developed a slight fever that lasted for one day; a few hours upon discovery, she

SECOND DIVISION brought Edmer to their family doctor; and two hours after administering medications,
G.R. No. 171127, March 11, 2015 Edmer's fever had subsided.5
NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN JUAN DE DIOS
HOSPITAL, Petitioners, v.NELSON CORTEJO, Respondent. After taking Edmer's medical history, Dr. Livelo took his vital signs, body
temperature, and blood pressure.6 Based on these initial examinations and the chest x-
[G.R. No. 171217] ray test that followed, Dr. Livelo diagnosed Edmer with
"bronchopneumonia."7 Edmer's blood was also taken for testing, typing, and for
DRA. RUBY SANGA-MIRANDA, Petitioner, v. NELSON purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
CORTEJO, Respondent. antibiotic medication to lessen his fever and to loosen his phlegm.

[G.R. No. 171228] Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and
was referred to an accredited Fortune Care coordinator, who was then out of town.
SAN JUAN DE DIOS HOSPITAL, Petitioner, v. NELSON She was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician
CORTEJO, Respondent. also accredited with Fortune Care.8
DECISION
BRION, J.: At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined
We resolve the three (3) consolidated petitions for review on certiorari1 involving Edmer in his room. Using only a stethoscope, he confirmed the initial diagnosis of
medical negligence, commonly assailing the October 29, 2004 decision 2 and the "Bronchopneumonia."9
January 12, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400.
This CA decision affirmed en toto the ruling of the Regional Trial Court (RTC), At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis.
Branch 134, Makati City. She immediately advised Dr. Casumpang that Edmer had a high fever, and had no
colds or cough10 but Dr. Casumpang merely told her that her son's "bloodpressure is
The RTC awarded Nelson Cortejo (respondent) damages in the total amount of just being active,"11 and remarked that "that's the usual bronchopneumonia, no colds,
P595,000.00, for the wrongful death of his son allegedly due to the medical no phlegm."12
negligence of the petitioning doctors and the hospital.
Factual Antecedents Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the
following day.13 Still suspicious about his son's illness, Mrs. Cortejo again called Dr.
The common factual antecedents are briefly summarized below. Casumpang's attention and stated that Edmer had a fever, throat irritation, as well as
chest and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11- blood in Edmer's sputum. Despite these pieces of information, however, Dr.
year old son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs.
Dios Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain, Cortejo that Edmer's illness is bronchopneumonia.14
and fever.4
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her blood streak"15prompting the respondent (Edmer's father) to request for a doctor at
testimony, Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had the nurses' station.16
1 | Page

Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident
physicians of SJDH, arrived. She claimed that although aware that Edmer had
vomited "phlegm with blood streak," she failed to examine the blood specimen
because the respondent washed it away. She then advised the respondent to preserve
the specimen for examination.
Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes,
nose, throat, lungs, skin and abdomen; and found that Edmer had a low-grade non-
continuing fever, and rashes that were not typical of dengue fever.17 Her medical
findings state:
the patient's rapid breathing and then the lung showed sibilant and the patient's nose is
flaring which is a sign that the patient is in respiratory distress; the abdomen has
negative finding; the patient has low grade fever and not continuing; and the rashes in
the patient's skin were not "Herman's Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda,
the respondent showed her Edmer's blood specimen, and reported that Edmer had
complained of severe stomach pain and difficulty in moving his right leg. 19
Dr. Miranda then examined Edmer's "sputum with blood" and noted that he was
bleeding. Suspecting that he could be afflicted with dengue, she inserted a plastic tube
in his nose, drained the liquid from his stomach with ice cold normal saline solution,
and gave an instruction not to pull out the tube, or give the patient any oral
medication.
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
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 informed, Dr. Casumpang ordered several
procedures done including: hematocrit, hemoglobin, blood typing, blood transfusion
and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer
was suffering from "Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang
arrived at Edmer's room and he recommended his transfer to the Intensive Care Unit
(ICU), to which the respondent consented. Since the ICU was then full, Dr.
Casumpang suggested to the respondent that they hire a private nurse. The
respondent, however, insisted on transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked
Edmer's condition, found that his blood pressure was stable, and noted that he was
"comfortable." The respondent requested for an ambulance but he was informed that
the driver was nowhere to be found. This prompted him to hire a private ambulance
that cost him P600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was
transferred to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the patient's clinical history
and laboratory exam results. Upon examination, the attending physician diagnosed
"Dengue Fever Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated
the cause of death as "Hypovolemic Shock/hemorrhagic shock;" "Dengue
Hemorrhagic Fever Stage IV."
Believing that Edmer's death was caused by the negligent and erroneous diagnosis of
his doctors, the respondent instituted an action for damages against SJDH, and its
attending physicians: Dr. Casumpang and Dr. Miranda (collectively referred to as the
"petitioners") before the RTC of Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and
awarded actual and moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC found untenable the
petitioning doctors' contention that Edmer's initial symptoms did not indicate dengue
fever. It faulted them for heavily relying on the chest x-ray result and for not
considering the other manifestations that Edmer's parents had relayed. It held that in
diagnosing and treating an illness, the physician's conduct should be judged not only
2 | Page
by what he/she saw and knew, but also by what he/she could have reasonably seen
and known. It also observed that based on Edmer's signs and symptoms, his medical In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling,
history and physical examination, and also the information that the petitioning finding that SJDH and its attending physicians failed to exercise the minimum
doctors gathered from his family members, dengue fever was a reasonably foreseeable medical care, attention, and treatment expected of an ordinary doctor under like
illness; yet, the petitioning doctors failed to take a second look, much less, consider circumstances.
these indicators of dengue.
The CA found the petitioning doctors' failure to read even the most basic signs of
The trial court also found that aside from their self-serving testimonies, the "dengue fever" expected of an ordinary doctor as medical negligence. The CA also
petitioning doctors did not present other evidence to prove that they exercised the considered the petitioning doctors' testimonies as self-serving, noting that they
proper medical attention in diagnosing and treating the patient, leading it to conclude presented no other evidence to prove that they exercised due diligence in diagnosing
that they were guilty of negligence. Edmer's illness.

The RTC also held SJDH solidarity liable with the petitioning doctors for damages
based on the following findings of facts: first, Dr. Casumpang, as consultant, is
an ostensible agent of SJDH because before the hospital engaged his medical
services, it scrutinized and determined his fitness, qualifications, and competence as a
medical practitioner; and second, Dr. Miranda, as resident physician, is an employee
of SJDH because like Dr. Casumpang, the hospital, through its screening committee,
scrutinized and determined her qualifications, fitness, and competence before
engaging her services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, ordering the latter to pay solidarity and severally plaintiff the following:
The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian) testimony admissible. It
gave credence to his opinion26 that: (1) given the exhibited symptoms of the patient,
dengue fever should definitely be considered, and bronchopneumonia could be
reasonably ruled out; and (2) dengue fever could have been detected earlier than
7:30 in the evening of April 23, 1988 because the symptoms were already evident; and
agreed with the RTC that the petitioning doctors should not have solely relied on the
chest-x-ray result, as it was not conclusive.
On SJDH's solidary liability, the CA ruled that the hospital's liability is based on
Article 2180 of the Civil Code. The CA opined that the control which the hospital
exercises over its consultants, the hospital's power to hire and terminate their services,
all fulfill the employer-employee relationship requirement under Article 2180.

(1) Moral damages in the amount of P500,000.00; 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 hiring and the supervision of its
(2) Costs of burial and funeral in the amount of P45,000.00; physicians.

(3) Attorney's fees of P50,000.00; and The petitioners separately moved to reconsider the CA decision, but the CA denied
their motion in its resolution of January 12, 2006; hence, the present consolidated
(4) Cost of this suit. petitions pursuant to Rule 45 of the Rules of Court.
The Petitions
SO ORDERED.
The petitioners appealed the decision to the CA. I. Dr. Casumpang's Position (G.R. No. 171127)
The Ruling of the Court of Appeals
Dr. Casumpang contends that he gave his patient medical treatment and care to the
3 | Page
best of his abilities, and within the proper standard of care required from physicians Miranda are mere independent contractors and "consultants" (not employees) of the
under similar circumstances. He claims that his initial diagnosis of hospital. SJDH alleges that since it did not exercise control or supervision over the
bronchopneumonia was supported by the chest x-ray result. consultants' exercise of medical profession, there is no employer-employee
relationship between them, and consequently, Article 2180 of the Civil Code does not
Dr. Casumpang also contends that dengue fever occurs only after several days of apply.
confinement. He alleged that when he had suspected that Edmer might be suffering
from dengue fever, he immediately attended and treated him. SJDH likewise anchored the absence of, employer-employee relationship on the
following circumstances: (1) SJDH does not hire consultants; it only grants them
Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility, arguing privileges to admit patients in the hospital through accreditation; (2) SJDH does not
that the CA erred in appreciating his testimony as an expert witness since he lacked pay the consultants wages similar to an ordinary employee; (3) the consultants earn
the necessary training, skills, and experience as a specialist in dengue fever cases. their own professional fees directly from their patients; SJDH does not fire or
terminate their services; and (4) SJDH does not control or interfere with the manner
II. Dr. Miranda's Position (G.R. No. 171217) and the means the consultants use in the treatment of their patients. It merely provides
them with adequate space in exchange for rental payment.
In her petition, Dr. Miranda faults the CA for holding her responsible for Edmer's
wrong diagnosis, stressing that the function of making the diagnosis and undertaking Furthermore, SJDH claims that the CA erroneously applied the control test when it
the medical treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer, treated the hospital's practice of accrediting consultants as an exercise of control. It
and who confirmed "bronchopneumonia." explained that the control contemplated by law is that which the employer exercises
over the: (i) end result; and the (ii) manner and means to be used to reach this end,
Dr. Miranda also alleged that she exercised prudence in performing her duties as a and not any kind of control, however significant, in accrediting the consultants.
physician, underscoring that it was her professional intervention that led to the correct
diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmer's Complete Blood SJDH moreover contends that even if the petitioning doctors are considered
Count (CBC) showed leukopenia and an increase in balance as shown by the employees and not merely consultants of the hospital, SJDH cannot still be held
differential count, demonstrating that Edmer's infection, more or less, is of bacterial solidarity liable under Article 2180 of the Civil Code because it observed the
and not viral in nature. diligence of a good father of a family in their selection and supervision as shown by
the following: (1) the adequate measures that the hospital undertakes to ascertain the
Dr. Miranda as well argued that there is no causal relation between the alleged petitioning doctors' qualifications and medical competence; and (2) the documentary
erroneous diagnosis and medication for "Bronchopneumonia," and Edmer's death due evidence that the petitioning doctors presented to prove their competence in the field
to "Dengue Hemorrhagic Fever." of pediatrics.27

Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since he never SJDH likewise faults the CA for ruling that the petitioning doctors are its agents,
presented any evidence of formal residency training and fellowship status in claiming that this theory, aside from being inconsistent with the CA's finding of
Pediatrics. employment relationship, is unfounded because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and second, as a medical institution,
III. SJDH's Position (G.R. No. 171228) SJDH cannot practice medicine, much more, extend its personality to physicians to
practice medicine on its behalf.
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr.
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Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced 4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora
and correct diagnosis. It claimed that based on Edmer's signs and symptoms at the Jaudian as an expert witness.
time of admission (i.e., one day fever,28bacterial infection,29 and lack of hemorrhagic Our Ruling
manifestations30), there was no reasonable indication yet that he was suffering from
dengue fever, and accordingly, their failure to diagnose dengue fever, does not We find the petition partly meritorious.
constitute negligence on their part.
The Case for the Respondent A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited
to Questions of Law.
In his comment, the respondent submits that the issues the petitioners raised are
mainly factual in nature, which a petition for review on certiorari under Rule 45 of The settled rule is that the Court's jurisdiction in a petition for review
the Rules of Court does not allow. 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
In any case, he contends that the petitioning doctors were negligent in conducting appellate court's factual findings and conclusions; this Court is not a trier of facts. 31
their medical examination and diagnosis based on the following: (1) the petitioning
doctors failed to timely diagnose Edmer's correct illness due to their non-observance A question of law arises when there is doubt as to what the law is on a certain state of
of the proper and acceptable standard of medical examination; (2) the petitioning facts, while there is a question of fact when the doubt arises as to the truth or falsity of
doctors' medical examination was not comprehensive, as they were always in a rush; the alleged facts.32
and (3) the petitioning doctors employed a guessing game in diagnosing
bronchopneumonia. 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
The respondent also alleges that there is a causal connection between the petitioning of whether the respondent is entitled to claim damages under Article 2176 of the Civil
doctors' negligence and Edmer's untimely death, warranting the claim for damages. Code for the petitioners' alleged medical malpractice, the determination of the factual
issues - i.e., whether the petitioning doctors were grossly negligent in diagnosing the
The respondent, too, asserted that SJDH is also negligent because it was not equipped patient's illness, whether there is causal relation between the petitioners' act/omission
with proper paging system, has no bronchoscope, and its doctors are not proportionate and the patient's resulting death, and whether Dr. Jaudian is qualified as an expert
to the number of its patients. He also pointed out that out of the seven resident witness - must necessarily be resolved. We resolve these factual questions solely for
physicians in the hospital, only two resident physicians were doing rounds at the time the purpose of determining the legal issues raised.
of his son's confinement.
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' negligence in diagnosing
1. Whether or not the petitioning doctors had committed "inexcusable lack of and treating the deceased Edmer, the child of the respondent. It is a medical
precaution" in diagnosing and in treating the patient; malpractice suit, an action available to victims to redress a wrong committed by
2. Whether or not the petitioner hospital is solidarity liable with the petitioning medical professionals who caused bodily harm to, or the death of, a patient. 33 As the
doctors; term is used, the suit is brought whenever a medical practitioner or health care
3. Whether or not there is a causal connection between the petitioners' negligent provider fails to meet the standards demanded by his profession, or deviates from this
act/omission and the patient's resulting death; and standard, and causes injury to the patient.
5 | Page
 Breach of duty occurs when the doctor fails to comply with, or improperly performs
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the his duties under professional standards. This determination is both factual and legal,
deceased patient's heir) must prove that the doctor either failed to do what a and is specific to each individual case. 42
reasonably prudent doctor would have done, or did what a reasonably prudent doctor
would not have done; and the act or omission had caused injury to the patient. 34 The If the patient, as a result of the breach of duty, is injured in body or in health,
patient's heir/s bears the burden of proving his/her cause of action. actionable malpractice is committed, entitling the patient to damages. 43

The Elements of a Medical Malpractice Suit To successfully claim damages, the patient must lastly prove the causal relation
between the negligence and the injury. This connection must be direct, natural, and
The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) should be unbroken by any intervening efficient causes. In other words, the
proximate causation. negligence must be the proximate cause of the injury.44 The injury or damage is
proximately caused by the physician's negligence when it appears, based on the
Duty refers to the standard of behavior that imposes restrictions on one's conduct. 35 It evidence and the expert testimony, that the negligence played an integral part in
requires proof of professional relationship between the physician and the patient. causing the injury or damage, and that the injury or damage was either a direct result,
Without the professional relationship, a physician owes no duty to the patient, and or a reasonably probable consequence of the physician's negligence.45
cannot therefore incur any liability.
a. The Relationship Between Dr. Casumpang and Edmer
A physician-patient relationship is created when a patient engages the services of a
physician,36 and the latter accepts or agrees to provide care to the patient. 37 The In the present case, the physician-patient relationship between Dr. Casumpang and
establishment of this relationship is consensual,38 and the acceptance by the physician Edmer was created when the latter's parents sought the medical services of Dr.
essential. The mere fact that an individual approaches a physician and seeks Casumpang, and the latter knowingly accepted Edmer as a patient. Dr. Casumpang's
diagnosis, advice or treatment does not create the duty of care unless the physician acceptance is implied from his affirmative examination, diagnosis and treatment of
agrees.39 Edmer. On the other hand, Edmer's parents, on their son's behalf, manifested their
consent by availing of the benefits of their health care plan, and by accepting the
The consent needed to create the relationship does not always need to be express. 40 In hospital's assigned doctor without objections.
the absence of an express agreement, a physician-patient relationship may be implied
from the physician's affirmative action to diagnose and/or treat a patient, or in his b. The Relationship Between Dr. Miranda and Edmer
participation in such diagnosis and/or treatment.41The usual illustration would be the
case of a patient who goes to a hospital or a clinic, and is examined and treated by the With respect to Dr. Miranda, her professional relationship with Edmer arose when she
doctor. In this case, we can infer, based on the established and customary practice in assumed the obligation to provide resident supervision over the latter. As second year
the medical community that a patient-physician relationship exists. resident doctor tasked to do rounds and assist other physicians, Dr. Miranda is
deemed to have agreed to the creation of physician-patient relationship with the
Once a physician-patient relationship is established, the legal duty of care follows. hospital's patients when she participated in the diagnosis and prescribed a course of
The doctor accordingly becomes duty-bound to use at least the same standard of care treatment for Edmer.
that a reasonably competent doctor would use to treat a medical condition under
similar circumstances. The undisputed evidence shows that Dr. Miranda examined Edmer twice (at around
12:00 and 3:30 in the afternoon of April 23, 1988), and in both instances, she
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prescribed treatment and participated in the diagnosis of Edmer's medical condition. medical examinations, tests, and procedures that the attending physicians should
Her affirmative acts amounted to her acceptance of the physician-patient relationship, have undertaken in the diagnosis and treatment of dengue fever; and second, the
and incidentally, the legal duty of care that went with it. dengue fever signs and symptoms that the attending physicians should have noticed
and considered.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely
passed by and were requested to attend to the patient, liable for medical malpractice. Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony on dengue
It held that a physician-patient relationship was established when they examined the diagnosis and management to support their finding that the petitioning doctors were
patient, and later assured the mother that everything was fine. guilty of breach of duty of care.

In the US case of Mead v. Legacy Health System,47 the Court also considered the Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain, fever, and
rendering of an opinion in the course of the patient's care as the doctor's assent to the the presence of blood in his saliva are classic symptoms of dengue fever. According to
physician-patient relationship. It ruled that the relationship was formed because of the him, if the patient was admitted for chest pain, abdominal pain, and difficulty in
doctor's affirmative action. breathing coupled with fever, dengue fever should definitely be considered; 51 if the
patient spits coffee ground with the presence of blood, and the patient's platelet count
Likewise, in Wax v. Johnson,48 the court found that a physician-patient relationship drops to 47,000, it becomes a clear case of dengue fever, and bronchopneumonia can
was formed between a physician who "contracts, agrees, undertakes, or otherwise be reasonably ruled out.52
assumes" the obligation to provide resident supervision at a teaching hospital, and the
patient with whom the doctor had no direct or indirect contract. Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen
inhalation, analgesic, and fluid infusion or dextrose.53 If the patient had twice vomited
Standard of Care and Breach of Duty fresh blood and thrombocytopenia has already occurred, the doctor should
order blood transfusion, monitoring of the patient every 30 minutes, hemostatic to
A determination of whether or not the petitioning doctors met the required standard of stop bleeding, and oxygen if there is difficulty in breathing.54
care involves a question of mixed fact and law; it is factual as medical negligence
cases are highly technical in nature, requiring the presentation of expert witnesses to We find that Dr. Casumpang, as Edmer's attending physician, did not act
provide guidance to the court on matters clearly falling within the domain of medical according to these standards and, hence, was guilty of breach of duty. We do not
science, and legal, insofar as the Court, after evaluating the expert testimonies, and find Dr. Miranda liable for the reasons discussed below.
guided by medical literature, learned treatises, and its fund of common knowledge,
ultimately determines whether breach of duty took place. Dr. Casumpang's Negligence

Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be a. Negligence in the Diagnosis
measured by the yardstick of professional standards observed by the other members
of the medical profession in good standing under similar circumstances. 49 It is in this At the trial, Dr. Casumpang declared that a doctor's impression regarding a patient's
aspect of medical malpractice that expert testimony is essential to establish not only illness is 90% based on the physical examination, the information given by the patient
the professional standards observed in the medical community, but also that the or the latter's parents, and the patient's medical history.55 He testified that he did not
physician's conduct in the treatment of care falls below such standard. 50 consider either dengue fever or dengue hemorrhagic fever because the patient's
history showed that Edmer had low breath and voluntary submission, and that he was
In the present case, expert testimony is crucial in determining first, the standard up and about playing basketball.56 He based his diagnosis of bronchopneumonia on
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the following observations: "difficulty in breathing, clearing run nostril, harsh breath
sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpang's first and second visits to Edmer, he
already had knowledge of Edmer's laboratory test result (CBC), medical history, and
symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain, throat
irritation, difficulty in breathing, and traces of blood in the sputum). However, these
information did not lead Dr. Casumpang to the possibility that Edmer could be
suffering from either dengue fever, or dengue hemorrhagic fever, as he clung to
his diagnosis of broncho pneumonia. This means that given the symptoms
exhibited, Dr. Casumpang already ruled out the possibility of other diseases like
dengue.
In other words, it was lost on Dr. Casumpang that the characteristic symptoms of
dengue (as Dr. Jaudian testified) are: patient's rapid breathing; chest and stomach
pain; fever; and the presence of blood in his saliva. All these manifestations were
present and known to Dr. Casumpang at the time of his first and second visits to
Edmer. While he noted some of these symptoms in confirming bronchopneumonia, he
did not seem to have considered the patient's other manifestations in ruling out
dengue fever or dengue hemorrhagic fever.58 To our mind, Dr. Casumpang selectively
appreciated some, and not all of the symptoms; worse, he casually ignored the pieces
of information that could have been material in detecting dengue fever. This is evident
from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first time at 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 pneumonia, what did
you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my
son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THAT'S THE USUAL BRONCHO
PNEUMONIA, NO COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room?
A: He stayed for a minute or 2.
xxxx
Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what did you
tell him, if any?
xxxx
A: I told Dr. Casumpang... After examining my son using stethoscope and
nothing more, I told Dr. Casumpang about the traces of blood in my son's
sputum and I told him what is all about and he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the
throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints
of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was
almost moving because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him
that your son is experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I
repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you gave him that
your son had a fever?
A: He said, that is broncho pneumonia, It's only being active now. [Emphasis
supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmer's
throat despite knowing that as early as 9:00 in the morning of April 23, 1988, Edmer
had blood streaks in his sputum. Neither did Dr. Casumpang order confirmatory tests
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to confirm the source of bleeding. The Physician's Progress Notes59 stated: "Blood
streaks on phlegm can be due to bronchial irritation or congestion" which clearly
showed that Dr. Casumpang merely assumed, without confirmatory physical
examination, that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpang's medical examination was not
comprehensive enough to reasonably lead to a correct diagnosis. 60 Dr. Casumpang
only used a stethoscope in coming up with the diagnosis that Edmer was suffering
from bronchopneumonia; he never confirmed this finding with the use of a
bronchoscope. Furthermore, Dr. Casumpang based his diagnosis largely on the chest
x-ray result that is generally inconclusive. 61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after
Edmer's third episode of bleeding) that Dr. Casumpang ordered the conduct
of hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests.
These tests came too late, as proven by: (1) the blood test results that came at about
6:00 in the evening, confirming that Edmer's illness had developed to "Dengue
Hemorrhagic Fever" and (2) Dr. Jaudian's testimony that "dengue fever could have
been detected earlier than 7:30 in the evening of April 23, 1988 because the
symptoms were already evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit,
the Court ruled that the petitioner doctors were negligent because they failed to
immediately order tests to confirm the patient's illness. Despite the doctors' suspicion
that the patient could be suffering from diabetes, the former still proceeded to the
D&C operation. In that case, expert testimony showed that tests should have been
ordered immediately on admission to the hospital in view of the symptoms presented.
The Court held:
When a patient exhibits symptoms typical of a particular disease, these symptoms
should, at the very least, alert the physician of the possibility that the patient may be
afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm. However, the petitioner doctors failed to take
this into consideration and proceeded with the D&C operation. Thus, the Court ruled
that they failed to comply with their duty to observe the standard of care to be given
to hyperglycemic/diabetic patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise
reasonable prudence in ascertaining the extent of the patient's injuries, this Court
declared that:
In failing to perform an extensive medical examination to determine the extent
of Roy Jr.'s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as
members of the medical profession. Assuming for the sake of argument that they
did not have the capacity to make such thorough evaluation at that stage, they should
have referred the patient to another doctor with sufficient training and experience
instead of assuring him and his mother that everything was all right. [Emphasis
supplied]
Even assuming that Edmer's symptoms completely coincided with the diagnosis of
bronchopneumonia (so that this diagnosis could not be considered "wrong"), we still
find Dr. Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctor's diagnosis,
or the accuracy of the medical findings and treatment. Our duty in medical
malpractice cases is to decide - based on the evidence adduced and expert opinion
presented - whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical
malpractice.65 Physicians are generally not liable for 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 becomes an evidence of medical
malpractice.
Third, we also note that medicine is not an exact science;66 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.
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
9 | Page
failure, especially when reasonable prudence would have shown that indications of Q: Then, who monitor [sic] the patient?
dengue were evident and/or foreseeable, constitutes negligence. A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
a. Negligence in the Treatment and Management of Dengue Q: While monitoring the patient, all his vital signs were ________; his blood
pressure was normal so we continued with the supportive management at that
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to time.
promptly undertake the proper medical management needed for this disease. Q: Now, after that?
A: In the evening of April 23, 1988,1 stayed in the hospital and I was informed by
As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the pediatric resident on duty at around 11:15 in the evening that the blood
the classic symptoms of dengue fever should have been: oxygen inhalation, use of pressure of the patient went down to .60 palpatory.
analgesic, and infusion of fluids or dextrose;67 and once the patient had twice vomited Q: What did you do upon receipt of that information?
fresh blood, the doctor should have ordered: blood transfusion, monitoring of the A: I immediately went up to the room of the patient and we changed the IV
patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty fluid from the present fluid which was D5 0.3 sodium chloride to lactated
in breathing.68 ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
Dr. Casumpang failed to measure up to these standards. The evidence strongly A: We changed the IV fluid because lactated ringers was necessary to resume
suggests that he ordered a transfusion of platelet concentrate instead of blood the volume and to bring back the blood pressure, to increase the blood
transfusion. The tourniquet test was only conducted after Edmer's second episode of pressure. [Emphasis supplied]
bleeding, and the medical management (as reflected in the records) did not include Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr.
antibiotic therapy and complete physical examination. Ellewelyn Pasion (Dr. Pasion), Personnel Officer and Medical Director of SJDH,
respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the radiologist
Dr. Casumpang's testimony states: who read Edmer's chest x-ray result), these witnesses failed to dispute the standard of
Q: Now, after entertaining - After considering that the patient Edmer Cortero was action that Dr. Jaudian established in his expert opinion. We cannot consider them
already suffering from dengue hemorrhagic fever, what did you do, if any? expert witnesses either for the sole reason that they did not testify on the standard of
A: We ordered close monitoring of the blood pressure, the cardiac rate and care in dengue cases.69
respiratory rate of the patient.
Q: Now, was your instructions carried on? On the whole, after examining the totality of the adduced evidence, we find that the
A: Yes, sir. lower courts correctly did not rely on Dr. Casumpang's claim that he exercised
Q: What was the blood pressure of the patient? prudence and due diligence in handling Edmer's case. Aside from being self-serving,
A: During those times, the blood pressure of the patient was even normal during his claim is not supported by competent evidence. As the lower courts did, we rely on
those times. the uncontroverted fact that he failed, as a medical professional, to observe the most
Q: How about the respiratory rate? prudent medical procedure under the circumstances in diagnosing and treating Edmer.
A: The respiratory rate was fast because the patient in the beginning since admission
had difficulty in breathing. Dr. Miranda is Not Liable for Negligence
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] In considering the case of Dr. Miranda, the junior resident physician who was on-duty
the patient. at the time of Edmer's confinement, we see the need to draw distinctions between the
10 | P a g e
responsibilities and corresponding liability of Dr. Casumpang, as the attending clearly informed the jury that the medical care required is that of reasonably
physician, and that of Dr. Miranda. careful physicians or hospital emergency room operators, not of interns or
residents. [Emphasis supplied]
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns
medicine licensed to practice in the Philippines and who would like to pursue a and first-year residents are "practitioners of medicine required to exercise the same
particular specialty.70 They are usually the front line doctors responsible for the first standard of care applicable to physicians with unlimited licenses to practice." The
contact with the patient. During the scope of the residency program, 71 resident Indiana Court held that although a first-year resident practices under a temporary
physicians (or "residents")72 function under the supervision of attending medical permit, he/she impliedly contracts that he/she has the reasonable and ordinary
physicians73 or of the hospital's teaching staff. Under this arrangement, residents qualifications of her profession and that he/she will exercise reasonable skill,
operate merely as subordinates who usually defer to the attending physician on the diligence, and care in treating the patient.
decision to be made and on the action to be taken.
We find that Dr. Miranda was not independently negligent. Although she had
The attending physician, on the other hand, is primarily responsible for managing the greater patient exposure, and was' subject to the same standard of care applicable to
resident's exercise of duties. While attending and resident physicians share the attending physicians, we believe that a finding of negligence should also depend on
collective responsibility to deliver safe and appropriate care to the patients, 74 it is the several competing factors, among them, her authority to make her own diagnosis, the
attending physician who assumes the principal responsibility of patient degree of supervision of the attending physician over her, and the shared
care.75 Because he/she exercises a supervisory role over the resident, and is ultimately responsibility between her and the attending physicians.
responsible for the diagnosis and treatment of the patient, the standards applicable to
and the liability of the resident for medical malpractice is theoretically less than that In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr.
of the attending physician. These relative burdens and distinctions, however, do not Casumpang had diagnosed Edmer with bronchopneumonia. In her testimony, Dr.
translate to immunity from the legal duty of care for residents, 76 or from the Miranda admitted that she had been briefed about Edmer's condition, his medical
responsibility arising from their own negligent act. history, and initial diagnosis;79 and based on these pieces of information,
she confirmed the, finding of bronchopneumonia.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of
care in medical malpractice cases involving first-year residents was that of a Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted receiving
reasonably prudent physician and not that of interns. According to Jenkins: updates regarding Edmer's condition.80 There is also evidence supporting Dr.
It is clear that the standard of care required of physicians is not an individualized one Miranda's claim that she extended diligent care to Edmer. In fact, when she suspected
but of physicians in general in the community. In order to establish medical - during Edmer's second episode of bleeding - that Edmer could be suffering from
malpractice, it must be shown by a preponderance of the evidence that a physician did dengue fever, she wasted no time in conducting the necessary tests, and promptly
some particular thing or things that a physician or surgeon of ordinary skill, care and notified Dr. Casumpang about the incident. Indubitably, her medical assistance led to
diligence would not have done under like or similar conditions or circumstances, or the finding of dengue fever.
that he failed or omitted to do some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would have done under like or similar We note however, that during Edmer's second episode of bleeding, 81 Dr. Miranda
conditions or circumstances, and that the inquiry complained of was the direct result failed to immediately examine and note the cause of the blood specimen. Like Dr.
of such doing or failing to do such thing or things. Casumpang, she merely assumed that the blood in Edmer's phlegm was caused by
bronchopneumonia. Her testimony states:
We note that the standard of instruction given by the court was indeed a proper one. It TSN, June 8, 1993:
11 | P a g e
 physician (in this case, Dr. Casumpang), we believe that Dr. Miranda's error was
Q: Let us get this clear, you said that the father told you the patient cocked [sic] out merely an honest mistake of judgment influenced in no small measure by her status in
phlegm. the hospital hierarchy; hence, she should not be held liable for medical negligence.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen? Dr. Jaudian 's Professional Competence and Credibility
A: No, sir, I did not because according to the father he wash [sic] his hands.
One of the critical issues the petitioners raised in the proceedings before the lower
xxxx court and before this Court was Dr. Jaudian's competence and credibility as an expert
witness. The petitioners tried to discredit his expert testimony on the ground that he
Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm lacked the proper training and fellowship status in pediatrics.
and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the Criteria in Qualifying as an Expert Witness
lung alone.82 [Emphasis supplied]
The competence of an expert witness is a matter for the trial court to decide upon in
xxxx the exercise of its discretion. The test of qualification is necessarily a relative one,
depending upon the subject matter of the investigation, and the fitness of the expert
TSN, June 17, 1993: witness.84 In our jurisdiction, the criterion remains to be the expert witness' special
knowledge experience and practical training that qualify him/her to explain
Q: Now, in the first meeting you had, when that was relayed to you by the father that highly technical medical matters to the Court.
Edmer Cortejo had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a
of broncho pneumonia. pulmonologist, not qualified to testify on the field of anesthesiology. Similarly,
in Cereno v. Court of Appeals,86 a 2012 case involving medical negligence, the Court
xxxx excluded the testimony of an expert witness whose specialty was anesthesiology, and
concluded that an anesthesiologist cannot be considered an expert in the field of
Q: So what examination did you specifically conduct to see that there was no surgery or even in surgical practices and diagnosis.
internal bleeding?
A: At that time I did not do anything to determine the cause of coughing of the Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a
blood because I presumed that it was a mucous (sic) produced by broncho pediatrician but a practicing physician who specializes in pathology.87 He likewise
pneumonia, And besides the patient did not even show any signs of any other does not possess any formal residency training in pediatrics. Nonetheless, both the
illness at that time.[83 lower courts found his knowledge acquired through study and practical experience
Based on her statements we find that Dr. Miranda was not entirely sufficient to advance an expert opinion on dengue-related cases.
faultless. Nevertheless, her failure to discern the import of Edmer's second
bleeding does not necessarily amount to negligence as the respondent himself We agree with the lower courts.
admitted that Dr. Miranda failed to examine the blood specimen because he washed it
away. In addition, considering the diagnosis previously made by two doctors, and the A close scrutiny of Ramos and Cereno reveals that the Court primarily based the
uncontroverted fact that the burden of final diagnosis pertains to the attending witnesses' disqualification to testify as an expert on their incapacity to shed light on
12 | P a g e
the standard of care that must be observed by the defendant-physicians. That the
expert witnesses' specialties do not match the physicians' practice area only
constituted, at most, one of the considerations that should not be taken out of context.
After all, the sole function of a medical expert witness, regardless of his/her specialty,
is to afford assistance to the courts on medical matters, and to explain the medical
facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno that the expert
witnesses possess a sufficient familiarity with the standard of care applicable to the
physicians' specialties.
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.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony
regarding a gynecologist's standard of pre-surgical care. In that case, the court held
that since negligence was not predicated on the gynecologist's negligent performance
of the operation, but primarily on the claim that the pre-operative histories and
physicals were inadequate, the neurosurgeon was competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a
neurologist in a medical malpractice action. The court considered that the orthopedic
surgeon's opinion on the "immediate need for decompression" need not come from a
specialist in neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical doctor cannot be
excluded simply because he is not a specialist x x x." The matter of "x x x training
and specialization of the witness goes to the weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist in
neurosurgery to express the opinions permitted to be expressed by plaintiffs'
doctors, e.g., the immediate need for a decompression in the light of certain
neurological deficits in a post-laminectomy patient. As stated above, there was no
issue as to the proper execution of the neurosurgery. The medical testimony supported
plaintiffs' theory of negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialist's knowledge of the
requisite subject matter, rather than his/her specialty that determines his/her
qualification to testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert
witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the
required professional knowledge, learning and skill of the subject under inquiry
sufficient to qualify him to speak with authority on the subject; and (2) is
familiar with the standard required of a physician under similar
circumstances; where a witness has disclosed sufficient knowledge of the subject to
entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a specialist so
long as he exhibits knowledge of the subject. Where a duly licensed and
practicing physician has gained knowledge of the standard of care applicable to
a specialty in which he is not directly engaged but as to which he has an opinion
based on education, experience, observation, or association wit that specialty, his
opinion is competent. (Emphasis supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness' familiarity, and
not the classification by title or specialty, which should control issues regarding the
expert witness' qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a
specialist in a particular branch within a profession will not be required." Most courts
allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that
"it is the scope of the witness' knowledge and not the artificial classification by title
that should govern the threshold question of admissibility. (Citations omitted)
Application to the Present Case
In the case and the facts before us, we find that Dr. Jaudian is competent to testify on
the standard of care in dengue fever cases.
Although he specializes in pathology, it was established during trial that he had
attended not less than 30 seminars held by the Pediatric Society, had exposure in
13 | P a g e
pediatrics, had been practicing medicine for 16 years, and had handled not less than further spread of the virus.96 That Edmer later died of "Hypovolemic
50 dengue related cases. Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever Stage IV," a severe and fatal
form of dengue fever, established the causal link between Dr. Casumpang's
As a licensed medical practitioner specializing in pathology, who had practical and negligence and the injury.
relevant exposure in pediatrics and dengue related cases, we are convinced that Dr.
Jaudian demonstrated sufficient familiarity with the standard of care to be applied in Based on these considerations, we rule that the respondent successfully proved the
dengue fever cases. Furthermore, we agree that he possesses knowledge and element of causation.
experience sufficient to qualify him to speak with authority on the subject.
Liability of SJDH
The Causation Between Dr. Casumpang's Negligent Act/Omission, and the
Patient's Resulting Death was Adequately Proven We now discuss the liability of the hospital.

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 agree with these
findings.
The respondent submits that SJDH should not only be held vicariously liable for the
petitioning doctors' negligence but also for its own negligence. He claims that SJDH
fell short of its duty of providing its patients with the necessary facilities and
equipment as shown by the following circumstances:
(a) SJDH was not equipped with proper paging system;

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.94
Furthermore, as Dr. Jaudian testified, with adequate intensive 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
(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 immediately
provide him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDH's was not
ready and had no driver; and

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 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.
Furthermore, medical literature on dengue shows that early diagnosis and
management of dengue is critical in reducing the risk of complications and avoiding
(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 petitioning doctors are
not its employees but are mere consultants and independent contractors.
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.
There is No Employer-Employee Relationship Between SJDH and the Petitioning
14 | P a g e
Doctors
In determining whether an employer-employee relationship exists between the parties,
the following elements must be present: (1) selection and engagement of services; (2)
payment of wages; (3) the power to hire and fire; and (4) the power to control not
only the end to be achieved, but the means to be used in reaching such an end. 97
Control, which is the most crucial among the elements, is not present in this case.
Based on the records, no evidence exists showing that SJDH exercised any degree of
control over the means, methods of procedure and manner by which the petitioning
doctors conducted and performed their medical profession. SJDH did not control their
diagnosis and treatment. Likewise, no evidence was presented to show that SJDH
monitored, supervised, or directed the petitioning doctors in the treatment and
management of Edmer's case. In these lights, the petitioning doctors were not
employees of SJDH, but were mere independent contractors.
SJDH is Solidarity Liable Based on The Principle of Agency or Doctrine of
Apparent Authority
Despite the absence of employer-employee relationship between SJDH and the
petitioning doctors, SJDH is not free from liability.98
As a rule, hospitals are not liable for the negligence of its independent contractors.
However, it may be found liable if the physician or independent contractor acts as an
ostensible agent of the hospital. This exception is also known as the "doctrine of
apparent authority."99
100
The US case of Gilbert v. Sycamore Municipal Hospital abrogated the hospitals'
immunity to vicarious liability of independent contractor physicians. In that case, the
Illinois Supreme Court held that under the doctrine of apparent authority, hospitals
could be found vicariously liable for the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be
held vicariously liable for the negligent acts of a physician providing care at the
hospital, regardless of whether the physician is an independent contractor, unless the
patient knows, or should have known, that the physician is an independent contractor.
The elements of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must
show that: (1) the hospital, or its agent, acted in a manner that would lead a
reasonable person to conclude that the individual who was alleged to be
negligent was an 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 conduct of the hospital or its agent, consistent with ordinary
care and prudence. (Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court,
through the ponencia of Associate Justice Antonio T. Carpio, discussed the two
factors in determining hospital liability as follows:
The first factor focuses on the hospital's manifestations and is sometimes described as
an inquiry whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital need not make express
representations to the patient that the treating physician is an employee of the
hospital; rather a representation may be general and implied.
xxxx
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, consistent with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician
(or an independent contractor) providing care at the hospital if the plaintiff can prove
these two factors: first, the hospital's manifestations; and second, the patient's
reliance.
a. Hospital's manifestations
It involves an inquiry on whether the hospital acted in a manner that would lead a
reasonable person to conclude that the individual alleged to be negligent was an
employee or agent of the hospital. As pointed out in Nogales, the hospital need not
make express representations to the patient that the physician or independent
contractor is an employee of the hospital; representation may be general and
implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by
15 | P a g e
the hospital or its agent are sufficient to lead a reasonable person to conclude that the
individual was an agent of the hospital." In ruling that the hospital's manifestations
can be proven without the express representation by the hospital, the court relied on
several cases from other jurisdictions, and held that:
(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
(2) patients entering the hospital through the emergency room, could properly
assume that the treating doctors and staff of the hospital were acting on its behalf.
In this case, the court considered the act of the hospital of holding itself out as
provider of complete medical care, and considered the hospital to have impliedly
created the appearance of authority.
b. Patient's reliance
It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the
hospital or its agent, consistent with ordinary care and prudence. 104
In Pamperin, the court held that the important consideration in determining the
patient's reliance is: whether the plaintiff is seeking care from the hospital itself or
whether the plaintiff is looking to the hospital merely as a place for his/her personal
physician to provide medical care.105
Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied
upon the hospital to provide care and treatment, rather than upon a specific physician.
In this case, we shall limit the determination of the hospital's apparent authority to Dr.
Casumpang, in view of our finding that Dr. Miranda is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading
the respondent to believe that he is an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr.
Casumpang, to care and treat his son Edmer. His 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 contractor.
Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such
were being provided by SJDH or its employees, agents, or servants. By referring Dr.
Casumpang to care and treat for Edmer, SJDH impliedly held out Dr.
Casumpang, not only as an accredited member of Fortune Care, but also as a
member of its medical staff. SJDH cannot now disclaim liability since there is no
showing that Mrs. Cortejo or the respondent knew, or should have known, that Dr.
Casumpang is only an independent contractor of the hospital. In this case, estoppel
has already set in.
We also stress that Mrs. Cortejo's use of health care plan (Fortune Care) did not affect
SJDH's liability. The only effect of the availment of her Fortune Care card benefits is
that her choice of physician is limited only to physicians who are accredited with
Fortune Care. Thus, her use of health care plan in this case only limited the choice of
doctors (or coverage of services, amount etc.) and not the liability of doctors or the
hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the
consolidated petitions. The Court finds Dr. Noel Casumpang and San Juan de Dios
Hospital solidarity liable for negligent medical practice. We SET ASIDE the finding
of liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00 as actual
damages and P500,000.00 as moral damages should each earn legal interest at the rate
of six percent (6%) per annum computed from the date of the judgment of the trial
court. The Court AFFIRMS the rest of the Decision dated October 29, 2004 and the
Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
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G.R. No. 191018
CARLOS BORROMEO, Petitioner,
vs.
FAMILY CARE HOSPITAL, INC. and RAMON S. INSO, M.D., Respondents.
DECISION
BRION, J.:
Carlos Borromeo lost his wife Lillian when she died after undergoing a routine
appendectomy. The hospital and the attending surgeon submit that Lillian bled to
death due to a rare, life-threatening condition that prevented her blood from clotting
normally. Carlos believes, however, that the hospital and the surgeon were simply
negligent in the care of his late wife.
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No.
890961 dismissed Carlos' complaint and thus reversed the April 10, 2007 decision of
the Regional Trial Court (RTC) in Civil Case No. 2000-603-MK2 which found the
respondents liable for medical negligence.
The present petition for review on certiorari seeks to reverse the CAs January 22,
2010 decision.
ANTECEDENTS
The petitioner, Carlos Borromeo, was the husband of the late Lilian V. Borromeo
(Lilian). Lilian was a patient of the respondent Family Care Hospital, Inc. (Family
Care) under the care of respondent Dr. Ramon Inso (Dr. Inso).
On July 13, 1999, the petitioner brought his wife to the Family Care Hospital because
she had been complaining of acute pain at the lower stomach area and fever for two
days. She was admitted at the hospital and placed under the care of Dr. Inso.
Dr. Inso suspected that Lilian might be suffering from acute appendicitis. However,
there was insufficient data to rule out other possible causes and to proceed with an
appendectomy. Thus, he ordered Lilians confinement for testing and evaluation.
Over the next 48 hours, Lilian underwent multiple tests such as complete blood count,
urinalysis, stool exam, pelvic ultrasound, and a pregnancy test. However, the tests
were not conclusive enough to confirm that she had appendicitis.
Meanwhile, Lilians condition did not improve. She suffered from spiking fever and
her abdominal pain worsened. The increasing tenderness of her stomach, which was
previously confined to her 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 his fear that she might have a ruptured
appendix. Exploratory laparotomy is a surgical procedure involving a large incision
on the abdominal wall that would enable Dr. Inso to examine the abdominal cavity
and identify the cause of Lilians symptoms. After explaining the situation, Dr. Inso
obtained the patients consent to the laparotomy.
At around 3:45 P.M., Lilian was brought to the operating room where Dr. Inso
conducted the surgery. During the operation, Dr. Inso confirmed that Lilian was
suffering from acute appendicitis. He proceeded to remove her appendix which was
already infected and congested with pus.
The operation was successful. Lilians appearance and vital signs improved. At
around 7:30 P.M., Lilian was brought back to her private room from the recovery
room.
At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian was brought
back to her room, Dr. Inso was informed that her blood pressure was low. After
assessing her condition, he ordered the infusion of more intravenous (IV) fluids which
somehow raised her blood pressure.
Despite the late hour, Dr. Inso remained in the hospital to monitor Lilians condition.
Subsequently, a nurse informed him that Lilian was becoming restless. Dr. Inso
immediately went to Lilian and saw that she was quite pale. He immediately
requested a blood transfusion.
Lilian did not respond to the blood transfusion even after receiving two 500 cc-units
of blood. Various drugs, such as adrenaline or epinephrine, were administered.
Eventually, an endotracheal tube connected to an oxygen tank was inserted into Lilian
to ensure her airway was clear and to compensate for the lack of circulating oxygen in
her body from the loss of red blood cells. Nevertheless, her condition continued to
deteriorate.
Dr. Inso observed that Lilian was developing petechiae in various parts of her
body. Petechiae are small bruises caused by bleeding under the skin whose presence
indicates a blood-coagulation problem a defect in the ability of blood to clot. At this
point, Dr. Inso suspected that Lilian had Disseminated Intravascular
Coagulation (DIC), a blood disorder characterized by bleeding in many parts of her
body caused by the consumption or the loss of the clotting factors in the blood.
However, Dr. Inso did not have the luxury to conduct further tests because the
immediate need was to resuscitate Lilian.
Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPR) on Lilian. Dr.
Inso also informed her family that there may be a need to re-operate on her, but she
would have to be put in an Intensive Care Unit (ICU). Unfortunately, Family Care did
not have an ICU because it was only a secondary hospital and was not required by the
17 | P a g e
Department of Health to have one. Dr. Inso informed the petitioner that Lilian would
have to be transferred to another hospital.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help Medical Center to
arrange Lilians transfer, but the latter had no available bed in its ICU. Dr. Inso then
personally coordinated with the Muntinlupa Medical Center (MMC) which had an
available bed.
At around 4:00 A.M., Lilian was taken to the MMC by ambulance accompanied by
the resident doctor on duty and a nurse. Dr. Inso followed closely behind in his own
vehicle.
Upon reaching the MMC, a medical team was on hand to resuscitate Lilian. A
nasogastric tube (NGT) was inserted and IV fluids were immediately administered to
her. Dr. Inso asked for a plasma expander. Unfortunately, at around 10:00 A.M.,
Lilian passed away despite efforts to resuscitate her.
At the request of the petitioner, Lilians body was autopsied at the Philippine National
Police (PNP) Camp Crame Crime Laboratory. Dr. Emmanuel Reyes (Dr. Reyes), the
medico-legal assigned to the laboratory, conducted the autopsy. Dr. Reyes
summarized his notable findings as:
x x x I opened up the body and inside the abdominal cavity which you call peritoneal
cavity there were 3,000 ml of clot and unclot blood accumulated thereat. The
peritoneal cavity was also free from any adhesion. Then, I opened up the head and the
brain revealed paper white in color and the heart revealed abundant petechial
hemorrhages from the surface and it was normal. The valvular leaflets were soft and
pliable, and of course, the normal color is reddish brown as noted. And the coronary
arteries which supply the heart were normal and unremarkable. Next, the lungs
appears [sic] hemorrhagic. That was the right lung while the left lung was collapsed
and paled. For the intestines, I noted throughout the entire lengths of the small and
large intestine were hemorrhagic areas. Noted absent is the appendix at the ileo-colic
area but there were continuous suture repair done thereat. However, there was a 0.5 x
0.5 cm opening or left unrepaired at that time. There was an opening on that repair
site. Meaning it was not repaired. There were also at that time clot and unclot blood
found adherent thereon. The liver and the rest of the visceral organs were noted
exhibit [sic] some degree of pallor but were otherwise normal. The stomach contains
one glassful about 400 to 500 ml.3
Dr. Reyes concluded that the cause of Lilians death was hemorrhage due to bleeding
petechial blood vessels: internal bleeding. He further concluded that the internal
bleeding was caused by the 0.5 x 0.5 cm opening in the repair site. He opined that the
bleeding could have been avoided if the site was repaired with double suturing instead
of the single continuous suture repair that he found.
Based on the autopsy, the petitioner filed a complaint for damages against Family
Care and against Dr. Inso for medical negligence.
During the trial, the petitioner presented Dr. Reyes as his expert witness. Dr. Reyes
testified as to his findings during the autopsy and his opinion that Lilians death could
have been avoided if Dr. Inso had repaired the site with double suture rather than a
single suture.
However, Dr. Reyes admitted that he had very little experience in the field of
pathology and his only experience was an on-the-job training at the V. Luna Hospital
where he was only on observer status. He further admitted that he had no experience
in appendicitis or appendectomy and that Lilians case was his first autopsy involving
a death from appendectomy.
Moreover, Dr. Reyes admitted that he was not intelligently guided during the autopsy
because he was not furnished with clinical, physical, gross, histopath, and laboratory
information that were important for an accurate conclusion. Dr. Reyes also admitted
that an appendical stump is initially swollen when sutured and that the stitches may
loosen during the healing process when the initial swelling subside.
In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert witnesses
Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio Hernandez (Dr. Hernandez).
Dr. Ramos is a practicing pathologist with over 20 years of experience. He is an
associate professor at the Department of Surgery of the Fatima Medical Center, the
Manila Central University, and the Perpetual Help Medical Center. He is a Fellow of
the Philippine College of Surgeons, a Diplomate of the Philippine Board of Surgery,
and a Fellow of the Philippine Society of General Surgeons.
Dr. Ramos discredited Dr. Reyes theory that the 0.5 x 0.5 cm opening at the repair
site caused Lilians internal bleeding. According to Dr. Ramos, appendical vessels
measure only 0.1 to 0.15 cm, a claim that was not refuted by the petitioner. If the 0.5
x 0.5 cm opening had caused Lilians hemorrhage, she would not have survived for
over 16 hours; she would have died immediately, within 20 to 30 minutes, after
surgery.
Dr. Ramos submitted that the cause of Lilians death was hemorrhage due to DIC, a
blood disorder that leads to the failure of the blood to coagulate. Dr. Ramos
considered the abundant petechial hemorrhage in the myocardic sections and the
hemorrhagic right lung; the multiple bleeding points indicate that Lilian was afflicted
with DIC.
18 | P a g e
Meanwhile, Dr. Hernandez is a general surgeon and a hospital administrator who had
been practicing surgery for twenty years as of the date of his testimony.
Dr. Hernandez testified that Lilians death could not be attributed to the alleged wrong
suturing. He submitted that the presence of blood in the lungs, in the stomach, and in
the entire length of the bowels cannot be reconciled with Dr. Reyes theory that the
hemorrhage resulted from a single-sutured appendix.
Dr. Hernandez testified that Lilian had uncontrollable bleeding in the microcirculation
as a result of DIC. In DIC, blood oozes from very small blood vessels because of a
problem in the clotting factors of the blood vessels. The microcirculation is too small
to be seen by the naked eye; the red cell is even smaller than the tip of a needle.
Therefore, the alleged wrong suturing could not have caused the amount of
hemorrhaging that caused Lilians death.
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 rebuttal witness. Dr.
Avila, also a lawyer, was presented as an expert in medical jurisprudence. Dr. Avila
testified that between Dr. Reyes who autopsied the patient and Dr. Ramos whose
findings were based on medical records, greater weight should be given to Dr. Reyes
testimony.
On April 10, 2007, the RTC rendered its decision awarding the petitioner P88,077.50
as compensatory damages; P50,000.00 as death indemnity; P3,607,910.30 as loss of
earnings; P50,000.00 as moral damages; P30,000.00 as exemplary damages;
P50,000.00 as attorneys fees, and the costs of the suit.
The RTC relied on Dr. Avilas opinion and gave more weight to Dr. Reyes findings
regarding the cause of Lilians death. It held that Dr. Inso was negligent in using a
single suture on the repair site causing Lilians death by internal hemorrhage. It
applied the doctrine of res ipsa loquitur, holding that a patients death does not
ordinarily occur during an appendectomy.
The respondents elevated the case to the CA and the appeal was docketed as CA-G.R.
CV No. 89096.
On January 22, 2010, the CA reversed the RTCs decision and dismissed the
complaint. The CA gave greater weight to the testimonies of Dr. Hernandez and Dr.
Ramos over the findings of Dr. Reyes because the latter was not an expert in
pathology, appendectomy, nor in surgery. It disregarded Dr. Avilas opinion because
the basic premise of his testimony was that the doctor who conducted the autopsy is a
pathologist of equal or of greater expertise than Dr. Ramos or Dr. Hernandez.
The CA held that there was no causal connection between the alleged omission of Dr.
Inso to use a double suture and the cause of Lilians death. It also found that Dr. Inso
did, in fact, use a double suture ligation with a third silk reinforcement ligation on the
repair site which, as Dr. Reyes admitted on cross-examination, loosened up after the
initial swelling of the stump subsided.
The CA denied the applicability of the doctrine of res ipsa loquitur because the
element of causation between the instrumentality under the control and management
of Dr. Inso and the injury that caused Lilians death was absent; the respondents
sufficiently established that the cause of Lilians death was DIC.
On March 18, 2010, the petitioner filed the present petition for review on certiorari.
THE PETITION
The petitioner argues: (1) that Dr. Inso and Family Care were negligent in caring for
Lilian before, during, and after her appendectomy and were responsible for her death;
and (2) that the doctrine of res ipsa loquitur is applicable to this case.
In their Comment, the respondents counter: (1) that the issues raised by the petitioner
are not pure questions of law; (2) that they exercised utmost care and diligence in the
treatment of Lilian; (3) that Dr. Inso did not deviate from the standard of care
observed under similar circumstances by other members of the profession in good
standing; (4) that res ipsa loquitur is not applicable because direct evidence as to the
cause of Lilians death and the presence/absence of negligence is available; and (5)
that doctors are not guarantors of care and cannot be held liable for the death of their
patients when they exercised diligence and did everything to save the patient.
OUR RULING
The petition involves factual questions.
Under Section 1 of Rule 45, a petition for review on certiorari shall only raise
questions of law. The Supreme Court is not a trier of facts and it is not our function to
analyze and weigh evidence that the lower courts had already passed upon.
The factual findings of the Court of Appeals are, as a general rule, conclusive upon
this Court. However, jurisprudence has also carved out recognized exceptions 5 to
this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises,
or conjectures;6 (2) when the inference made is manifestly mistaken, absurd, or
impossible;7 (3) when there is grave abuse of discretion;8 (4) when the judgment is
based on a misapprehension of facts;9 (5) when the findings of facts are
conflicting;10 (6) when in making its findings the Court of Appeals went beyond the
issues of the case, or its findings are contrary to the admissions of both the appellant
and the appellee;11 (7) when the findings are contrary to those of the trial
courts;12 (8) when the findings are conclusions without citation of specific evidence
19 | P a g e
on which they are based;13 (9) when the facts set forth in the petition as well as in the
petitioners 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;15and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.16
Considering that the CAs findings with respect to the cause of Lilians death
contradict those of the RTC, this case falls under one of the exceptions. The Court
will thus give due course to the petition to dispel any perception that we denied the
petitioner justice.
The requisites of establishing medical malpractice
Whoever alleges a fact has the burden of proving it. This is a basic legal principle that
equally applies to civil and criminal cases. In a medical malpractice case, the plaintiff
has the duty of proving its elements, namely: (1) a duty of the defendant to his patient;
(2) the defendants breach of this duty; (3) injury to the patient; and (4) proximate
causation between the breach and the injury suffered.17 In civil cases, the plaintiff
must prove these elements by a preponderance of evidence.
A medical professional has the duty to observe the standard of care and exercise the
degree of skill, knowledge, and training ordinarily expected of other similarly trained
medical professionals acting under the same circumstances.18 A breach of the
accepted standard of care constitutes negligence or malpractice and renders the
defendant liable for the resulting injury to his patient.19
The standard is based on the norm observed by other reasonably competent members
of the profession practicing the same field of medicine.20 Because medical
malpractice cases are often highly technical, expert testimony is usually essential to
establish: (1) the standard of care that the defendant was bound to observe under the
circumstances; (2) that the defendants conduct fell below the acceptable standard;
and (3) that the defendants failure to observe the industry standard caused injury to
his patient.21
The expert witness must be a similarly trained and experienced physician. Thus, a
pulmonologist is not qualified to testify as to the standard of care required of an
anesthesiologist22 and an autopsy expert is not qualified to testify as a specialist in
infectious diseases.23
The petitioner failed to present an expert witness.
In ruling against the respondents, the RTC relied on the findings of Dr. Reyes in the
light of Dr. Avilas opinion that the formers testimony should be given greater weight
than the findings of Dr. Ramos and Dr. Hernandez. On the other hand, the CA did not
consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded their testimonies
in favor of Dr. Ramos and Dr. Hernandez. The basic issue, therefore, is whose
testimonies should carry greater weight?
We join and affirm the ruling of the CA.
Other than their conclusion on the culpability of the respondents, the CA and the RTC
have similar factual findings. The RTC ruled against the respondents based primarily
on the following testimony of Dr. Reyes.
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: What would be the result if there is only single?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood vessels, your
Honor.
Court: So, the bleeding of the patient was caused by the single suture?
Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central University
(MCU) College of Medicine and passed the medical board exams in 1994. 25 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.
After having conducted over a thousand traumatic autopsies, Dr. Reyes can be
considered an expert in traumatic autopsies or autopsies involving violent deaths.
However, his expertise in traumatic autopsies does not necessarily make him an
expert in clinical and pathological autopsies or in surgery.
Moreover, Dr. Reyes cross-examination reveals that he was less than candid about
his qualifications during his initial testimony:
Atty. Castro: Dr. Reyes, you mentioned during your direct testimony last March 5,
2002 that you graduated in March of 1994, is that correct?
Witness: Yes, sir.
Atty. Castro: You were asked by Atty. Fajardo, the counsel for the plaintiff, when did
you finish your medical works, and you answered the following year of your
graduation which was in 1994?
Witness: Not in 1994, it was in 1984, sir.
20 | P a g e
Atty. Castro: And after you graduated Mr. Witness, were there further study that you
undergo after graduation? [sic]
Witness: It was during my service only at the police organization that I was given the
chance to attend the training, one year course.
Atty. Castro: Did you call that what you call a post graduate internship?
Witness: Residency.
Atty. Castro: Since you call that a post graduate, you were not undergo post graduate?
[sic]
Witness: I did.
Atty. Castro: Where did you undergo a post graduate internship?
Witness: Before I took the board examination in the year 1984, sir.
Atty. Castro: That was where?
Witness: MCU Hospital, sir.
Atty. Castro: After the post graduate internship that was the time you took the board
examination?
Witness: Yes, sir.
Atty. Castro: And I supposed that you did it for the first take?
Witness: Yes, sir.
Atty. Castro: Are you sure of that?
Witness: Yes, sir.
Atty. Castro: After you took the board examination, did you pursue any study?
Witness: During that time, no sir.
Atty. Castro: You also testified during the last hearing that "page 6 of March 5, 2002,
answer of the witness: then I was accepted as on the job training at the V. Luna
Hospital at the Department of Pathologist in 1994", could you explain 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 time they were already in the process of
discharging civilian from undergoing training.
Atty. Castro: So in the Department of Pathology, what were you assigned to?
Witness: Only as an observer status.
Atty. Castro: So you only observed.
Witness: Yes, sir.
Atty. Castro: And on the same date during your direct testimony on March 5, 2002,
part of which reads "well if I remember right during my residency in my extensive
training during the operation of the appendix," what do you mean by that Mr.
witness?
Witness: I was referring to my internship, sir.
Atty. Castro: So this is not a residency training?
Witness: No, sir.
Atty. Castro: This is not a specialty training?
Witness: No, sir.
Atty. Castro: This was the time the year before you took the board examination?
Witness: Thats right, sir. Yes, sir.
Atty. Castro: You were not then a license[d] doctor?
Witness: No, sir.
Atty. Castro: And you also mentioned during the last hearing shown by page 8 of the
same transcript of the stenographic notes, dated March 5, 2002 and I quote "and that
is your residence assignment?", and you answered "yes, sir." What was the meaning
of your answer? What do you mean when you say yes, sir?
xxxx
Witness: Okay, I stayed at the barracks of the Southern Police District Fort
Bonifacio.
Atty. Castro: So this is not referring to any kind of training?
Witness: No, sir.
Atty. Castro: This is not in anyway related to appendicitis?
Witness: No, sir.27
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 also loosely used the terms
"residence" and "residency" terms that carry a technical meaning with respect to
medical practice during his initial testimony28 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 petitioners counsels own admission during Dr. Reyes cross
examination.
Atty. Castro: How long were you assigned to observe with the Department of
Pathology?
Witness: Only 6 months, sir.
21 | P a g e
Atty. Castro: During your studies in the medical school, Mr. Witness, do you recall
attending or having participated or [sic] what you call motivity mortality complex?
Atty. Fajardo: Your honor, what is the materiality?
Atty. Castro: That is according to his background, your honor. This is a procedure
which could more or less measure his knowledge in autopsy proceedings when he
was in medical school and compared to what he is actually doing now.
Atty. Fajardo: The witness is not an expert witness, your honor.
Atty. Castro: He is being presented as an expert witness, your honor.29
When Atty. Castro attempted to probe Dr. Reyes about his knowledge on the subject
of medical or pathological autopsies, Dr. Fajardo objected on the ground that Dr.
Reyes was not an expert in the field. His testimony was offered to prove that Dr. Inso
was negligent during the surgery without necessarily offering him as an expert
witness.
Atty. Fajardo: x x x The purpose of this witness is to establish that there was
negligence on the surgical operation of the appendix or in the conduct of the
appendectomy by the defendant doctor on the deceased Lilian Villaran Borromeo.30
Dr. Reyes is not an expert witness who could prove Dr. Insos alleged negligence. His
testimony could not have established the standard of care that Dr. Inso was expected
to observe nor assessed Dr. Insos 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 Lilians probability of survival, and the
existence of other diseases/conditions that might or might not have caused or
contributed to Lilians death.
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 Lilians 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 Reyes Medical
Foundation, in 1975. He took up his post-graduate internship at the Quezon Memorial
Hospital in Lucena City, before taking the board exams. After obtaining his
professional license, he underwent residency training in pathology at the Jose R.
Reyes Memorial Center from 1977 to 1980. He passed the examination in Anatomic,
Clinical, and Physical Pathology in 1980 and was inducted in 1981. He also took the
examination in anatomic pathology in 1981 and was inducted in 1982.31
At the time of his testimony, Dr. Ramos was an associate professor in pathology at the
Perpetual Help Medical School in Bian, Laguna, and at the De La Salle University
in Dasmarias, Cavite. He was the head of the Batangas General Hospital Teaching
and Training Hospital where he also headed the Pathology Department. He also
headed the Perpetual Help General Hospital Pathology department.32
Meanwhile, Dr. Hernandez at that time was a General Surgeon with 27 years of
experience as a General Practitioner and 20 years of experience as a General
Surgeon.1wphi1 He obtained his medical degree from the University of Santo Tomas
before undergoing five years of residency training as a surgeon at the Veterans
Memorial Center hospital. He was certified as a surgeon in 1985. He also holds a
masters degree in Hospital Administration from the Ateneo de Manila University.33
He was a practicing surgeon at the: St. Lukes Medical Center, Fatima Medical
Center, Unciano Medical Center in Antipolo, Manila East Medical Center of Taytay,
and Perpetual Help Medical Center in Bian.34 He was also an associate professor at
the Department of Surgery at the Fatima Medical Center, the Manila Central
University, and the Perpetual Help Medical Center. He also chaired the Department of
Surgery at the Fatima Medical Center.35
Dr. Hernandez is a Fellow of the American College of Surgeons, the Philippine
College of Surgeons, and the Philippine Society of 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 Lilians 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 petitioners 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 due care is not
immediately apparent to the layman.
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift the burden of
evidence onto the respondent. Res ipsa loquitur, literally, "the thing speaks for itself;"
is a rule of evidence that presumes negligence from the very nature of the accident
itself using common human knowledge or experience.
The application of this rule requires: (1) that the accident was of a kind which does
not ordinarily occur unless someone is negligent; (2) that the instrumentality or
22 | P a g e
agency which caused the injury was under the exclusive control of the person charged
with negligence; and (3) that the injury suffered must not have been due to any
voluntary action or contribution from the injured person.38 The concurrence of these
elements creates a presumption of negligence that, if unrebutted, overcomes the
plaintiffs burden of proof.
This doctrine is used in conjunction with the doctrine of common knowledge. We have
applied this doctrine in the following cases involving medical practitioners:
a. Where a patient who was scheduled for a cholecystectomy (removal of gall stones)
but was otherwise healthy suffered irreparable brain damage after being administered
anesthesia prior to the operation.39
b. Where after giving birth, a woman woke up with a gaping burn wound close to her
left armpit;40
c. The removal of the wrong body part during the operation; and
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 defendants
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 petitioners loss, the petitioner failed to present
sufficient convincing evidence to establish: (1) the standard of care expected of the
respondent and (2) the fact that Dr. Inso fell short of this expected standard.
Considering further that the respondents established that the cause of Lilians
uncontrollable bleeding (and, ultimately, her death) was a medical disorder
Disseminated Intravascular Coagulation we find no reversible errors in the CAs
dismissal of the complaint on appeal.
WHEREFORE, we hereby DENY the petition for lack of merit. No costs.
SO ORDERED.
SECOND DIVISION
G.R. No. 204095, June 15, 2015
DR. JAIME T. CRUZ, Petitioner, v. FELICISIMO V. AGAS, JR., Respondent.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court assails the
May 22, 2012 Decision1 and October 18, 2012 Resolution2 of the Court of Appeals
(CA), in CA-G.R. SP No. 111910, which affirmed the March 2, 2007 3 and September
23, 20094 Resolutions of the Secretary of Justice. The said resolutions let stand the
February 16, 2004 Resolution of the Office of the Prosecutor of Quezon City,
dismissing the complaint of petitioner Dr. Jaime T. Cruz (Dr. Cruz) for Serious
Physical Injuries through Reckless Imprudence and Medical Malpractice against
respondent, Dr. Felicisimo V. Agas, Jr. (Dr. Agas).
The Antecedents
In his Complaint-Affidavit5 for Serious Physical Injuries through Reckless
Imprudence and Medical Malpractice against Dr. Agas, Dr. Cruz alleged, among
others, that sometime in May 2003, he engaged the services of St. Luke's Medical
Center (SLMC) for a medical check-up; that after being admitted in SLMC on May
28, 2003, he underwent stool, urine, blood, and other body fluid tests conducted by
the employees and doctors of the said hospital; that on May 29, 2003, he was sent to
the Gastro-Enterology Department for a scheduled gastroscopy and colonoscopy; that
because the specialist assigned to perform the procedure was nowhere to be found, he
gave the colonoscopy results to the attending female anesthesiologist for the
information and consideration of the assigned specialist; that, thereafter, he was
sedated and the endoscopic examination was carried out; that when he regained
consciousness, he felt that something went wrong during the procedure because he
felt dizzy, had cold clammy perspiration and experienced breathing difficulty; that he
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 the comfort room, he collapsed; that
he tried to consult the specialist who performed the colonoscopy but he was nowhere
to be found; and that his cardiologist, Dra. Agnes Del Rosario, was able to observe his
critical condition and immediately referred him to the surgical department which
suspected that he had hemorrhage in his abdomen and advised him to undergo an
emergency surgical operation.
Dr. Cruz further averred that he agreed to the operation and upon waking up at the
ICU on May 30, 2003, he found out that the doctors did an exploratory laparatomy
because of the internal bleeding; that he learned that the doctors cut a portion of the
left side of his colon measuring 6-8 inches because it had a partial tear of the colonic
wall which caused the internal bleeding; that despite the painkillers, he was under
23 | P a g e
tremendous pain in the incision area during his recovery period in the ICU and had
fever; 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.
Dr. Cruz claimed that Dr. Agas admitted that he was the one who performed the
colonoscopy procedure but the latter insisted that nothing went wrong. On June 7,
2003, he was discharged from SLMC. Nevertheless, he complained that he had a hard
time digesting his food; that he was frequently fed every two hours 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 gastric acidity; that he slept most of the day; and that he was
in good physical condition before the colonoscopy procedure. He asserted that at the
time of the filing of the complaint, he was still weak, tired and in pain.
Defense of Dr. Agas
Dr. Agas, on the other hand, countered that Dr. Cruz failed to prove the basic elements
of reckless imprudence or negligence. He averred that Dr. Cruz unfairly made it
appear that he did not know that he would perform the procedure. He explained that
before the start of the colonoscopy procedure, he was able to confer with Dr. Cruz and
review his medical history which was taken earlier by a fellow gastrointestinal
physician. He claimed that the gastroscopy and colonoscopy procedures conducted on
Dr. Cruz were completely successful considering that the latter did not manifest any
significant adverse reaction or body resistance during the procedures and that his vital
signs were normal throughout the procedure.6chanrobleslaw
Dr. Agas added that certifications and sworn statements were submitted by the
Assistant Medical Director for Professional Services, the Director of the Institute of
Digestive Diseases, the anesthesiologist, and the hospital nurse attesting to the fact
that the intraperitonial bleeding which developed after the colonoscopy procedure,
was immediately recognized, evaluated, carefully managed, and corrected; that he
provided an adequate and reasonable standard of care to Dr. Cruz; that the
endoscopist followed all precautionary measures; that the colonoscopy procedure was
done properly; that he was not negligent or reckless in conducting the colonoscopy
procedure; that he did not deviate from any standard medical norm, practice or
procedure; and that he exercised competence and diligence in rendering medical
services to Dr. Cruz.7chanrobleslaw
Antecedents at the Prosecution Level
On February 16, 2004, the Office of the City Prosecutor (OCP) issued a resolution
dismissing the complaint for Serious Physical Injuries through Reckless Imprudence
and Medical Malpractice. Aggrieved, Dr. Cruz filed a petition for review with the
Department of Justice (DOJ) but the same was dismissed in its March 2, 2007
Resolution. Dr. Cruz filed a motion for reconsideration but it was denied by the DOJ
in its September 23, 2009 Resolution.8chanrobleslaw
At the Court of Appeals
Not satisfied, Dr. Cruz filed a petition for certiorari before the CA questioning the
unfavorable DOJ resolutions. On May 22, 2012, the CA rendered a decision affirming
the said DOJ resolutions. The CA explained that, as a matter of sound judicial policy,
courts would not interfere with the public prosecutor's wide discretion of 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 finding of lack of probable cause against Dr. Agas was in accordance
with law and that his alleged negligence was not adequately established by Dr. Cruz.
The CA also declared that Dr. Cruz failed to state in his Complaint-Affidavit the
specific procedures that Dr. Agas failed to do which a reasonable prudent doctor
would have done, or specific norms he failed to observe which a reasonably prudent
doctor would have complied with. The CA pointed out that Dr. Agas was able to
satisfactorily explain in his Counter-Affidavit that the complications suffered by Dr.
Cruz was not caused by his negligence or was the result of medical malpractice. Dr.
Agas explained as follows:chanRoblesvirtualLawlibrary
That the complication was due to the abnormal condition and configuration of the
digestive system, colon in particular, of the complainant and not from any negligent
act in connection with the conduct of colonoscopy. The surgical findings (xxx)
revealed marked adhesions in the sigmoid colon which is not and never within my
control. That the tear in the serosa (the outermost layer of the colonic wall which has
4 layers) happened likely because of the marked interloop adhesions and tortuousity
of the sigmoid segment of the colon. These adhesions that connect the serosa to the
peritoneal lining of each loop detached from the serosa during the procedure. It is not
possible to detect the presence of marked adhesions prior to the endoscopic procedure
because no clinical findings, laboratory tests or diagnostic imaging such as x-ray,
24 | P a g e
ultrasound or computed tomography (CT scan) of the abdomen can diagnose these
conditions. This can only be detected by surgically opening up the abdomen. In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its
Moreover, marked adhesions and serosal tear, in particular, cannot likewise be discretion in finding that there was lack of probable cause and dismissing the
detected by colonoscopy because they are in the outer wall of the colon and only the complaint against Dr. Agas for Serious Physical Injuries through Reckless
inner lining of the colon is within the view of the colonoscope (camera).9 Imprudence and Medical Malpractice.
The CA further wrote that the counter-affidavit of Dr. Agas was supported by the
sworn affidavit of Dr. Jennifel S. Bustos, an anesthesiologist at the SLMC and the A medical negligence case can prosper if the patient can present solid proof that the
affidavit of Evelyn E. Daulat, a nurse at SLMC, both swearing under oath that Dr. doctor, like in this case, either failed to do something which a reasonably prudent
Agas was not negligent in conducting a gastroscopy and colonoscopy procedure on doctor would have done, or that he did something that a reasonably prudent doctor
Dr. Cruz and the certification issued by the Hospital Ethics Committee which stated would not have done, and such failure or action caused injury to the patient.
that Dr. Cruz was given an adequate and reasonable standard of care; that Dr. Agas To successfully pursue this kind of case, a patient must only prove that a health care
followed all precautionary measures in safeguarding Dr. Cruz from any possible provider either failed to do something which a reasonably prudent health care
complications; and that the colonoscopy was done properly. provider would have done, or that he did something that a reasonably prudent
provider would not have done; and that failure or action caused injury to the patient.
Hence, this petition. Simply put, the elements are duty, breach, injury and proximate causation.10
ISSUE In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr.
Agas. Although there is no dispute that Dr. Cruz sustained internal hemorrhage due to
WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING THE a tear in the serosa of his sigmoid colon, he failed to show that it was caused by Dr.
DECISION OF THE DOJ THAT NO PROBABLE CAUSE EXISTS FOR Agas's negligent and reckless conduct of the colonoscopy procedure. In other words,
FILING AN INFORMATION AGAINST THE RESPONDENT, THAT THE Dr. Cruz failed to show and explain that particular negligent or reckless act or
RESPONDENT WAS NOT NEGLIGENT AND THAT THERE WAS NO omission committed by Dr. Agas. Stated differently, Dr. Cruz did not demonstrate that
DENIAL OF DUE PROCESS. there was "inexcusable lack of precaution" on the part of Dr. Agas.
Non-interference with Executive Determination of Probable Cause in Preliminary
Investigations Res Ipsa Loquitur Doctrine
Not Applicable Against Respondent
Under the doctrine of separation of powers, courts have no right to directly decide on
matters over which full discretionary authority has been delegated to the Executive Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact
Branch of the Government, or to substitute their own judgment for that of the of the occurrence of an injury, taken with the surrounding circumstances, may permit
Executive Branch, represented in this case by the Department of Justice. The settled an inference or raise a presumption of negligence, or make out a plaintiff's prima
policy is that the courts will not interfere with the executive determination of probable facie case, and present a question of fact for defendant to meet with an
cause for the purpose of filing an Information, in the absence of grave abuse of explanation.11chanrobleslaw
discretion. That abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to The requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the
act at all in contemplation of law, such as where the power is exercised in an arbitrary occurrence of an injury; (2) the thing which caused the injury was under the control
and despotic manner by reason of passion or hostility. 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
Medical Negligence and Malpractice Not Established used proper care; and (4) the absence of explanation by the defendant. Of the
25 | P a g e
foregoing requisites, the most instrumental is the control and management of the thing This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and
which caused the injury.12chanrobleslaw Resolution dated January 22, 20131 and November 7, 2013,2 respectively, of the Court
of Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The CA
In this case, the Court agrees with Dr. Agas that his purported negligence in Decision reversed the Decision dated September 14, 2004 3 of the Regional Trial
performing the colonoscopy on Dr. Cruz was not immediately apparent to a layman to Court, Branch 33 in Davao City-(RTC) in Civil Case No. 27,354-99, a suit for
justify the application of res ipsa loquitur doctrine. damages thereat which Nilo B. Rosit (Rosit) commenced against Dr. Rolando
Gestuvo (Dr. Gestuvo).
Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was Factual Antecedents
due to the abnormal condition and configuration of his sigmoid colon which was
beyond his control considering that the said condition could not be detected before a On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken
colonoscopic procedure. Dr. Agas adequately explained that no clinical findings, the next day at the Davao Doctors Hospital (DDH) showed that he fractured his jaw.
laboratory tests, or diagnostic imaging, such as x-rays, ultrasound or computed Rosit was then referred to Dr. Gestuvo, a specialist in mandibular injuries, 4 who, on
tomography (CT) scan of the abdomen, could have detected this condition prior to an January 19, 1999, operated on Rosit.
endoscopic procedure. Specifically, Dr. Agas wrote:chanRoblesvirtualLawlibrary
On the other hand, in the present case, the correlation between petitioner's injury, i.e., During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal
tear in the serosa of sigmoid colon, and the colonoscopy conducted by respondent to screws to immobilize the mandible. As the operation required the smallest screws
the petitioner clearly requires the presentation of an expert opinion considering that available, Dr. Gestuvo cut the screws on hand to make them smaller. Dr. Gestuvo
no perforation of the sigmoid colon was ever noted during the laparotomy. It cannot knew that there were smaller titanium screws available in Manila, but did not so
be overemphasized that the colonoscope inserted by the respondent only passed inform Rosit supposing that the latter would not be able to afford the same. 5
through the inside of petitioner's sigmoid colon while the damaged tissue, i.e., serosa,
which caused the bleeding, is located in the outermost layer of the colon. It is Following the procedure, Rosit could not properly open and close his mouth and was
therefore impossible for the colonoscope to touch, scratch, or even tear the serosa in pain. X-rays done on Rosit two (2) days after the operation showed that the fracture
since the said membrane is beyond reach of the colonoscope in the absence of in his jaw was aligned but the screws used on him touched his molar. Given the X-ray
perforation on the colon.13 results, Dr. Gestuvo referred Rosit to a dentist. The dentist who checked Rosit, Dr.
Dr. Cruz failed to rebut this. Pangan, opined that another operation is necessary and that it is to be performed in
Cebu.6
WHEREFORE, the petition is DENIED.
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
G.R. No. 210445, December 07, 2015 of the additional operation as well as the expenses of the trip to Cebu. Dr. Gestuvo
NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR. gave Rosit P4,500.
ROLANDO G. GESTUVO, Respondent.
DECISION Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly
VELASCO JR., J.: open his mouth.
The Case
In Cebu, Dr. Pangan removed the plate and screws thus installed by Dr. Gestuvo and
replaced them with smaller titanium plate and screws. Dr. Pangan also extracted
26 | P a g e
Rosit's molar that was hit with a screw and some bone fragments. Three days after the d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;
operation, Rosit was able to eat and speak well and could open and close his mouth
normally.7
e) the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary
On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost damages; and
of the operation and the expenses he incurred in Cebu amounting to P140,000, as well
as for the P50,000 that Rosit would have to spend for the removal of the plate and
screws that Dr. Pangan installed. Dr. Gestuvo refused to pay.8
f) the costs of the suit.
Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr.
Gestuvo and DDH, the suit docketed as Civil Case No. 27,354-99. For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL
The Ruling of the Regional Trial Court and the defendants' counterclaims are hereby ordered DISMISSED.

The RTC freed DDH from liability on the ground that it exercised the proper Cost against Dr. Rolando G. Gestuvo.
diligence in the selection and supervision of Dr. Gestuvo, but adjudged Dr. Gestuvo
negligent and ruled, thus: SO ORDERED.
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have In so ruling, the trial court applied the res ipsa loquitur principle holding that "the
preponderantly established his cause of action in the complaint against defendant Dr. need for expert, medical testimony may be dispensed with because the injury itself
Rolando G. Gestuvo only, judgment is hereby rendered for the plaintiff and against provides the proof of negligence."
said defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto
plaintiff NILO B. ROSIT the following:chanRoblesvirtualLawlibrary Therefrom, both parties appealed to the CA.
The Ruling of the Court of Appeals
a) the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED
NINETY NINE PESOS and 13/100 (P140,199.13) representing reimbursement
In its January 22, 2013 Decision, the CA modified the appealed judgment by deleting
of actual expenses incurred by plaintiff in the operation and re-operation of his
the awards made by the trial court, disposing as follows:
mandible;
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision dated
September 14, 2004 of the Regional Trial Court, Branch 33, Davao City, rendered in
Civil Case No. 27,354-99 is hereby MODIFIED. The monetary awards adjudged in
b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS favor of Nilo B. Rosit are hereby DELETED for lack of basis.
(P29,068.00) representing reimbursement of the filing fees and appearance
fees; SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and
that the testimony of an expert witness is necessary for a finding of negligence. The
c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as appellate court also gave credence to Dr. Pangan's letter stating the opinion that Dr.
and for attorney's fees; Gestuvo did not commit gross negligence in his emergency management of Rosit's
fractured mandible.

27 | P a g e
Rosit's motion for reconsideration was denied in the CA's November 7, 2013 Solidum v. People of the Philippines 11 provides an exception. There, the Court
Resolution. explained that where the application of the principle of res ipsa loquitur is warranted,
an expert testimony may be dispensed with in medical negligence cases:
Hence, the instant appeal. Although generally, expert medical testimony is relied upon in malpractice suits
The Issue to prove that a physician has done a negligent act or that he has deviated from
the standard medical procedure, when the doctrine of res ipsa loquitur is availed
The ultimate issue for our resolution is whether the appellate court correctly absolved by the plaintiff, the need for expert medical testimony is dispensed with because
Dr. Gestuvo from liability. the injury itself provides the proof of negligence. The reason is that the general rule
The Court's Ruling on the necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common knowledge
The petition is impressed with merit. of mankind which may be testified to by anyone familiar with the facts. x x x

In Flores v. Pineda,9 the Court explained the concept of a medical negligence case
and the elements required for its prosecution, viz:chanRoblesvirtualLawlibrary
A medical negligence case is a type of claim to redress a wrong committed by a
medical professional, that has caused bodily harm to or the death of a patient. There
are four elements involved in a medical negligence case, namely: duty, breach,
injury, and proximate causation.
Duty refers to the standard of behavior which imposes restrictions on one's conduct.
The standard in turn refers to the amount of competence associated with the proper
discharge of the profession. A physician is expected to use at least the same level of
care that any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to comply with these
professional standards. If injury results to the patient as a result of this breach, the
physician is answerable for negligence. (Emphasis supplied)
An expert witness is not necessary as the res ipsa loquitur doctrine is applicable
To establish medical negligence, this Court has held that an expert testimony is
generally required to define the standard of behavior by which the court may
determine whether the physician has properly performed the requisite duty toward the
patient. This is so considering that the requisite degree of skill and care in the
treatment of a patient is usually a matter of expert opinion. 10
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patient's jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur as an exception to
the requirement of an expert testimony in medical negligence cases may be availed of
if the following essential requisites are satisfied: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive control of the person charged;
and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.12
In its assailed Decision, the CA refused to acknowledge the application of the res ipsa
loquitur doctrine on the ground that the foregoing elements are absent. In particular,
the appellate court is of the position that post-operative pain is not unusual after
surgery 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 in Rosit's mandible. Further,
a second operation was conducted within the 5-week usual healing period of the
mandibular fracture so that the second element cannot be considered present. Lastly,
the CA pointed out that the X-ray examination conducted on Rosit prior to his first
surgery suggests that he had "chronic inflammatory lung disease compatible,"
implying that the injury may have been due to Rosit's peculiar condition, thus
28 | P a g e
effectively negating the presence of the third element. 13 The CA finds that Rosit is guilty of contributory negligence in having Dr. Pangan
operate on him during the healing period of his fractured mandible. What the CA
After careful consideration, this Court cannot accede to the CA's findings as it is at overlooked is that it was Dr. Gestuvo himself who referred Rosit to Dr. Pangan.
once apparent from the records that the essential requisites for the application of the Nevertheless, Dr. Pangan's participation could not have contributed to the reality that
doctrine of res ipsa loquitur are present. the screw that Dr. Gestuvo installed hit Rosit's molar.

The first element was sufficiently established when Rosit proved that one of the
screws installed by Dr. Gestuvo struck his molar. It was for this issue that Dr. Gestuvo
himself referred Rosit to Dr. Pangan. In fact, the affidavit of Dr. Pangan presented by
Dr. Gestuvo himself before the trial court narrated that the same molar struck with the
screw installed by Dr. Gestuvo was examined and eventually operated on by Dr.
Pangan. Dr. Gestuvo cannot now go back and say that Dr. Pangan treated a molar
different from that which was affected by the first operation.
Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the
same in the proper locations, these would not have struck Rosit's teeth causing him
pain and requiring him to undergo a corrective surgery.
Lastly, the third element that the injury suffered must not have been due to any
voluntary action or contribution of the person injured was satisfied in this case. It was
not shown that Rosit's lung disease could have contributed to the pain. What is clear
is that he suffered because one of the screws that Dr. Gestuvo installed hit Rosit's
molar.
Clearly then, the res ipsa loquitur doctrine finds application in the instant case
and no expert testimony is required to establish the negligence of defendant Dr.
Gestuvo.
Petitioner was deprived of the opportunity to make an "informed consent"

Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller
the same with a saw.14 He also stated during trial that common sense dictated that the screws were available in Manila, albeit at a higher price. 16 As testified to by Dr.
smallest screws available should be used. More importantly, he also knew that these Gestuvo himself:
screws were available locally at the time of the operation. 15 Yet, he did not avail of Court This titanium materials according to you were already available in the
such items and went ahead with the larger screws and merely sawed them off. Even Alright. Philippines since the time of Rosit's accident?
assuming that the screws were already at the proper length after Dr. Gestuvo cut the
same, it is apparent that he negligently placed one of the screws in the wrong area
thereby striking one of Rosit's teeth. Witness Yes, your Honor.
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. Gestuvo's negligence. An average
xxxx
man of common intelligence would know that striking a tooth with any foreign object
much less a screw would cause severe pain. Thus, the first essential requisite is
present in this case.
Court Did you inform Rosit about the existence of titanium screws and plates
which according to you is the screws and plates of choice?
Anent the second element for the res ipsa loquitur doctrine application, it is sufficient
that the operation which resulted in the screw hitting Rosit's molar was, indeed,
performed by Dr. Gestuvo. No other doctor caused such fact.
Witness No, your Honor.
29 | P a g e
 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
xxxx risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4)
plaintiff was injured by the proposed treatment." The gravamen in an informed
Witness The reason I did not inform him anymore Judge because what I thought consent case requires the plaintiff to "point to significant undisclosed information
he was already hard up with the down payment. And if I will further relating to the treatment which would have altered her decision to undergo it."
introduce him this screws, the more he will not be able to afford the (Emphasis supplied)
operation. The four adverted essential elements above are present here.

First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the risks of using the
xxxx larger screws for the operation. This was his obligation as the physician undertaking
the operation.

Court This titanium screws and plates were available then it is up to Rosit to Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that
decide whether to use it or not because after all the material you are using Rosit could not afford to get the more expensive titanium screws.
is paid by the patient himscll, is it not?
Third, had Rosit been informed that there was a risk that the larger screws are not
appropriate for the operation and that an additional operation replacing the screws
Witness Yes, that is true. might be required to replace the 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
Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed
afford the use of the smaller titanium screws that were later used by Dr. Pangan to
Consent in relation to medical negligence cases, to wit:
replace the screws that were used by Dr. Gestuvo.
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
Fourth, as a result of using the larger screws, Rosit experienced pain and could not
norm, informed consent evolved into a general principle of law that a physician
heal properly because one of the screws hit his molar. This was evident from the fact
has a duty to disclose what a reasonably prudent physician in the medical
that just three (3) days after Dr. Pangan repeated the operation conducted by Dr.
community in the exercise of reasonable care would disclose to his patient as to
Gestuvo, Rosit was pain-free and could already speak. This is compared to the one (1)
whatever grave risks of injury might be incurred from a proposed course of
month that Rosit suffered pain and could not use his mouth after the operation
treatment, so that a patient, exercising ordinary care for his own welfare, and
conducted by Dr. Gestuvo until the operation of Dr. Pangan.
faced with a choice of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his judgment by reasonably
Without a doubt, Dr. Gestuvo is guilty of withholding material information which
balancing the probable risks against the probable benefits.
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
x x x x
ground.
There are four essential elements a plaintiff must prove in a malpractice action
Dr. Pangan's Affidavit is not admissible
30 | P a g e

The appellate court's Decision absolving Dr. Gestuvo of negligence was also
anchored on a letter signed by Dr. Pangan 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.
In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated rule that "an
affidavit is merely hearsay evidence where its affiant/maker did not take the witness
stand." Here, Dr. Pangan never took the witness stand to affirm the contents of his
affidavit. Thus, the affidavit is inadmissible and cannot be given any weight. The CA,
therefore, erred when it considered the affidavit of Dr. Pangan, mpreso for
considering the same as expert testimony.
Moreover, even if such affidavit is considered as admissible and the testimony of an
expert witness, the Court is not bound by such testimony. As ruled in Ilao-Quianay v.
Mapile:20
Indeed, courts are not bound by expert testimonies. They may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly within the province
of the trial court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies,
and any other matters which serve to illuminate his statements. The opinion of an
expert should be considered by the court in view of all the facts and circumstances of
the case. The problem of the evaluation of expert testimony is left to the discretion of
the trial court whose ruling thereupon is not revicwable in the absence of an abuse of
that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will
not bind the Court. The Court must weigh and examine such testimony and decide for
itself the merits thereof.
As discussed above, Dr. Gestuvo's negligence is clearly demonstrable by the doctrines
of res ipsa loquitur and informed consent.
Damages
For the foregoing, the trial court properly awarded Rosit actual damages after he was
able to prove the actual expenses that he incurred due to the negligence of Dr.
Gestuvo. In Mendoza v. Spouses Gomez,21 the Court explained that a claimant is
entitled to actual damages when the damage he sustained is the natural and probable
consequences of the negligent act and he adequately proved the amount of such
damage.
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.
To recall, from the time he was negligently operated upon by Dr. Gestuvo until three
(3) days from the corrective surgery performed by Dr. Pangan, or for a period of one
(1) month, Rosit suffered pain and could not properly use his jaw to speak or eat.
The trial court also properly awarded attorney's fees and costs of 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 damages.
As to the award of exemplary damages, the same too has to be affirmed.
In Mendoza,24 the Court enumerated the requisites for the award of exemplary
damages:
Our jurisprudence sets certain conditions when exemplary damages may be awarded:
First, they may be imposed by way of example or correction only in addition, among
others, to compensatory damages, and cannot be recovered as a matter of right, their
determination depending upon the amount of compensatory damages that may be
awarded to the claimant. Second, the claimant must first establish his right to moral,
temperate, liquidated or compensatory damages. Third, the wrongful act must be
accompanied by bad faith, and the award would be allowed only if the guilty party
acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise,
Dr. Gestuvo acted in bad faith or in a wanton, fraudulent, reckless, oppressive manner
when he was in breach of the doctrine of informed consent. Dr. Gestuvo had the duty
to fully explain to Rosit the risks of using large screws for the operation. More
importantly, he concealed the correct medical procedure of using the smaller titanium
screws mainly because of his erroneous belief that Rosit cannot afford to buy the
expensive titanium screws. Such concealment is clearly a valid basis for an award of
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exemplary damages. 2004 of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-
99 is hereby REINSTATED and AFFIRMED.
WHEREFORE, the instant petition is GRANTED. The CA Decision dated January
22, 2013 and Resolution dated November 7, 2013 in CA-G.R. CV No. 00911-MIN SO ORDERED.chanroblesvirtuallawlibrary
are hereby REVERSED and SET ASIDE. Further, the Decision dated September 14,

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