules of Court. Petitioner also dubbed her

WITHOUT GOING OVER THE MERITS OF

petition as one for certiorari

[18]

under Rule 65 of the Rules of Court.

THE GROUNDS RELIED UPON BY THE


PETITIONER;

In the Decision dated July 4, 2003, the CA held that the Petition for
Review under Rule 43 of the Rules of Court was an improper

5.

remedy, as the enumeration of the quasi-judicial agencies in Rule


43 is exclusive.

[19]

PRC'S GRAVE OMISSION TO AFFORD


HEREIN PETITONER A CHANCE TO BE

PRC is not among the quasi-judicial bodies

HEARD ON APPEAL IS A CLEAR VIOLATION

whose judgment or final orders are subject of a petition for review

OF HER CONSTITUTIONAL RIGHT TO DUE

to the CA, thus, the petition for review of the PRC Decision, filed at

PROCESS AND HAS THE EFFECT OF

the CA, was improper. The CA further held that should the petition

RENDERING THE JUDGMENT NULL AND

be treated as a petition for certiorari under Rule 65, the same

VOID;

would still be dismissed for being improper and premature. Citing


Section 26

[20]

of Republic Act (R.A.) No. 2382 or the Medical Act of

6.

COROLLARY TO THE FOURTH ASSIGNED

1959, the CA held that the plain, speedy and adequate remedy

ERROR, PRC COMMITTED GRAVE ABUSE

under the ordinary course of law which petitioner should have

OF DISCRETION, AMOUNTING TO LACK OF

availed herself of was to appeal to the Office of the President.

[21]

JURISDICTION, IN ACCEPTING AND


CONSIDERING THE MEMORANDUM ON

Hence, herein petition, assailing the decision of the CA on the

APPEAL WITHOUT PROOF OF SERVICE TO

following grounds:

HEREIN PETITIONER, AND IN VIOLATION OF


ART. IV, SEC. 35 OF THE RULES AND
94 | P a g e

Torts 3

REGULATIONS GOVERNING THE

become final thirty days after the date of its promulgation unless

REGULATION AND PRACTICE OF

the respondent, during the same period, has appealed to the

PROFESSIONALS;

Commissioner of Civil Service (now Professional Regulations


Commission) and later to the Office of the President of the

7.

PRC COMMITTED GRAVE ABUSE OF

Philippines. If the final decision is not satisfactory, the respondent

DISCRETION IN REVOKING PETITIONER'S

may ask for a review of the case, or may file in court a petition for

LICENSE TO PRACTICE MEDICINE WITHOUT certiorari.


AN EXPERT TESTIMONY TO SUPPORT ITS

Petitioner posits that the reason why the Medical Act of 1959

CONCLUSION AS TO THE CAUSE OF

allows only the respondent in an administrative case to file an

RESPONDENT EDITHAT [SIC] RAMOLETE'S

appeal with the Commission while the complainant is not allowed

INJURY;

to do so is double jeopardy. Petitioner is of the belief that the


revocation of license to practice a profession is penal in nature.

8.

[24]

PRC COMMITTED AN EVEN GRAVER ABUSE


OF DISCRETION IN TOTALLY

The Court does not agree.

DISREGARDING THE FINDING OF THE


BOARD OF MEDICINE, WHICH HAD THE

For one, the principle of double jeopardy finds no application in

NECESSARY COMPETENCE AND

administrative cases. Double jeopardy attaches only: (1) upon a

EXPERTISE TO ESTABLISH THE CAUSE OF

valid indictment; (2) before a competent court; (3) after

RESPONDENT EDITHA'S INJURY, AS WELL

arraignment; (4) when a valid plea has been entered; and (5) when

AS THE TESTIMONY OF THE EXPERT

the defendant was acquitted or convicted, or the case was

WITNESS AUGUSTO MANALO, M.D.; [and]

dismissed or otherwise terminated without the express consent of


the accused.

9.

[25]

These elements were not present in the

PRC COMMITTED GRAVE ABUSE OF

proceedings before the Board of Medicine, as the proceedings

DISCRETION IN MAKING CONCLUSIONS OF

involved in the instant case were administrative and not criminal in

FACTS THAT WERE NOT ONLY

nature. The Court has already held that double jeopardy does not

UNSUPPORTED BY EVIDENCE BUT WERE

lie in administrative cases.

[26]

ACTUALLY CONTRARY TO EVIDENCE ON


RECORD.

[22]

Moreover, Section 35 of the Rules and Regulations Governing the


Regulation and Practice of Professionals cited by petitioner was

The Court will first deal with the procedural issues.

subsequently amended to read:


Sec. 35. The complainant/respondent may appeal the order, the

Petitioner claims that the law does not allow complainants to

resolution or the decision of the Board within thirty (30) days from

appeal to the PRC from the decision of the Board. She invokes

receipt thereof to the Commission whose decision shall be final

Article IV, Section 35 of the Rules and Regulations Governing the

and executory. Interlocutory order shall not be appealable to the

Regulation and Practice of Professionals, which provides:

Commission. (Amended by Res. 174, Series of 1990).

Sec. 35. The respondent may appeal the decision of the Board

(Emphasis supplied)

within thirty days from receipt thereof to the Commission whose

Whatever doubt was created by the previous provision was settled

decision shall be final. Complainant, when allowed by law, may

with said amendment. It is axiomatic that the right to appeal is not

interpose an appeal from the Decision of the Board within the

a natural right or a part of due process, but a mere statutory

same period. (Emphasis supplied)

privilege that may be exercised only in the manner prescribed by

Petitioner asserts that a careful reading of the above law indicates

law.

that while the respondent, as a matter of right, may appeal the

the right to appeal from a decision of the Board available to both

Decision of the Board to the Commission, the complainant may

complainants and respondents.

[28]

[27]

In this case, the clear intent of the amendment is to render

interpose an appeal from the decision of the Board only when so


allowed by law.

[23]

Petitioner cited Section 26 of Republic Act No.

Such conclusion is bolstered by the fact that in 2006, the PRC

2382 or "The Medical Act of 1959," to wit:

issued Resolution No. 06-342(A), or the New Rules of Procedure

Section 26. Appeal from judgment. The decision of the Board of

in Administrative Investigations in the Professional Regulations

Medical Examiners (now Medical Board) shall automatically


95 | P a g e

Torts 3

Commission and the Professional Regulatory Boards, which

Insurance Commission, Philippine Atomic Energy Commission,

provides for the method of appeal, to wit:

Board of Investments, Construction Industry Arbitration

Sec. 1. Appeal; Period Non-Extendible.- The decision, order or

Commission, and voluntary arbitrators authorized by law.

resolution of the Board shall be final and executory after the lapse

(Emphasis supplied)

of fifteen (15) days from receipt of the decision, order or resolution

Indeed, the PRC is not expressly mentioned as one of the

without an appeal being perfected or taken by either the

agencies which are expressly enumerated under Section 1, Rule

respondent or the complainant. A party aggrieved by the

43 of the Rules of Court. However, its absence from the

decision, order or resolution may file a notice of appeal from

enumeration does not, by this fact alone, imply its exclusion from

the decision, order or resolution of the Board to the

the coverage of said Rule.

Commission within fifteen (15) days from receipt thereof, and

should be applied to appeals from awards, judgments final orders

[35]

The Rule expressly provides that it

serving upon the adverse party a notice of appeal together with the or resolutions of any quasi-judicial agency in the exercise of its
appellant's brief or memorandum on appeal, and paying the
appeal and legal research fees. x x x

[29]

quasi-judicial functions. The phrase "among these agencies"


confirms that the enumeration made in the Rule is not exclusive to

The above-stated provision does not qualify whether only the

the agencies therein listed.

[36]

complainant or respondent may file an appeal; rather, the new


rules provide that "a party aggrieved" may file a notice of appeal.

Specifically, the Court, in Yang v. Court of Appeals,


[38]

[37]

ruled that

Thus, either the complainant or the respondent who has been

Batas Pambansa (B.P.) Blg. 129

aggrieved by the decision, order or resolution of the Board may

exclusive appellate jurisdiction over appeals from decisions of the

appeal to the Commission. It is an elementary rule that when the

PRC. The Court held:

law speaks in clear and categorical language, there is no need, in

The law has since been changed, however, at least in the matter

the absence of legislative intent to the contrary, for any

of the particular court to which appeals from the Commission

interpretation.

[30]

conferred upon the CA

Words and phrases used in the statute should be should be taken. On August 14, 1981, Batas Pambansa Bilang

given their plain, ordinary, and common usage or meaning.

[31]

129 became effective and in its Section 29, conferred on the Court
of Appeals "exclusive appellate jurisdiction over all final judgments,

Petitioner also submits that appeals from the decisions of the PRC
should be with the CA, as Rule 43

[32]

of the Rules of Court was

precisely formulated and adopted to provide for a uniform rule of


appellate procedure for quasi-judicial agencies.

[33]

Petitioner

further contends that a quasi-judicial body is not excluded from the


purview of Rule 43 just because it is not mentioned therein.

[34]

decisions, resolutions, orders or awards of Regional Trial Courts


and quasi-judicial agencies, instrumentalities, boards or
commissions except those falling under the appellate jurisdiction of
the Supreme Court. x x x." In virtue of BP 129, appeals from the
Professional Regulations Commission are now exclusively
cognizable by the Court of Appeals.

[39]

(Emphasis supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the


On this point, the Court agrees with the petitioner.

present Rules of Civil Procedure,

[40]

lodged with the CA such

jurisdiction over the appeals of decisions made by the PRC.


Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals from

Anent the substantive merits of the case, petitioner questions the

judgments or final orders of the Court of Tax Appeals, and from

PRC decision for being without an expert testimony to support its

awards, judgments, final orders or resolutions of or

conclusion and to establish the cause of Editha's injury. Petitioner

authorized by any quasi-judicial agency in the exercise of its

avers that in cases of medical malpractice, expert testimony is

quasi-judicial functions. Among these agencies are the Civil

necessary to support the conclusion as to the cause of the

Service Commission, Central Board of Assessment Appeals,

injury.

[41]

Securities and Exchange Commission, Office of the President,


Land Registration Authority, Social Security Commission, Civil

Medical malpractice is a particular form of negligence which

Aeronautics Board, Bureau of Patents, Trademarks and

consists in the failure of a physician or surgeon to apply to his

Technology Transfer, National Electrification Administration,

practice of medicine that degree of care and skill which is

Energy Regulatory Board, National Telecommunications

ordinarily employed by the profession generally, under similar

Commission, Department of Agrarian Reform under Republic Act

conditions, and in like surrounding circumstances.

No. 6657, Government Service Insurance System, Employees

successfully pursue such a claim, a patient must prove that the

Compensation Commission, Agricultural Inventions Board,

physician or surgeon either failed to do something which a

[42]

In order to

96 | P a g e

Torts 3

reasonably prudent physician or surgeon would not have done,


and that the failure or action caused injury to the patient.

[43]

you please tell us whether that is true or not?


A:

Yah, I do not think so for two reasons. One, as I have


said earlier, the instrument cannot reach the site of the

There are four elements involved in medical negligence cases:


duty, breach, injury and proximate causation.

pregnancy, for it to further push the pregnancy outside the

[44]

uterus. And, No. 2, I was thinking a while ago about another


reason- well, why I don't think so, because it is the

A physician-patient relationship was created when Editha

triggering factor for the rupture, it could havethe rupture

employed the services of the petitioner. As Editha's physician,

could have occurred much earlier, right after the D&C or a

petitioner was duty-bound to use at least the same level of care

few days after the D&C.

that any reasonably competent doctor would use to treat a


condition under the same circumstances.

[45]

Q:

The breach of these

In this particular case, doctor, the rupture occurred to have


happened minutes prior to the hysterectomy or right upon

professional duties of skill and care, or their improper performance

admission on September 15, 1994 which is about 1

by a physician surgeon, whereby the patient is injured in body or in

months after the patient was discharged, after the D&C was

health, constitutes actionable malpractice.

[46]

As to this aspect of

conducted. Would you tell us whether there is any relation

medical malpractice, the determination of the reasonable level of


care and the breach thereof, expert testimony is essential.

[47]

at all of the D&C and the rupture in this particular instance?


A:

I don't think so for the two reasons that I have just

Further, inasmuch as the causes of the injuries involved in

mentioned- that it would not be possible for the

malpractice actions are determinable only in the light of scientific

instrument to reach the site of pregnancy. And, No. 2, if

knowledge, it has been recognized that expert testimony is usually

it is because of the D&C that rupture could have occurred

necessary to support the conclusion as to causation.

[48]

earlier.

[52]

(Emphases supplied)

Clearly, from the testimony of the expert witness and the reasons
In the present case, respondents did not present any expert

given by him, it is evident that the D&C procedure was not the

testimony to support their claim that petitioner failed to do

proximate cause of the rupture of Editha's uterus.

something which a reasonably prudent physician or surgeon would


have done.

During his cross-examination, Dr. Manalo testified on how he


would have addressed Editha's condition should he be placed in a

Petitioner, on the other hand, presented the testimony of Dr.

similar circumstance as the petitioner. He stated:

Augusto M. Manalo, who was clearly an expert on the subject.


Atty. Ragonton:
Generally, to qualify as an expert witness, one must have acquired

Q:

you have done a good, correct and ideal dilatation and

special knowledge of the subject matter about which he or she is

curettage procedure?

to testify, either by the study of recognized authorities on the


subject or by practical experience.

A:

[49]

Doctor, as a practicing OB-Gyne, when do you consider that

Well, if the patient recovers. If the patient gets well.


Because even after the procedure, even after the procedure
you may feel that you have scraped everything, the patient

Dr. Manalo specializes in gynecology and obstetrics, authored and

stops bleeding, she feels well, I think you should still have

co-authored various publications on the subject, and is a professor


at the University of the Philippines.

[50]

diagnosis of Editha's case was "Ectopic Pregnancy Interstitial (also


referred to as Cornual), Ruptured."

[51]

some reservations, and wait a little more time.

According to him, his


Q:

patient Editha Ramolete, would it be your standard practice

In stating that the D&C

to check the fetal parts or fetal tissues that were allegedly

procedure was not the proximate cause of the rupture of Editha's

removed?

uterus resulting in her hysterectomy, Dr. Manalo testified as


follows:

If you were the OB-Gyne who performed the procedure on

A:

From what I have removed, yes. But in this particular case, I


think it was assumed that it was part of the meaty mass

Atty. Hidalgo:
Q:

which was expelled at the time she was urinating and

Doctor, we want to be clarified on this matter. The


complainant had testified here that the D&C was the

flushed in the toilet. So there's no way.


Q:

proximate cause of the rupture of the uterus. The condition


which she found herself in on the second admission. Will

There was [sic] some portions of the fetal parts that were
removed?

A:

No, it was described as scanty scraping if I remember it


97 | P a g e

Torts 3

Q:
A:

Q:
A:

[54]

rightscanty.

action for damages under Article 2176

of the Civil Code. The

And you would not mind checking those scant or those little

defenses in an action for damages, provided for under Article 2179

parts that were removed?

of the Civil Code are:

Well, the fact that it was described means, I assume that Art. 2179. When the plaintiff's own negligence was the
it was checked, `no. It was described as scanty and the

immediate and proximate cause of his injury, he cannot

color also, I think was described. Because it would be

recover damages. But if his negligence was only contributory, the

very unusual, even improbable that it would not be

immediate and proximate cause of the injury being the defendant's

examined, because when you scrape, the specimens

lack of due care, the plaintiff may recover damages, but the courts

are right there before your eyes. It's in front of you. You

shall mitigate the damages to be awarded.

can touch it. In fact, some of them will stick to the

Proximate cause has been defined as that which, in natural and

instrument and therefore to peel it off from the

continuous sequence, unbroken by any efficient intervening cause,

instrument, you have to touch them. So, automatically

produces injury, and without which the result would not have

they are examined closely.

occurred.

As a matter of fact, doctor, you also give telephone orders

or a failure to act, whenever it appears from the evidence in the

to your patients through telephone?

case that the act or omission played a substantial part in bringing

[55]

An injury or damage is proximately caused by an act

Yes, yes, we do that, especially here in Manila because you about or actually causing the injury or damage; and that the injury
know, sometimes a doctor can also be tied-up somewhere

or damage was either a direct result or a reasonably probable

and if you have to wait until he arrive at a certain place

consequence of the act or omission.

[56]

before you give the order, then it would be a lot of time


wasted. Because if you know your patient, if you have

In the present case, the Court notes the findings of the Board of

handled your patient, some of the symptoms you can

Medicine:

interpret that comes with practice. And, I see no reason for When complainant was discharged on July 31, 1994, herein
not allowing telephone orders unless it is the first time

respondent advised her to return on August 4, 1994 or four (4)

that you will be encountering the patient. That you have

days after the D&C. This advise was clear in complainant's

no idea what the problem is.

Discharge Sheet. However, complainant failed to do so. This

Q:

But, doctor, do you discharge patients without seeing them? being the case, the chain of continuity as required in order that the

A:

Sometimes yes, depending on how familiar I am with the

doctrine of proximate cause can be validly invoked was

patient. We are on the question of telephone orders. I am

interrupted. Had she returned, the respondent could have

not saying that that is the idle [sic] thing to do, but I think

examined her thoroughly.

the reality of present day practice somehow justifies

Also, in the testimony of Dr. Manalo, he stated further that

telephone orders. I have patients whom I have justified

assuming that there was in fact a misdiagnosis, the same would

and then all of a sudden, late in the afternoon or late in the

have been rectified if Editha followed the petitioner's order to

evening, would suddenly call they have decided that they

return for a check-up on August 4, 1994. Dr. Manalo stated:

will go home inasmuch as they anticipated that I will

Granting that the obstetrician-gynecologist has been misled

discharge them the following day. So, I just call and ask our

(justifiably) up to thus point that there would have been ample

resident on duty or the nurse to allow them to go because I

opportunity to rectify the misdiagnosis, had the patient

have seen that patient and I think I have full grasp of her

returned, as instructed for her follow-up evaluation. It was

problems. So, that's when I make this telephone orders.

one and a half months later that the patient sought

And, of course before giving that order I ask about how she

consultation with another doctor. The continued growth of an

feels.

[53]

(Emphases supplied)

[57]

xxx

(Emphases supplied)

ectopic pregnancy, until its eventual rupture, is a dynamic

From the foregoing testimony, it is clear that the D&C procedure

process. Much change in physical findings could be expected in 1

was conducted in accordance with the standard practice, with the

months, including the emergence of suggestive ones.

same level of care that any reasonably competent doctor would

It is undisputed that Editha did not return for a follow-up

use to treat a condition under the same circumstances, and that

evaluation, in defiance of the petitioner's advise. Editha omitted

there was nothing irregular in the way the petitioner dealt with

the diligence required by the circumstances which could have

Editha.

avoided the injury. The omission in not returning for a follow-up

[58]

evaluation played a substantial part in bringing about Editha's own


Medical malpractice, in our jurisdiction, is often brought as a civil

injury. Had Editha returned, petitioner could have conducted the


98 | P a g e

Torts 3

proper medical tests and procedure necessary to determine

able to satisfy the burden of proving that they had in fact informed

Editha's health condition and applied the corresponding treatment

the petitioner of the appeal proceedings before the PRC.

which could have prevented the rupture of Editha's uterus. The


D&C procedure having been conducted in accordance with the

In EDI-Staffbuilders International, Inc. v. National Labor Relations

standard medical practice, it is clear that Editha's omission was the Commission,

[67]

in which the National Labor Relations Commission

proximate cause of her own injury and not merely a contributory

failed to order the private respondent to furnish the petitioner a

negligence on her part.

copy of the Appeal Memorandum, the Court held that said failure
deprived the petitioner of procedural due process guaranteed by

Contributory negligence is the act or omission amounting to want

the Constitution, which could have served as basis for the

of ordinary care on the part of the person injured, which,

nullification of the proceedings in the appeal. The same holds true

concurring with the defendant's negligence, is the proximate cause in the case at bar. The Court finds that the failure of the
of the injury.

[59]

Difficulty seems to be apprehended in deciding

which acts of the injured party shall be considered immediate


causes of the accident.

[60]

Where the immediate cause of an

accident resulting in an injury is the plaintiff's own act, which

respondents to furnish the petitioner a copy of the Memorandum of


Appeal submitted to the PRC constitutes a violation of due
process. Thus, the proceedings before the PRC were null and
void.

contributed to the principal occurrence as one of its determining


factors, he cannot recover damages for the injury.

[61]

Again,

All told, doctors are protected by a special rule of law. They are not

based on the evidence presented in the present case under

guarantors of care. They are not insurers against mishaps or

review, in which no negligence can be attributed to the

unusual consequences

petitioner, the immediate cause of the accident resulting in

exercise the proper diligence required to avoid the injury.

[68]

specially so if the patient herself did not

Editha's injury was her own omission when she did not return
for a follow-up check up, in defiance of petitioner's orders.

WHEREFORE, the petition is GRANTED. The assailed Decision

The immediate cause of Editha's injury was her own act; thus, of the Court of Appeals dated July 4, 2003 in CA-GR SP No.
she cannot recover damages from the injury.

62206 is hereby REVERSED and SET ASIDE. The Decision of


the Board of Medicine dated March 4, 1999 exonerating petitioner

Lastly, petitioner asserts that her right to due process was violated

is AFFIRMED. No pronouncement as to costs.

because she was never informed by either respondents or by the


PRC that an appeal was pending before the PRC.

[62]

Petitioner

SO ORDERED.

claims that a verification with the records section of the PRC


revealed that on April 15, 1999, respondents filed a Memorandum
on Appeal before the PRC, which did not attach the actual registry
receipt but was merely indicated therein.

[63]

Respondents, on the other hand avers that if the original registry


receipt was not attached to the Memorandum on Appeal, PRC
would not have entertained the appeal or accepted such pleading
for lack of notice or proof of service on the other party.

[64]

Also, the

registry receipt could not be appended to the copy furnished to


petitioner's former counsel, because the registry receipt was
already appended to the original copy of the Memorandum of
Appeal filed with PRC.

[65]

It is a well-settled rule that when service of notice is an issue, the


rule is that the person alleging that the notice was served must
prove the fact of service. The burden of proving notice rests upon
the party asserting its existence.

[66]

In the present case,

respondents did not present any proof that petitioner was served a
copy of the Memorandum on Appeal. Thus, respondents were not
99 | P a g e

Torts 3

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS,

[6]

prescribed Spersacet-C

eye drops for Peter and told the latter to

ABBEYGAIL LUCAS AND GILLIAN LUCAS, PETITIONERS, VS. return for follow-up after one week.
DR. PROSPERO MA. C. TUAO, RESPONDENT.
As instructed, Peter went back to Dr. Tuao on 9 September 1988.
DECISION

Upon examination, Dr. Tuao told Peter that the "sore eyes" in the
latter's right eye had already cleared up and he could discontinue

CHICO-NAZARIO, J.:

the Spersacet-C. However, the same eye developed Epidemic


[7]

Kerato Conjunctivitis (EKC),


[1]

In this petition for review on certiorari

under Rule 45 of the

Revised Rules of Court, petitioners Peter Paul Patrick Lucas,


Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the
reversal of the 27 September 2006 Decision
Resolution,

[3]

[2]

and 3 July 2007

a viral infection. To address the new

problem with Peter's right eye, Dr. Tuao prescribed to the former
a steroid-based eye drop called Maxitrol,
drops per day.

[9]

[8]

a dosage of six (6)

To recall, Peter had already been using Maxitrol

prior to his consult with Dr. Tuao.

both of the Court of Appeals in CA-G.R. CV No.

68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas,

On 21 September 1988, Peter saw Dr. Tuao for a follow-up

Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao."

consultation. After examining both of Peter's eyes, Dr. Tuao


instructed the former to taper down

[10]

the dosage of Maxitrol,

In the questioned decision and resolution, the Court of Appeals

because the EKC in his right eye had already resolved. Dr. Tuao

affirmed the 14 July 2000 Decision of the Regional Trial Court

specifically cautioned Peter that, being a steroid, Maxitrol had to

(RTC), Branch 150, Makati City, dismissing the complaint filed by

be withdrawn gradually; otherwise, the EKC might recur.

[11]

petitioners in a civil case entitled, "Peter Paul Patrick Lucas,


Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.

Complaining of feeling as if there was something in his eyes, Peter

Prospero Ma. C. Tuao," docketed as Civil Case No. 92-2482.

returned to Dr. Tuao for another check-up on 6 October 1988. Dr.


Tuao examined Peter's eyes and found that the right eye had

From the record of the case, the established factual antecedents

once more developed EKC. So, Dr. Tuao instructed Peter to

of the present petition are:

resume the use of Maxitrol at six (6) drops per day.

Sometime in August 1988, petitioner Peter Paul Patrick Lucas

On his way home, Peter was unable to get a hold of Maxitrol, as it

(Peter) contracted "sore eyes" in his right eye.

was out of stock. Consequently, Peter was told by Dr. Tuano to


take, instead, Blephamide

[12]

another steroid-based medication,

On 2 September 1988, complaining of a red right eye and swollen

but with a lower concentration, as substitute for the unavailable

eyelid, Peter made use of his health care insurance issued by

Maxitrol, to be used three (3) times a day for five (5) days; two (2)

Philamcare Health Systems, Inc. (Philamcare), for a possible

times a day for five (5) days; and then just once a day.

[13]

consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D.,


referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D.

Several days later, on 18 October 1988, Peter went to see Dr.

(Dr. Tuao), an ophthalmologist at St. Luke's Medical Center, for

Tuao at his clinic, alleging severe eye pain, feeling as if his eyes

an eye consult.

were about to "pop-out," a headache and blurred vision. Dr. Tuao


examined Peter's eyes and discovered that the EKC was again

Upon consultation with Dr. Tuao, Peter narrated that it had been

present in his right eye. As a result, Dr. Tuao told Peter to

nine (9) days since the problem with his right eye began; and that

resume the maximum dosage of Blephamide.

he was already taking Maxitrol to address the problem in his eye.


According to Dr. Tuao, he performed "ocular routine examination" Dr. Tuao saw Peter once more at the former's clinic on 4
on Peter's eyes, wherein: (1) a gross examination of Peter's eyes
November 1988. Dr. Tuao's examination showed that only the
and their surrounding area was made; (2) Peter's visual acuity

periphery of Peter's right eye was positive for EKC; hence, Dr.

were taken; (3) Peter's eyes were palpated to check the intraocular Tuao prescribed a lower dosage of Blephamide.
pressure of each; (4) the motility of Peter's eyes was observed;
and (5) the ophthalmoscopy

[4]

on Peter's eyes was used. On that

particular consultation, Dr. Tuao diagnosed that Peter was


[5]

suffering from conjunctivitis

It was also about this time that Fatima Gladys Lucas (Fatima),
Peter's spouse, read the accompanying literature of Maxitrol and

or "sore eyes." Dr. Tuao then


100 | P a g e

Torts 3

found therein the following warning against the prolonged use of

instructed Peter to resume the use of Maxitrol. Petitioners averred

such steroids:

that Peter already made mention to Dr. Tuao during said visit of

WARNING:

the above-quoted warning against the prolonged use of steroids,


but Dr. Tuao supposedly brushed aside Peter's concern as mere

Prolonged use may result in glaucoma, with damage to the optic

paranoia, even assuring him that the former was taking care of him

nerve, defects in visual acuity and fields of vision, and posterior,

(Peter).

subcapsular cataract formation. Prolonged use may suppress the


host response and thus increase the hazard of secondary ocular

Petitioners further alleged that after Peter's 26 November 1988

infractions, in those diseases causing thinning of the cornea or

visit to Dr. Tuao, Peter continued to suffer pain in his right eye,

sclera, perforations have been known to occur with the use of

which seemed to "progress," with the ache intensifying and

topical steroids. In acute purulent conditions of the eye, steroids

becoming more frequent.

may mask infection or enhance existing infection. If these products


are used for 10 days or longer, intraocular pressure should be

Upon waking in the morning of 13 December 1988, Peter had no

routinely monitored even though it may be difficult in children and

vision in his right eye. Fatima observed that Peter's right eye

uncooperative patients.

appeared to be bloody and swollen.

[15]

Thus, spouses Peter and

Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr.


Employment of steroid medication in the treatment of herpes

Tuao that he had been suffering from constant headache in the

simplex requires great caution.

afternoon and blurring of vision.

xxxx

Upon examination, Dr. Tuao noted the hardness of Peter's right


eye. With the use of a tonometer
pressure

ADVERSE REACTIONS:

[17]

[16]

to verify the exact intraocular

(IOP) of Peter's eyes, Dr. Tuao discovered that the

tension in Peter's right eye was 39.0 Hg, while that of his left was
[18]

Adverse reactions have occurred with steroid/anti-infective

17.0 Hg.

Since the tension in Peter's right eye was way over the

combination drugs which can be attributed to the steroid

normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,


[20]

component, the anti-infective component, or the combination.

Tuao ordered

Exact incidence figures are not available since no denominator of

Maxitrol and prescribed to the latter Diamox

treated patients is available.

instead.

[22]

[19]

Dr.

him to immediately discontinue the use of


[21]

and Normoglaucon,

Dr. Tuao also required Peter to go for daily check-up

in order for the former to closely monitor the pressure of the latter's
Reactions occurring most often from the presence of the anti-

eyes.

infective ingredients are allergic sensitizations. The reactions due


to the steroid component in decreasing order to frequency are

On 15 December 1988, the tonometer reading of Peter's right eye

elevation of intra-ocular pressure (IOP) with possible development

yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told

of glaucoma, infrequent optic nerve damage; posterior

Peter to continue using Diamox and Normoglaucon. But upon

subcapsular cataract formation; and delayed wound healing.

Peter's complaint of "stomach pains and tingling sensation in his


[23]

fingers,"

Dr. Tuao discontinued Peter's use of Diamox.

[24]

Secondary infection: The development of secondary has occurred


after use of combination containing steroids and antimicrobials.

Peter went to see another ophthalmologist, Dr. Ramon T.

Fungal infections of the correa are particularly prone to develop

Batungbacal (Dr. Batungbacal), on 21 December 1988, who

coincidentally with long-term applications of steroid. The possibility

allegedly conducted a complete ophthalmological examination of

of fungal invasion must be considered in any persistent corneal

Peter's eyes. Dr. Batungbacal's diagnosis was Glaucoma

ulceration where steroid treatment has been used.

O.D.

[26]

He recommended Laser Trabeculoplasty

[27]

[25]

for Peter's

right eye.
Secondary bacterial ocular infection following suppression of host
[28]

responses also occurs.

When Peter returned to Dr. Tuao on 23 December 1988,

On 26 November 1988, Peter returned to Dr. Tuao's clinic,

tonometer measured the IOP of Peter's right eye to be 41.0 Hg,

[14]

complaining of "feeling worse."

It appeared that the EKC had

spread to the whole of Peter's right eye yet again. Thus, Dr. Tuao

the
[29]

again, way above normal. Dr. Tuao addressed the problem by


advising Peter to resume taking Diamox along with Normoglaucon.
101 | P a g e

Torts 3

glaucoma damage. I suggest that we do a baseline visual fields


During the Christmas holidays, Peter supposedly stayed in bed

and push medication to lowest possible levels. If I may suggest

most of the time and was not able to celebrate the season with his

further, I think we should prescribe Timolol

[30]

family because of the debilitating effects of Diamox.

[37]

[38]

BID

OD in lieu of

Normoglaucon. If the IOP is still inadequate, we may try


D'epifrin

On 28 December 1988, during one of Peter's regular follow-ups

[39]

BID OD (despite low PAS). I'm in favor of retaining

Diamox or similar CAI.

[40]

with Dr. Tuao, the doctor conducted another ocular routine


examination of Peter's eyes. Dr. Tuao noted the recurrence of

If fields show further loss in say - 3 mos. then we should consider

EKC in Peter's right eye. Considering, however, that the IOP of

trabeculoplasty.

Peter's right eye was still quite high at 41.0 Hg, Dr. Tuao was at a
loss as to how to balance the treatment of Peter's EKC vis--vis

I trust that this approach will prove reasonable for you and

the presence of glaucoma in the same eye. Dr. Tuao, thus,

Peter.

referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr.

ophthalmologist specializing in the treatment of glaucoma.

[31]

Dr.

[41]

Agulto's aforementioned letter. Though Peter's right and left eyes

Tuao's letter of referral to Dr. Agulto stated that:

then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr.

Referring to you Mr. Peter Lucas for evaluation & possible

Tuao still gave him a prescription for Timolol B.I.D. so Peter could

management. I initially saw him Sept. 2, 1988 because of

immediately start using said medication. Regrettably, Timolol

conjunctivitis. The latter resolved and he developed EKC for which

B.I.D. was out of stock, so Dr. Tuao instructed Peter to just

I gave Maxitrol. The EKC was recurrent after stopping steroid

continue using Diamox and Normoglaucon in the meantime.

drops. Around 1 month of steroid treatment, he noted blurring of


vision & pain on the R. however, I continued the steroids for the

Just two days later, on 2 January 1989, the IOP of Peter's right

sake of the EKC. A month ago, I noted iris atrophy, so I took the

eye remained elevated at 21.0 Hg,

IOP and it was definitely elevated. I stopped the steroids

Diamox for the past three (3) days.

[42]

as he had been without

immediately and has (sic) been treating him medically.


On 4 January 1989, Dr. Tuao conducted a visual field study

[43]

of

[44]

in

It seems that the IOP can be controlled only with oral Diamox, and

Peter's eyes, which revealed that the latter had tubular vision

at the moment, the EKC has recurred and I'm in a fix whether to

his right eye, while that of his left eye remained normal. Dr. Tuao

resume the steroid or not considering that the IOP is still

directed Peter to religiously use the Diamox and Normoglaucon,

uncontrolled.

[32]

as the tension of the latter's right eye went up even further to 41.0

On 29 December 1988, Peter went to see Dr. Agulto at the latter's

Hg in just a matter of two (2) days, in the meantime that Timolol

clinic. Several tests were conducted thereat to evaluate the extent

B.I.D. and D'epifrin were still not available in the market. Again, Dr.

of Peter's condition. Dr. Agulto wrote Dr. Tuao a letter containing

Tuao advised Peter to come for regular check-up so his IOP

the following findings and recommendations:

could be monitored.

Thanks for sending Peter Lucas. On examination conducted vision


th

th

th

was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H

Obediently, Peter went to see Dr. Tuao on the 7 , 13 , 16 and

while on Normoglaucon BID OD & Diamox tab every 6h po.

20 of January 1989 for check-up and IOP monitoring.

Slit lamp evaluation

[33]

disclosed subepithelial corneal defect outer

th

In the interregnum, however, Peter was prodded by his friends to

OD. There was circumferential peripheral iris atrophy, OD. The

seek a second medical opinion. On 13 January 1989, Peter

lenses were clear.

consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist,


who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr.

Funduscopy

[34]

showed vertical cup disc of 0.85 R and 0.6 L with

temporal slope R>L.

Aquino), another ophthalmologist who specializes in the treatment


of glaucoma and who could undertake the long term care of
Peter's eyes.

Zeiss gonioscopy
occasional PAS,

[35]

[36]

revealed basically open angles both eyes with

OD.

According to petitioners, after Dr. Aquino conducted an extensive


evaluation of Peter's eyes, the said doctor informed Peter that his

Rolly, I feel that Peter Lucas has really sustained significant

eyes were relatively normal, though the right one sometimes


102 | P a g e

Torts 3

manifested maximum borderline tension. Dr. Aquino also

monitoring Peter's IOP, as required in cases of prolonged use of

confirmed Dr. Tuao's diagnosis of tubular vision in Peter's right

said medicine, and notwithstanding Peter's constant complaint of

eye. Petitioners claimed that Dr. Aquino essentially told Peter that

intense eye pain while using the same. Petitioners particularly

the latter's condition would require lifetime medication and follow-

prayed that Dr. Tuao be adjudged liable for the following

ups.

amounts:

In May 1990 and June 1991, Peter underwent two (2) procedures

1.

The amount of P2,000,000.00 to plaintiff Peter

of laser trabeculoplasty to attempt to control the high IOP of his

Lucas as and by way of compensation for his

right eye.

impaired vision.

Claiming to have steroid-induced glaucoma

[45]

Tuao for the same, Peter, joined by: (1) Fatima, his spouse
Abbeygail, his natural child
child

[48]

[47]

2.

and blaming Dr.


[46]

The amount of P300,000.00 to spouses Lucas


as and by way of actual damages plus such

; (2)

additional amounts that may be proven during

; and (3) Gillian, his legitimate

trial.

with Fatima, instituted on 1 September 1992, a civil

complaint for damages against Dr. Tuao, before the RTC, Branch
150, Quezon City. The case was docketed as Civil Case No. 92-

3.

The amount of P1,000,000.00 as and by way of


moral damages.

2482.
In their Complaint, petitioners specifically averred that as the

4.

The amount of P500,000.00 as and by way of


exemplary damages.

"direct consequence of [Peter's] prolonged use of Maxitrol, [he]


suffered from steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation of the intraocular pressure of [Peter's right eye] caused the impairment of his

5.

The amount of P200,000.00 as and by way of


attorney's fees plus costs of suit.

[54]

vision which impairment is not curable and may even lead to total
blindness."

[49]

In rebutting petitioners' complaint, Dr. Tuao asserted that the


"treatment made by [him] more than three years ago has no causal
[55]

Petitioners additionally alleged that the visual impairment of

connection to [Peter's] present glaucoma or condition."

Dr.

Peter's right eye caused him and his family so much grief.

Tuao explained that "[d]rug-induced glaucoma is temporary and

Because of his present condition, Peter now needed close medical curable, steroids have the side effect of increasing intraocular
pressure. Steroids are prescribed to treat Epidemic Kerato
supervision forever; he had already undergone two (2) laser
surgeries, with the possibility that more surgeries were still needed

Conjunctivitis or EKC which is an infiltration of the cornea as a

in the future; his career in sports casting had suffered and was

result of conjunctivitis or sore eyes."

continuing to suffer;

[50]

his anticipated income had been greatly

[56]

Dr. Tuao also clarified that

(1) "[c]ontrary to [petitioners'] fallacious claim, [he] did NOT

reduced as a result of his "limited" capacity; he continually suffered continually prescribe the drug Maxitrol which contained steroids for
[57]
any prolonged period" and "[t]he truth was the Maxitrol was
from "headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis,"

[51]

etc.; Peter's relationships with his

discontinued x x x as soon as EKC disappeared and was resumed


[58]

spouse and children continued to be strained, as his condition

only when EKC reappeared"

made him highly irritable and sensitive; his mobility and social life

Peter, he "continually monitored the intraocular pressure of

had suffered; his spouse, Fatima, became the breadwinner in the

[Peter's eyes] by palpating the eyes and by putting pressure on the

family;

[52]

and his two children had been deprived of the

; (2) the entire time he was treating

eyeballs," and no hardening of the same could be detected, which

opportunity for a better life and educational prospects. Collectively, meant that there was no increase in the tension or IOP, a possible
side reaction to the use of steroid medications; and (3) it was only
petitioners lived in constant fear of Peter becoming completely
blind.

[53]

on 13 December 1988 that Peter complained of a headache and


blurred vision in his right eye, and upon measuring the IOP of said

In the end, petitioners sought pecuniary award for their supposed

eye, it was determined for the first time that the IOP of the right

pain and suffering, which were ultimately brought about by Dr.

eye had an elevated value.

Tuao's grossly negligent conduct in prescribing to Peter the


medicine Maxitrol for a period of three (3) months, without

But granting for the sake of argument that the "steroid treatment of
103 | P a g e

Torts 3

[Peter's] EKC caused the steroid induced glaucoma,"

[59]

Dr. Tuao

The RTC added that in the absence of "any medical evidence to

argued that:

the contrary, this court cannot accept [petitioners'] claim that the

[S]uch condition, i.e., elevated intraocular pressure, is temporary.

use of steroid is the proximate cause of the damage sustained by

As soon as the intake of steroids is discontinued, the intraocular

[Peter's] eye."

[65]

pressure automatically is reduced. Thus, [Peter's] glaucoma can


only be due to other causes not attributable to steroids, certainly

Correspondingly, the RTC accepted Dr. Tuao's medical opinion

not attributable to [his] treatment of more than three years ago x x

that "Peter Paul must have been suffering from normal tension

x.

glaucoma, meaning, optic nerve damage was happening but no


elevation of the eye pressure is manifested, that the steroid

From a medical point of view, as revealed by more current

treatment actually unmasked the condition that resulted in the

examination of [Peter], the latter's glaucoma can only be long

earlier treatment of the glaucoma. There is nothing in the record to

standing glaucoma, open angle glaucoma, because of the large

contradict such testimony. In fact, plaintiff's Exhibit `S' even tends

C:D ratio. The steroids provoked the latest glaucoma to be

to support them."

revealed earlier as [Peter] remained asymptomatic prior to steroid


application. Hence, the steroid treatment was in fact beneficial to

Undaunted, petitioners appealed the foregoing RTC decision to

[Peter] as it revealed the incipient open angle glaucoma of [Peter]

the Court of Appeals. Their appeal was docketed as CA-G.R. CV

to allow earlier treatment of the same.

[60]

No. 68666.

In a Decision dated 14 July 2000, the RTC dismissed Civil Case


No. 92-2482 "for insufficiency of evidence."

[61]

The decretal part of

On 27 September 2006, the Court of Appeals rendered a decision

said Decision reads:

in CA-G.R. CV No. 68666 denying petitioners' recourse and

Wherefore, premises considered, the instant complaint is

affirming the appealed RTC Decision. The fallo of the judgment of

dismissed for insufficiency of evidence. The counter claim (sic) is

the appellate court states:

likewise dismissed in the absence of bad faith or malice on the

WHEREFORE, the Decision appealed from is AFFIRMED.

part of plaintiff in filing the suit.

[62]

[66]

The Court of Appeals faulted petitioners because they -

The RTC opined that petitioners failed to prove by preponderance

[D]id not present any medical expert to testify that Dr. Tuano's

of evidence that Dr. Tuao was negligent in his treatment of

prescription of Maxitrol and Blephamide for the treatment of EKC

Peter's condition. In particular, the record of the case was bereft of

on Peter's right eye was not proper and that his palpation of

any evidence to establish that the steroid medication and its

Peter's right eye was not enough to detect adverse reaction to

dosage, as prescribed by Dr. Tuao, caused Peter's glaucoma.

steroid. Peter testified that Dr. Manuel Agulto told him that he

The trial court reasoned that the "recognized standards of the

should not have used steroid for the treatment of EKC or that he

medical community has not been established in this case, much


less has causation been established to render [Tuao] liable."

[63]

should have used it only for two (2) weeks, as EKC is only a viral
infection which will cure by itself. However, Dr. Agulto was not

According to the RTC:

presented by [petitioners] as a witness to confirm what he

[Petitioners] failed to establish the duty required of a medical

allegedly told Peter and, therefore, the latter's testimony is

practitioner against which Peter Paul's treatment by defendant can

hearsay. Under Rule 130, Section 36 of the Rules of Court, a

be compared with. They did not present any medical expert or

witness can testify only to those facts which he knows of his own

even a medical doctor to convince and expertly explain to the court personal knowledge, x x x. Familiar and fundamental is the rule
[67]

the established norm or duty required of a physician treating a

that hearsay testimony is inadmissible as evidence.

patient, or whether the non taking (sic) by Dr. Tuao of Peter

Like the RTC, the Court of Appeals gave great weight to Dr.

Paul's pressure a deviation from the norm or his non-discovery of

Tuao's medical judgment, specifically the latter's explanation that:

the glaucoma in the course of treatment constitutes negligence. It

[W]hen a doctor sees a patient, he cannot determine whether or

is important and indispensable to establish such a standard

not the latter would react adversely to the use of steroids, that it

because once it is established, a medical practitioner who

was only on December 13, 1989, when Peter complained for the

departed thereof breaches his duty and commits negligence

first time of headache and blurred vision that he observed that the

rendering him liable. Without such testimony or enlightenment

pressure of the eye of Peter was elevated, and it was only then

from an expert, the court is at a loss as to what is then the

that he suspected that Peter belongs to the 5% of the population

established norm of duty of a physician against which defendant's

who reacts adversely to steroids.

conduct can be compared with to determine negligence.

[68]

[64]

104 | P a g e

Torts 3

Petitioners' Motion for Reconsideration was denied by the Court of

Court's power of review under Rule 45 of the 1997 Rules Civil

Appeals in a Resolution dated 3 July 2007.

Procedure, as amended.

Hence, this Petition for Review on Certiorari under Rule 45 of the

Elementary is the principle that this Court is not a trier of facts;

Revised Rules of Court premised on the following assignment of

only errors of law are generally reviewed in petitions for review on

errors:

certiorari criticizing decisions of the Court of Appeals. Questions of


I.

fact are not entertained.

[70]

[71]

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

Nonetheless, the general rule that only questions of law may be

ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT

raised on appeal in a petition for review under Rule 45 of the Rules

DISMISSING THE PETITIONERS' COMPLAINT FOR DAMAGES

of Court admits of certain exceptions, including the circumstance

AGAINST THE RESPONDENT ON THE GROUND OF

when the finding of fact of the Court of Appeals is premised on the

INSUFFICIENCY OF EVIDENCE;

supposed absence of evidence, but is contradicted by the


evidence on record. Although petitioners may not explicitly invoke

II.

said exception, it may be gleaned from their allegations and


arguments in the instant Petition.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE


ERROR IN DISMISSING THE PETITIONERS' COMPLAINT FOR

Petitioners contend, that "[c]ontrary to the findings of the

DAMAGES AGAINST THE RESPONDENT ON THE GROUND

Honorable Court of Appeals, [they] were more than able to

THAT NO MEDICAL EXPERT WAS PRESENTED BY THE

establish that: Dr. Tuao ignored the standard medical procedure

PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL

for ophthalmologists, administered medication with recklessness,

NEGLIGENCE AGAINST THE RESPONDENT; AND

and exhibited an absence of competence and skills expected from


him."

III.

[72]

Petitioners reject the necessity of presenting expert and/or

medical testimony to establish (1) the standard of care respecting


the treatment of the disorder affecting Peter's eye; and (2) whether

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

or not negligence attended Dr. Tuao's treatment of Peter,

ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE

because, in their words -

PETITIONERS' FOR ACTUAL, MORAL AND EXEMPLARY

That Dr. Tuao was grossly negligent in the treatment of Peter's

DAMAGES, ASIDE FROM ATTORNEY'S FEES, COSTS OF

simple eye ailment is a simple case of cause and effect. With mere

SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE.

[69]

documentary evidence and based on the facts presented by the

A reading of the afore-quoted reversible errors supposedly

petitioners, respondent can readily be held liable for damages

committed by the Court of Appeals in its Decision and Resolution

even without any expert testimony. In any case, however, and

would reveal that petitioners are fundamentally assailing the

contrary to the finding of the trial court and the Court of Appeals,

finding of the Court of Appeals that the evidence on record is

there was a medical expert presented by the petitioner showing

insufficient to establish petitioners' entitlement to any kind of

the recklessness committed by [Dr. Tuao] - Dr. Tuao himself.

damage. Therefore, it could be said that the sole issue for our

[Emphasis supplied.]

resolution in the Petition at bar is whether the Court of Appeals

They insist that Dr. Tuao himself gave sufficient evidence to

committed reversible error in affirming the judgment of the RTC

establish his gross negligence that ultimately caused the

that petitioners failed to prove, by preponderance of evidence,

impairment of the vision of Peter's right eye,

their claim for damages against Dr. Tuao.

[Dr. Tuao's] knowledge that 5% of the population reacts

[73]

i.e., that "[d]espite

adversely to Maxitrol, [he] had no qualms whatsoever in


Evidently, said issue constitutes a question of fact, as we are

prescribing said steroid to Peter without first determining whether

asked to revisit anew the factual findings of the Court of Appeals,

or not the (sic) Peter belongs to the 5%."

[74]

as well as of the RTC. In effect, petitioners would have us sift


through the evidence on record and pass upon whether there is

We are not convinced. The judgments of both the Court of Appeals

sufficient basis to establish Dr. Tuao's negligence in his treatment and the RTC are in accord with the evidence on record, and we
of Peter's eye condition. This question clearly involves a factual

are accordingly bound by the findings of fact made therein.

inquiry, the determination of which is not within the ambit of this


105 | P a g e

Torts 3

Petitioners' position, in sum, is that Peter's glaucoma is the direct


result of Dr. Tuao's negligence in his improper administration of

There is breach of duty of care, skill and diligence, or the improper

the drug Maxitrol; "thus, [the latter] should be liable for all the

performance of such duty, by the attending physician when the

damages suffered and to be suffered by [petitioners]."

[75]

Clearly,

patient is injured in body or in health [and this] constitutes the


[80]

the present controversy is a classic illustration of a medical

actionable malpractice.

Proof of such breach must likewise rest

negligence case against a physician based on the latter's

upon the testimony of an expert witness that the treatment

professional negligence. In this type of suit, the patient or his heirs, accorded to the patient failed to meet the standard level of care,
in order to prevail, is required to prove by preponderance of

skill and diligence which physicians in the same general

evidence that the physician failed to exercise that degree of skill,

neighborhood and in the same general line of practice ordinarily

care, and learning possessed by other persons in the same

possess and exercise in like cases.

profession; and that as a proximate result of such failure, the


patient or his heirs suffered damages.

Even so, proof of breach of duty on the part of the attending


physician is insufficient, for there must be a causal connection

For lack of a specific law geared towards the type of negligence

between said breach and the resulting injury sustained by the

committed by members of the medical profession, such claim for

patient. Put in another way, in order that there may be a recovery

damages is almost always anchored on the alleged violation of

for an injury, it must be shown that the "injury for which recovery is

Article 2176 of the Civil Code, which states that:

sought must be the legitimate consequence of the wrong done; the

ART. 2176. Whoever by act or omission causes damage to

connection between the negligence and the injury must be a direct

another, there being fault or negligence, is obliged to pay for the

and natural sequence of events, unbroken by intervening efficient

damage done. Such fault or negligence, if there is no pre-existing

causes";

contractual relation between the parties, is called a quasi-delict

of the injury. And the proximate cause of an injury is that cause,

and is governed by the provisions of this Chapter.

which, in the natural and continuous sequence, unbroken by any

[81]

that is, the negligence must be the proximate cause

In medical negligence cases, also called medical malpractice suits, efficient intervening cause, produces the injury, and without which
there exist a physician-patient relationship between the doctor and

the result would not have occurred.

[82]

the victim. But just like any other proceeding for damages, four
essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4)
proximate causation,

[76]

must be established by the plaintiff/s. All

Just as with the elements of duty and breach of the same, in order
to establish the proximate cause [of the injury] by a preponderance

the four (4) elements must co-exist in order to find the physician

of the evidence in a medical malpractice action, [the patient] must

negligent and, thus, liable for damages.

similarly use expert testimony, because the question of whether


the alleged professional negligence caused [the patient's] injury is

When a patient engages the services of a physician, a physician-

generally one for specialized expert knowledge beyond the ken of

patient relationship is generated. And in accepting a case, the

the average layperson; using the specialized knowledge and

physician, for all intents and purposes, represents that he has the

training of his field, the expert's role is to present to the [court] a

needed training and skill possessed by physicians and surgeons

realistic assessment of the likelihood that [the physician's] alleged

practicing in the same field; and that he will employ such training,

negligence caused [the patient's] injury.

care, and skill in the treatment of the patient.

[77]

[83]

Thus, in treating

his patient, a physician is under a duty to [the former] to exercise

From the foregoing, it is apparent that medical negligence cases

that degree of care, skill and diligence which physicians in the

are best proved by opinions of expert witnesses belonging in the

same general neighborhood and in the same general line of

same general neighborhood and in the same general line of

practice ordinarily possess and exercise in like cases.

[78]

Stated

practice as defendant physician or surgeon. The deference of

otherwise, the physician has the duty to use at least the same

courts to the expert opinion of qualified physicians [or surgeons]

level of care that any other reasonably competent physician would

stems from the former's realization that the latter possess unusual

use to treat the condition under similar circumstances.

technical skills which laymen in most instances are incapable of


intelligently evaluating;

This standard level of care, skill and diligence is a matter best

[84]

hence, the indispensability of expert

testimonies.

addressed by expert medical testimony, because the standard of


care in a medical malpractice case is a matter peculiarly within the
knowledge of experts in the field.

[79]

In the case at bar, there is no question that a physician-patient


relationship developed between Dr. Tuao and Peter when Peter
106 | P a g e

Torts 3

went to see the doctor on 2 September 1988, seeking a consult for unerringly follow prior to prescribing steroid medications.
the treatment of his sore eyes. Admittedly, Dr. Tuao, an
ophthalmologist, prescribed Maxitrol when Peter developed and

In contrast, Dr. Tuao was able to clearly explain that what is only

had recurrent EKC. Maxitrol or neomycin/polymyxin B

required of ophthalmologists, in cases such as Peter's, is the

sulfates/dexamethasone ophthalmic ointment is a multiple-dose

conduct of standard tests/procedures known as "ocular routine

anti-infective steroid combination in sterile form for topical

examination,"

application.

[85]

It is the drug which petitioners claim to have caused

Peter's glaucoma.

[88]

composed of five (5) tests/procedures -

specifically, gross examination of the eyes and the surrounding


area; taking of the visual acuity of the patient; checking the
intraocular pressure of the patient; checking the motility of the

However, as correctly pointed out by the Court of Appeals, "[t]he

eyes; and using ophthalmoscopy on the patient's eye - and he did

onus probandi was on the patient to establish before the trial court

all those tests/procedures every time Peter went to see him for

that the physicians ignored standard medical procedure,

follow-up consultation and/or check-up.

prescribed and administered medication with recklessness and


exhibited an absence of the competence and skills expected of
general practitioners similarly situated."

[86]

Unfortunately, in this

We cannot but agree with Dr. Tuao's assertion that when a doctor
sees a patient, he cannot determine immediately whether the latter

case, there was absolute failure on the part of petitioners to

would react adversely to the use of steroids; all the doctor can do

present any expert testimony to establish: (1) the standard of care

is map out a course of treatment recognized as correct by the

to be implemented by competent physicians in treating the same

standards of the medical profession. It must be remembered that a

condition as Peter's under similar circumstances; (2) that, in his

physician is not an insurer of the good result of treatment. The

treatment of Peter, Dr. Tuao failed in his duty to exercise said

mere fact that the patient does not get well or that a bad result

standard of care that any other competent physician would use in

occurs does not in itself indicate failure to exercise due care.

treating the same condition as Peter's under similar

The result is not determinative of the performance [of the

circumstances; and (3) that the injury or damage to Peter's right

physician] and he is not required to be infallible.

[89]

[90]

eye, i.e., his glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuao. Petitioners' failure to prove the first

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter

element alone is already fatal to their cause.

was justified by the fact that the latter was already using the same
medication when he first came to see Dr. Tuao on 2 September

Petitioners maintain that Dr. Tuao failed to follow in Peter's case

1988 and had exhibited no previous untoward reaction to that

the required procedure for the prolonged use of Maxitrol. But what

particular drug.

[91]

is actually the required procedure in situations such as in the case


at bar? To be precise, what is the standard operating procedure

Also, Dr. Tuao categorically denied petitioners' claim that he

when ophthalmologists prescribe steroid medications which,

never monitored the tension of Peter's eyes while the latter was on

admittedly, carry some modicum of risk?

Maxitrol. Dr. Tuao testified that he palpated Peter's eyes every


time the latter came for a check-up as part of the doctor's ocular

Absent a definitive standard of care or diligence required of Dr.

routine examination, a fact which petitioners failed to rebut. Dr.

Tuao under the circumstances, we have no means to determine

Tuao's regular conduct of examinations and tests to ascertain the

whether he was able to comply with the same in his diagnosis and

state of Peter's eyes negate the very basis of petitioners' complaint

treatment of Peter. This Court has no yardstick upon which to

for damages. As to whether Dr. Tuao's actuations conformed to

evaluate or weigh the attendant facts of this case to be able to

the standard of care and diligence required in like circumstances, it

state with confidence that the acts complained of, indeed,

is presumed to have so conformed in the absence of evidence to

constituted negligence and, thus, should be the subject of

the contrary.

pecuniary reparation.
Even if we are to assume that Dr. Tuao committed negligent acts
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao

in his treatment of Peter's condition, the causal connection

should have determined first whether Peter was a "steroid

between Dr. Tuao's supposed negligence and Peter's injury still

responder."

[87]

Yet again, petitioners did not present any

needed to be established. The critical and clinching factor in a

convincing proof that such determination is actually part of the

medical negligence case is proof of the causal connection

standard operating procedure which ophthalmologists should

between the negligence which the evidence established and the


107 | P a g e

Torts 3

plaintiff's injuries.

[92]

The plaintiff must plead and prove not only

Philippine Society of Ophthalmic Plastic and Reconstructive

that he has been injured and defendant has been at fault, but also

Surgery, Philippine Journal of Ophthalmology, Association of

that the defendant's fault caused the injury. A verdict in a

Philippine Ophthalmology Professors, et al.

malpractice action cannot be based on speculation or conjecture.


Causation must be proven within a reasonable medical probability
based upon competent expert testimony.

[93]

It must be remembered that when the qualifications of a physician


are admitted, as in the instant case, there is an inevitable
presumption that in proper cases, he takes the necessary

The causation between the physician's negligence and the

precaution and employs the best of his knowledge and skill in

patient's injury may only be established by the presentation of

attending to his clients, unless the contrary is sufficiently

proof that Peter's glaucoma would not have occurred but for Dr.

established.

[98]

In making the judgment call of treating Peter's EKC

Tuao's supposed negligent conduct. Once more, petitioners failed with Maxitrol, Dr. Tuao took the necessary precaution by
in this regard.

palpating Peter's eyes to monitor their IOP every time the latter
went for a check-up, and he employed the best of his knowledge

Dr. Tuao does not deny that the use of Maxitrol involves the risk

and skill earned from years of training and practice.

of increasing a patient's IOP. In fact, this was the reason why he


made it a point to palpate Peter's eyes every time the latter went to In contrast, without supporting expert medical opinions, petitioners'
see him -- so he could monitor the tension of Peter's eyes. But to

bare assertions of negligence on Dr. Tuao's part, which resulted

say that said medication conclusively caused Peter's glaucoma is

in Peter's glaucoma, deserve scant credit.

purely speculative. Peter was diagnosed with open-angle


glaucoma. This kind of glaucoma is characterized by an almost
complete absence of symptoms and a chronic, insidious course.

Our disposition of the present controversy might have been vastly


[94]

different had petitioners presented a medical expert to establish

In open-angle glaucoma, halos around lights and blurring of vision

their theory respecting Dr. Tuao's so-called negligence. In fact,

do not occur unless there has been a sudden increase in the

the record of the case reveals that petitioners' counsel recognized

intraocular vision.

[95]

Visual acuity remains good until late in the

course of the disease.

[96]

Hence, Dr. Tuao claims that Peter's

glaucoma "can only be long standing x x x because of the large


[97]

C:D

ratio," and that "[t]he steroids provoked the latest glaucoma

the necessity of presenting such evidence. Petitioners even gave


an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino
would be presented. Alas, no follow-through on said undertaking
was made.

to be revealed earlier" was a blessing in disguise "as [Peter]


remained asymptomatic prior to steroid application."

The plaintiff in a civil case has the burden of proof as he alleges


the affirmative of the issue. However, in the course of trial in a civil

Who between petitioners and Dr. Tuao is in a better position to

case, once plaintiff makes out a prima facie case in his favor, the

determine and evaluate the necessity of using Maxitrol to cure

duty or the burden of evidence shifts to defendant to controvert

Peter's EKC vis--vis the attendant risks of using the same?

plaintiff's prima facie case; otherwise, a verdict must be returned in


favor of plaintiff.

That Dr. Tuao has the necessary training and skill to practice his

[99]

The party having the burden of proof must

establish his case by a preponderance of evidence.

[100]

The

chosen field is beyond cavil. Petitioners do not dispute Dr. Tuao's concept of "preponderance of evidence" refers to evidence which
qualifications - that he has been a physician for close to a decade

is of greater weight or more convincing than that which is offered

and a half at the time Peter first came to see him; that he has had

in opposition to it;

various medical training; that he has authored numerous papers in

truth. It is evidence which is more convincing to the court as

[101]

in the last analysis, it means probability of

the field of ophthalmology, here and abroad; that he is a Diplomate worthy of belief than that which is offered in opposition thereto. [102]
of the Philippine Board of Ophthalmology; that he occupies various Rule 133, Section 1 of the Revised Rules of Court provides the
teaching posts (at the time of the filing of the present complaint, he guidelines for determining preponderance of evidence, thus:
was the Chair of the Department of Ophthalmology and an

In civil cases, the party having the burden of proof must establish

Associate Professor at the University of the Philippines-Philippine

his case by a preponderance of evidence. In determining where

General Hospital and St. Luke's Medical Center, respectively); and

the preponderance or superior weight of evidence on the issues

that he held an assortment of positions in numerous medical

involved lies the court may consider all the facts and

organizations like the Philippine Medical Association, Philippine

circumstances of the case, the witnesses' manner of testifying,

Academy of Ophthalmology, Philippine Board of Ophthalmology,

their intelligence, their means and opportunity of knowing the facts


108 | P a g e

Torts 3

to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far
as the same legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance is
not necessarily with the greater number.
Herein, the burden of proof was clearly upon petitioners, as
plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable connection
between Dr. Tuao's alleged breach of duty and the damage
sustained by Peter's right eye. This, they did not do. In reality,
petitioners' complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the risks of its use,
and the purported comment of Dr. Agulto - another doctor not
presented as witness before the RTC - concerning the prolonged
use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a
medical question that should have been presented to experts. If no
standard is established through expert medical witnesses, then
courts have no standard by which to gauge the basic issue of
breach thereof by the physician or surgeon. The RTC and Court of
Appeals, and even this Court, could not be expected to determine
on its own what medical technique should have been utilized for a
certain disease or injury. Absent expert medical opinion, the courts
would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable for any
medical negligence or malpractice where there is no evidence, in
the nature of expert testimony, to establish that in treating Peter,
Dr. Tuao failed to exercise reasonable care, diligence and skill
generally required in medical practice. Dr. Tuao's testimony, that
his treatment of Peter conformed in all respects to standard
medical practice in this locality, stands unrefuted. Consequently,
the RTC and the Court of Appeals correctly held that they had no
basis at all to rule that petitioners were deserving of the various
damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition is
DENIED for lack of merit. The assailed Decision dated 27
September 2006 and Resolution dated 3 July 2007, both of the
Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.
SO ORDERED.

109 | P a g e

Torts 3

ROGELIO E. RAMOS AND ERLINDA RAMOS, IN THEIR OWN

petitioner Rogelio already wanted to pull out his wife from the

BEHALF AND AS NATURAL GUARDIANS OF THE MINORS,

operating room. He met Dr. Garcia, who remarked that he was

ROMMEL RAMOS, ROY RODERICK RAMOS, AND RON

also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at

RAYMOND RAMOS, PETITIONERS, VS. COURT OF APPEALS, the hospital at around 12:10 in the afternoon, or more than three
DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA

(3) hours after the scheduled operation.

AND DR. PERFECTA GUTIERREZ, RESPONDENTS.


Cruz, who was then still inside the operating room, heard about Dr.
RESOLUTION

Hosakas arrival. While she held the hand of Erlinda, Cruz saw Dr.
Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez

KAPUNAN, J.:

utter: ang hirap ma-intubate nito, mali yata ang pagkakapasok. O


lumalaki ang tiyan. Cruz noticed a bluish discoloration of

Private respondents De Los Santos Medical Center, Dr. Orlino

Erlindas nailbeds on her left hand. She (Cruz) then heard Dr.

Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of

Hosaka instruct someone to call Dr. Calderon, another


the Decision, dated December 29, 1999, of this Court holding them anesthesiologist. When he arrived, Dr. Calderon attempted to
civilly liable for petitioner Erlinda Ramos comatose condition after intubate the patient. The nailbeds of the patient remained bluish,
she delivered herself to them for their professional care and

thus, she was placed in a trendelenburg position a position

management.

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

For better understanding of the issues raised in private

her concern to petitioner Rogelio that Erlindas operation was not

respondents respective motions, we will briefly restate the facts of

going well.

the case as follows:


Cruz quickly rushed back to the operating room and saw that the
Sometime in 1985, petitioner Erlinda Ramos, after seeking

patient was still in trendelenburg position. At almost 3:00 in the

professional medical help, was advised to undergo an operation

afternoon, she saw Erlinda being wheeled to the Intensive Care

for the removal of a stone in her gall bladder (cholecystectomy).

Unit (ICU). The doctors explained to petitioner Rogelio that his

She was referred to Dr. Hosaka, a surgeon, who agreed to

wife had bronchospasm. Erlinda stayed in the ICU for a month.

perform the operation on her. The operation was scheduled for

She was released from the hospital only four months later or on

June 17, 1985 at 9:00 in the morning at private respondent De Los

November 15, 1985. Since the ill-fated operation, Erlinda

Santos Medical Center (DLSMC). Since neither petitioner Erlinda

remained in comatose condition until she died on August 3,

nor her husband, petitioner Rogelio, knew of any anesthesiologist,

1999.

[1]

Dr. Hosaka recommended to them the services of Dr. Gutierrez.


Petitioners filed with the Regional Trial Court of Quezon City a civil
Petitioner Erlinda was admitted to the DLSMC the day before the

case for damages against private respondents. After due trial, the

scheduled operation. By 7:30 in the morning of the following day,

court a quo rendered judgment in favor of petitioners. Essentially,

petitioner Erlinda was already being prepared for operation. Upon

the trial court found that private respondents were negligent in the

the request of petitioner Erlinda, her sister-in-law, Herminda Cruz,

performance of their duties to Erlinda. On appeal by private

who was then Dean of the College of Nursing at the Capitol

respondents, the Court of Appeals reversed the trial courts

Medical Center, was allowed to accompany her inside the

decision and directed petitioners to pay their unpaid medical bills

operating room.

to private respondents.

At around 9:30 in the morning, Dr. Hosaka had not yet arrived so

Petitioners filed with this Court a petition for review on certiorari.

Dr. Gutierrez tried to get in touch with him by phone. Thereafter,

The private respondents were then required to submit their

Dr. Gutierrez informed Cruz that the operation might be delayed

respective comments thereon. On December 29, 1999, this Court

due to the late arrival of Dr. Hosaka. In the meantime, the patient,

promulgated the decision which private respondents now seek to

petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha

be reconsidered. The dispositive portion of said Decision states:

mo ako ng ibang Doctor.

WHEREFORE, the decision and resolution of the appellate court


appealed from are hereby modified so as to award in favor of

By 10:00 in the morning, when Dr. Hosaka was still not around,

petitioners, and solidarily against private respondents the


110 | P a g e

Torts 3

following: 1) P1,352,000.00 as actual damages computed as of the

NOT GUILTY OF ANY NEGLIGENCE IN

date of promulgation of this decision plus a monthly payment of

RESPECT OF THE INSTANT CASE;

P8,000.00 up to the time that petitioner Erlinda Ramos expires or


miraculously survives; 2) P2,000,000.00 as moral damages, 3)

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS

P1,500,000.00 as temperate damages; 4) P100,000.00 each

SUFFICIENTLY DISCHARGED THE BURDEN OF

exemplary damages and attorneys fees; and 5) the costs of the

EVIDENCE BY SUBSTANTIAL PROOF OF HER

suit.

COMPLIANCE WITH THE STANDARDS OF DUE CARE

In his Motion for Reconsideration, private respondent Dr. Hosaka

EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL

submits the following as grounds therefor:

SPECIALIZATION.

[2]

I
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
THE HONORABLE SUPREME COURT COMMITTED

SUFFICIENTLY DISCHARGED THE BURDEN OF

REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR.

EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING

HOSAKA LIABLE ON THE BASIS OF THE CAPTAIN-OF-THE-

SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS

SHIP DOCTRINE.
C.
II

D.

THE SUPREME COURT MAY HAVE


INADVERTENTLY PLACED TOO MUCH

THE HONORABLE SUPREME COURT ERRED IN HOLDING

RELIANCE ON THE TESTIMONY OF

RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT

PETITIONERS WITNESS HERMINDA CRUZ,

THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.

DESPITE THE EXISTENCE OF SEVERAL


FACTUAL CIRCUMSTANCES WHICH

III

RENDERS DOUBT ON HER CREDIBILITY

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR.

E.

HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT

INADVERTENTLY DISREGARDED THE

ERRED IN AWARDING DAMAGES THAT WERE CLEARLY


EXCESSIVE AND WITHOUT LEGAL BASIS.

THE SUPREME COURT MAY HAVE


EXPERT TESTIMONY OF DR. JAMORA AND

[3]

DRA. CALDERON

Private respondent Dr. Gutierrez, for her part, avers that:


F.
A.

THE HONORABLE SUPREME COURT MAY


HAVE INADVERTENTLY OVERLOOKED THE
FACT THAT THE COURT OF APPEALS
DECISION DATED 29 MAY 1995 HAD

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]

ALREADY BECOME FINAL AND EXECUTORY


AS OF 25 JUNE 1995, THEREBY DEPRIVING

Private respondent De Los Santos Medical Center likewise moves

THIS HONORABLE COURT OF

for reconsideration on the following grounds:

JURISDICTION OVER THE INSTANT

PETITION;
THE HONORABLE COURT ERRED IN GIVING DUE COURSE
B.

THE HONORABLE SUPREME COURT MAY

TO THE INSTANT PETITION AS THE DECISION OF THE

HAVE INADVERTENTLY OVERLOOKED

HONORABLE COURT OF APPEALS HAD ALREADY BECOME

SEVERAL MATERIAL FACTUAL

FINAL AND EXECUTORY

CIRCUMSTANCES WHICH, IF PROPERLY


CONSIDERED, WOULD INDUBITABLY LEAD

II

TO NO OTHER CONCLUSION BUT THAT


PRIVATE RESPONDENT DOCTORS WERE

THE HONORABLE SUPREME COURT ERRED IN FINDING

111 | P a g e

Torts 3

THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS

3.

WHETHER OR NOT THE HOSPITAL (DELOS

BETWEEN RESPONDENT DE LOS SANTOS MEDICAL

SANTOS MEDICAL CENTER) IS LIABLE FOR

CENTER AND DRS. ORLINO HOSAKA AND PERFECTA

ANY ACT OF NEGLIGENCE COMMITTED BY

GUTIERREZ

THEIR VISITING CONSULTANT SURGEON


AND ANESTHESIOLOGIST.

[8]

III
We shall first resolve the issue pertaining to private respondent Dr.
THE HONORABLE SUPREME COURT ERRED IN FINDING

Gutierrez. She maintains that the Court erred in finding her

THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER IS

negligent and in holding that it was the faulty intubation which was

SOLIDARILY LIABLE WITH RESPONDENT DOCTORS

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

IV

patient and not a dead one; 2) That the patient had a cardiac
THE HONORABLE SUPREME COURT ERRED IN INCREASING
THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS.

arrest; and 3) That the patient was revived from that cardiac
[9]

[5]

arrest.

In effect, Dr. Gutierrez insists that, contrary to the finding

In the Resolution of February 21, 2000, this Court denied the

of this Court, the intubation she performed on Erlinda was

motions for reconsideration of private respondents Drs. Hosaka

successful.

and Gutierrez. They then filed their respective second motions for
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part

reconsideration. The Philippine College of Surgeons filed its

Petition-in-Intervention contending in the main that this Court erred is belied by the records of the case. It has been sufficiently
in holding private respondent Dr. Hosaka liable under the captain

established that she failed to exercise the standards of care in the

of the ship doctrine. According to the intervenor, said doctrine had

administration of anesthesia on a patient. Dr. Egay enlightened

long been abandoned in the United States in recognition of the

the Court on what these standards are:

developments in modern medical and hospital practice.

[6]

x x x What are the standards of care that an anesthesiologist

The

Court noted these pleadings in the Resolution of July 17, 2000.

[7]

should do before we administer anesthesia? The initial step is the


preparation of the patient for surgery and this is a pre-operative

On March 19, 2001, the Court heard the oral arguments of the

evaluation because the anesthesiologist is responsible for

parties, including the intervenor. Also present during the hearing

determining the medical status of the patient, developing the

were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the anesthesia plan and acquainting the patient or the responsible
Philippine Charity Sweepstakes, former Director of the Philippine

adult particularly if we are referring with the patient or to adult

General Hospital and former Secretary of Health; Dr. Iluminada T.

patient who may not have, who may have some mental handicaps

Camagay, President of the Philippine Society of Anesthesiologists, of the proposed plans. We do pre-operative evaluation because
Inc. and Professor and Vice-Chair for Research, Department of

this provides for an opportunity for us to establish identification and

Anesthesiology, College of Medicine-Philippine General Hospital,

personal acquaintance with the patient. It also makes us have an

University of the Philippines; and Dr. Lydia M. Egay, Professor and opportunity to alleviate anxiety, explain techniques and risks to the
Vice-Chair for Academics, Department of Anesthesiology, College

patient, given the patient the choice and establishing consent to

of Medicine-Philippine General Hospital, University of the

proceed with the plan. And lastly, once this has been agreed upon

Philippines.

by all parties concerned the ordering of pre-operative


medications. And following this line at the end of the evaluation

The Court enumerated the issues to be resolved in this case as

we usually come up on writing, documentation is very important as

follows:

far as when we train an anesthesiologist we always emphasize


this because we need records for our protection, well, records.
1.

WHETHER OR NOT DR. ORLINO HOSAKA

And it entails having brief summary of patient history and physical

(SURGEON) IS LIABLE FOR NEGLIGENCE;

findings pertinent to anesthesia, plan, organize as a problem list,


the plan anesthesia technique, the plan post operative, pain

2.

WHETHER OR NOT DR. PERFECTA

management if appropriate, special issues for this particular

GUTIERREZ (ANESTHESIOLOGIST) IS

patient. There are needs for special care after surgery and if it so

LIABLE FOR NEGLIGENCE; AND

it must be written down there and a request must be made known


112 | P a g e

Torts 3

to proper authorities that such and such care is necessary. And

the administration of anesthesia to Erlinda. Respondent Dra.

the request for medical evaluation if there is an indication. When

Gutierrez act of seeing her patient for the first time only an hour

we ask for a cardio-pulmonary clearance it is not in fact to tell them before the scheduled operative procedure was, therefore, an act of
if this patient is going to be fit for anesthesia, the decision to give

exceptional negligence and professional irresponsibility. The

anesthesia rests on the anesthesiologist. What we ask them is

measures cautioning prudence and vigilance in dealing with

actually to give us the functional capacity of certain systems which

human lives lie at the core of the physicians centuries-old

maybe affected by the anesthetic agent or the technique that we

Hippocratic Oath. Her failure to follow this medical procedure is,

are going to use. But the burden of responsibility in terms of

therefore, a clear indicia of her negligence.

selection of agent and how to administer it rest on the

Further, there is no cogent reason for the Court to reverse its

anesthesiologist.

[10]

[16]

finding that it was the faulty intubation on Erlinda that caused her

The conduct of a preanesthetic/preoperative evaluation prior to an

comatose condition. There is no question that Erlinda became

operation, whether elective or emergency, cannot be dispensed

comatose after Dr. Gutierrez performed a medical procedure on

with.

[11]

Such evaluation is necessary for the formulation of a plan

her. Even the counsel of Dr. Gutierrez admitted to this fact during

of anesthesia care suited to the needs of the patient concerned.

the oral arguments:

Pre-evaluation for anesthesia involves taking the patients medical

CHIEF JUSTICE:

history, reviewing his current drug therapy, conducting physical


examination, interpreting laboratory data, and determining the

Mr. Counsel, you started your argument saying that this

appropriate prescription of preoperative medications as necessary

involves a comatose patient?

to the conduct of anesthesia.

[12]

Physical examination of the patient entails not only evaluating the

ATTY. GANA:

patients central nervous system, cardiovascular system and lungs


but also the upper airway. Examination of the upper airway would

Yes, Your Honor.

in turn include an analysis of the patients cervical spine mobility,


temporomandibular mobility, prominent central incisors, deceased

CHIEF JUSTICE:

or artificial teeth, ability to visualize uvula and the thyromental


distance.

[13]

How do you mean by that, a comatose, a comatose after


Nonetheless, Dr. Gutierrez omitted to perform a thorough

any other acts were done by Dr. Gutierrez or comatose

preoperative evaluation on Erlinda. As she herself admitted, she

before any act was done by her?

saw Erlinda for the first time on the day of the operation itself, one
hour before the scheduled operation. She auscultated

[14]

the

ATTY. GANA:

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

No, we meant comatose as a final outcome of the

been able to check petitioner Erlindas airway prior to the

procedure.

operation, Dr. Gutierrez would most probably not have


experienced difficulty in intubating the former, and thus the

CHIEF JUSTICE:

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

Meaning to say, the patient became comatose after some


intervention, professional acts have been done by Dr.
Gutierrez?

17 June 1985. Before this date, no prior consultations with, or preoperative evaluation of Erlinda was done by her. Until the day of
the operation, respondent Dra. Gutierrez was unaware of the

ATTY. GANA:

physiological make-up and needs of Erlinda. She was likewise not


properly informed of the possible difficulties she would face during
113 | P a g e

Torts 3

Yes, Your Honor.

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

CHIEF JUSTICE:

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

In other words, the comatose status was a consequence of

which is not mine, which is not part of the body. So, histamine has

some acts performed by D. Gutierrez?

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

ATTY. GANA:

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
It was a consequence of the well, (interrupted)

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

CHIEF JUSTICE:

projector. And then you have the smaller airways, the bronchi and
An acts performed by her, is that not correct?

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

ATTY. GANA:

histamine is released they close up like this and that phenomenon


is known as bronco spasm. However, the effects of histamine also

Yes, Your Honor.

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

CHIEF JUSTICE:

have decrease blood supply to the brain and may collapse so, you
may have people who have this.

Thank you.

[17]

[20]

These symptoms of an allergic reaction were not shown to have

What is left to be determined therefore is whether Erlindas

been extant in Erlindas case. As we held in our Decision, no

hapless condition was due to any fault or negligence on the part of

evidence of stridor, skin reactions, or wheezing some of the

Dr. Gutierrez while she (Erlinda) was under the latters care. Dr.

more common accompanying signs of an allergic reaction

Gutierrez maintains that the bronchospasm and cardiac arrest

appears on record. No laboratory data were ever presented to the

resulting in the patients comatose condition was brought about by

court.

[21]

the anaphylactic reaction of the patient to Thiopental Sodium


(pentothal).

[18]

In the Decision, we explained why we found Dr.

Dr. Gutierrez, however, insists that she successfully intubated

Gutierrez theory unacceptable. In the first place, Dr. Eduardo

Erlinda as evidenced by the fact that she was revived after

Jamora, the witness who was presented to support her (Dr.

suffering from cardiac arrest. Dr. Gutierrez faults the Court for

Gutierrez) theory, was a pulmonologist. Thus, he could not be

giving credence to the testimony of Cruz on the matter of the

considered an authority on anesthesia practice and procedure and

administration of anesthesia when she (Cruz), being a nurse, was

their complications.

[19]

allegedly not qualified to testify thereon. Rather, Dr. Gutierrez


invites the Courts attention to her synopsis on what transpired

Secondly, there was no evidence on record to support the theory

during Erlindas intubation:

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:

12:15 Patient was inducted with sodium pentothal 2.5% (250 mg)
p.m.

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

All right, let us qualify an allergic reaction. In medical terminology


an allergic reaction is something which is not usual response and it

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
114 | P a g e

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breath sounds & checked if equal on both sides. The tube


was then anchored to the mouth by plaster & cuff inflated.

DR. GUTIERREZ

Ethrane 2% with 02 4 liters was given. Blood pressure was


checked 120/80 & heart rate regular and normal 90/min.

12:25 After 10 minutes patient was cyanotic. Ethrane was


p.m.

discontinued & 02 given alone. Cyanosis disappeared.

Yes.

inserted or was the laryngoscope only inserted, which was

Blood pressure and heart beats stable.

inserted?

12:30 Cyanosis again reappeared this time with sibilant and


p.m.

There were two attempts. In the first attempt was the tube

sonorous rales all over the chest. D_5%_H20 & 1 ampule

All the laryngoscope.

All the laryngoscope. But if I remember right somewhere

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

in the re-direct, a certain lawyer, you were asked that you

and solu cortef was given.

did a first attempt and the question was did you withdraw
the tube? And you said you never withdrew the tube, is
that right?

12:40 There was cardiac arrest. Extra cardiac massage and


p.m.

intercardiac injection of adrenalin was given & heart beat


reappeared in less than one minute. Sodium bicarbonate

Yes.

Yes. And so if you never withdrew the tube then there was

& another dose of solu cortef was given by IV. Cyanosis


slowly disappeared & 02 continuously given & assisted
positive pressure. Laboratory exams done (see results in

no, there was no insertion of the tube during that first

chart).
Patient was transferred to ICU for further management.

attempt. Now, the other thing that we have to settle here is


[22]

when cyanosis occurred, is it recorded in the anesthesia


record when the cyanosis, in your recording when did the

From the foregoing, it can be allegedly seen that there was no

cyanosis occur?

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

(sic)

Is it a standard practice of anesthesia that whatever you do

entries purportedly contained in Dr. Gutierrez synopsis. It is

during that period or from the time of induction to the time

significant to note that the said record prepared by Dr. Gutierrez

that you probably get the patient out of the operating room

was made only after Erlinda was taken out of the operating room.

that every single action that you do is so recorded in your

The standard practice in anesthesia is that every single act that

anesthesia record?

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

I was not able to record everything I did not have time


anymore because I did that after the, when the patient was

following exchange between Dr. Estrella, one of the amicii curiae,

about to leave the operating room. When there was

and Dr. Gutierrez is instructive:

second cyanosis already that was the (interrupted)

DR. ESTRELLA

Q.

When was the first cyanosis?

The first cyanosis when I was (interrupted)

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


intubation period?

115 | P a g e

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What time, more or less?


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

I think it was 12:15 or 12:16.

patient was relax because that monorcure is a relaxant, you


cannot intubate the patient or insert the laryngoscope if it is
Q

Well, if the record will show you started induction at 12:15?

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

Yes, Your Honor.

laryngoscope and oxygenated again the patient.


Q

And the first medication you gave was what?


Q

first attempt as you claimed that it was only the

The first medication, no, first the patient was oxygenated for

laryngoscope that was inserted.

around one to two minutes.

Yes, so, that is about 12:13?

Yes, and then, I asked the resident physician to start giving

Yes.

And in the second attempt you inserted the laryngoscope


and now possible intubation?

the pentothal very slowly and that was around one minute.

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

Yes, and then, after one minute another oxygenation was

Yes.

And at that point, you made a remark, what remark did you
make?

given and after (interrupted)

12:18?

So, more or less you attempted to do an intubation after the

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

Yes, and then after giving the oxygen we start the


Q

That was the first attempt?

Yes.

manipulation?

What about the second attempt?

Usually you wait for two minutes or three minutes.

On the second attempt I was able to intubate right away

menorcure which is a relaxant. After that relaxant


(interrupted)

After that relaxant, how long do you wait before you do any

within two to three seconds.


Q

So, if our estimate of the time is accurate we are now more


or less 12:19, is that right?

At what point, for purposes of discussion without accepting


it, at what point did you make the comment na mahirap ata

Maybe.

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

to intubate, mali ata ang pinasukan

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

patient?
116 | P a g e

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Well, just for the information of the group here the remarks I
am making is based on the documents that were forwarded

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

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?

Which one, sir?

The mahirap intubate ito assuming that you (interrupted)


is laughing)

Iyon lang, that is what I only said mahirap intubate


(interrupted)
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

At what point?

certainty more ore less on the record.


A

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

Yes, Sir.

And so it seems that there were no recording during that


span of ten (10) minutes. From 12:20 to 12:30, and going

laryngoscope, right?

over your narration, it seems to me that the cyanosis


appeared ten (10) minutes after induction, is that right?
A

Yes.

But in one of the recordings somewhere at the, somewhere

Yes.

And that is after induction 12:15 that is 12:25 that was the

in the transcript of records that when the lawyer of the other


party try to inquire from you during the first attempt that was

first cyanosis?

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)

Yes.

I was able to intubate.

And that the 12:25 is after the 12:20?

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

We cannot (interrupted)

Maybe, I cannot remember the time, Sir.

Huwag ho kayong makuwan, we are just trying to enlighten,


I am just going over the record ano, kung mali ito kuwan eh

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?

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?

117 | P a g e

Torts 3

No, the first cyanosis (interrupted).

[23]

that the injury to the patient therein was one which does not

We cannot thus give full credence to Dr. Gutierrez synopsis in

ordinarily take place in the absence of negligence in the

light of her admission that it does not fully reflect the events that

administration of an anesthetic, and in the use and employment of

transpired during the administration of anesthesia on Erlinda. As

an endotracheal tube. The court went on to say that [o]rdinarily a

pointed out by Dr. Estrella, there was a ten-minute gap in Dr.

person being put under anesthesia is not rendered decerebrate as

Gutierrez synopsis, i.e., the vital signs of Erlinda were not

a consequence of administering such anesthesia in the absence of

recorded during that time. The absence of these data is

negligence. Upon these facts and under these circumstances, a

particularly significant because, as found by the trial court, it was

layman would be able to say, as a matter of common knowledge

the absence of oxygen supply for four (4) to five (5) minutes that

and observation, that the consequences of professional treatment

caused Erlindas comatose condition.

were not as such as would ordinarily have followed if due care had
[29]

been exercised.

Considering the application of the doctrine of

On the other hand, the Court has no reason to disbelieve the

res ipsa loquitur, the testimony of Cruz was properly given

testimony of Cruz. As we stated in the Decision, she is competent

credence in the case at bar.

to testify on matters which she is capable of observing such as,


the statements and acts of the physician and surgeon, external

For his part, Dr. Hosaka mainly contends that the Court erred in

appearances and manifest conditions which are observable by any finding him negligent as a surgeon by applying the Captain-of-the[30]
[24]
Ship doctrine. Dr. Hosaka argues that the trend in United States
one. Cruz, Erlindas sister-in-law, was with her inside the
operating room. Moreover, being a nurse and Dean of the Capitol

jurisprudence has been to reject said doctrine in light of the

Medical Center School of Nursing at that, she is not entirely

developments in medical practice. He points out that

ignorant of anesthetic procedure. Cruz narrated that she heard Dr.

anesthesiology and surgery are two distinct and specialized fields

Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang

in medicine and as a surgeon, he is not deemed to have control

pagkakapasok. O lumalaki ang tiyan. She observed that the

over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is

nailbeds of Erlinda became bluish and thereafter Erlinda was

a specialist in her field and has acquired skills and knowledge in

placed in trendelenburg position.

[25]

Cruz further averred that she

noticed that the abdomen of Erlinda became distended.

[26]

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


The cyanosis (bluish discoloration of the skin or mucous

specialization in medicine has created situations where surgeons

membranes caused by lack of oxygen or abnormal hemoglobin in

do not always have the right to control all personnel within the

the blood) and enlargement of the stomach of Erlinda indicate that

operating room,

[32]

especially a fellow specialist.

[33]

the endotracheal tube was improperly inserted into the esophagus


instead of the trachea. Consequently, oxygen was delivered not to Dr. Hosaka cites the case of Thomas v. Raleigh General
[34]
Hospital, which involved a suit filed by a patient who lost his
the lungs but to the gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed in trendelenburg

voice due to the wrongful insertion of the endotracheal tube

position. This indicates that there was a decrease of blood supply

preparatory to the administration of anesthesia in connection with

to the patients brain. The brain was thus temporarily deprived of

the laparotomy to be conducted on him. The patient sued both the

oxygen supply causing Erlinda to go into coma.

anesthesiologist and the surgeon for the injury suffered by him.


The Supreme Court of Appeals of West Virginia held that the

The injury incurred by petitioner Erlinda does not normally happen

surgeon could not be held liable for the loss of the patients voice,

absent any negligence in the administration of anesthesia and in

considering that the surgeon did not have a hand in the intubation

the use of an endotracheal tube. As was noted in our Decision,

of the patient. The court rejected the application of the Captain-of-

the instruments used in the administration of anesthesia, including

the-Ship Doctrine, citing the fact that the field of medicine has

the endotracheal tube, were all under the exclusive control of

become specialized such that surgeons can no longer be deemed

private respondents Dr. Gutierrez and Dr. Hosaka.


Bridwell,

[28]

[27]

In Voss vs.

which involved a patient who suffered brain damage

as having control over the other personnel in the operating room.


It held that [a]n assignment of liability based on actual control

due to the wrongful administration of anesthesia, and even before

more realistically reflects the actual relationship which exists in a

the scheduled mastoid operation could be performed, the Kansas

modern operating room.

Supreme Court applied the doctrine of res ipsa loquitur, reasoning

inserted the endotracheal tube into the patients throat was held

[35]

Hence, only the anesthesiologist who

liable for the injury suffered by the latter.


118 | P a g e

Torts 3

not as clear-cut as respondents claim them to be. On the contrary,


This contention fails to persuade.

it is quite apparent that they have a common responsibility to treat


the patient, which responsibility necessitates that they call each

That there is a trend in American jurisprudence to do away with

others attention to the condition of the patient while the other

the Captain-of-the-Ship doctrine does not mean that this Court will

physician is performing the necessary medical procedures.

ipso facto follow said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the application of the

It is equally important to point out that Dr. Hosaka was remiss in

Captain-of-the-Ship doctrine. From the facts on record it can be

his duty of attending to petitioner Erlinda promptly, for he arrived

logically inferred that Dr. Hosaka exercised a certain degree of, at

more than three (3) hours late for the scheduled operation. The

the very least, supervision over the procedure then being

cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he

performed on Erlinda.

arrived at DLSMC only at around 12:10 p.m. In reckless disregard


for his patients well being, Dr. Hosaka scheduled two procedures

First, it was Dr. Hosaka who recommended to petitioners the

on the same day, just thirty minutes apart from each other, at

services of Dr. Gutierrez. In effect, he represented to petitioners

different hospitals. Thus, when the first procedure (protoscopy) at

that Dr. Gutierrez possessed the necessary competence and

the Sta. Teresita Hospital did not proceed on time, Erlinda was

skills. Drs. Hosaka and Gutierrez had worked together since

kept in a state of uncertainty at the DLSMC.

1977. Whenever Dr. Hosaka performed a surgery, he would


The unreasonable delay in petitioner Erlindas scheduled operation

always engage the services of Dr. Gutierrez to administer the


anesthesia on his patient.

[36]

subjected her to continued starvation and consequently, to the risk


of acidosis,

[40]

or the condition of decreased alkalinity of the blood

Second, Dr. Hosaka himself admitted that he was the attending

and tissues, marked by sickly sweet breath, headache, nausea

physician of Erlinda. Thus, when Erlinda showed signs of

and vomiting, and visual disturbances.

cyanosis, it was Dr. Hosaka who gave instructions to call for

Hosaka made Erlinda wait for him certainly aggravated the anxiety

another anesthesiologist and cardiologist to help resuscitate

that she must have been feeling at the time. It could be safely said

Erlinda.

[37]

[41]

The long period that Dr.

that her anxiety adversely affected the administration of


anesthesia on her. As explained by Dr. Camagay, the patients

Third, it is conceded that in performing their responsibilities to the

anxiety usually causes the outpouring of adrenaline which in turn

patient, Drs. Hosaka and Gutierrez worked as a team. Their work

results in high blood pressure or disturbances in the heart rhythm:

cannot be placed in separate watertight compartments because

DR. CAMAGAY:

their duties intersect with each other.

[38]

x x x Pre-operative medication has three main functions: One is


While the professional services of Dr. Hosaka and Dr. Gutierrez

to alleviate anxiety. Second is to dry up the secretions and Third

were secured primarily for their performance of acts within their

is to relieve pain. Now, it is very important to alleviate anxiety

respective fields of expertise for the treatment of petitioner Erlinda,

because anxiety is associated with the outpouring of certain

and that one does not exercise control over the other, they were

substances formed in the body called adrenalin. When a patient is

certainly not completely independent of each other so as to

anxious there is an outpouring of adrenalin which would have

absolve one from the negligent acts of the other physician.

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,

That they were working as a medical team is evident from the fact

which would have adverse implications. So, we would like to

that Dr. Hosaka was keeping an eye on the intubation of the

alleviate patients anxiety mainly because he will not be in control

patient by Dr. Gutierrez, and while doing so, he observed that the

of his body there could be adverse results to surgery and he will

patients nails had become dusky and had to call Dr. Gutierrezs

be opened up; a knife is going to open up his body. x x x

attention thereto. The Court also notes that the counsel for Dr.

Dr. Hosaka cannot now claim that he was entirely blameless of

Hosaka admitted that in practice, the anesthesiologist would also

what happened to Erlinda. His conduct clearly constituted a

have to observe the surgeons acts during the surgical process

breach of his professional duties to Erlinda:

and calls the attention of the surgeon whenever necessary

[39]

in

[42]

CHIEF JUSTICE:

the course of the treatment. The duties of Dr. Hosaka and those
of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore
119 | P a g e

Torts 3

Two other points. The first, Doctor, you were talking about
anxiety, would you consider a patient's stay on the operating table

DR. CAMAGAY:

for three hours sufficient enough to aggravate or magnify his or her


anxiety?

And care.

DR. CAMAGAY:

CHIEF JUSTICE:

Yes.

Duty as a matter of fact?

CHIEF JUSTICE:

DR. CAMAGAY:

In other words, I understand that in this particular case that was

Yes, Your Honor.

the case, three hours waiting and the patient was already on the

Dr. Hosaka's irresponsible conduct of arriving very late for the

operating table (interrupted)

scheduled operation of petitioner Erlinda is violative, not only of his

[43]

duty as a physician to serve the interest of his patients with the


DR. CAMAGAY:

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


Yes.

the performance of his duties, to act with justice and give everyone
his due.

CHIEF JUSTICE:
Anent private respondent DLSMCs liability for the resulting injury
Would you therefore conclude that the surgeon contributed to the

to petitioner Erlinda, we held that respondent hospital is solidarily

aggravation of the anxiety of the patient?

liable with respondent doctors therefor under Article 2180 of the


Civil Code

DR. CAMAGAY:

[45]

since there exists an employer-employee relationship

between private respondent DLSMC and Drs. Gutierrez and


Hosaka:

That this operation did not take place as scheduled is already a

In other words, private hospitals, hire, fire and exercise real control

source of anxiety and most operating tables are very narrow and

over their attending and visiting consultant staff. While

that patients are usually at risk of falling on the floor so there are

consultants are not, technically employees, x x x the control

restraints that are placed on them and they are never, never left

exercised, the hiring and the right to terminate consultants all fulfill

alone in the operating room by themselves specially if they are

the important hallmarks of an employer-employee relationship,

already pre-medicated because they may not be aware of some of

with the exception of the payment of wages. In assessing whether

their movement that they make which would contribute to their

such a relationship in fact exists, the control test is determining. x x

injury.

[46]

DLSMC however contends that applying the four-fold test in


CHIEF JUSTICE:

determining whether such a relationship exists between it and the


respondent doctors, the inescapable conclusion is that DLSMC

In other words due diligence would require a surgeon to come on

cannot be considered an employer of the respondent doctors.

time?
It has been consistently held that in determining whether an
DR. CAMAGAY:

employer-employee relationship exists between the parties, the


following elements must be present: (1) selection and engagement

I think it is not even due diligence it is courtesy.

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
[47]

CHIEF JUSTICE:

the means to be used in reaching such an end.

Courtesy.

DLSMC maintains that first, a hospital does not hire or engage the
services of a consultant, but rather, accredits the latter and grants
120 | P a g e

Torts 3

him or her the privilege of maintaining a clinic and/or admitting

by the consultant to the patient, while the second concerns the

patients in the hospital upon a showing by the consultant that he or provision by the hospital of facilities and services by its staff such
she possesses the necessary qualifications, such as accreditation

as nurses and laboratory personnel necessary for the proper

by the appropriate board (diplomate), evidence of fellowship and

treatment of the patient.

references.

[48]

Second, it is not the hospital but the patient who

pays the consultants fee for services rendered by the latter.

[49]

Further, no evidence was adduced to show that the injury suffered

Third, a hospital does not dismiss a consultant; instead, the latter

by petitioner Erlinda was due to a failure on the part of respondent

may lose his or her accreditation or privileges granted by the

DLSMC to provide for hospital facilities and staff necessary for her

hospital.

[50]

Lastly, DLSMC argues that when a doctor refers a

treatment.

patient for admission in a hospital, it is the doctor who prescribes


the treatment to be given to said patient. The hospitals obligation

For these reasons, we reverse the finding of liability on the part of

is limited to providing the patient with the preferred room

DLSMC for the injury suffered by petitioner Erlinda.

accommodation, the nutritional diet and medications prescribed by


the doctor, the equipment and facilities necessary for the treatment Finally, the Court also deems it necessary to modify the award of
of the patient, as well as the services of the hospital staff who

damages to petitioners in view of the supervening event of

perform the ministerial tasks of ensuring that the doctors orders

petitioner Erlindas death. In the assailed Decision, the Court

are carried out strictly.

[51]

awarded actual damages of One Million Three Hundred Fifty Two


Thousand Pesos (P1,352,000.00) to cover the expenses for

After a careful consideration of the arguments raised by DLSMC,

petitioner Erlindas treatment and care from the date of

the Court finds that respondent hospitals position on this issue is

promulgation of the Decision up to the time the patient expires or

meritorious. There is no employer-employee relationship between

survives.

DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC

damages of One Million Five Hundred Thousand Pesos

solidarily liable for the injury suffered by petitioner Erlinda under

(P1,500,000.00) in view of the chronic and continuing nature of

Article 2180 of the Civil Code.

petitioner Erlindas injury and the certainty of further pecuniary loss

[53]

In addition thereto, the Court awarded temperate

by petitioners as a result of said injury, the amount of which,


As explained by respondent hospital, that the admission of a

however, could not be made with certainty at the time of the

physician to membership in DLSMCs medical staff as active or

promulgation of the decision. The Court justified such award in

visiting consultant is first decided upon by the Credentials

this manner:

Committee thereof, which is composed of the heads of the various

Our rules on actual or compensatory damages generally assume

specialty departments such as the Department of Obstetrics and

that at the time of litigation, the injury suffered as a consequence

Gynecology, Pediatrics, Surgery with the department head of the

of an act of negligence has been completed and that the cost can

particular specialty applied for as chairman. The Credentials

be liquidated. However, these provisions neglect to take into

Committee then recommends to DLSMC's Medical Director or

account those situations, as in this case, where the resulting injury

Hospital Administrator the acceptance or rejection of the applicant

might be continuing and possible future complications directly

physician, and said director or administrator validates the

arising from the injury, while certain to occur, are difficult to predict.

committee's recommendation.

[52]

Similarly, in cases where a

disciplinary action is lodged against a consultant, the same is

In these cases, the amount of damages which should be awarded,

initiated by the department to whom the consultant concerned

if they are to adequately and correctly respond to the injury

belongs and filed with the Ethics Committee consisting of the

caused, should be one which compensates for pecuniary loss

department specialty heads. The medical director/hospital

incurred and proved, up to the time of trial; and one which would

administrator merely acts as ex-officio member of said committee.

meet pecuniary loss certain to be suffered but which could not,


from the nature of the case, be made with certainty. In other

Neither is there any showing that it is DLSMC which pays any of

words, temperate damages can and should be awarded on top of

its consultants for medical services rendered by the latter to their

actual or compensatory damages in instances where the injury is

respective patients. Moreover, the contract between the

chronic and continuing. And because of the unique nature of such

consultant in respondent hospital and his patient is separate and

cases, no incompatibility arises when both actual and temperate

distinct from the contract between respondent hospital and said

damages are provided for. The reason is that these damages

patient. The first has for its object the rendition of medical services cover two distinct phases.
121 | P a g e

Torts 3

As it would not be equitableand certainly not in the best interests (c)

P100,000.00 as exemplary damages;

of the administration of justicefor the victim in such cases to


constantly come before the courts and invoke their aid in seeking

(d)

P100,000.00 as attorneys fees; and

(e)

the costs of the suit.

adjustments to the compensatory damages previously awarded


temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.

SO ORDERED.

In the instant case, petitioners were able to provide only homebased 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;


122 | P a g e

Torts 3

DR. JAIME T. CRUZ, PETITIONER, VS. FELICISIMO V. AGAS,

waking up at the ICU on May 30, 2003, he found out that the

JR., RESPONDENT.

doctors did an exploratory laparatomy because of the internal


bleeding; that he learned that the doctors cut a portion of the left

DECISION

side of his colon measuring 6-8 inches because it had a partial


tear of the colonic wall which caused the internal bleeding; that

MENDOZA, J.:

despite the painkillers, he was under tremendous pain in the


incision area during his recovery period in the ICU and had fever;

This petition for review on certiorari under Rule 45 of the Rules of


Court assails the May 22, 2012 Decision
Resolution

[2]

[1]

of the Court of Appeals (CA), in CA-G.R. SP No.

111910, which affirmed the March 2, 2007


2009

[4]

and October 18, 2012


[3]

and that he had intravenous tubes attached to his arms,


subclavian artery on the left part of his chest and a nasogastric
tube through his nose.

and September 23,

Resolutions of the Secretary of Justice. The said

Dr. Cruz claimed that Dr. Agas admitted that he was the one who

resolutions let stand the February 16, 2004 Resolution of the

performed the colonoscopy procedure but the latter insisted that

Office of the Prosecutor of Quezon City, dismissing the complaint

nothing went wrong. On June 7, 2003, he was discharged from

of petitioner Dr. Jaime T. Cruz (Dr. Cruz) for Serious Physical

SLMC. Nevertheless, he complained that he had a hard time

Injuries through Reckless Imprudence and Medical Malpractice

digesting his food; that he was frequently fed every two hours

against respondent, Dr. Felicisimo V. Agas, Jr. (Dr. Agas).

because he easily got full; that he had fresh blood stools every
time he moved his bowel; that he had lost his appetite and had

The Antecedents

gastric acidity; that he slept most of the day; and that he was in
good physical condition before the colonoscopy procedure. He
[5]

In his Complaint-Affidavit

for Serious Physical Injuries through

Reckless Imprudence and Medical Malpractice against Dr. Agas,

asserted that at the time of the filing of the complaint, he was still
weak, tired and in pain.

Dr. Cruz alleged, among others, that sometime in May 2003, he


engaged the services of St. Luke's Medical Center (SLMC) for a

Defense of Dr. Agas

medical check-up; that after being admitted in SLMC on May 28,


2003, he underwent stool, urine, blood, and other body fluid tests

Dr. Agas, on the other hand, countered that Dr. Cruz failed to

conducted by the employees and doctors of the said hospital; that

prove the basic elements of reckless imprudence or negligence.

on May 29, 2003, he was sent to the Gastro-Enterology

He averred that Dr. Cruz unfairly made it appear that he did not

Department for a scheduled gastroscopy and colonoscopy; that

know that he would perform the procedure. He explained that

because the specialist assigned to perform the procedure was

before the start of the colonoscopy procedure, he was able to

nowhere to be found, he gave the colonoscopy results to the

confer with Dr. Cruz and review his medical history which was

attending female anesthesiologist for the information and

taken earlier by a fellow gastrointestinal physician. He claimed that

consideration of the assigned specialist; that, thereafter, he was

the gastroscopy and colonoscopy procedures conducted on Dr.

sedated and the endoscopic examination was carried out; that

Cruz were completely successful considering that the latter did not

when he regained consciousness, he felt that something went

manifest any significant adverse reaction or body resistance during

wrong during the procedure because he felt dizzy, had cold

the procedures and that his vital signs were normal throughout the

clammy perspiration and experienced breathing difficulty; that he

procedure.

[6]

could not stand or sit upright because he felt so exhausted and so


much pain in his abdomen; that when he was about to urinate in

Dr. Agas added that certifications and sworn statements were

the comfort room, he collapsed; that he tried to consult the

submitted by the Assistant Medical Director for Professional

specialist who performed the colonoscopy but he was nowhere to

Services, the Director of the Institute of Digestive Diseases, the

be found; and that his cardiologist, Dra. Agnes Del Rosario, was

anesthesiologist, and the hospital nurse attesting to the fact that

able to observe his critical condition and immediately referred him

the intraperitonial bleeding which developed after the colonoscopy

to the surgical department which suspected that he had

procedure, was immediately recognized, evaluated, carefully

hemorrhage in his abdomen and advised him to undergo an

managed, and corrected; that he provided an adequate and

emergency surgical operation.

reasonable standard of care to Dr. Cruz; that the endoscopist


followed all precautionary measures; that the colonoscopy

Dr. Cruz further averred that he agreed to the operation and upon

procedure was done properly; that he was not negligent or


123 | P a g e

Torts 3

reckless in conducting the colonoscopy procedure; that he did not

adhesions prior to the endoscopic procedure because no clinical

deviate from any standard medical norm, practice or procedure;

findings, laboratory tests or diagnostic imaging such as x-ray,

and that he exercised competence and diligence in rendering

ultrasound or computed tomography (CT scan) of the abdomen

medical services to Dr. Cruz.

[7]

can diagnose these conditions. This can only be detected by


surgically opening up the abdomen. Moreover, marked adhesions

Antecedents at the Prosecution Level

and serosal tear, in particular, cannot likewise be detected by


colonoscopy because they are in the outer wall of the colon and

On February 16, 2004, the Office of the City Prosecutor (OCP)

only the inner lining of the colon is within the view of the

issued a resolution dismissing the complaint for Serious Physical

colonoscope (camera).

Injuries through Reckless Imprudence and Medical Malpractice.

The CA further wrote that the counter-affidavit of Dr. Agas was

Aggrieved, Dr. Cruz filed a petition for review with the Department

supported by the sworn affidavit of Dr. Jennifel S. Bustos, an

of Justice (DOJ) but the same was dismissed in its March 2, 2007

anesthesiologist at the SLMC and the affidavit of Evelyn E. Daulat,

Resolution. Dr. Cruz filed a motion for reconsideration but it was

a nurse at SLMC, both swearing under oath that Dr. Agas was not

denied by the DOJ in its September 23, 2009 Resolution.

[8]

[9]

negligent in conducting a gastroscopy and colonoscopy procedure


on Dr. Cruz and the certification issued by the Hospital Ethics

At the Court of Appeals

Committee which stated that Dr. Cruz was given an adequate and
reasonable standard of care; that Dr. Agas followed all

Not satisfied, Dr. Cruz filed a petition for certiorari before the CA

precautionary measures in safeguarding Dr. Cruz from any

questioning the unfavorable DOJ resolutions. On May 22, 2012,

possible complications; and that the colonoscopy was done

the CA rendered a decision affirming the said DOJ resolutions.

properly.

The CA explained that, as a matter of sound judicial policy, courts


would not interfere with the public prosecutor's wide discretion of

Hence, this petition.


ISSUE

determining probable cause in a preliminary investigation unless


such executive determination was tainted with manifest error or
grave abuse of discretion. It stated that the public prosecutor's

WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING

finding of lack of probable cause against Dr. Agas was in

THE DECISION OF THE DOJ THAT NO PROBABLE CAUSE

accordance with law and that his alleged negligence was not

EXISTS FOR FILING AN INFORMATION AGAINST THE

adequately established by Dr. Cruz.

RESPONDENT, THAT THE RESPONDENT WAS NOT


NEGLIGENT AND THAT THERE WAS NO DENIAL OF DUE

The CA also declared that Dr. Cruz failed to state in his Complaint- PROCESS.
Affidavit the specific procedures that Dr. Agas failed to do which a

Non-interference with Executive Determination of Probable Cause

reasonable prudent doctor would have done, or specific norms he

in Preliminary Investigations

failed to observe which a reasonably prudent doctor would have


complied with. The CA pointed out that Dr. Agas was able to

Under the doctrine of separation of powers, courts have no right to

satisfactorily explain in his Counter-Affidavit that the complications

directly decide on matters over which full discretionary authority

suffered by Dr. Cruz was not caused by his negligence or was the

has been delegated to the Executive Branch of the Government,

result of medical malpractice. Dr. Agas explained as follows:

or to substitute their own judgment for that of the Executive

That the complication was due to the abnormal condition and

Branch, represented in this case by the Department of Justice.

configuration of the digestive system, colon in particular, of the

The settled policy is that the courts will not interfere with the

complainant and not from any negligent act in connection with the

executive determination of probable cause for the purpose of filing

conduct of colonoscopy. The surgical findings (xxx) revealed

an Information, in the absence of grave abuse of discretion. That

marked adhesions in the sigmoid colon which is not and never

abuse of discretion must be so patent and gross as to amount to

within my control. That the tear in the serosa (the outermost layer

an evasion of a positive duty or a virtual refusal to perform a duty

of the colonic wall which has 4 layers) happened likely because of

enjoined by law or to act at all in contemplation of law, such as

the marked interloop adhesions and tortuousity of the sigmoid

where the power is exercised in an arbitrary and despotic manner

segment of the colon. These adhesions that connect the serosa to

by reason of passion or hostility.

the peritoneal lining of each loop detached from the serosa during
the procedure. It is not possible to detect the presence of marked

Medical Negligence and Malpractice Not Established


124 | P a g e

Torts 3

In the case at bench, Dr. Cruz failed to show that the DOJ gravely

In this case, the Court agrees with Dr. Agas that his purported

abused its discretion in finding that there was lack of probable

negligence in performing the colonoscopy on Dr. Cruz was not

cause and dismissing the complaint against Dr. Agas for Serious

immediately apparent to a layman to justify the application of res

Physical Injuries through Reckless Imprudence and Medical

ipsa loquitur doctrine.

Malpractice.
Dr. Agas was able to establish that the internal bleeding sustained
A medical negligence case can prosper if the patient can present

by Dr. Cruz was due to the abnormal condition and configuration

solid proof that the doctor, like in this case, either failed to do

of his sigmoid colon which was beyond his control considering that

something which a reasonably prudent doctor would have done, or the said condition could not be detected before a colonoscopic
that he did something that a reasonably prudent doctor would not

procedure. Dr. Agas adequately explained that no clinical findings,

have done, and such failure or action caused injury to the patient.

laboratory tests, or diagnostic imaging, such as x-rays, ultrasound

To successfully pursue this kind of case, a patient must only prove

or computed tomography (CT) scan of the abdomen, could have

that a health care provider either failed to do something which a

detected this condition prior to an endoscopic procedure.

reasonably prudent health care provider would have done, or that

Specifically, Dr. Agas wrote:

he did something that a reasonably prudent provider would not

On the other hand, in the present case, the correlation between

have done; and that failure or action caused injury to the patient.

petitioner's injury, i.e., tear in the serosa of sigmoid colon, and the

Simply put, the elements are duty, breach, injury and proximate

colonoscopy conducted by respondent to the petitioner clearly

causation.

[10]

requires the presentation of an expert opinion considering that no

In this case, Dr. Cruz has the burden of showing the negligence or

perforation of the sigmoid colon was ever noted during the

recklessness of Dr. Agas. Although there is no dispute that Dr.

laparotomy. It cannot be overemphasized that the colonoscope

Cruz sustained internal hemorrhage due to a tear in the serosa of

inserted by the respondent only passed through the inside of

his sigmoid colon, he failed to show that it was caused by Dr.

petitioner's sigmoid colon while the damaged tissue, i.e., serosa,

Agas's negligent and reckless conduct of the colonoscopy

which caused the bleeding, is located in the outermost layer of the

procedure. In other words, Dr. Cruz failed to show and explain that

colon. It is therefore impossible for the colonoscope to touch,

particular negligent or reckless act or omission committed by Dr.

scratch, or even tear the serosa since the said membrane is

Agas. Stated differently, Dr. Cruz did not demonstrate that there

beyond reach of the colonoscope in the absence of perforation on

was "inexcusable lack of precaution" on the part of Dr. Agas.

the colon.

[13]

Dr. Cruz failed to rebut this.


Res Ipsa Loquitur Doctrine
Not Applicable Against Respondent

WHEREFORE, the petition is DENIED.

Literally, res ipsa loquitur means the thing speaks for itself. It is the
rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima facie
case, and present a question of fact for defendant to meet with an
[11]

explanation.

The requisites for the applicability of the doctrine of res ipsa


loquitur are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and management of the
defendant; (3) the occurrence was such that in the ordinary course
of things, would not have happened if those who had control or
management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most
instrumental is the control and management of the thing which
caused the injury.

[12]

125 | P a g e

Torts 3

NILO B. ROSIT, PETITIONER, VS. DAVAO DOCTORS

P4,500.

HOSPITAL AND DR. ROLANDO G. GESTUVO,


RESPONDENTS.

Rosit went to Cebu on February 19, 1999, still suffering from pain
and could hardly open his mouth.

DECISION
In Cebu, Dr. Pangan removed the plate and screws thus installed
VELASCO JR., J.:

by Dr. Gestuvo and replaced them with smaller titanium plate and
screws. Dr. Pangan also extracted Rosit's molar that was hit with a
The Case

screw and some bone fragments. Three days after the operation,

Rosit was able to eat and speak well and could open and close his
This is a petition filed under Rule 45 of the Rules of Court assailing mouth normally.[7]
[1]
the Decision and Resolution dated January 22, 2013 and
November 7, 2013,

[2]

respectively, of the Court of Appeals,

On his return to Davao, Rosit demanded that Dr. Gestuvo

Cagayan De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The


CA Decision reversed the Decision dated September 14, 2004

[3]

reimburse him for the cost of the operation and the expenses he
of incurred in Cebu amounting to P140,000, as well as for the

the Regional Trial Court, Branch 33 in Davao City-(RTC) in Civil

P50,000 that Rosit would have to spend for the removal of the

Case No. 27,354-99, a suit for damages thereat which Nilo B.

plate and screws that Dr. Pangan installed. Dr. Gestuvo refused to

Rosit (Rosit) commenced against Dr. Rolando Gestuvo (Dr.

pay.

[8]

Gestuvo).
Thus, Rosit filed a civil case for damages and attorney's fees with
Factual Antecedents

the RTC against Dr. Gestuvo and DDH, the suit docketed as Civil
Case No. 27,354-99.

On January 15, 1999, Rosit figured in a motorcycle accident. The


X-ray soon taken the next day at the Davao Doctors Hospital

The Ruling of the Regional Trial Court

(DDH) showed that he fractured his jaw. Rosit was then referred to
Dr. Gestuvo, a specialist in mandibular injuries,

[4]

who, on January

19, 1999, operated on Rosit.

The RTC freed DDH from liability on the ground that it exercised
the proper diligence in the selection and supervision of Dr.
Gestuvo, but adjudged Dr. Gestuvo negligent and ruled, thus:

During the operation, Dr. Gestuvo used a metal plate fastened to

FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to

the jaw with metal screws to immobilize the mandible. As the

have preponderantly established his cause of action in the

operation required the smallest screws available, Dr. Gestuvo cut

complaint against defendant Dr. Rolando G. Gestuvo only,

the screws on hand to make them smaller. Dr. Gestuvo knew that

judgment is hereby rendered for the plaintiff and against said

there were smaller titanium screws available in Manila, but did not

defendant, ordering the defendant DR. ROLANDO G. GESTUVO

so inform Rosit supposing that the latter would not be able to

to pay unto plaintiff NILO B. ROSIT the following:

afford the same.

[5]

a) the sum of ONE HUNDRED FORTY THOUSAND ONE


Following the procedure, Rosit could not properly open and close

HUNDRED NINETY NINE PESOS and 13/100 (P140,199.13)

his mouth and was in pain. X-rays done on Rosit two (2) days after

representing reimbursement of actual expenses incurred by

the operation showed that the fracture in his jaw was aligned but
the screws used on him touched his molar. Given the X-ray

plaintiff in the operation and re-operation of his mandible;


b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT

results, Dr. Gestuvo referred Rosit to a dentist. The dentist who

PESOS (P29,068.00) representing reimbursement of the filing

checked Rosit, Dr. Pangan, opined that another operation is

fees and appearance fees;

necessary and that it is to be performed in Cebu.

[6]

c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS


(P150,000.00) as and for attorney's fees;

Alleging that the dentist told him that the operation conducted on
his mandible was improperly done, Rosit went back to Dr. Gestuvo
to demand a loan to defray the cost of the additional operation as
well as the expenses of the trip to Cebu. Dr. Gestuvo gave Rosit

d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as


moral damages;
e) the amount of TEN THOUSAND PESOS (P10,000.00) as
exemplary damages; and
126 | P a g e

Torts 3

f) the costs of the suit.


In Flores v. Pineda,
For lack of merit, the complaint against defendant DAVAO

[9]

the Court explained the concept of a medical

negligence case and the elements required for its prosecution, viz:

DOCTORS HOSPITAL and the defendants' counterclaims are


hereby ordered DISMISSED.

A medical negligence case is a type of claim to redress a wrong


committed by a medical professional, that has caused bodily harm

Cost against Dr. Rolando G. Gestuvo.

to or the death of a patient. There are four elements involved in


a medical negligence case, namely: duty, breach, injury, and
proximate causation.

SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle
holding that "the need for expert, medical testimony may be

Duty refers to the standard of behavior which imposes restrictions

dispensed with because the injury itself provides the proof of

on one's conduct. The standard in turn refers to the amount of

negligence."

competence associated with the proper discharge of the


profession. A physician is expected to use at least the same level

Therefrom, both parties appealed to the CA.

of care that any other reasonably competent doctor would use


under the same circumstances. Breach of duty occurs when the

The Ruling of the Court of Appeals

physician fails to comply with these professional standards. If


injury results to the patient as a result of this breach, the physician

In its January 22, 2013 Decision, the CA modified the appealed

is answerable for negligence. (emphasis supplied)

judgment by deleting the awards made by the trial court, disposing


as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The

An expert witness is not necessary as the res ipsa loquitur

Decision dated September 14, 2004 of the Regional Trial Court,

doctrine is applicable

Branch 33, Davao City, rendered in Civil Case No. 27,354-99 is


hereby MODIFIED. The monetary awards adjudged in favor of Nilo To establish medical negligence, this Court has held that an expert
B. Rosit are hereby DELETED for lack of basis.
testimony is generally required to define the standard of behavior
by which the court may determine whether the physician has
SO ORDERED.

properly performed the requisite duty toward the patient. This is so

Unlike the RTC, the CA ruled that the res ipsa loquitur principle is

considering that the requisite degree of skill and care in the

not applicable and that the testimony of an expert witness is

treatment of a patient is usually a matter of expert opinion.

[10]

necessary for a finding of negligence. The appellate court also


[11]

gave credence to Dr. Pangan's letter stating the opinion that Dr.

Solidum v. People of the Philippines

Gestuvo did not commit gross negligence in his emergency

There, the Court explained that where the application of the

management of Rosit's fractured mandible.

principle of res ipsa loquitur is warranted, an expert testimony may

provides an exception.

be dispensed with in medical negligence cases:


Rosit's motion for reconsideration was denied in the CA's

Although generally, expert medical testimony is relied upon in

November 7, 2013 Resolution.

malpractice suits to prove that a physician has done a


negligent act or that he has deviated from the standard

Hence, the instant appeal.

medical procedure, when the doctrine of res ipsa loquitur is


availed by the plaintiff, the need for expert medical testimony
The Issue

is dispensed with because the injury itself provides the proof


of negligence. The reason is that the general rule on the

The ultimate issue for our resolution is whether the appellate court

necessity of expert testimony applies only to such matters clearly

correctly absolved Dr. Gestuvo from liability.

within the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be testified

The Court's Ruling


The petition is impressed with merit.

to by anyone familiar with the facts. x x x


Thus, courts of other jurisdictions have applied the doctrine in the
127 | P a g e

Torts 3

following situations: leaving of a foreign object in the body of the

Clearly, had Dr. Gestuvo used the proper size and length of

patient after an operation, injuries sustained on a healthy part of

screws and placed the same in the proper locations, these would

the body which was not under, or in the area, of treatment,

not have struck Rosit's teeth causing him pain and requiring him to

removal of the wrong part of the body when another part was

undergo a corrective surgery.

intended, knocking out a tooth while a patient's jaw was under


anesthetic for the removal of his tonsils, and loss of an eye while

Dr. Gestuvo knew that the screws he used on Rosit were too large

the patient plaintiff was under the influence of anesthetic, during or

as, in fact, he cut the same with a saw.

following an operation for appendicitis, among others.

trial that common sense dictated that the smallest screws available

We have further held that resort to the doctrine of res ipsa loquitur

should be used. More importantly, he also knew that these screws

as an exception to the requirement of an expert testimony in

were available locally at the time of the operation.

medical negligence cases may be availed of if the following

not avail of such items and went ahead with the larger screws and

essential requisites are satisfied: (1) the accident was of a kind

merely sawed them off. Even assuming that the screws were

that does not ordinarily occur unless someone is negligent; (2) the

already at the proper length after Dr. Gestuvo cut the same, it is

instrumentality or agency that caused the injury was under the

apparent that he negligently placed one of the screws in the wrong

exclusive control of the person charged; and (3) the injury suffered

area thereby striking one of Rosit's teeth.

[14]

He also stated during

[15]

Yet, he did

must not have been due to any voluntary action or contribution of


the person injured.

[12]

In any event, whether the screw hit Rosit's molar because it was
too long or improperly placed, both facts are the product of Dr.

In its assailed Decision, the CA refused to acknowledge the

Gestuvo's negligence. An average man of common intelligence

application of the res ipsa loquitur doctrine on the ground that the

would know that striking a tooth with any foreign object much less

foregoing elements are absent. In particular, the appellate court is

a screw would cause severe pain. Thus, the first essential

of the position that post-operative pain is not unusual after surgery

requisite is present in this case.

and that there is no proof that the molar Dr. Pangan removed is
the same molar that was hit by the screw installed by Dr. Gestuvo

Anent the second element for the res ipsa loquitur doctrine

in Rosit's mandible. Further, a second operation was conducted

application, it is sufficient that the operation which resulted in the

within the 5-week usual healing period of the mandibular fracture

screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo.

so that the second element cannot be considered present. Lastly,

No other doctor caused such fact.

the CA pointed out that the X-ray examination conducted on Rosit


prior to his first surgery suggests that he had "chronic inflammatory The CA finds that Rosit is guilty of contributory negligence in
lung disease compatible," implying that the injury may have been

having Dr. Pangan operate on him during the healing period of his

due to Rosit's peculiar condition, thus effectively negating the

fractured mandible. What the CA overlooked is that it was Dr.

presence of the third element.

[13]

Gestuvo himself who referred Rosit to Dr. Pangan. Nevertheless,


Dr. Pangan's participation could not have contributed to the reality

After careful consideration, this Court cannot accede to the CA's

that the screw that Dr. Gestuvo installed hit Rosit's molar.

findings as it is at once apparent from the records that the


essential requisites for the application of the doctrine of res ipsa

Lastly, the third element that the injury suffered must not have

loquitur are present.

been due to any voluntary action or contribution of the person


injured was satisfied in this case. It was not shown that Rosit's

The first element was sufficiently established when Rosit proved

lung disease could have contributed to the pain. What is clear is

that one of the screws installed by Dr. Gestuvo struck his molar. It

that he suffered because one of the screws that Dr. Gestuvo

was for this issue that Dr. Gestuvo himself referred Rosit to Dr.

installed hit Rosit's molar.

Pangan. In fact, the affidavit of Dr. Pangan presented by Dr.


Gestuvo himself before the trial court narrated that the same molar Clearly then, the res ipsa loquitur doctrine finds application in
struck with the screw installed by Dr. Gestuvo was examined and

the instant case and no expert testimony is required to

eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go establish the negligence of defendant Dr. Gestuvo.
back and say that Dr. Pangan treated a molar different from that
which was affected by the first operation.

Petitioner was deprived of the opportunity to make an


"informed consent"
128 | P a g e

Torts 3

risks; (3) as a direct and proximate result of the failure to


What is more damning for Dr. Gestuvo is his failure to inform Rosit

disclose, the patient consented to treatment she otherwise

that such smaller screws were available in Manila, albeit at a

would not have consented to; and (4) plaintiff was injured by

higher price.

[16]

As testified to by Dr. Gestuvo himself:

the proposed treatment." The gravamen in an informed consent


case requires the plaintiff to "point to significant undisclosed

Court

This titanium materials according to you were already

Alright. available in the Philippines since the time of Rosit's


accident?

information relating to the treatment which would have altered her


decision to undergo it." (emphasis supplied)
The four adverted essential elements above are present here.

WitnessYes, your Honor.


xxxx
Court

First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the

Did you inform Rosit about the existence of titanium


screws and plates which according to you is the screws

risks of using the larger screws for the operation. This was his
obligation as the physician undertaking the operation.

and plates of choice?


WitnessNo, your Honor.
xxxx

Second, Dr. Gestuvo failed to disclose these risks to Rosit,


deciding by himself that Rosit could not afford to get the more

WitnessThe reason I did not inform him anymore Judge because

expensive titanium screws.

what I thought he was already hard up with the down


payment. And if I will further introduce him this screws, the
more he will not be able to afford the operation.
xxxx
Court

to Rosit to decide whether to use it or not because after all


the material you are using is paid by the patient himscll, is
it not?

same, as what happened in this case, Rosit would not have


agreed to the operation. It bears pointing out that Rosit was, in
fact, able to afford the use of the smaller titanium screws that were
later used by Dr. Pangan to replace the screws that were used by

WitnessYes, that is true.


[17]

screws are not appropriate for the operation and that an additional
operation replacing the screws might be required to replace the

This titanium screws and plates were available then it is up

Li v. Soliman

Third, had Rosit been informed that there was a risk that the larger

Dr. Gestuvo.

made the following disquisition on the relevant

Doctrine of Informed Consent in relation to medical negligence


cases, to wit:
The doctrine of informed consent within the context of
physician-patient relationships goes far back into English common
law. x x x From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a
duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would

Fourth, as a result of using the larger screws, Rosit experienced


pain and could not heal properly because one of the screws hit his
molar. This was evident from the fact that just three (3) days after
Dr. Pangan repeated the operation conducted by Dr. Gestuvo,
Rosit was pain-free and could already speak. This is compared to
the one (1) month that Rosit suffered pain and could not use his
mouth after the operation conducted by Dr. Gestuvo until the
operation of Dr. Pangan.

disclose to his patient as to whatever grave risks of injury


might be incurred from a proposed course of treatment, so
that a patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may

Without a doubt, Dr. Gestuvo is guilty of withholding material


information which would have been vital in the decision of Rosit in
going through with the operation with the materials at hand. Thus,
Dr. Gestuvo is also guilty of negligence on this ground.

intelligently exercise his judgment by reasonably balancing


the probable risks against the probable benefits.
xxxx

Dr. Pangan's Affidavit is not admissible


The appellate court's Decision absolving Dr. Gestuvo of
negligence was also anchored on a letter signed by Dr. Pangan

There are four essential elements a plaintiff must prove in a


malpractice action based upon the doctrine of informed
consent: "(1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed those

who stated the opinion that Dr. Gestuvo did not commit gross
negligence in his emergency management of Mr. Rosit's fractured
mandible.

[18]

Clearly, the appellate court overlooked the

elementary principle against hearsay evidence.


129 | P a g e

Torts 3

In Dantis v. Maghinang, Jr.,

[19]

the Court reiterated the oft-repeated To recall, from the time he was negligently operated upon by Dr.

rule that "an affidavit is merely hearsay evidence where its

Gestuvo until three (3) days from the corrective surgery performed

affiant/maker did not take the witness stand." Here, Dr. Pangan

by Dr. Pangan, or for a period of one (1) month, Rosit suffered

never took the witness stand to affirm the contents of his affidavit.

pain and could not properly use his jaw to speak or eat.

Thus, the affidavit is inadmissible and cannot be given any weight.


The CA, therefore, erred when it considered the affidavit of Dr.

The trial court also properly awarded attorney's fees and costs of

Pangan, mpreso for considering the same as expert testimony.

suit under Article 2208 of the Civil Code,

[23]

since Rosit was

compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's


Moreover, even if such affidavit is considered as admissible and

damages.

the testimony of an expert witness, the Court is not bound by such


testimony. As ruled in Ilao-Quianay v. Mapile:

[20]

As to the award of exemplary damages, the same too has to be


[24]

Indeed, courts are not bound by expert testimonies. They may

affirmed. In Mendoza,

the Court enumerated the requisites for

place whatever weight they choose upon such testimonies in

the award of exemplary damages:

accordance with the facts of the case. The relative weight and

Our jurisprudence sets certain conditions when exemplary

sufficiency of expert testimony is peculiarly within the province of

damages may be awarded: First, they may be imposed by way of

the trial court to decide, considering the ability and character of the example or correction only in addition, among others, to
witness, his actions upon the witness stand, the weight and

compensatory damages, and cannot be recovered as a matter of

process of the reasoning by which he has supported his opinion,

right, their determination depending upon the amount of

his possible bias in favor of the side for whom he testifies, and any

compensatory damages that may be awarded to the claimant.

other matters which serve to illuminate his statements. The opinion Second, the claimant must first establish his right to moral,
of an expert should be considered by the court in view of all the

temperate, liquidated or compensatory damages. Third, the

facts and circumstances of the case. The problem of the

wrongful act must be accompanied by bad faith, and the award

evaluation of expert testimony is left to the discretion of the trial

would be allowed only if the guilty party acted in a wanton,

court whose ruling thereupon is not revicwable in the absence of

fraudulent, reckless, oppressive or malevolent manner.

an abuse of that discretion.

The three (3) requisites are met. Dr. Gestuvo's actions are clearly

Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of

negligent. Likewise, Dr. Gestuvo acted in bad faith or in a wanton,

negligence or not will not bind the Court. The Court must weigh

fraudulent, reckless, oppressive manner when he was in breach of

and examine such testimony and decide for itself the merits

the doctrine of informed consent. Dr. Gestuvo had the duty to fully

thereof.

explain to Rosit the risks of using large screws for the operation.
More importantly, he concealed the correct medical procedure of

As discussed above, Dr. Gestuvo's negligence is clearly

using the smaller titanium screws mainly because of his erroneous

demonstrable by the doctrines of res ipsa loquitur and informed

belief that Rosit cannot afford to buy the expensive titanium

consent.

screws. Such concealment is clearly a valid basis for an award of


exemplary damages.

Damages
WHEREFORE, the instant petition is GRANTED. The CA Decision
For the foregoing, the trial court properly awarded Rosit actual

dated January 22, 2013 and Resolution dated November 7, 2013

damages after he was able to prove the actual expenses that he

in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET

incurred due to the negligence of Dr. Gestuvo. In Mendoza v.

ASIDE. Further, the Decision dated September 14, 2004 of the

Spouses Gomez,

[21]

the Court explained that a claimant is entitled

to actual damages when the damage he sustained is the natural

Regional Trial Court, Branch 33 in Davao City in Civil Case No.


27,345-99 is hereby REINSTATED and AFFIRMED.

and probable consequences of the negligent act and he


adequately proved the amount of such damage.

SO ORDERED.

Rosit is also entitled to moral damages as provided under Article


2217 of the Civil Code,

[22]

given the unnecessary physical suffering

he endured as a consequence of defendant's negligence.


130 | P a g e

Torts 3

DR. FERNANDO P. SOLIDUM, PETITIONER, VS. PEOPLE OF


THE PHILIPPINES, RESPONDENT.

opening] and was to undergo an operation for anal opening [pull


through operation], did then and there willfully, unlawfully and
feloniously fail and neglect to use the care and diligence as the

DECISION

best of his judgment would dictate under said circumstance, by


failing to monitor and regulate properly the levels of anesthesia

BERSAMIN, J.:

administered to said GERALD ALBERT GERCAYO and using


100% halothane and other anesthetic medications, causing as a

This appeal is taken by a physician-anesthesiologist who has been consequence of his said carelessness and negligence, said
pronounced guilty of reckless imprudence resulting in serious
GERALD ALBERT GERCAYO suffered a cardiac arrest and
physical injuries by the Regional Trial Court (RTC) and the Court

consequently a defect called hypoxic encephalopathy meaning

of Appeals (CA). He had been part of the team of


anesthesiologists during the surgical pull-through operation

insufficient oxygen supply in the brain, thereby rendering said

conducted on a three-year old patient born with an imperforate

GERALD ALBERT GERCAYO incapable of moving his body,

anus.

[1]

seeing, speaking or hearing, to his damage and prejudice.

The antecedents are as follows:

Contrary to law.

Gerald Albert Gercayo (Gerald) was born on June 2, 1992

[2]

with

[14]

The case was initially filed in the Metropolitan Trial Court of

an imperforate anus. Two days after his birth, Gerald underwent

Manila, but was transferred to the RTC pursuant to Section 5 of

colostomy, a surgical procedure to bring one end of the large

Republic Act No. 8369 (The Family Courts Act of 1997),

intestine out through the abdominal wall,

[3]

enabling him to excrete

through a colostomy bag attached to the side of his body.

[15]

where it

was docketed as Criminal Case No. 01-190889.

[4]

Judgment of the RTC


On May 17, 1995, Gerald, then three years old, was admitted at
the Ospital ng Maynila for a pull-through operation.

[5]

Dr. Leandro

On July 19, 2004, the RTC rendered its judgment finding Dr.

Resurreccion headed the surgical team, and was assisted by Dr.

Solidum guilty beyond reasonable doubt of reckless imprudence

Joselito Luceo, Dr. Donatella Valea and Dr. Joseph Tibio. The

resulting to serious physical injuries,

[16]

decreeing:

anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon


and petitioner Dr. Fernando Solidum (Dr. Solidum).
operation, Gerald experienced bradycardia,
coma.

[8]

His coma lasted for two weeks,

consciousness only after a month.


hear or move.

[10]

[9]

[7]

[6]

During the

and went into a

but he regained

He could no longer see,

[11]

WHEREFORE, premises considered, the Court finds accused DR.


FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer
the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY
of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH
and TEN (10) DAYS of prision correccional as maximum and to

Agitated by her sons helpless and unexpected condition, Ma. Luz

indemnify, jointly and severally with the Ospital ng Maynila, Dr.

Gercayo (Luz) lodged a complaint for reckless imprudence

Anita So and Dr. Marichu Abella, private complainant Luz

resulting in serious physical injuries with the City Prosecutors

Gercayo, the amount of P500,000.00 as moral damages and

Office of Manila against the attending physicians.

[12]

P100,000.00 as exemplary damages and to pay the costs.

Upon a finding of probable cause, the City Prosecutors Office filed Accordingly, the bond posted by the accused for his provisional
[13]
an information solely against Dr. Solidum, alleging:
liberty is hereby CANCELLED.
That on or about May 17, 1995, in the City of Manila, Philippines,

[17]

SO ORDERED.

the said accused, being then an anesthesiologist at the Ospital ng


Maynila, Malate, this City, and as such was tasked to administer

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider

the anesthesia on three-year old baby boy GERALD ALBERT

their solidary liability,

GERCAYO, represented by his mother, MA. LUZ GERCAYO, the

liability as to the damages, modifying its decision as follows:

[18]

the RTC excluded them from solidary

former having been born with an imperforate anus [no anal


131 | P a g e

Torts 3

WHEREFORE, premises considered, the Court finds accused Dr.

the doctrine is appropriate, all that the patient must do is prove a

Fernando Solidum, guilty beyond reasonable doubt as principal of

nexus between the particular act or omission complained of and

the crime charged and is hereby sentenced to suffer the

the injury sustained while under the custody and management of

indeterminate penalty of two (2) months and one (1) day of arresto

the defendant without need to produce expert medical testimony to

mayor as minimum to one (1) year, one (1) month and ten (10)

establish the standard of care. Resort to res ipsa loquitur is

days of prision correccional as maximum and to indemnify jointly

allowed because there is no other way, under usual and ordinary

and severally with Ospital ng Maynila, private complainant Luz

conditions, by which the patient can obtain redress for injury

Gercayo the amount of P500,000.00 as moral damages and

suffered by him.

P100,000 as exemplary damages and to pay the costs.


The lower court has found that such a nexus exists between the
Accordingly, the bond posted by the accused for his provisional
liberty is hereby cancelled.

[19]

act complained of and the injury sustained, and in line with the
hornbook rules on evidence, we will afford the factual findings of a
trial court the respect they deserve in the absence of a showing of

Decision of the CA

arbitrariness or disregard of material facts that might affect the


disposition of the case. People v. Paraiso 349 SCRA 335.

On January 20, 2010, the CA affirmed the conviction of Dr.


Solidum,

[20]

pertinently stating and ruling:

The res ipsa loquitur test has been known to be applied in criminal
cases. Although it creates a presumption of negligence, it need

The case appears to be a textbook example of res ipsa loquitur.

not offend due process, as long as the accused is afforded the


opportunity to go forward with his own evidence and prove that he

xxxx

has no criminal intent. It is in this light not inconsistent with the


constitutional presumption of innocence of an accused.

x x x [P]rior to the operation, the child was evaluated and found fit
to undergo a major operation. As noted by the OSG, the accused

IN VIEW OF THE FOREGOING, the modified decision of the lower

himself testified that pre-operation tests were conducted to ensure

court is affirmed.

that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other

[21]

SO ORDERED.

procedures failed to reveal that he was suffering from any known


ailment or disability that could turn into a significant risk. There

Dr. Solidum filed a motion for reconsideration, but the CA denied

was not a hint that the nature of the operation itself was a

his motion on May 7, 2010.

[22]

causative factor in the events that finally led to hypoxia.


Hence, this appeal.
In short, the lower court has been left with no reasonable
Issues

hypothesis except to attribute the accident to a failure in the proper


administration of anesthesia, the gravamen of the charge in this
case. The High Court elucidates in Ramos vs. Court of Appeals

Dr. Solidum avers that:

321 SCRA 584


I.
In cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury

THE HONORABLE COURT OF APPEALS ERRED IN

to the patient, without the aid of expert testimony, where the court

AFFIRMING THE DECISION OF THE LOWER COURT IN

from its fund of common knowledge can determine the proper

UPHOLDING THE PETITIONERS CONVICTION FOR THE

standard of care. Where common knowledge and experience

CRIME CHARGED BASED ON THE TRIAL COURTS OPINION,

teach that a resulting injury would not have occurred to the patient

AND NOT ON THE BASIS OF THE FACTS ESTABLISHED

if due care had been exercised, an inference of negligence may be DURING THE TRIAL. ALSO, THERE IS A CLEAR
drawn giving rise to an application of the doctrine of res ipsa

MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL

loquitur without medical evidence, which is ordinarily required to

RESULT TO THE ACQUITTAL OF THE PETITIONER.

show not only what occurred but how and why it occurred. When

FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING


132 | P a g e

Torts 3

THE SAID DECISION OF THE LOWER COURT, AS THIS

management of the defendant, and the accident is such as in the

BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE

ordinary course of things does not happen if those who have the

PROSECUTION MUST PROVE THE ALLEGATIONS OF THE

management use proper care, it affords reasonable evidence, in

INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON

the absence of an explanation by the defendant, that the accident

THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

arose from want of care.

[24]

It is simply a recognition of the

postulate that, as a matter of common knowledge and experience,


II.

the very nature of certain types of occurrences may justify an


inference of negligence on the part of the person who controls the

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING

instrumentality causing the injury in the absence of some

THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE

explanation by the defendant who is charged with negligence. It is

DEFENSE WAS ABLE TO PROVE THAT THERE IS NO

grounded in the superior logic of ordinary human experience and

NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO

on the basis of such experience or common knowledge,

OVERDOSING IN THE APPLICATION OF THE ANESTHETIC

negligence may be deduced from the mere occurrence of the

AGENT BECAUSE THERE WAS NO 100% HALOTHANE

accident itself. Hence, res ipsa loquitur is applied in conjunction

ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%)

with the doctrine of common knowledge.

[25]

PERCENT AND THE APPLICATION THEREOF, WAS


[26]

REGULATED BY AN ANESTHESIA MACHINE. THUS, THE

Jarcia, Jr. v. People

has underscored that the doctrine is not a

APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR

rule of substantive law, but merely a mode of proof or a mere

(sic) CONTRADICTED THE ESTABLISHED FACTS AND THE

procedural convenience. The doctrine, when applicable to the

LAW APPLICABLE IN THE CASE.

facts and circumstances of a given case, is not meant to and does


not dispense with the requirement of proof of culpable negligence

III.

against the party charged. It merely determines and regulates


what shall be prima facie evidence thereof, and helps the plaintiff

THE AWARD OF MORAL DAMAGES AND EXEMPLARY

in proving a breach of the duty. The doctrine can be invoked when

DAMAGES IS NOT JUSTIFIED THERE BEING NO

and only when, under the circumstances involved, direct evidence

NEGLIGENCE ON THE PART OF THE PETITIONER.

is absent and not readily available.

[27]

ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL


CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL

The applicability of the doctrine of res ipsa loquitur in medical

ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND

negligence cases was significantly and exhaustively explained in

NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH,

Ramos v. Court of Appeals,

[28]

where the Court said

THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND


LEGAL BASIS.

[23]

Medical malpractice cases do not escape the application of this


doctrine. Thus, res ipsa loquitur has been applied when the

To simplify, the following are the issues for resolution, namely: (a)

circumstances attendant upon the harm are themselves of such a

whether or not the doctrine of res ipsa loquitur was applicable

character as to justify an inference of negligence as the cause of

herein; and (b) whether or not Dr. Solidum was liable for criminal

that harm. The application of res ipsa loquitur in medical

negligence.

negligence cases presents a question of law since it is a judicial


function to determine whether a certain set of circumstances does,
Ruling

The appeal is meritorious.

as a matter of law, permit a given inference.


Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent

Applicability of the

act or that he has deviated from the standard medical procedure,

Doctrine of Res Ipsa Loquitur

when the doctrine of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because the

Res ipsa loquitur is literally translated as the thing or the

injury itself provides the proof of negligence. The reason is that the

transaction speaks for itself. The doctrine res ipsa loquitur means general rule on the necessity of expert testimony applies only to
that where the thing which causes injury is shown to be under the

such matters clearly within the domain of medical science, and not
133 | P a g e

Torts 3

to matters that are within the common knowledge of mankind

exercised. A distinction must be made between the failure to

which may be testified to by anyone familiar with the facts.

secure results, and the occurrence of something more unusual

Ordinarily, only physicians and surgeons of skill and experience

and not ordinarily found if the service or treatment rendered

are competent to testify as to whether a patient has been treated

followed the usual procedure of those skilled in that particular

or operated upon with a reasonable degree of skill and care.

practice. It must be conceded that the doctrine of res ipsa loquitur

However, testimony as to the statements and acts of physicians

can have no application in a suit against a physician or surgeon

and surgeons, external appearances, and manifest conditions

which involves the merits of a diagnosis or of a scientific treatment.

which are observable by any one may be given by non-expert

The physician or surgeon is not required at his peril to explain why

witnesses. Hence, in cases where the res ipsa loquitur is

any particular diagnosis was not correct, or why any particular

applicable, the court is permitted to find a physician negligent upon scientific treatment did not produce the desired result. Thus, res
proper proof of injury to the patient, without the aid of expert

ipsa loquitur is not available in a malpractice suit if the only

testimony, where the court from its fund of common knowledge

showing is that the desired result of an operation or treatment was

can determine the proper standard of care. Where common

not accomplished. The real question, therefore, is whether or not

knowledge and experience teach that a resulting injury would not

in the process of the operation any extraordinary incident or

have occurred to the patient if due care had been exercised, an

unusual event outside of the routine performance occurred which

inference of negligence may be drawn giving rise to an application

is beyond the regular scope of customary professional activity in

of the doctrine of res ipsa loquitur without medical evidence, which

such operations, which, if unexplained would themselves

is ordinarily required to show not only what occurred but how and

reasonably speak to the average man as the negligent cause or

why it occurred. When the doctrine is appropriate, all that the

causes of the untoward consequence. If there was such

patient must do is prove a nexus between the particular act or

extraneous intervention, the doctrine of res ipsa loquitur may be

omission complained of and the injury sustained while under the

utilized and the defendant is called upon to explain the matter, by

custody and management of the defendant without need to

evidence of exculpation, if he could.

produce expert medical testimony to establish the standard of


care. Resort to res ipsa loquitur is allowed because there is no

In order to allow resort to the doctrine, therefore, the following

other way, under usual and ordinary conditions, by which the

essential requisites must first be satisfied, to wit: (1) the accident

patient can obtain redress for injury suffered by him.

was of a kind that does not ordinarily occur unless someone is


negligent; (2) the instrumentality or agency that caused the injury

Thus, courts of other jurisdictions have applied the doctrine in the

was under the exclusive control of the person charged; and (3) the

following situations: leaving of a foreign object in the body of the

injury suffered must not have been due to any voluntary action or

patient after an operation, injuries sustained on a healthy part of

contribution of the person injured.

[29]

the body which was not under, or in the area, of treatment,


removal of the wrong part of the body when another part was

The Court considers the application here of the doctrine of res ipsa

intended, knocking out a tooth while a patients jaw was under

loquitur inappropriate. Although it should be conceded without

anesthetic for the removal of his tonsils, and loss of an eye while

difficulty that the second and third elements were present,

the patient plaintiff was under the influence of anesthetic, during or

considering that the anesthetic agent and the instruments were

following an operation for appendicitis, among others.

exclusively within the control of Dr. Solidum, and that the patient,
being then unconscious during the operation, could not have been

Nevertheless, despite the fact that the scope of res ipsa loquitur

guilty of contributory negligence, the first element was undeniably

has been measurably enlarged, it does not automatically apply to

wanting. Luz delivered Gerald to the care, custody and control of

all cases of medical negligence as to mechanically shift the burden his physicians for a pull-through operation. Except for the
of proof to the defendant to show that he is not guilty of the

imperforate anus, Gerald was then of sound body and mind at the

ascribed negligence. Res ipsa loquitur is not a rigid or ordinary

time of his submission to the physicians. Yet, he experienced

doctrine to be perfunctorily used but a rule to be cautiously

bradycardia during the operation, causing loss of his senses and

applied, depending upon the circumstances of each case. It is

rendering him immobile. Hypoxia, or the insufficiency of oxygen

generally restricted to situations in malpractice cases where a

supply to the brain that caused the slowing of the heart rate,

layman is able to say, as a matter of common knowledge and

scientifically termed as bradycardia, would not ordinarily occur in

observation, that the consequences of professional care were not

the process of a pull-through operation, or during the

as such as would ordinarily have followed if due care had been

administration of anesthesia to the patient, but such fact alone did


134 | P a g e

Torts 3

not prove that the negligence of any of his attending physicians,

necessary for application of res ipsa loquitur doctrine. The acute

including the anesthesiologists, had caused the injury. In fact, the

closing of the patients air passage and his resultant asphyxiation

anesthesiologists attending to him had sensed in the course of the

took place over a very short period of time. Under these

operation that the lack of oxygen could have been triggered by the

circumstances it would not be reasonable to infer that the

vago-vagal reflex, prompting them to administer atropine to the

physician was negligent. There was no palpably negligent act. The

patient.

[30]

common experience of mankind does not suggest that death


would not be expected without negligence. And there is no expert

This conclusion is not unprecedented. It was similarly reached in


Swanson v. Brigham,

[31]

relevant portions of the decision therein

medical testimony to create an inference that negligence caused


the injury.

being as follows:
Negligence of Dr. Solidum
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall
Swanson to a hospital for the treatment of infectious

In view of the inapplicability of the doctrine of res ipsa loquitur, the

mononucleosis. The patient's symptoms had included a swollen

Court next determines whether the CA correctly affirmed the

throat and some breathing difficulty. Early in the morning of

conviction of Dr. Solidum for criminal negligence.

January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham
examined the patient. His inspection of the patient's air passage

Negligence is defined as the failure to observe for the protection of

revealed that it was in satisfactory condition. At 4:15 a.m. Dr.

the interests of another person that degree of care, precaution,

Brigham received a telephone call from the hospital, advising him

and vigilance that the circumstances justly demand, whereby such

that the patient was having respiratory difficulty. The doctor

other person suffers injury.

ordered that oxygen be administered and he prepared to leave for

hand, consists of voluntarily doing or failing to do, without malice,

the hospital. Ten minutes later, 4:25 a.m., the hospital called a

an act from which material damage results by reason of an

second time to advise the doctor that the patient was not

inexcusable lack of precaution on the part of the person

responding. The doctor ordered that a medicine be administered,

performing or failing to perform such act.

[32]

Reckless imprudence, on the other

[33]

and he departed for the hospital. When he arrived, the physician


who had been on call at the hospital had begun attempts to revive

Dr. Solidums conviction by the RTC was primarily based on his

the patient. Dr. Brigham joined him in the effort, but the patient

failure to monitor and properly regulate the level of anesthetic

died.

agent administered on Gerald by overdosing at 100% halothane.


In affirming the conviction, the CA observed:

The doctor who performed the autopsy concluded that the patient
died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a

On the witness stand, Dr. Vertido made a significant turnaround.

sudden, acute closing of the air passage. He also found that the

He affirmed the findings and conclusions in his report except for an

air passage had been adequate to maintain life up to 2 or 3

observation which, to all intents and purposes, has become the

minutes prior to death. He did not know what caused the air

storm center of this dispute. He wanted to correct one piece of

passage to suddenly close.

information regarding the dosage of the anesthetic agent


administered to the child. He declared that he made a mistake in

xxxx

reporting a 100% halothane and said that based on the records it


should have been 100% oxygen.

It is a rare occurrence when someone admitted to a hospital for


the treatment of infectious mononucleosis dies of asphyxiation. But The records he was relying on, as he explains, are the following:
that is not sufficient to invoke res ipsa loquitur. The fact that the
injury rarely occurs does not in itself prove that the injury was

(a) the anesthesia record A portion of the chart in the record

probably caused by someone's negligence. Mason v. Ellsworth, 3

was marked as Exhibit 1-A and 1-B to indicate the administration

Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself

at intervals of the anesthetic agent.

enough to warrant the application of the doctrine. Nelson v.


Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser,

(b) the clinical abstract A portion of this record that reads as

The Negligence Case Res Ipsa Loquitur 24:10 (1972). The

follows was marked Exhibit 3A. 3B Approximately 1 hour and 45

evidence presented is insufficient to establish the first element

minutes through the operation, patient was noted to have


135 | P a g e

Torts 3

bradycardia (CR = 70) and ATSO4 0.2 mg was immediately

that they were using a machine that closely monitored the

administered. However, the bradycardia persisted, the inhalational concentration of the agent during the operation.
agent was shut off, and the patient was ventilated with 100%
oxygen and another dose of ATSO4 0.2 mg was given. However,

But most compelling is Dr. Solidums interpretation of the

the patient did not respond until no cardiac rate can be auscultated anesthesia record itself, as he takes the bull by the horns, so to
and the surgeons were immediately told to stop the operation.

speak. In his affidavit, he says, reading from the record, that the

The patient was put on a supine position and CPR was initiated.

quantity of halothane used in the operation is one percent (1%)

Patient was given 1 amp of epinephrine initially while continuously

delivered at time intervals of 15 minutes. He studiedly mentions

doing cardiac massage still with no cardiac rate appreciated;

the concentration of halothane as reflected in the anesthesia

another ampule of epinephrine was given and after 45 secs,

record (Annex D of the complaint-affidavit) is only one percent

patients vital signs returned to normal. The entire resuscitation

(1%) The numbers indicated in 15 minute increments for

lasted approximately 3-5 mins. The surgeons were then told to

halothane is an indication that only 1% halothane is being

proceed to the closure and the childs vital signs throughout and

delivered to the patient Gerard Gercayo for his entire operation;

until the end of surgery were: BP = 110/70; CR = 116/min and RR

The amount of halothane delivered in this case which is only one

= 20-22 cycles/min (on assisted ventilation).

percent cannot be summated because halothane is constantly


being rapidly eliminated by the body during the entire operation.

Dr. Vertido points to the crucial passage in the clinical abstract that
the patient was ventilated with 100% oxygen and another dose of

xxxx

ATSO4 when the bradycardia persisted, but for one reason or


another, he read it as 100% halothane. He was asked to read the

In finding the accused guilty, despite these explanations, the RTC

anesthesia record on the percentage of the dosage indicated, but

argued that the volte-face of Dr. Vertido on the question of the

he could only sheepishly note I cant understand the number.

dosage of the anesthetic used on the child would not really

There are no clues in the clinical abstract on the quantity of the

validate the non-guilt of the anesthesiologist. Led to agree that the

anesthetic agent used. It only contains the information that the

halothane used was not 100% as initially believed, he was

anesthetic plan was to put the patient under general anesthesia

nonetheless unaware of the implications of the change in his

using a nonrebreathing system with halothane as the sole

testimony. The court observed that Dr. Vertido had described the

anesthetic agent and that 1 hour and 45 minutes after the

condition of the child as hypoxia which is deprivation of oxygen, a

operation began, bradycardia occurred after which the inhalational

diagnosis supported by the results of the CT Scan. All the

agent was shut off and the patient administered with 100%

symptoms attributed to a failing central nervous system such as

oxygen. It would be apparent that the 100% oxygen that Dr.

stupor, loss of consciousness, decrease in heart rate, loss of usual

Vertido said should be read in lieu of 100% halothane was the

acuity and abnormal motor function, are manifestations of this

pure oxygen introduced after something went amiss in the

condition or syndrome. But why would there be deprivation of

operation and the halothane itself was reduced or shut off.

oxygen if 100% oxygen to 1% halothane was used? Ultimately, to


the court, whether oxygen or halothane was the object of mistake,

The key question remains what was the quantity of halothane

the detrimental effects of the operation are incontestable, and they

used before bradycardia set in?

can only be led to one conclusion if the application of anesthesia


was really closely monitored, the event could not have

The implication of Dr. Vertidos admission is that there was no

[34]

happened.

overdose of the anesthetic agent, and the accused Dr. Solidum


stakes his liberty and reputation on this conclusion. He made the

The Prosecution did not prove the elements of reckless

assurance that he gave his patient the utmost medical care, never

imprudence beyond reasonable doubt because the circumstances

leaving the operating room except for a few minutes to answer the

cited by the CA were insufficient to establish that Dr. Solidum had

call of nature but leaving behind the other members of his team

been guilty of inexcusable lack of precaution in monitoring the

Drs. Abella and Razon to monitor the operation. He insisted that

administration of the anesthetic agent to Gerald. The Court aptly

he administered only a point 1% not 100% halothane, receiving

explained in Cruz v. Court of Appeals

[35]

that:

corroboration from Dr. Abella whose initial MA in the record should


be enough to show that she assisted in the operation and was

Whether or not a physician has committed an inexcusable lack of

therefore conversant of the things that happened. She revealed

precaution in the treatment of his patient is to be determined


136 | P a g e

Torts 3

according to the standard of care observed by other members of

standards established by his profession; (b) the breach of the duty

the profession in good standing under similar circumstances

by the physicians failing to act in accordance with the applicable

bearing in mind the advanced state of the profession at the time of

standard of care; (3) the causation, i.e., there must be a

treatment or the present state of medical science. In the recent

reasonably close and causal connection between the negligent act

case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this

or omission and the resulting injury; and (4) the damages suffered

Court stated that in accepting a case, a doctor in effect represents

by the patient.

[36]

that, having the needed training and skill possessed by physicians


and surgeons practicing in the same field, he will employ such

In the medical profession, specific norms or standards to protect

training, care and skill in the treatment of his patients. He therefore the patient against unreasonable risk, commonly referred to as
has a duty to use at least the same level of care that any other

standards of care, set the duty of the physician to act in respect of

reasonably competent doctor would use to treat a condition under

the patient. Unfortunately, no clear definition of the duty of a

the same circumstances. It is in this aspect of medical malpractice

particular physician in a particular case exists. Because most

that expert testimony is essential to establish not only the standard medical malpractice cases are highly technical, witnesses with
of care of the profession but also that the physician's conduct in

special medical qualifications must provide guidance by giving the

the treatment and care falls below such standard. Further,

knowledge necessary to render a fair and just verdict. As a result,

inasmuch as the causes of the injuries involved in malpractice

the standard of medical care of a prudent physician must be

actions are determinable only in the light of scientific knowledge, it

determined from expert testimony in most cases; and in the case

has been recognized that expert testimony is usually necessary to

of a specialist (like an anesthesiologist), the standard of care by

support the conclusion as to causation.

which the specialist is judged is the care and skill commonly


possessed and exercised by similar specialists under similar

xxxx

circumstances. The specialty standard of care may be higher than


that required of the general practitioner.

[37]

In litigations involving medical negligence, the plaintiff has the


burden of establishing appellant's negligence and for a reasonable

The standard of care is an objective standard by which the

conclusion of negligence, there must be proof of breach of duty on

conduct of a physician sued for negligence or malpractice may be

the part of the surgeon as well as a causal connection of such

measured, and it does not depend, therefore, on any individual

breach and the resulting death of his patient. In Chan Lugay v. St

physicians own knowledge either. In attempting to fix a standard

Luke's Hospital, Inc., where the attending physician was absolved

by which a court may determine whether the physician has

of liability for the death of the complainants wife and newborn

properly performed the requisite duty toward the patient, expert

baby, this Court held that:

medical testimony from both plaintiff and defense experts is

In order that there may be a recovery for an injury, however, it

required. The judge, as the trier of fact, ultimately determines the

must be shown that the injury for which recovery is sought must

standard of care, after listening to the testimony of all medical

be the legitimate consequence of the wrong done; the connection

experts.

[38]

between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes. In

Here, the Prosecution presented no witnesses with special

other words, the negligence must be the proximate cause of the

medical qualifications in anesthesia to provide guidance to the trial

injury. For, negligence, no matter in what it consists, cannot create court on what standard of care was applicable. It would
a right of action unless it is the proximate cause of the injury

consequently be truly difficult, if not impossible, to determine

complained of. And the proximate cause of an injury is that

whether the first three elements of a negligence and malpractice

cause, which, in natural and continuous sequence, unbroken by

action were attendant.

any efficient intervening cause, produces the injury, and without


which the result would not have occurred.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an


anesthesiologist himself who served as the Chairman of the

An action upon medical negligence whether criminal, civil or

Committee on Ethics and Malpractice of the Philippine Society of

administrative calls for the plaintiff to prove by competent

Anesthesiologists that investigated the complaint against Dr.

evidence each of the following four elements, namely: (a) the duty

Solidum, his testimony mainly focused on how his Committee had

owed by the physician to the patient, as created by the physician-

conducted the investigation.

[39]

Even then, the report of his

patient relationship, to act in accordance with the specific norms or Committee was favorable to Dr. Solidum,

[40]

to wit:
137 | P a g e

Torts 3

Presented for review by this committee is the case of a 3 year old


male who underwent a pull-thru operation and was administered

about possibility here.


Q

What other possibility do you have in mind,

general anesthesia by a team of anesthesia residents. The

doctor?

patient, at the time when the surgeons was manipulating the recto- A

Well, because it was an operation, anything can

sigmoid and pulling it down in preparation for the anastomosis,

happen within that situation.

had bradycardia. The anesthesiologists, sensing that the cause

FISCAL

Now, this representation would like to ask you

thereof was the triggering of the vago-vagal reflex, administered

CABARON

about the slowing of heart rate, now what is the

atropine to block it but despite the administration of the drug in two

immediate cause of the slowing of the heart rate

doses, cardiac arrest ensued. As the records show, prompt

of a person?

resuscitative measures were administered and spontaneous

WITNESS

Well, one of the more practical reason why there

cardiac function re-established in less than five (5) minutes and

is slowing of the heart rate is when you do a vagal

that oxygen was continuously being administered throughout,

reflex in the neck wherein the vagal receptors are

unfortunately, as later become manifest, patient suffered

located at the lateral part of the neck, when you

permanent irreversible brain damage.

press that, you produce the slowing of the heart


rate that produce bradycardia.

In view of the actuations of the anaesthesiologists and the

I am pro[p]ounding to you another question

administration of anaesthesia, the committee find that the same

doctor, what about the deficiency in the supply of

were all in accordance with the universally accepted standards of

oxygen by the patient, would that also cause the

medical care and there is no evidence of any fault or negligence

slowing of the heart rate?

on the part of the anaesthesiologists.

Well that is a possibility sir, I mean not as slowing


of the heart rate, if there is a hypoxia or there is a

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National

low oxygen level in the blood, the normal thing for

Bureau of Investigation, was also presented as a Prosecution

the heart is to pump or to do not a bradycardia but

witness, but his testimony concentrated on the results of the

a to counter act the Hypoxia that is being

physical examination he had conducted on Gerald, as borne out

experienced by the patient (sic).

by the following portions of his direct examination, to wit:

xxxx
Q

FISCAL

Doctor, what do you mean by General Anesthetic

CABARON

Agent?

WITNESS

General Anesthetic Agent is a substance used in


the conduction of Anesthesia and in this case,

Now, you made mention also doctor that the use


of general anesthesia using 100% halothane and
other anesthetic medications probably were
contributory to the production of hypoxia.

Yes, sir in general sir.

[41]

halothane was used as a sole anesthetic agent.


xxxx
Q

On cross-examination, Dr. Vertido expounded more specifically on


Now under paragraph two of page 1 of your report
you mentioned that after one hour and 45 minutes

his interpretation of the anesthesia record and the factors that


could have caused Gerald to experience bradycardia, viz:

after the operation, the patient experienced a


bradycardia or slowing of heart rate, now as a

WITNESS

will you kindly read to this Honorable court your

Court as to what cause of the slowing of heart

last paragraph and if you will affirm that as if it is

rate as to Gerald Gercayo?

correct?

Well honestly sir, I cannot give you the reason

The use of General Anesthesia, that is using


100% Halothane probably will be contributory to

some reason one way or another that might

the production of Hypoxia and - - - -


ATTY COMIA

What could be the possible reason?

CABARON
A

why there was a bradycardia of time because is


caused bradycardia.
FISCAL

ATTY. COMIA I noticed in, may I see your report Doctor, page 3,

doctor, would you be able to tell this Honorable

And do you affirm the figure you mentioned in this


Court Doctor?

WITNESS

Based on the records, I know the - - -

Well bradycardia can be caused by anesthetic

100%?

agent itself and that is a possibility, were talking

100% based on the records.


138 | P a g e

Torts 3

I will show you doctor a clinical record. I am a

to this Gerald, Doctor?

lawyer I am not a doctor but will you kindly look at

WITNESS

Well, that is a major operation sir.

this and tell me where is 100%, the word one

In other words, when you say major operation

hundred or 1-0-0, will you kindly look at this

conducted to this Gerald, there is a possibility that

Doctor, this Xerox copy if you can show to this

this Gerald might [be] exposed to some risk is that

Honorable Court and even to this representation


the word one hundred or 1-0-0 and then call me.
xxxx

correct?
A

That is a possibility sir.

And which according to you that Gerald suffered

ATTY. COMIA Doctor tell this Honorable Court where is that 100,

hypoxia is that correct?

1-0-0 and if there is, you just call me and even the

Yes, sir.

attention of the Presiding Judge of this Court.

And that is one of the risk of that major operation

Okay, you read one by one.


WITNESS

Well, are you only asking 100%, sir?

is that correct?
A

That is the risk sir.

[42]

ATTY. COMIA Im asking you, just answer my question, did you

WITNESS

see there 100% and 100 figures, tell me, yes or

At the continuation of his cross-examination, Dr. Vertido

no?

maintained that Geralds operation for his imperforate anus,

Im trying to look at the 100%, there is no 100%

considered a major operation, had exposed him to the risk of

there sir.

suffering the same condition.

ATTY. COMIA Okay, that was good, so you Honor please, may
we request also temporarily, because this is just a

[43]

He then corrected his earlier

finding that 100% halothane had been administered on Gerald by


saying that it should be 100% oxygen.

[44]

xerox copy presented by the fiscal, that the


percentage here that the Halothane administered

Dr. Solidum was criminally charged for failing to monitor and

by Dr. Solidum to the patient is 1% only so may

regulate properly the levels of anesthesia administered to said

we request that this portion, temporarily your

Gerald Albert Gercayo and using 100% halothane and other

Honor, we are marking this anesthesia record as

anesthetic medications.

our Exhibit 1 and then this 1% Halothane also be

taken together, did not prove beyond reasonable doubt that Dr.

bracketed and the same be marked as our Exhibit

Solidum had been recklessly imprudent in administering the

1-A.

anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not

[45]

However, the foregoing circumstances,

preclude the probability that other factors related to Geralds major

xxxx
ATTY. COMIA Doctor, my attention was called also when you

operation, which could or could not necessarily be attributed to the

said that there are so many factors that

administration of the anesthesia, had caused the hypoxia and had

contributed to Hypoxia is that correct?

then led Gerald to experience bradycardia. Dr. Vertido revealingly

WITNESS

Yes, sir.

concluded in his report, instead, that although the

I remember doctor, according to you there are so

anesthesiologist followed the normal routine and precautionary

many factors that contributed to what you call

procedures, still hypoxia and its corresponding side effects did

hypoxia and according to you, when this Gerald

occur.

[46]

suffered hypoxia, there are other factors that might


lead to this Hypoxia at the time of this operation is

The existence of the probability about other factors causing the

that correct?

hypoxia has engendered in the mind of the Court a reasonable

WITNESS

The possibility is there, sir.

doubt as to Dr. Solidums guilt, and moves us to acquit him of the

And according to you, it might also be the result of

crime of reckless imprudence resulting to serious physical injuries.

such other, some or it might be due to operations

A reasonable doubt of guilt, according to United States v.

being conducted by the doctor at the time when

Youthsey:

[47]

the operation is being done might also contribute


A

to that hypoxia is that correct?

x x x is a doubt growing reasonably out of evidence or the lack of

That is a possibility also.

it. It is not a captious doubt; not a doubt engendered merely by

xxxx

sympathy for the unfortunate position of the defendant, or a dislike

ATTY. COMIA How will you classify now the operation conducted

to accept the responsibility of convicting a fellow man. If, having


139 | P a g e

Torts 3

weighed the evidence on both sides, you reach the conclusion that alert to this fundamental defect. Verily, no person can be
the defendant is guilty, to that degree of certainty as would lead

prejudiced by a ruling rendered in an action or proceeding in which

you to act on the faith of it in the most important and crucial affairs

he was not made a party. Such a rule would enforce the

of your life, you may properly convict him. Proof beyond

constitutional guarantee of due process of law.

reasonable doubt is not proof to a mathematical demonstration. It


is not proof beyond the possibility of mistake.

Moreover, Ospital ng Maynila could be held civilly liable only when


subsidiary liability would be properly enforceable pursuant to

We have to clarify that the acquittal of Dr. Solidum would not

Article 103 of the Revised Penal Code. But the subsidiary liability

immediately exempt him from civil liability. But we cannot now find

seems far-fetched here. The conditions for subsidiary liability to

and declare him civilly liable because the circumstances that have

attach to Ospital ng Maynila should first be complied with. Firstly,

been established here do not present the factual and legal bases

pursuant to Article 103 of the Revised Penal Code, Ospital ng

for validly doing so. His acquittal did not derive only from

Maynila must be shown to be a corporation engaged in any kind

reasonable doubt. There was really no firm and competent

of industry. The term industry means any department or branch of

showing how the injury to Gerard had been caused. That meant

art, occupation or business, especially one that employs labor and

that the manner of administration of the anesthesia by Dr. Solidum

capital, and is engaged in industry.

was not necessarily the cause of the hypoxia that caused the

Maynila, being a public hospital, was not engaged in industry

bradycardia experienced by Gerard. Consequently, to adjudge Dr.

conducted for profit but purely in charitable and humanitarian

Solidum civilly liable would be to speculate on the cause of the

work.

hypoxia. We are not allowed to do so, for civil liability must not rest

in industry for profit, Dr. Solidum must be shown to be an

on speculation but on competent evidence.

employee of Ospital ng Maynila acting in the discharge of his

[50]

[49]

However, Ospital ng

Secondly, assuming that Ospital ng Maynila was engaged

duties during the operation on Gerald. Yet, he definitely was not


Liability of Ospital ng Maynila

such employee but a consultant of the hospital. And, thirdly,


assuming that civil liability was adjudged against Dr. Solidum as

Although the result now reached has resolved the issue of civil

an employee (which did not happen here), the execution against

liability, we have to address the unusual decree of the RTC, as

him was unsatisfied due to his being insolvent.

affirmed by the CA, of expressly holding Ospital ng Maynila civilly


liable jointly and severally with Dr. Solidum. The decree was

WHEREFORE, the Court GRANTS the petition for review on

flawed in logic and in law.

certiorari; REVERSES AND SETS ASIDE the decision


promulgated on January 20, 2010; ACQUITS Dr. Fernando P.

In criminal prosecutions, the civil action for the recovery of civil

Solidum of the crime of reckless imprudence resulting to serious

liability that is deemed instituted with the criminal action refers only physical injuries; and MAKES no pronouncement on costs of suit.
to that arising from the offense charged.

[48]

It is puzzling, therefore,

how the RTC and the CA could have adjudged Ospital ng Maynila

SO ORDERED.

jointly and severally liable with Dr. Solidum for the damages
despite the obvious fact that Ospital ng Maynila, being an artificial
entity, had not been charged along with Dr. Solidum. The lower
courts thereby acted capriciously and whimsically, which rendered
their judgment against Ospital ng Maynila void as the product of
grave abuse of discretion amounting to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns
that the RTC and the CA overlooked. We deem it important, then,
to express the following observations for the instruction of the
Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The RTC and the CA should have been
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