LEGMED (IV.

Medical Negligence cases)

1.) Republic of the Philippines Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Supreme Court Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and
Manila Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which
caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries.
THIRD DIVISION Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was
DR. EMMANUEL JARCIA, JR. and DR. MARILOU G.R. No. 187926 rushed to the Manila Doctors Hospital for an emergency medical treatment; that an
BASTAN, X-ray of the victims ankle was ordered; that the X-ray result showed no fracture as
Petitioners, Present: read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed Mrs. Santiago that since it
CARPIO,* J., was only the ankle that was hit, there was no need to examine the upper leg; that
PERALTA,** Acting Chairperson, eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and
ABAD, misalignment of the right foot; that Mrs. Santiago brought him back to the hospital;
- versus - PEREZ,*** and and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture
MENDOZA, JJ. in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for
Promulgated: preliminary investigation. Probable cause was found and a criminal case for reckless
imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr.
PEOPLE OF THE PHILIPPINES, February 15, 2012 Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No. 01-
Respondent. 196646.

x --------------------------------------------------------------------------------------- x On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of
the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal
DECISION portion of the RTC decision reads:

MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their doctors. Time
and again, it can be said that the most important goal of the medical profession is
the preservation of life and health of the people. Corollarily, when a physician
departs from his sacred duty and endangers instead the life of his patient, he must
be made liable for the resulting injury. This Court, as this case would show, cannot
and will not let the act go unpunished.[1]
This is a petition for review under Rule 45 of the Rules of Court challenging the
August 29, 2008 Decision[2] of the Court of Appeals (CA), and its May 19, 2009
Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and affirming in
toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43,
Manila (RTC), finding the accused guilty beyond reasonable doubt of simple
imprudence resulting to serious physical injuries.
WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL
JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the
crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are
hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to
TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount
of ₱3,850.00 representing medical expenses without subsidiary imprisonment in
case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily
surrendered despite warrant issued for her arrest, let warrant be issued for her
arrest and the case against her be ARCHIVED, to be reinstated upon her
apprehension.
SO ORDERED.[6]
The RTC explained:

THE FACTS After a thorough and in depth evaluation of the evidence adduced by the
prosecution and the defense, this court finds that the evidence of the prosecution is
1
LEGMED (IV. Medical Negligence cases)
the more credible, concrete and sufficient to create that moral certainty in the mind
of the Court that accused herein [are] criminally responsible. The Court believes
that accused are negligent when both failed to exercise the necessary and
reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not approximate
negligence of a reckless nature but merely amounts to simple imprudence. Simple
imprudence consists in the lack of precaution displayed in those cases in which the
damage impending to be caused is not the immediate nor the danger clearly
manifest. The elements of simple imprudence are as follows.
1. that there is lack of precaution on the part of the offender; and
2. that the damage impending to be caused is not immediate of the danger is not
clearly manifest.
Considering all the evidence on record, The Court finds the accused guilty for simple
imprudence resulting to physical injuries. Under Article 365 of the Revised Penal
Code, the penalty provided for is arresto mayor in its minimum period. [7]
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29,
2008 Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances sufficient to
sustain a judgment of conviction against the accused-appellants for the crime of
simple imprudence resulting in serious physical injuries. The elements of
imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or
the failure to do that act is voluntary; (3) that it be without malice; (4) that material
damage results from the imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of
precaution in the treatment of their patient is to be determined according to the
standard of care observed by other members of the profession in good standing
under similar circumstances, bearing in mind the advanced state of the profession
at the time of treatment or the present state of medical science. In the case
of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a
case, a doctor in effect represents that, having the needed training and skill
possessed by physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He therefore has a duty
to use at least the same level of care that any other reasonably competent doctor
would use to treat a condition under the same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of
establishing accused-appellants negligence, and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the physician as
well as a causal connection of such breach and the resulting injury of his
patient. The connection between the negligence and the injury must be a direct and
natural sequence of events, unbroken by intervening efficient causes. In other
words, the negligence must be the proximate cause of the injury. Negligence, no
matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of. The proximate cause of an injury is that cause
which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury and without which the result would not have occurred.
In the case at bench, the accused-appellants questioned the imputation against
them and argued that there is no causal connection between their failure to
diagnose the fracture and the injury sustained by Roy.
We are not convinced.
The prosecution is however after the cause which prolonged the pain and suffering
of Roy and not on the failure of the accused-appellants to correctly diagnose the
extent of the injury sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the
applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa
loquitur is a Latin phrase which literally means the thing or the transaction speaks
for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate
that, as a matter of common knowledge and experience, the very nature of certain
types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some
explanation by the accused-appellant who is charged with negligence. It is
grounded in the superior logic of ordinary human experience and, on the basis of
such experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her
son during the latters ordeal at the hospital. She testified as follows:
Fiscal Formoso:
2
LEGMED (IV. Medical Negligence cases)
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan
to confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go
home and you dont even clean the wounds of my son.
Still, before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of
someones negligence;

Q: And what did she [tell] you? 2. It is caused by an instrumentality within the exclusive control of the defendant
A: They told me they will call a resident doctor, sir. or defendants; and

xxxxxxxxx 3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived. In the above requisites, the fundamental element is the control of the
Q: Did you tell her what you want on you to be done? instrumentality which caused the damage. Such element of control must be shown
A: Yes, sir. to be within the dominion of the accused-appellants. In order to have the benefit of
the rule, a plaintiff, in addition to proving injury or damage, must show a situation
Q: What did you [tell] her? where it is applicable and must establish that the essential elements of the doctrine
A: I told her, sir, while she was cleaning the wounds of my son, are you not going to were present in a particular incident. The early treatment of the leg of Roy would
x-ray up to the knee because my son was complaining pain from his ankle up to the have lessen his suffering if not entirely relieve him from the fracture. A boy of
middle part of the right leg. tender age whose leg was hit by a vehicle would engender a well-founded belief
that his condition may worsen without proper medical attention. As junior residents
Q: And what did she tell you? who only practice general surgery and without specialization with the case
A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part consulted before them, they should have referred the matter to a specialist. This
that was run over. omission alone constitutes simple imprudence on their part. When Mrs. Santiago
insisted on having another x-ray of her child on the upper part of his leg, they
Q: What did you do or tell her? refused to do so. The mother would not have asked them if they had no exclusive
A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted control or prerogative to request an x-ray test. Such is a fact because a radiologist
the pants of my son. would only conduct the x-ray test upon request of a physician.

Q: So you mean to say there was no treatment made at all? The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata.
A: None, sir. He further testified based on his personal knowledge, and not as an expert, as he
examined himself the child Roy. He testified as follows:
xxxxxxxxx
Fiscal Macapagal:
A: I just listened to them, sir. And I just asked if I will still return my son.
Q: And was that the correct respon[se] to the medical problem that was presented
xxxxxxxxx to Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and the
Q: And you were present when they were called? history. At sabi nila, nadaanan lang po ito. And then, considering their year of
A: Yes, sir. residency they are still junior residents, and they are not also orthopedic residents
but general surgery residents, its entirely different thing. Because if you are an
Q: And what was discussed then by Sis. Retoria? orthopedic resident, I am not trying to saybut if I were an orthopedic resident, there
A: When they were there they admitted that they have mistakes, sir. would be more precise and accurate decision compare to a general surgery resident
in so far as involved.
3
LEGMED (IV. Medical Negligence cases)
Q: You mean to say there is no supervisor attending the emergency room?
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain
patient have to go and then if they cannot manage it, they refer it to the consultant
on duty. Now at that time, I dont [know] why they dont.Because at that time, I
think, it is the decision. Since the x-rays.
Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and
acts of physicians, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. In the case
at bench, we give credence to the testimony of Mrs. Santiago by applying the
doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure
results and the occurrence of something more unusual and not ordinarily found if
the service or treatment rendered followed the usual procedure of those skilled in
that particular practice. The latter circumstance is the primordial issue that
confronted this Court and we find application of the doctrine of res ipsa loquitur to
be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is
hereby DISMISSED and the assailed decision of the trial court finding accused-
appellants guilty beyond reasonable doubt of simple imprudence resulting in
serious physical injuries is hereby AFFIRMED in toto.
SO ORDERED.[8]
The petitioners filed a motion for reconsideration, but it was denied by the CA in
its May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of both the RTC and the CA
anchored on the following
GROUNDS-
1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS
ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND
PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE
LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN
THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS
CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR
ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE
OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-
RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY
NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY,
THE COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE
PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE
NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF
PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION
PROLONGED THE PAIN AND SUFFERING OF THE PATIENT, SUCH CONCLUSION
BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN
AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE
ALLEGED PAIN AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE
PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT
BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE
COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER
HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED
INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS
ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT
RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO
SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS
4
LEGMED (IV. Medical Negligence cases)
THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE
THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-
PETITIONERS OF THE CRIME CHARGED.[9]
The foregoing can be synthesized into two basic issues: [1] whether or not the
doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the
petitioners are liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on the part of the petitioners.
After a perusal of the records, however, the Court is not convinced that the
petitioners are guilty of criminal negligence complained of. The Court is also of the
view that the CA erred in applying the doctrine of res ipsa loquitur in this particular
case.
As to the Application of
The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as
in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care."
The Black's Law Dictionary defines the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that the instrumentality causing injury was in
defendant's exclusive control, and that the accident was one which ordinarily does
not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred from the mere fact that the
accident happened provided the character of the accident and circumstances
attending it lead reasonably to belief that in the absence of negligence it would not
have occurred and that thing which caused injury is shown to have been under the
management and control of the alleged wrongdoer. Under this doctrine, the
happening of an injury permits an inference of negligence where plaintiff produces
substantial evidence that the injury was caused by an agency or instrumentality
under the exclusive control and management of defendant, and that the occurrence
was such that in the ordinary course of things would not happen if reasonable care
had been used.[10]
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence. The
doctrine, however, is not a rule of substantive law, but merely a mode of proof or a
mere procedural convenience. The rule, when applicable to the facts and
circumstances of a given case, is not meant to and does not dispense with the
requirement of proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence thereof and helps the
plaintiff in proving a breach of the duty. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is absent and not readily
available.[11]
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the
accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury suffered must not have
been due to any voluntary action or contribution of the person injured. [12]
In this case, the circumstances that caused patient Roy Jr.s injury and the series of
tests that were supposed to be undergone by him to determine the extent of the
injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time
who attended to the victim at the emergency room.[13]While it may be true that the
circumstances pointed out by the courts below seem doubtless to constitute
reckless imprudence on the part of the petitioners, this conclusion is still best
achieved, not through the scholarly assumptions of a layman like the patients
mother, but by the unquestionable knowledge of expert witness/es. As to whether
the petitioners have exercised the requisite degree of skill and care in treating
patient Roy, Jr. is generally a matter of expert opinion.
As to Dr. Jarcia and
Dr. Bastans negligence
The totality of the evidence on record clearly points to the negligence of the
petitioners. At the risk of being repetitious, the Court, however, is not satisfied that
Dr. Jarcia and Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[14]
Reckless imprudence consists of voluntarily doing or failing to do, without malice,
an act from which material damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to perform such act. [15]
5
LEGMED (IV. Medical Negligence cases)
The elements of simple negligence are: (1) that there is lack of precaution on the
part of the offender, and (2) that the damage impending to be caused is not
immediate or the danger is not clearly manifest.[16]
In this case, the Court is not convinced with moral certainty that the petitioners are
guilty of reckless imprudence or simple negligence. The elements thereof were not
proved by the prosecution beyond reasonable doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric
orthopedic, although pointing to some medical procedures that could have been
done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to
whether the injuries suffered by patient Roy Jr. were indeed aggravated by the
petitioners judgment call and their diagnosis or appreciation of the condition of the
victim at the time they assessed him. Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had
special training in pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and what was your specialization at
that time?
A: Since 1980, I have been specialist in pediatric orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do
by way of physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the
patient could not walk so I [began] to suspect that probably he sustained a fracture
as a result of a vehicular accident. So I examined the patient at that time, the
involved leg, I dont know if that is left or right, the involved leg then was swollen
and the patient could not walk, so I requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal,
middle or lebistal tinial, we usually x-ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone
of the leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8)
centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the
smaller one is the fibula. The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the
history of such injury?
A: Yes, actually, that was a routine part of our examination that once a patient
comes in, before we actually examine the patient, we request for a detailed history.
If it is an accident, then, we request for the exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury that was
told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular
accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the answers
are not accurate. So, it was the mother that I interviewed.
Q: And were you informed also of his early medication that was administered on
Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at
the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia
and Dra. Bastan, that time who happened to be my residents who were [on] duty at
the emergency room.
xxxx
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain
patient have to go and then if they cannot manage it, they refer it to the consultant
on duty. Now at that time, I dont why they dont Because at that time, I think, it is
the decision. Since the x-rays
xxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic
specialist.
A: They are general surgeon residents. You have to man[x] the emergency room,
including neurology, orthopedic, general surgery, they see everything at the
emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the
emergency room, you would have subjected the entire foot to x-ray even if the
history that was given to Dr. Jarcia and Dra. Bastan is the same?
6
LEGMED (IV. Medical Negligence cases)
A: I could not directly say yes, because it would still depend on my examination,
we cannot subject the whole body for x-ray if we think that the damaged was only
the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have conducted
you would discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen
and not the leg, which sometimes normally happens that the actual fractured
bone do not get swollen.
xxxx
Q: Doctor, if you know that the patient sustained a fracture on the ankle and on
the foot and the history that was told to you is the region that was hit is the
region of the foot, will the doctor subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because
you have to consider the kind of fracture that the patient sustained would you say
the exact mechanism of injury. For example spiral, paikot yung bale nya, so it was
possible that the leg was run over, the patient fell, and it got twisted. Thats why
the leg seems to be fractured.[17] [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination was
not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia
and Dr. Bastan were expected to know the medical protocol in treating leg fractures
and in attending to victims of car accidents. There was, however, no precise
evidence and scientific explanation pointing to the fact that the delay in the
application of the cast to the patients fractured leg because of failure to
immediately diagnose the specific injury of the patient, prolonged the pain of the
child or aggravated his condition or even caused further complications. Any person
may opine that had patient Roy Jr. been treated properly and given the extensive X-
ray examination, the extent and severity of the injury, spiral fracture of the mid-
tibial part or the bigger bone of the leg, could have been detected early on and the
prolonged pain and suffering of Roy Jr. could have been prevented. But still, that
opinion, even how logical it may seem would not, and could not, be enough basis to
hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt.
Although the Court sympathizes with the plight of the mother and the child in this
case, the Court is bound by the dictates of justice which hold inviolable the right of
the accused to be presumed innocent until proven guilty beyond reasonable doubt.
The Court, nevertheless, finds the petitioners civilly liable for their failure to
sufficiently attend to Roy Jr.s medical needs when the latter was rushed to the ER,
for while a criminal conviction requires proof beyond reasonable doubt, only a
preponderance of evidence is required to establish civil liability. Taken into account
also was the fact that there was no bad faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the
victim. It may be true that the actual, direct, immediate, and proximate cause of the
injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when
he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone
to excuse themselves from any liability. If this would be so, doctors would have a
ready defense should they fail to do their job in attending to victims of hit-and-run,
maltreatment, and other crimes of violence in which the actual, direct, immediate,
and proximate cause of the injury is indubitably the act of the perpetrator/s.
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.
This Court cannot also stamp its imprimatur on the petitioners contention that no
physician-patient relationship existed between them and patient Roy Jr., since they
were not his attending physicians at that time. They claim that they were merely
requested by the ER nurse to see the patient while they were passing by the ER for
their lunch. Firstly, this issue was never raised during the trial at the RTC or even
before the CA. The petitioners, therefore, raise the want of doctor-patient
relationship for the first time on appeal with this Court. It has been settled that
issues raised for the first time on appeal cannot be considered because a party is
not permitted to change his theory on appeal. To allow him to do so is unfair to the
other party and offensive to the rules of fair play, justice and due process. [18] Stated
differently, basic considerations of due process dictate that theories, issues and
arguments not brought to the attention of the trial court need not be, and
ordinarily will not be, considered by a reviewing court.[19]
Assuming again for the sake of argument that the petitioners may still raise this
issue of no physicianpatient relationship, the Court finds and so holds that there
was a physicianpatient relationship in this case.
In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the
services of a physician, a physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and purposes, represents that he has
the needed training and skill possessed by physicians and surgeons practicing in the
7
LEGMED (IV. Medical Negligence cases)
same field; and that he will employ such training, care, and skill in the treatment of
the patient. Thus, in treating his patient, a physician is under a duty to exercise that
degree of care, skill and diligence which physicians in the same general
neighborhood and in the same general line of practice ordinarily possess and
exercise in like cases. Stated otherwise, the physician has the obligation to use at
least the same level of care that any other reasonably competent physician would
use to treat the condition under similar circumstances.
Indubitably, a physician-patient relationship exists between the petitioners and
patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate
medical attention. The petitioners allegedly passed by and were requested to
attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that
time, residents on duty at the ER).[21] They obliged and examined the victim, and
later assured the mother that everything was fine and that they could go home.
Clearly, a physician-patient relationship was established between the petitioners
and the patient Roy Jr.
To repeat for clarity and emphasis, if these doctors knew from the start that they
were not in the position to attend to Roy Jr., a vehicular accident victim, with the
degree of diligence and commitment expected of every doctor in a case like this,
they should have not made a baseless assurance that everything was all right. By
doing so, they deprived Roy Jr. of adequate medical attention that placed him in a
more dangerous situation than he was already in. What petitioners should have
done, and could have done, was to refer Roy Jr. to another doctor who could
competently and thoroughly examine his injuries.
All told, the petitioners were, indeed, negligent but only civilly, and not criminally,
liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in
the Philippines states:
A physician should attend to his patients faithfully and conscientiously. He should
secure for them all possible benefits that may depend upon his professional skill
and care. As the sole tribunal to adjudge the physicians failure to fulfill his
obligation to his patients is, in most cases, his own conscience, violation of this rule
on his part is discreditable and inexcusable.[22]
Established medical procedures and practices, though in constant instability, are
devised for the purpose of preventing complications. In this case, the petitioners
failed to observe the most prudent medical procedure under the circumstances to
prevent the complications suffered by a child of tender age.
As to the Award of
Damages
While no criminal negligence was found in the petitioners failure to administer the
necessary medical attention to Roy Jr., the Court holds them civilly liable for the
resulting damages to their patient. While it was the taxi driver who ran over the
foot or leg of Roy Jr., their negligence was doubtless contributory.
It appears undisputed that the amount of ₱3,850.00, as expenses incurred by
patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds
the petitioners liable to pay this amount by way of actual damages.
The Court is aware that no amount of compassion can suffice to ease the sorrow
felt by the family of the child at that time. Certainly, the award of moral and
exemplary damages in favor of Roy Jr. in the amount of ₱100,000.00 and
₱50,000.00, respectively, is proper in this case.
It is settled that moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo ante, the award of moral
damages is designed to compensate emotional injury suffered, not to impose a
penalty on the wrongdoer.[23]
The Court, likewise, finds the petitioners also liable for exemplary damages in the
said amount. Article 2229 of the Civil Code provides that exemplary damages may
be imposed by way of example or correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of
Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime
of reckless imprudence resulting to serious physical injuries but declaring them
civilly liable in the amounts of:
(1) ₱3,850.00 as actual damages;
(2) ₱100,000.00 as moral damages;
(3) ₱50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing of the
Information. The rate shall be 12% interest per annum from the finality of judgment
until fully paid.
SO ORDERED.
8
LEGMED (IV. Medical Negligence cases)
2.) EN BANC primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in
order to remove the tumor. As adjuvant treatment to eliminate any remaining
DR. RUBI LI, G.R. No. 165279 cancer cells, and hence minimize the chances of recurrence and prevent the disease
Petitioner, from spreading to other parts of the patients body (metastasis), chemotherapy was
Present: suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC,
herein petitioner Dr. Rubi Li, a medical oncologist.
CORONA, C.J.,
CARPIO, On August 18, 1993, Angelica was admitted to SLMC. However, she died
CARPIO MORALES, on September 1, 1993, just eleven (11) days after the (intravenous) administration
VELASCO, JR., of the first cycle of the chemotherapy regimen. Because SLMC refused to release a
NACHURA, death certificate without full payment of their hospital bill, respondents brought
LEONARDO-DE CASTRO, the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory
BRION, at Camp Crame for post-mortem examination. The Medico-Legal Report issued by
PERALTA, said institution indicated the cause of death as Hypovolemic shock secondary to
- versus - BERSAMIN, multiple organ hemorrhages and Disseminated Intravascular Coagulation. [5]
DEL CASTILLO,*
ABAD, On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of
VILLARAMA, JR., death as follows:
PEREZ,
Immediate cause : a. Osteosarcoma, Status Post AKA
MENDOZA, and
SERENO, JJ. Antecedent cause : b. (above knee amputation)

SPOUSES REYNALDO and LINA Promulgated: Underlying cause : c. Status Post Chemotherapy
SOLIMAN, as parents/heirs of deceased
Angelica Soliman, June 7, 2011 On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo
Respondents. Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x them with negligence and disregard of Angelicas safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the
DECISION essential precautions in detecting early the symptoms of fatal blood platelet
decrease and stopping early on the chemotherapy, which bleeding led to
VILLARAMA, JR., J.: hypovolemic shock that caused Angelicas untimely demise. Further, it was
specifically averred that petitioner assured the respondents that Angelica would
Challenged in this petition for review on certiorari is the Decision [1] dated June 15, recover in view of 95% chance of healing with chemotherapy (Magiging normal na
2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the
(CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September 5, side effects, petitioner mentioned only slight vomiting, hair loss and weakness
1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904. (Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus
claimed that they would not have given their consent to chemotherapy had
The factual antecedents: petitioner not falsely assured them of its side effects.

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a
biopsy of the mass located in her lower extremity at the St. Lukes Medical Center
(SLMC). Results showed that Angelica was suffering
from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of
the bone which usually afflicts teenage children. Following this diagnosis and as
In her answer,[8] petitioner denied having been negligent in administering the
chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to

9
LEGMED (IV. Medical Negligence cases)
malignant tumor cells possibly left behind after surgery. Few as they may be, these
have the capacity to compete for nutrients such that the body becomes so weak
structurally (cachexia) and functionally in the form of lower resistance of the body
to combat infection. Such infection becomes uncontrollable and triggers a chain of
events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.
Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas
surgery and discussed with them Angelicas condition. Petitioner told respondents
that Angelica should be given two to three weeks to recover from the operation
before starting chemotherapy. Respondents were apprehensive due to financial
constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his
jewelry and watch repairing business.[9] Petitioner, however, assured them not to
worry about her professional fee and told them to just save up for the medicines to
be used.
Petitioner claimed that she explained to respondents that even when a tumor is
removed, there are still small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small lesions in order to lessen
the chance of the cancer to recur. She did not give the respondents any assurance
that chemotherapy will cure Angelicas cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment
to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys;
and (7) darkening of the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after the surgery, twice at
her clinic and the fourth time when Angelicas mother called her through long
distance.[10] This was disputed by respondents who countered that petitioner gave
them assurance that there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair
loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.[12]
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that
she be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy,
bringing with them the results of the laboratory tests requested by petitioner:
Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function
tests.[13] Petitioner proceeded with the chemotherapy by first administering
hydration fluids to Angelica.[14]
The following day, August 19, petitioner began administering three chemotherapy
drugs Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was
supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In
his testimony, Dr. Marbella denied having any participation in administering the
said chemotherapy drugs.[20]
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelicas face.[21] They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.[23]
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and
was thus provided with oxygen inhalation apparatus. This time, the reddish
discoloration on Angelicas face had extended to her neck, but petitioner dismissed
it again as merely the effect of medicines.[24] Petitioner testified that she did not see
any discoloration on Angelicas face, nor did she notice any difficulty in the childs
breathing. She claimed that Angelica merely complained of nausea and was given
ice chips.[25]
On August 22, 1993, at around ten oclock in the morning, upon seeing that their
child could not anymore bear the pain, respondents pleaded with petitioner to stop
the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan.
Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents
asked petitioners permission to bring their child home. Later in the evening,
Angelica passed black stool and reddish urine.[26] Petitioner countered that there
was no record of blackening of stools but only an episode of loose bowel movement
(LBM). Petitioner also testified that what Angelica complained of was carpo-pedal
spasm, not convulsion or epileptic attack, as respondents call it (petitioner
described it in the vernacular as naninigas ang kamay at paa).She then requested
for a serum calcium determination and stopped the chemotherapy. When Angelica
was given calcium gluconate, the spasm and numbness subsided.[27]
The following day, August 23, petitioner yielded to respondents request to take
Angelica home. But prior to discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents that the chemotherapy
will be temporarily stopped while she observes Angelicas muscle twitching and
serum calcium level. Take-home medicines were also prescribed for Angelica, with
instructions to respondents that the serum calcium test will have to be repeated
after seven days. Petitioner told respondents that she will see Angelica again after
10
LEGMED (IV. Medical Negligence cases)
two weeks, but respondents can see her anytime if any immediate problem
arises.[28]
However, Angelica remained in confinement because while still in the premises of
SLMC, her convulsions returned and she also had LBM. Angelica was given oxygen
and administration of calcium continued.[29]
The next day, August 24, respondents claimed that Angelica still suffered from
convulsions. They also noticed that she had a fever and had difficulty
breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She
verified that at around 4:50 that afternoon, Angelica developed difficulty in
breathing and had fever. She then requested for an electrocardiogram analysis, and
infused calcium gluconate on the patient at a stat dose. She further ordered that
Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to
combat any infection on the childs body.[33]
By August 26, Angelica was bleeding through the mouth. Respondents also saw
blood on her anus and urine. When Lina asked petitioner what was happening to
her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of
platelet concentrates were then transfused to Angelica. Petitioner prescribed
Solucortef. Considering that Angelicas fever was high and her white blood cell count
was low, petitioner prescribed Leucomax. About four to eight bags of blood,
consisting of packed red blood cells, fresh whole blood, or platelet concentrate,
were transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in
frequency. Petitioner also denied that there were gadgets attached to Angelica at
that time.[34]
On August 29, Angelica developed ulcers in her mouth, which petitioner said were
blood clots that should not be removed. Respondents claimed that Angelica passed
about half a liter of blood through her anus at around seven oclock that evening,
which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was
given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal
tube because this may induce further bleeding.[35] She was also transferred to the
intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood
and her body turned black. Part of Angelicas skin was also noted to be shredding by
just rubbing cotton on it. Angelica was so restless she removed those gadgets
attached to her, saying Ayaw ko na; there were tears in her eyes and she kept
turning her head. Observing her daughter to be at the point of death, Lina asked for
a doctor but the latter could not answer her anymore. [36] At this time, the attending
physician was Dr. Marbella who was shaking his head saying that Angelicas platelets
were down and respondents should pray for their daughter. Reynaldo claimed that
he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis
who also told him to pray for his daughter. Angelica continued to have difficulty in
her breathing and blood was being suctioned from her stomach. A nurse was
posted inside Angelicas room to assist her breathing and at one point they had to
revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica
already experienced difficulty in urinating and her bowel consisted of blood-like
fluid. Angelica requested for an electric fan as she was in pain. Hospital staff
attempted to take blood samples from Angelica but were unsuccessful because
they could not even locate her vein. Angelica asked for a fruit but when it was given
to her, she only smelled it. At this time, Reynaldo claimed he could not find either
petitioner or Dr. Marbella. That night, Angelica became hysterical and started
removing those gadgets attached to her. At three oclock in the morning of
September 1, a priest came and they prayed before Angelica expired. Petitioner
finally came back and supposedly told respondents that there was malfunction or
bogged-down machine.[37]
By petitioners own account, Angelica was merely irritable that day (August
31). Petitioner noted though that Angelicas skin was indeed sloughing off. [38] She
stressed that at 9:30 in the evening, Angelica pulled out her endotracheal
tube.[39] On September 1, exactly two weeks after being admitted at SLMC for
chemotherapy, Angelica died.[40] The cause of death, according to petitioner, was
septicemia, or overwhelming infection, which caused Angelicas other organs to
fail.[41] Petitioner attributed this to the patients poor defense mechanism brought
about by the cancer itself.[42]
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo
claimed that petitioner acted arrogantly and called him names. He was asked to
sign a promissory note as he did not have cash to pay the hospital bill. [43]
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal
Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas
cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed
at the Department of Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and
areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back
and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the
11
LEGMED (IV. Medical Negligence cases)
liver; (5) kidneys showed appearance of facial shock on account of hemorrhages;
and (6) reddishness on external surface of the spleen. All these were the end result
of hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation. Dr. Vergara opined that this can be attributed to the
chemical agents in the drugs given to the victim, which caused platelet reduction
resulting to bleeding sufficient to cause the victims death. The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma)
was too short, considering the survival rate of about 3 years. The witness conceded
that the victim will also die of osteosarcoma even with amputation or
chemotherapy, but in this case Angelicas death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her
statements were based on the opinion of an oncologist whom she had
interviewed. This oncologist supposedly said that if the victim already had DIC prior
to the chemotherapy, the hospital staff could have detected it.[44]
On her part, Dr. Balmaceda declared that it is the physicians duty to inform and
explain to the patient or his relatives every known side effect of the procedure or
therapeutic agents to be administered, before securing the consent of the patient
or his relatives to such procedure or therapy. The physician thus bases his
assurance to the patient on his personal assessment of the patients condition and
his knowledge of the general effects of the agents or procedure that will be allowed
on the patient. Dr. Balmaceda stressed that the patient or relatives must be
informed of all known side effects based on studies and observations, even if such
will aggravate the patients condition.[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower
extremity, testified for the defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or removal of the amputated part
will completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still
remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the
cancer to other vital organs like the liver, causing systemic complications. The
modes of therapy available are the removal of the primary source of the cancerous
growth and then the residual cancer cells or metastasis should be treated with
chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have
poor defense mechanism due to the cancer cells in the blood stream. In the case of
Angelica, he had previously explained to her parents that after the surgical
procedure, chemotherapy is imperative so that metastasis of these cancer cells will
hopefully be addressed. He referred the patient to petitioner because he felt that
petitioner is a competent oncologist. Considering that this type of cancer is very
aggressive and will metastasize early, it will cause the demise of the patient should
there be no early intervention (in this case, the patient developed sepsis which
caused her death). Cancer cells in the blood cannot be seen by the naked eye nor
detected through bone scan. On cross-examination, Dr. Tamayo stated that of the
more than 50 child patients who had osteogenic sarcoma he had handled, he
thought that probably all of them died within six months from amputation because
he did not see them anymore after follow-up; it is either they died or had seen
another doctor.[46]
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest
skill and knowledge in the administration of chemotherapy drugs on Angelica but
despite all efforts said patient died. It cited the testimony of Dr. Tamayo who
testified that he considered petitioner one of the most proficient in the treatment
of cancer and that the patient in this case was afflicted with a very aggressive type
of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of
negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner
has taken the necessary precaution against the adverse effect of chemotherapy on
the patient, adding that a wrong decision is not by itself negligence. Respondents
were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48]
Respondents appealed to the CA which, while concurring with the trial courts
finding that there was no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica, found that petitioner as her
attending physician failed to fully explain to the respondents all the known side
effects of chemotherapy. The appellate court stressed that since the respondents
have been told of only three side effects of chemotherapy, they readily consented
thereto. Had petitioner made known to respondents those other side effects which
gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the
blood platelet count, bleeding, infections and eventual death -- respondents could
have decided differently or adopted a different course of action which could have
delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The attending
physician recommended that she undergo chemotherapy treatment after surgery in
order to increase her chances of survival.Appellants consented to the
chemotherapy treatment because they believed in Dr. Rubi Lis representation that
the deceased would have a strong chance of survival after chemotherapy and also
because of the representation of appellee Dr. Rubi Li that there were only three
possible side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of Angelica.The
appellants were clearly and totally unaware of these other side-effects which
manifested only during the chemotherapy treatment. This was shown by the fact
that every time a problem would take place regarding Angelicas condition (like an
unexpected side-effect manifesting itself), they would immediately seek
12
LEGMED (IV. Medical Negligence cases)
explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in
the loss of a love[d] one caused the appellants so much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which
would entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed
decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is
ordered to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.[49] (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court
denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in
holding her liable for actual, moral and exemplary damages and attorneys
fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy,
including death, petitioner argues that it was foolhardy to imagine her to be all-
knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent
doctor, petitioner cannot possibly predict how a particular patients genetic make-
up, state of mind, general health and body constitution would respond to the
treatment. These are obviously dependent on too many known, unknown and
immeasurable variables, thus requiring that Angelica be, as she was, constantly and
closely monitored during the treatment. Petitioner asserts that she did everything
within her professional competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her
current position as co-director for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends that in the absence of any
clear showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment
procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis itself
leads to bleeding and death. She explains that the response rate to chemotherapy
of patients with osteosarcoma is high, so much so that survival rate is favorable to
the patient. Petitioner then points to some probable consequences if Angelica had
not undergone chemotherapy. Thus, without chemotherapy, other medicines and
supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a
respirator, or into her kidneys that she would have to undergo dialysis. Indeed,
respondents could have spent as much because of these complications. The patient
would have been deprived of the chance to survive the ailment, of any hope for life
and her quality of life surely compromised. Since she had not been shown to be at
fault, petitioner maintains that the CA erred in holding her liable for the damages
suffered by the respondents.[50]
The issue to be resolved is whether the petitioner can be held liable for failure to
fully disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or
that he or she did something that a reasonably prudent provider would not have
done; and that that failure or action caused injury to the patient. [51]
This Court has recognized that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in
the same general line of practice as defendant physician or surgeon. The deference
of courts to the expert opinion of qualified physicians stems from the formers
realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of
expert testimonies.[52]
13
LEGMED (IV. Medical Negligence cases)
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to
respondents child was not proven considering that Drs. Vergara and Balmaceda, not
being oncologists or cancer specialists, were not qualified to give expert opinion as
to whether petitioners lack of skill, knowledge and professional competence in
failing to observe the standard of care in her line of practice was the proximate
cause of the patients death. Furthermore, respondents case was not at all helped
by the non-production of medical records by the hospital (only the biopsy result
and medical bills were submitted to the court). Nevertheless, the CA found
petitioner liable for her failure to inform the respondents on all possible side effects
of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767, doctors were
charged with the tort of battery (i.e., an unauthorized physical contact with a
patient) if they had not gained the consent of their patients prior to performing a
surgery or procedure. In the United States, the seminal case was Schoendorff v.
Society of New York Hospital[53] which involved unwanted treatment performed by
a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a
patient to give consent to any medical procedure or treatment: Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his patients
consent, commits an assault, for which he is liable in damages.[54] From a purely
ethical norm, informed consent evolved into a general principle of law that a
physician has a duty to disclose what a reasonably prudent physician in the medical
community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced
with a choice of undergoing the proposed treatment, or alternative treatment, or
none at all, may intelligently exercise his judgment by reasonably balancing the
probable risks against the probable benefits.[55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to
disclose should not be limited to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the patients right of self-
determination on particular therapy demands a standard set by law for physicians
rather than one which physicians may or may not impose upon themselves. [57]The
scope of disclosure is premised on the fact that patients ordinarily are persons
unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the
full measure of a physicians responsibility. It is also his duty to warn of the dangers
lurking in the proposed treatment and to impart information which the patient has
every right to expect. Indeed, the patients reliance upon the physician is a trust of
the kind which traditionally has exacted obligations beyond those associated with
armslength transactions.[58] The physician is not expected to give the patient a short
medical education, the disclosure rule only requires of him a reasonable
explanation, which means generally informing the patient in nontechnical terms as
to what is at stake; the therapy alternatives open to him, the goals expectably to be
achieved, and the risks that may ensue from particular treatment or no
treatment.[59] As to the issue of demonstrating what risks are considered material
necessitating disclosure, it was held that experts are unnecessary to a showing of
the materiality of a risk to a patients decision on treatment, or to the reasonably,
expectable effect of risk disclosure on the decision. Such unrevealed risk that
should have been made known must further materialize, for otherwise the
omission, however unpardonable, is without legal consequence. And, as in
malpractice actions generally, there must be a causal relationship between the
physicians failure to divulge and damage to the patient.[60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral
part of physicians overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common
knowledge that such risks inherent in procedure of very low incidence. Cited as
exceptions to the rule that the patient should not be denied the opportunity to
weigh the risks of surgery or treatment are emergency cases where it is evident he
cannot evaluate data, and where the patient is a child or incompetent. [62] The court
thus concluded that the patients right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making an
intelligent choice. The scope of the physicians communications to the patient, then
must be measured by the patients need, and that need is whatever information is
material to the decision. The test therefore for determining whether a potential
peril must be divulged is its materiality to the patients decision.[63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that
for liability of the physician for failure to inform patient, there must be causal
relationship between physicians failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent: (1) the physician had a duty to
disclose material risks; (2) he failed to disclose or inadequately disclosed those risks;
(3) as a direct and proximate result of the failure to disclose, the patient consented
to treatment she otherwise would not have consented to; and (4) plaintiff was
injured by the proposed treatment. The gravamen in an informed consent case
requires the plaintiff to point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it.[64]
14
LEGMED (IV. Medical Negligence cases)
Examining the evidence on record, we hold that there was adequate disclosure of
material risks inherent in the chemotherapy procedure performed with the consent
of Angelicas parents.Respondents could not have been unaware in the course of
initial treatment and amputation of Angelicas lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When
petitioner informed the respondents beforehand of the side effects of
chemotherapy which includes lowered counts of white and red blood cells,
decrease in blood platelets, possible kidney or heart damage and skin darkening,
there is reasonable expectation on the part of the doctor that the respondents
understood very well that the severity of these side effects will not be the same for
all patients undergoing the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even with pre-treatment
laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying
cancer itself, immediately or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most other major medical
procedures, but such conclusion can be reasonably drawn from the general side
effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have
considered the variables in the recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of chemotherapys
success rate. Besides, informed consent laws in other countries generally require
only a reasonable explanation of potential harms, so specific disclosures such as
statistical data, may not be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed
consent, the plaintiff must prove both the duty and the breach of that duty through
expert testimony.[66] Such expert testimony must show the customary standard of
care of physicians in the same practice as that of the defendant doctor. [67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOHs Operational and Management Services charged with
receiving complaints against hospitals, does not qualify as expert testimony to
establish the standard of care in obtaining consent for chemotherapy treatment. In
the absence of expert testimony in this regard, the Court feels hesitant in defining
the scope of mandatory disclosure in cases of malpractice based on lack of
informed consent, much less set a standard of disclosure that, even in foreign
jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining adequate disclosure
has undergone a dynamic evolution. A standard once guided solely by the
ruminations of physicians is now dependent on what a reasonable person in the
patients position regards as significant. This change in perspective is especially
important as medical breakthroughs move practitioners to the cutting edge of
technology, ever encountering new and heretofore unimagined treatments for
currently incurable diseases or ailments. An adaptable standard is needed to
account for this constant progression. Reasonableness analyses permeate our legal
system for the very reason that they are determined by social norms, expanding
and contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the legal
standard of disclosure is not subject to construction as a categorical
imperative. Whatever formulae or processes we adopt are only useful as a
foundational starting point; the particular quality or quantity of disclosure will
remain inextricably bound by the facts of each case. Nevertheless, juries that
ultimately determine whether a physician properly informed a patient are
inevitably guided by what they perceive as the common expectation of the medical
consumera reasonable person in the patients position when deciding to accept or
reject a recommended medical procedure.[68] (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision
dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City,
Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
15
LEGMED (IV. Medical Negligence cases)
3.) THIRD DIVISION
G.R. No. 210445, December 07, 2015
NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR. ROLANDO G.
GESTUVO, Respondent.
DECISION
VELASCO JR., J.:
The Case
This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and
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
Decision reversed the Decision dated September 14, 2004 3of the Regional Trial
Court, Branch 33 in Davao City-(RTC) in Civil Case No. 27,354-99, a suit for damages
thereat which Nilo B. Rosit (Rosit) commenced against Dr. Rolando Gestuvo (Dr.
Gestuvo).
Factual Antecedents
On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken
the next day at the Davao Doctors Hospital (DDH) showed that he fractured his jaw.
Rosit was then referred to Dr. Gestuvo, a specialist in mandibular injuries, 4 who, on
January 19, 1999, operated on Rosit.
During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with
metal screws to immobilize the mandible. As the operation required the smallest
screws available, Dr. Gestuvo cut the screws on hand to make them smaller. Dr.
Gestuvo knew that there were smaller titanium screws available in Manila, but did
not so inform Rosit supposing that the latter would not be able to afford the same. 5
Following the procedure, Rosit could not properly open and close his mouth and
was in pain. X-rays done on Rosit two (2) days after the operation showed that the
fracture in his jaw was aligned but the screws used on him touched his molar. Given
the X-ray results, Dr. Gestuvo referred Rosit to a dentist. The dentist who checked
Rosit, Dr. Pangan, opined that another operation is necessary and that it is to be
performed in Cebu.6
Alleging that the dentist told him that the operation conducted on his mandible was
improperly done, Rosit went back to Dr. Gestuvo to demand a loan to defray the
cost of the additional operation as well as the expenses of the trip to Cebu. Dr.
Gestuvo gave Rosit P4,500.
Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly
open his mouth.
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
Rosit's molar that was hit with a screw and some bone fragments. Three days after
the operation, Rosit was able to eat and speak well and could open and close his
mouth normally.7
On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the
cost 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
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.
The Ruling of the Regional Trial Court
The RTC freed DDH from liability on the ground that it exercised the proper
diligence in the selection and supervision of Dr. Gestuvo, but adjudged Dr. Gestuvo
negligent and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have preponderantly
established his cause of action in the complaint against defendant Dr. Rolando G.
Gestuvo only, judgment is hereby rendered for the plaintiff and against said
defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto plaintiff
NILO B. ROSIT the following:chanRoblesvirtualLawlibrary
a) the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY NINE
PESOS and 13/100 (P140,199.13) representing reimbursement of actual
expenses incurred by plaintiff in the operation and re-operation of his
mandible;
b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS (P29,068.00)
representing reimbursement of the filing fees and appearance fees;
c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as and for
attorney's fees;
16
LEGMED (IV. Medical Negligence cases)
The Issue
d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages; The ultimate issue for our resolution is whether the appellate court correctly
absolved Dr. Gestuvo from liability.

e) the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary damages; The Court's Ruling
and The petition is impressed with merit.

In Flores v. Pineda,9 the Court explained the concept of a medical negligence case
f) the costs of the suit. and the elements required for its prosecution,
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
For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL and patient. There are four elements involved in a medical negligence case, namely:
the defendants' counterclaims are hereby ordered DISMISSED. duty, breach, injury, and proximate causation.

Cost against Dr. Rolando G. Gestuvo. 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
SO ORDERED. the proper discharge of the profession. A physician is expected to use at least the
In so ruling, the trial court applied the res ipsa loquitur principle holding that "the same level of care that any other reasonably competent doctor would use under
need for expert, medical testimony may be dispensed with because the injury itself the same circumstances. Breach of duty occurs when the physician fails to comply
provides the proof of negligence." with these professional standards. If injury results to the patient as a result of this
breach, the physician is answerable for negligence. (Emphasis supplied)
Therefrom, both parties appealed to the CA.

The Ruling of the Court of Appeals An expert witness is not necessary as the res ipsa loquitur doctrine is applicable
In its January 22, 2013 Decision, the CA modified the appealed judgment by To establish medical negligence, this Court has held that an expert testimony is
deleting the awards made by the trial court, disposing as follows: generally required to define the standard of behavior by which the court may
determine whether the physician has properly performed the requisite duty toward
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision dated
the patient. This is so considering that the requisite degree of skill and care in the
September 14, 2004 of the Regional Trial Court, Branch 33, Davao City, rendered in
treatment of a patient is usually a matter of expert opinion. 10
Civil Case No. 27,354-99 is hereby MODIFIED. The monetary awards adjudged in
favor of Nilo B. Rosit are hereby DELETED for lack of basis.
Solidum v. People of the Philippines11 provides an exception. There, the Court
explained that where the application of the principle of res ipsa loquitur is
SO ORDERED.
warranted, an expert testimony may be dispensed with in medical negligence cases:
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and
Although generally, expert medical testimony is relied upon in malpractice suits
that the testimony of an expert witness is necessary for a finding of negligence. The
to prove that a physician has done a negligent act or that he has deviated from
appellate court also gave credence to Dr. Pangan's letter stating the opinion that Dr.
the standard medical procedure, when the doctrine of res ipsa loquitur is availed
Gestuvo did not commit gross negligence in his emergency management of Rosit's
by the plaintiff, the need for expert medical testimony is dispensed with because
fractured mandible.
the injury itself provides the proof of negligence. The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly within
Rosit's motion for reconsideration was denied in the CA's November 7, 2013
the domain of medical science, and not to matters that are within the common
Resolution.
knowledge of mankind which may be testified to by anyone familiar with the facts.
xxx
Hence, the instant appeal.

17
LEGMED (IV. Medical Negligence cases)
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 effectively negating the presence of the third
element.13
After careful consideration, this Court cannot accede to the CA's findings as it is at
once apparent from the records that the essential requisites for the application of
the doctrine of res ipsa loquitur are present.
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.
Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut
the same with a saw.14 He also stated during trial that common sense dictated that
the smallest screws available should be used. More importantly, he also knew that
these screws were available locally at the time of the operation.15 Yet, he did not
avail of such items and went ahead with the larger screws and merely sawed them
off. Even 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.
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 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.
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.
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
overlooked is that it was Dr. Gestuvo himself who referred Rosit to Dr. Pangan.
Nevertheless, Dr. Pangan's participation could not have contributed to the reality
that the screw that Dr. Gestuvo installed hit Rosit's molar.
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"
What is more damning for Dr. Gestuvo is his failure to inform Rosit that such
smaller screws were available in Manila, albeit at a higher price.16 As testified to by
Dr. Gestuvo himself:
18
LEGMED (IV. Medical Negligence cases)
Court This titanium materials according to you were already available in the
Alright. Philippines since the time of Rosit's accident?
Witness Yes, your Honor.
xxxx
Court Did you inform Rosit about the existence of titanium screws and plates
which according to you is the screws and plates of choice?
Witness No, your Honor.
xxxx
Witness The reason I did not inform him anymore Judge because what I thought
he was already hard up with the down payment. And if I will further
introduce him this screws, the more he will not be able to afford the
operation.
xxxx
Court This titanium screws and plates were available then it is up to Rosit to
decide whether to use it or not because after all the material you are
using is paid by the patient himscll, is it not?
Witness Yes, that is true.
Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed
Consent in relation to medical negligence cases, to wit:
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. x x x From a purely ethical
norm, informed consent evolved into a general principle of law that a physician
has a duty to disclose what a reasonably prudent physician in the medical
community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and
faced with a choice of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his judgment by reasonably
balancing the probable risks against the probable benefits.
xxxx
There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent: "(1) the physician had a duty to
disclose material risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4)
plaintiff was injured by the proposed treatment." The gravamen in an informed
consent case requires the plaintiff to "point to significant undisclosed information
relating to the treatment which would have altered her decision to undergo it."
(Emphasis supplied)
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
larger screws for the operation. This was his obligation as the physician undertaking
the operation.
Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that
Rosit could not afford to get the more expensive titanium screws.
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
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 afford the use of the smaller titanium screws that were later used by Dr. Pangan
to replace the screws that were used by Dr. Gestuvo.
Fourth, as a result of using the larger screws, Rosit experienced pain and could not
heal properly because one of the screws hit his molar. This was evident from the
fact that just three (3) days after Dr. Pangan repeated the operation conducted by
Dr. Gestuvo, Rosit was pain-free and could already speak. This is compared to the
one (1) month that Rosit suffered pain and could not use his mouth after the
operation conducted by Dr. Gestuvo until the operation of Dr. Pangan.
Without a doubt, Dr. Gestuvo is guilty of withholding material information which
would have been vital in the decision of Rosit in going through with the operation
with the materials at hand. Thus, Dr. Gestuvo is also guilty of negligence on this
ground.
19
LEGMED (IV. Medical Negligence cases)
Dr. Pangan's Affidavit is not admissible
The appellate court's Decision absolving Dr. Gestuvo of negligence was also
anchored on a letter signed by Dr. Pangan 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 exemplary damages.
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 are
hereby REVERSED and SET ASIDE. Further, the Decision dated September 14, 2004
of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is
hereby REINSTATED and AFFIRMED.
SO ORDERED.
20
LEGMED (IV. Medical Negligence cases)
3.) SECOND DIVISION 3) Ordering the above-named defendant-appellants to jointly and severally pay
the above-named plaintiff-appellees the sum of P36,000.00 by way of actual and
SPOUSES FREDELICTO FLORES (deceased) and G.R. No. 158996 compensatory damages; and
FELICISIMA FLORES,
Petitioners, Present: 4) Deleting the award of attorneys fees and costs of suit.

QUISUMBING, J., Chairperson, SO ORDERED.

- versus - CARPIO MORALES,
TINGA, While this case essentially involves questions of facts, we opted for the requested
VELASCO, JR., and review in light of questions we have on the findings of negligence below, on the
SPOUSES DOMINADOR PINEDA and VIRGINIA BRION, JJ. awarded damages and costs, and on the importance of this type of ruling on
SACLOLO, and FLORENCIO, CANDIDA, MARTA, medical practice.[3]
GODOFREDO, BALTAZAR and LUCENA, all
surnamed PINEDA, as heirs of the deceased Promulgated: BACKGROUND FACTS
TERESITA S. PINEDA, and UNITED DOCTORS
MEDICAL CENTER, INC., November 14, 2008 Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto.
Respondents. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr.
x -------------------------------------------------------------------------------------------x Fredelicto Flores, regarding her medical condition. She complained of general body
weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal
DECISION bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of
her monthly period to analyze the probable cause of the vaginal bleeding. He
BRION, J.: advised her to return the following week or to go to the United Doctors Medical
Center (UDMC) in Quezon City for a general check-up. As for her other symptoms,
This petition involves a medical negligence case that was elevated to this Court he suspected that Teresita might be suffering from diabetes and told her to
through an appeal by certiorari under Rule 45 of the Rules of Court. The petition continue her medications.[4]
assails the Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 63234, which
affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Nueva Teresita did not return the next week as advised. However, when her condition
Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28,
decision states: 1987, travelling for at least two hours from Nueva Ecija to Quezon City with her
sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later
WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court testified that her sister was then so weak that she had to lie down on the couch of
of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with the clinic while they waited for the doctor. When Dr. Fredelicto arrived, he did a
modifications as follows: routine check-up and ordered Teresitas admission to the hospital. In the admission
slip, he directed the hospital staff to prepare the patient for an on
1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the call D&C[5] operation to be performed by his wife, Dr. Felicisima Flores (Dr.
United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff- Felicisima). Teresita was brought to her hospital room at around 12 noon; the
appellees heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia hospital staff forthwith took her blood and urine samples for the laboratory
Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all tests[6] which Dr. Fredelicto ordered.
surnamed Pineda, the sum of P400,000.00 by way of moral damages;
At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only
2) Ordering the above-named defendant-appellants to jointly and severally pay then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors
the above-named plaintiff-appellees the sum of P100,000.00 by way of exemplary Dr. Felicisima and Dr. Fredelicto, conferred on the patients medical condition, while
damages; the resident physician and the medical intern gave Dr. Felicisima their own
briefings. She also interviewed and conducted an internal vaginal examination of
21
LEGMED (IV. Medical Negligence cases)
the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up
the laboratory for the results of the tests. At that time, only the results for the
blood sugar (BS), uric acid determination, cholesterol determination, and complete
blood count (CBC) were available. Teresitas BS count was 10.67mmol/l[7] and her
CBC was 109g/l.[8]
Based on these preparations, Dr. Felicisima proceeded with the D&C operation with
Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for
about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room.
A day after the operation (or on April 29, 1987), Teresita was subjected to an
ultrasound examination as a confirmatory procedure. The results showed that she
had an enlarged uterus and myoma uteri.[9] Dr. Felicisima, however, advised
Teresita that she could spend her recovery period at home. Still feeling weak,
Teresita opted for hospital confinement.
Teresitas complete laboratory examination results came only on that day (April 29,
1987). Teresitas urinalysis showed a three plus sign (+++) indicating that the sugar
in her urine was very high. She was then placed under the care of Dr. Amado Jorge,
an internist.
By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in
breathing and was rushed to the intensive care unit. Further tests confirmed that
she was suffering from Diabetes Mellitus Type II.[10] Insulin was administered on
the patient, but the medication might have arrived too late. Due to complications
induced by diabetes, Teresita died in the morning of May 6, 1987.[11]
Believing that Teresitas death resulted from the negligent handling of her medical
needs, her family (respondents) instituted an action for damages against Dr.
Fredelicto Flores and Dr. Felicisima Flores (collectively referred to as the petitioner
spouses) before the RTC of Nueva Ecija.
The RTC ruled in favor of Teresitas family and awarded actual, moral, and
exemplary damages, plus attorneys fees and costs.[12] The CA affirmed the
judgment, but modified the amount of damages awarded and deleted the award
for attorneys fees and costs of suit.[13]
Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto
(now deceased) and Dr. Felicisima Flores allege that the RTC and CA committed a
reversible error in finding them liable through negligence for the death of Teresita
Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due care and prudence in the
performance of their duties as medical professionals. They had attended to the
patient to the best of their abilities and undertook the management of her case
based on her complaint of an on-and-off vaginal bleeding. In addition, they claim
that nothing on record shows that the death of Teresita could have been averted
had they employed means other than what they had adopted in the ministration of
the patient.
THE COURTS RULING
We do not find the petition meritorious.
The respondents claim for damages is predicated on their allegation that the
decision of the petitioner spouses to proceed with the D&C operation,
notwithstanding Teresitas condition and the laboratory test results, amounted to
negligence. On the other hand, the petitioner spouses contend that a D&C
operation is the proper and accepted procedure to address vaginal bleeding the
medical problem presented to them. Given that the patient died after the D&C, the
core issue is whether the decision to proceed with the D&C operation was an
honest mistake of judgment or one amounting to negligence.
Elements of a Medical Negligence Case
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.[14]
Duty refers to the standard of behavior which imposes restrictions on ones
conduct.[15] 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.[16]
As in any civil action, the burden to prove the existence of the necessary elements
rests with the plaintiff.[17] To successfully pursue a claim, the plaintiff must prove by
preponderance of evidence that, one, the physician either failed to do something
which a reasonably prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have done; and two, the
failure or action caused injury to the patient.[18] Expert testimony is therefore
essential since the factual issue of whether a physician or surgeon has exercised the
22
LEGMED (IV. Medical Negligence cases)
requisite degree of skill and care in the treatment of his patient is generally a
matter of expert opinion.[19]
Standard of Care and Breach of Duty
D&C is the classic gynecologic procedure for the evaluation and possible
therapeutic treatment for abnormal vaginal bleeding.[20] That this is the recognized
procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr.
Mercado), the expert witnesses presented by the respondents:
DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform
what we call D&C for diagnostic purposes.
xxx xxx xxx
Q: So are you trying to tell the Court that D&C can be a diagnostic treatment?
A: Yes, sir. Any doctor knows this.[21]
Dr. Mercado, however, objected with respect to the time the D&C operation should
have been conducted in Teresitas case. He opined that given the blood sugar level
of Teresita, her diabetic condition should have been
addressed first:
Q: Why do you consider the time of performance of the D&C not appropriate?
A: Because I have read the record and I have seen the urinalysis, [there is] spillage
in the urine, and blood sugar was 10.67
Q: What is the significance of the spillage in the urine?
A: It is a sign that the blood sugar is very high.
Q: Does it indicate sickness?
A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.
xxx xxx xxx
COURT: In other words, the operation conducted on the patient, your opinion, that
it is inappropriate?
A: The timing of [when] the D&C [was] done, based on the record, in my personal
opinion, that D&C should be postponed a day or two.[22]
The petitioner spouses countered that, at the time of the operation, there was
nothing to indicate that Teresita was afflicted with diabetes: a blood sugar level of
10.67mmol/l did not necessarily mean that she was a diabetic considering that this
was random blood sugar;[23] there were other factors that might have caused
Teresitas blood sugar to rise such as the taking of blood samples during lunchtime
and while patient was being given intra-venous dextrose.[24] Furthermore, they
claim that their principal concern was to determine the cause of and to stop the
vaginal bleeding.
The petitioner spouses contentions, in our view, miss several points. First, as early
as April 17, 1987, Teresita was already suspected to be suffering from
diabetes.[25] This suspicion again arose right before the D&C operation on April 28,
1987 when the laboratory result revealed Teresitas increased blood sugar
level.[26] Unfortunately, the petitioner spouses did not wait for the full medical
laboratory results before proceeding with the D&C, a fact that was never
considered in the courts below. Second, the petitioner spouses were duly advised
that the patient was experiencing general body weakness, loss of appetite, frequent
urination, and thirst all of which are classic symptoms of diabetes.[27] 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:
[Expert testimony for the plaintiff showed that] tests should have been ordered
immediately on admission to the hospital in view of the symptoms presented, and
that failure to recognize the existence of diabetes constitutes negligence.[28]
Third, the petitioner spouses cannot claim that their principal concern was the
vaginal bleeding and should not therefore be held accountable for complications
coming from other sources. This is a very narrow and self-serving view that even
reflects on their competence.
Taken together, we find that reasonable prudence would have shown that diabetes
and its complications were foreseeable harm that should have been taken into
consideration by the petitioner spouses. If a patient suffers from some disability
that increases the magnitude of risk to him, that disability must be taken into
account so long as it is or should have been known to the physician. [29] And when
the patient is exposed to an increased risk, it is incumbent upon the physician to
take commensurate and adequate precautions.
Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the
attending physician should have postponed the D&C operation in order to conduct
a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case
to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an
23
LEGMED (IV. Medical Negligence cases)
obstetrician and gynecologist, who stated that the patients diabetes should have
been managed by an internist prior to, during, and after the operation.[31]
Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely
so heavy and life-threatening that urgent first-aid measures are required.[32] Indeed,
the expert witnesses declared that a D&C operation on a hyperglycemic patient
may be justified only when it is an emergency case when there is profuse vaginal
bleeding. In this case, we choose not to rely on the assertions of the petitioner
spouses that there was profuse bleeding, not only because the statements were
self-serving, but also because the petitioner spouses were inconsistent in their
testimonies.Dr. Fredelicto testified earlier that on April 28, he personally saw the
bleeding,[33] but later on said that he did not see it and relied only on Teresitas
statement that she was bleeding.[34] He went on to state that he scheduled the D&C
operation without conducting any physical examination on the patient.
The likely story is that although Teresita experienced vaginal bleeding on April 28, it
was not sufficiently profuse to necessitate an immediate emergency D&C
operation. Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical records of
Teresita failed to indicate that there was profuse vaginal bleeding. The claim that
there was profuse vaginal bleeding although this was not reflected in the medical
records strikes us as odd since the main complaint is vaginal bleeding. A medical
record is the only document that maintains a long-term transcription of patient care
and as such, its maintenance is considered a priority in hospital practice. Optimal
record-keeping includes all patient inter-actions. The records should always be
clear, objective, and up-to-date.[37] Thus, a medical record that does not indicate
profuse medical bleeding speaks loudly and clearly of what it does not contain.
That the D&C operation was conducted principally to diagnose the cause of the
vaginal bleeding further leads us to conclude that it was merely an elective
procedure, not an emergency case.In an elective procedure, the physician must
conduct a thorough pre-operative evaluation of the patient in order to adequately
prepare her for the operation and minimize possible risks and complications. The
internist is responsible for generating a comprehensive evaluation of all medical
problems during the pre-operative evaluation.[38]
The aim of pre-operative evaluation is not to screen broadly for undiagnosed
disease, but rather to identify and quantify comorbidity that may impact on the
operative outcome. This evaluation is driven by findings on history and physical
examination suggestive of organ system dysfunctionThe goal is to uncover problem
areas that may require further investigation or be amenable to preoperative
optimization.
If the preoperative evaluation uncovers significant comorbidity or evidence of poor
control of an underlying disease process, consultation with an internist or medical
specialist may be required to facilitate the work-up and direct management. In this
process, communication between the surgeons and the consultants is essential to
define realistic goals for this optimization process and to expedite surgical
management.[39][Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-operative evaluation was
less than complete as the laboratory results were fully reported only on the day
following the D&C operation. Dr. Felicisima only secured a telephone report of the
preliminary laboratory result prior to the D&C. This preliminary report did not
include the 3+ status of sugar in the patients urine[40] a result highly confirmatory of
diabetes.
Because the D&C was merely an elective procedure, the patients uncontrolled
hyperglycemia presented a far greater risk than her on-and-off vaginal
bleeding. The presence of hyperglycemia in a surgical patient is associated with
poor clinical outcomes, and aggressive glycemic control positively impacts on
morbidity and mortality.[41] Elective surgery in people with uncontrolled
diabetes should preferably be scheduled after acceptable glycemic control has been
achieved.[42] According to Dr. Mercado, this is done by administering insulin on the
patient.[43]
The management approach in this kind of patients always includes insulin therapy in
combination with dextrose and potassium infusion. Insulin xxx promotes glucose
uptake by the muscle and fat cells while decreasing glucose production by the liver
xxx. The net effect is to lower blood glucose levels.[44]
The prudent move is to address the patients hyperglycemic state immediately and
promptly before any other procedure is undertaken. In this case, there was no
evidence that insulin was administered on Teresita prior to or during the D&C
operation. Insulin was only administered two days after the operation.
As Dr. Tan testified, the patients hyperglycemic condition should have been
managed not only before and during the operation, but also immediately
after. Despite the possibility that Teresita was afflicted with diabetes, the possibility
was casually ignored even in the post-operative evaluation of the patient; the
concern, as the petitioner spouses expressly admitted, was limited to the complaint
of vaginal bleeding. Interestingly, while the ultrasound test confirmed that Teresita
had a myoma in her uterus, she was advised that she could be discharged a day
after the operation and that her recovery could take place at home. This advice
implied that a day after the operation and even after the complete laboratory
results were submitted, the petitioner spouses still did not recognize any post-
operative concern that would require the monitoring of Teresitas condition in the
hospital.
24
LEGMED (IV. Medical Negligence cases)
The above facts, point only to one conclusion that the petitioner spouses failed, as
medical professionals, to comply with their duty to observe the standard of care to
be given to hyperglycemic/diabetic patients undergoing surgery. Whether this
breach of duty was the proximate cause of Teresitas death is a matter we shall next
determine.
Injury and Causation
As previously mentioned, the critical and clinching factor in a medical negligence
case is proof of the causal connection between the negligence which the evidence
established and the plaintiffs injuries;[45] the plaintiff must plead and prove not only
that he had been injured and defendant has been at fault, but also that the
defendants fault caused the injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation must be proven within a reasonable
medical probability based upon competent expert testimony. [46]
The respondents contend that unnecessarily subjecting Teresita to a D&C operation
without adequately preparing her, aggravated her hyperglycemic state and caused
her untimely demise. The death certificate of Teresita lists down the following
causes of death:
Immediate cause: Cardiorespiratory arrest
Antecedent cause: Septicemic shock, ketoacidocis
Underlying cause: Diabetes Mellitus II
Other significant conditions
contributing to death: Renal Failure Acute[47]
Stress, whether physical or emotional, is a factor that can aggravate diabetes; a
D&C operation is a form of physical stress. Dr. Mendoza explained how surgical
stress can aggravate the patients hyperglycemia: when stress occurs, the diabetics
body, especially the autonomic system, reacts by secreting hormones which are
counter-regulatory; she can have prolonged hyperglycemia which, if unchecked,
could lead to death.[48] Medical literature further explains that if the blood sugar
has become very high, the patient becomes comatose (diabetic coma). When this
happens over several days, the body uses its own fat to produce energy, and the
result is high levels of waste products (called ketones) in the blood and urine
(called diabetic ketoacidiosis, a medical emergency with a significant
mortality).[49] This was apparently what happened in Teresitas case; in fact, after
she had been referred to the internist Dr. Jorge, laboratory test showed that her
blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar
range. Thus, between the D&C and death was the diabetic complication that could
have been prevented with the observance of standard medical precautions. The
D&C operation and Teresitas death due to aggravated diabetic condition is
therefore sufficiently established.
The trial court and the appellate court pinned the liability for Teresitas death on
both the petitioner spouses and this Court finds no reason to rule
otherwise. However, we clarify that Dr. Fredelictos negligence is not solely the act
of ordering an on call D&C operation when he was mainly an anaesthesiologist who
had made a very cursory examination of the patients vaginal bleeding
complaint. Rather, it was his failure from the very start to identify and confirm,
despite the patients complaints and his own suspicions, that diabetes was a risk
factor that should be guarded against, and his participation in the imprudent
decision to proceed with the D&C operation despite his early suspicion and the
confirmatory early laboratory results. The latter point comes out clearly from the
following exchange during the trial:
Q: On what aspect did you and your wife consult [with] each other?
A: We discussed on the finding of the laboratory [results] because the hemoglobin
was below normal, the blood sugar was elevated, so that we have to evaluate these
laboratory results what it means.
Q: So it was you and your wife who made the evaluation when it was phoned in?
A: Yes, sir.
Q: Did your wife, before performing D&C ask your opinion whether or not she can
proceed?
A: Yes, anyway, she asked me whether we can do D&C based on my experience.
Q: And your answer was in the positive notwithstanding the elevation of blood
sugar?
A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]
If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being
an internist or a diabetologist (for which reason he referred Teresita to Dr.
Jorge),[51] he should have likewise refrained from making a decision to proceed with
the D&C operation since he was niether an obstetrician nor a gynecologist.
These findings lead us to the conclusion that the decision to proceed with the D&C
operation, notwithstanding Teresitas hyperglycemia and without adequately
preparing her for the procedure, was contrary to the standards observed by the
medical profession. Deviation from this standard amounted to a breach of duty
25
LEGMED (IV. Medical Negligence cases)
which resulted in the patients death. Due to this negligent conduct, liability must With the award of exemplary damages, the grant of attorneys fees is legally in
attach to the petitioner spouses. order.[56] We therefore reverse the CA decision deleting these awards, and grant the
respondents the amount of P100,000.00 as attorneys fees taking into consideration
Liability of the Hospital the legal route this case has taken.

In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV
found the hospital jointly and severally liable with the petitioner spouses, which No. 63234 finding petitioner spouses liable for negligent medical practice. We
decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however likewise AFFIRMthe awards of actual and compensatory damages of P36,000.00;
denied UDMCs petition for review on certiorari. Since UDMCs appeal has been moral damages of P400,000.00; and exemplary damages of P100,000.00.
denied and they are not parties to this case, we find it unnecessary to delve on the
matter. Consequently, the RTCs decision, as affirmed by the CA, stands. We MODIFY the CA Decision by additionally granting an award of P50,000.00 as
death indemnity and by reversing the deletion of the award of attorneys fees and
Award of Damages costs and restoring the award of P100,000.00 as attorneys fees. Costs of litigation
are adjudged against petitioner spouses.
Both the trial and the appellate court awarded actual damages as compensation for To summarize, the following awards shall be paid to the family of the late Teresita
the pecuniary loss the respondents suffered. The loss was presented in terms of the Pineda:
hospital bills and expenses the respondents incurred on account of Teresitas 1. The sum of P36,000.00 by way of actual and compensatory damages;
confinement and death. The settled rule is that a plaintiff is entitled to be 2. The sum of P50,000.00 by way of death indemnity;
compensated for proven pecuniary loss.[52] This proof the respondents successfully 3. The sum of P400,000.00 by way of moral damages;
presented. Thus, we affirm the award of actual damages of P36,000.00 4. The sum of P100,000.00 by way of exemplary damages;
representing the hospital expenses the patient incurred. 5. The sum of P100,000.00 by way of attorneys fees; and
6. Costs.
In addition to the award for actual damages, the respondent heirs of Teresita are SO ORDERED.
likewise entitled to P50,000.00 as death indemnity pursuant to Article 2206 of the
Civil Code, which states that the amount of damages for death caused by a
xxx quasi-delict shall be at least three thousand pesos,[53] even though there may
have been mitigating circumstances xxx. This is a question of law that the CA missed
in its decision and which we now decide in the respondents favor.
The same article allows the recovery of moral damages in case of death caused by
a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or
descendants as the persons entitled thereto. Moral damages are designed to
compensate the claimant for the injury suffered, that is, for the mental anguish,
serious anxiety, wounded feelings which the respondents herein must have surely
felt with the unexpected loss of their daughter. We affirm the appellate courts
award of P400,000.00 by way of moral damages to the respondents.
We similarly affirm the grant of exemplary damages. Exemplary damages are
imposed by way of example or correction for the public good.[54] Because of the
petitioner spouses negligence in subjecting Teresita to an operation without first
recognizing and addressing her diabetic condition, the appellate court
awarded exemplary damages to the respondents in the amount
of P100,000.00.Public policy requires such imposition to suppress the wanton acts
of an offender.[55] We therefore affirm the CAs award as an example to the medical
profession and to stress that the public good requires stricter measures to avoid the
repetition of the type of medical malpractice that happened in this case.
26
LEGMED (IV. Medical Negligence cases)
5.) Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192123 March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been pronounced
guilty of reckless imprudence resulting in serious physical injuries by the Regional
Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of
anesthesiologists during the surgical pull-through operation conducted on a three-
year old patient born with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an imperforate
anus. Two days after his birth, Gerald underwent colostomy, a surgical procedure to
bring one end of the large intestine out through the abdominal wall, 3 enabling him
to excrete through a colostomy bag attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng
Maynila for a pull-through operation.5Dr. Leandro Resurreccion headed the surgical
team, and was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph
Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and
petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald
experienced bradycardia,7 and went into a coma.8His coma lasted for two
weeks,9 but he regained consciousness only after a month.10 He could no longer
see, hear or move.11
Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz)
lodged a complaint for reckless imprudence resulting in serious physical injuries
with the City Prosecutor’s Office of Manila against the attending physicians.12
Upon a finding of probable cause, the City Prosecutor’s Office filed an information
solely against Dr. Solidum,13alleging: –
That on or about May 17, 1995, in the City of Manila, Philippines, the said accused,
being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as
such was tasked to administer the anesthesia on three-year old baby boy GERALD
ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former
having been born with an imperforate anus [no anal opening] and was to undergo
an operation for anal opening [pull through operation], did then and there willfully,
unlawfully and feloniously fail and neglect to use the care and diligence as the best
of his judgment would dictate under said circumstance, by failing to monitor and
regulate properly the levels of anesthesia administered to said GERALD ALBERT
GERCAYO and using 100% halothane and other anesthetic medications, causing as a
consequence of his said carelessness and negligence, said GERALD ALBERT
GERCAYO suffered a cardiac arrest and consequently a defect called hypoxic
encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or
hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was
transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family
Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond
reasonable doubt of reckless imprudence resulting to serious physical
injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P.
SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged and is
hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and
ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and
TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and
severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of ₱500,000.00 as moral damages and
₱100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary
liability,18 the RTC excluded them from solidary liability as to the damages,
modifying its decision as follows:
27
LEGMED (IV. Medical Negligence cases)
WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum,
guilty beyond reasonable doubt as principal of the crime charged and is hereby
sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of
arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of
prision correccional as maximum and to indemnify jointly and severally with Ospital
ng Maynila, private complainant Luz Gercayo the amount of ₱500,000.00 as moral
damages and ₱100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20 pertinently
stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a
major operation. As noted by the OSG, the accused himself testified that pre-
operation tests were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was healthy. The tests and other
procedures failed to reveal that he was suffering from any known ailment or
disability that could turn into a significant risk. There was not a hint that the nature
of the operation itself was a causative factor in the events that finally led to
hypoxia.
In short, the lower court has been left with no reasonable hypothesis except to
attribute the accident to a failure in the proper administration of anesthesia, the
gravamen of the charge in this case. The High Court elucidates in Ramos vs. Court of
Appeals 321 SCRA 584 –
In cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management
of the defendant without need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
The lower court has found that such a nexus exists between the act complained of
and the injury sustained, and in line with the hornbook rules on evidence, we will
afford the factual findings of a trial court the respect they deserve in the absence of
a showing of arbitrariness or disregard of material facts that might affect the
disposition of the case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases. Although
it creates a presumption of negligence, it need not offend due process, as long as
the accused is afforded the opportunity to go forward with his own evidence and
prove that he has no criminal intent. It is in this light not inconsistent with the
constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on
May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME
CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF THE
FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE
ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN
AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE
CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
28
LEGMED (IV. Medical Negligence cases)
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES
IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE
APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE
APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE
ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED
THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT
THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A
FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE,
AND NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or not
the doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr.
Solidum was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks for
itself." The doctrine res ipsa loquitur means that "where the thing which causes
injury is shown to be under the management of the defendant, and the accident is
such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care." 24 It is
simply "a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference
of negligence on the part of the person who controls the instrumentality causing
the injury in the absence of some explanation by the defendant who is charged with
negligence. It is grounded in the superior logic of ordinary human experience and
on the basis of such experience or common knowledge, negligence may be deduced
from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive
law, but merely a mode of proof or a mere procedural convenience. The doctrine,
when applicable to the facts and circumstances of a given case, is not meant to and
does not dispense with the requirement of proof of culpable negligence against the
party charged. It merely determines and regulates what shall be prima facie
evidence thereof, and helps the plaintiff in proving a breach of the duty. The
doctrine can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available.27
The applicability of the doctrine of res ipsa loquitur in medical negligence cases was
significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the
Court said –
Medical malpractice cases do not escape the application of this doctrine. Thus, res
ipsa loquitur has been applied when the circumstances attendant upon the harm
are themselves of such a character as to justify an inference of negligence as the
cause of that harm. The application of res ipsa loquitur in medical negligence cases
presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in malpractice suits to
prove that a physician has done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances, and manifest conditions
which are observable by any one may be given by non-expert witnesses. Hence, in
cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge and experience
teach that a resulting injury would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to
29
LEGMED (IV. Medical Negligence cases)
produce expert medical testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation,
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.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been exercised.
A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or
unusual event outside of the routine performance occurred which is beyond the
regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. If there was such
extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the
defendant is called upon to explain the matter, by evidence of exculpation, if he
could.
In order to allow resort to the doctrine, therefore, the following essential requisites
must first be satisfied, to wit: (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.29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the second
and third elements were present, considering that the anesthetic agent and the
instruments were exclusively within the control of Dr. Solidum, and that the
patient, being then unconscious during the operation, could not have been guilty of
contributory negligence, the first element was undeniably wanting. Luz delivered
Gerald to the care, custody and control of his physicians for a pull-through
operation. Except for the imperforate anus, Gerald was then of sound body and
mind at the time of his submission to the physicians. Yet, he experienced
bradycardia during the operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused
the slowing of the heart rate, scientifically termed as bradycardia, would not
ordinarily occur in the process of a pull-through operation, or during the
administration of anesthesia to the patient, but such fact alone did not prove that
the negligence of any of his attending physicians, including the anesthesiologists,
had caused the injury. In fact, the anesthesiologists attending to him had sensed in
the course of the operation that the lack of oxygen could have been triggered by
the vago-vagal reflex, prompting them to administer atropine to the patient. 30
This conclusion is not unprecedented. It was similarly reached in Swanson v.
Brigham,31 relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a
hospital for the treatment of infectious mononucleosis. The patient's symptoms had
included a swollen throat and some breathing difficulty. Early in the morning of
January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the
patient. His inspection of the patient's air passage revealed that it was in
satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the
hospital, advising him that the patient was having respiratory difficulty. The doctor
ordered that oxygen be administered and he prepared to leave for the hospital. Ten
minutes later, 4:25 a.m., the hospital called a second time to advise the doctor that
the patient was not responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When he arrived, the physician who
had been on call at the hospital had begun attempts to revive the patient. Dr.
Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died between
4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air
passage. He also found that the air passage had been adequate to maintain life up
30
LEGMED (IV. Medical Negligence cases)
to 2 or 3 minutes prior to death. He did not know what caused the air passage to
suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of
infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke
res ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that
the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn.
App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the
application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953).
See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The
evidence presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the patient’s air
passage and his resultant asphyxiation took place over a very short period of time.
Under these circumstances it would not be reasonable to infer that the physician
was negligent. There was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected without negligence.
And there is no expert medical testimony to create an inference that negligence
caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next
determines whether the CA correctly affirmed the conviction of Dr. Solidum for
criminal negligence.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance that the
circumstances justly demand, whereby such other person suffers injury. 32Reckless
imprudence, on the other hand, consists of voluntarily doing or failing to do,
without malice, an act from which material damage results by reason of an
inexcusable lack of precaution on the part of the person performing or failing to
perform such act.33
Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor
and properly regulate the level of anesthetic agent administered on Gerald by
overdosing at 100% halothane. In affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the
findings and conclusions in his report except for an observation which, to all intents
and purposes, has become the storm center of this dispute. He wanted to correct
one piece of information regarding the dosage of the anesthetic agent administered
to the child. He declared that he made a mistake in reporting a 100% halothane and
said that based on the records it should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record – A portion of the chart in the record was marked as
Exhibit 1-A and 1-B to indicate the administration at intervals of the anesthetic
agent.
(b) the clinical abstract – A portion of this record that reads as follows was marked
Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the operation,
patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was
immediately administered. However, the bradycardia persisted, the inhalational
agent was shut off, and the patient was ventilated with 100% oxygen and another
dose of ATSO4 0.2 mg was given. However, the patient did not respond until no
cardiac rate can be auscultated and the surgeons were immediately told to stop the
operation. The patient was put on a supine position and CPR was initiated. Patient
was given 1 amp of epinephrine initially while continuously doing cardiac massage –
still with no cardiac rate appreciated; another ampule of epinephrine was given and
after 45 secs, patient’s vital signs returned to normal. The entire resuscitation
lasted approximately 3-5 mins. The surgeons were then told to proceed to the
closure and the child’s vital signs throughout and until the end of surgery were: BP
= 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the patient was
ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia
persisted, but for one reason or another, he read it as 100% halothane. He was
asked to read the anesthesia record on the percentage of the dosage indicated, but
he could only sheepishly note I can’t understand the number. There are no clues in
the clinical abstract on the quantity of the anesthetic agent used. It only contains
the information that the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as the sole anesthetic
agent and that 1 hour and 45 minutes after the operation began, bradycardia
occurred after which the inhalational agent was shut off and the patient
administered with 100% oxygen. It would be apparent that the 100% oxygen that
Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the halothane itself
was reduced or shut off.
The key question remains – what was the quantity of halothane used before
bradycardia set in?
The implication of Dr. Vertido’s admission is that there was no overdose of the
anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on
this conclusion. He made the assurance that he gave his patient the utmost medical
care, never leaving the operating room except for a few minutes to answer the call
of nature but leaving behind the other members of his team Drs. Abella and Razon
to monitor the operation. He insisted that he administered only a point 1% not
31
LEGMED (IV. Medical Negligence cases)
100% halothane, receiving corroboration from Dr. Abella whose initial MA in the
record should be enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She revealed that they were
using a machine that closely monitored the concentration of the agent during the
operation.
But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself,
as he takes the bull by the horns, so to speak. In his affidavit, he says, reading from
the record, that the quantity of halothane used in the operation is one percent (1%)
delivered at time intervals of 15 minutes. He studiedly mentions – the
concentration of halothane as reflected in the anesthesia record (Annex D of the
complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute
increments for halothane is an indication that only 1% halothane is being delivered
to the patient Gerard Gercayo for his entire operation; The amount of halothane
delivered in this case which is only one percent cannot be summated because
halothane is constantly being rapidly eliminated by the body during the entire
operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued that the
volte-face of Dr. Vertido on the question of the dosage of the anesthetic used on
the child would not really validate the non-guilt of the anesthesiologist. Led to
agree that the halothane used was not 100% as initially believed, he was
nonetheless unaware of the implications of the change in his testimony. The court
observed that Dr. Vertido had described the condition of the child as hypoxia which
is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All the
symptoms attributed to a failing central nervous system such as stupor, loss of
consciousness, decrease in heart rate, loss of usual acuity and abnormal motor
function, are manifestations of this condition or syndrome. But why would there be
deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the
court, whether oxygen or halothane was the object of mistake, the detrimental
effects of the operation are incontestable, and they can only be led to one
conclusion – if the application of anesthesia was really closely monitored, the event
could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond
reasonable doubt because the circumstances cited by the CA were insufficient to
establish that Dr. Solidum had been guilty of inexcusable lack of precaution in
monitoring the administration of the anesthetic agent to Gerald. The Court aptly
explained in Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of precaution" in
the treatment of his patient is to be determined according to the standard of care
observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case,
a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training,
care and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably competent doctor would use
to treat a condition under the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the treatment and
care falls below such standard. Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to
support the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of negligence,
there must be proof of breach of duty on the part of the surgeon as well as a causal
connection of such breach and the resulting death of his patient. In Chan Lugay v. St
Luke's Hospital, Inc., where the attending physician was absolved of liability for the
death of the complainant’s wife and newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be shown
that the ‘injury for which recovery is sought must be the legitimate consequence of
the wrong done; the connection between the negligence and the injury must be a
direct and natural sequence of events, unbroken by intervening efficient causes.’ In
other words, the negligence must be the proximate cause of the injury. For,
‘negligence, no matter in what it consists, cannot create a right of action unless it is
the proximate cause of the injury complained of.’ And ‘the proximate cause of an
injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would
not have occurred.’"
An action upon medical negligence – whether criminal, civil or administrative – calls
for the plaintiff to prove by competent evidence each of the following four
elements, namely: (a) the duty owed by the physician to the patient, as created by
the physician-patient relationship, to act in accordance with the specific norms or
standards established by his profession; (b) the breach of the duty by the
physician’s failing to act in accordance with the applicable standard of care; (3) the
causation, i.e., there must be a reasonably close and causal connection between the
negligent act or omission and the resulting injury; and (4) the damages suffered by
the patient.36
32
LEGMED (IV. Medical Negligence cases)
In the medical profession, specific norms or standards to protect the patient against
unreasonable risk, commonly referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no clear definition of the
duty of a particular physician in a particular case exists. Because most medical
malpractice cases are highly technical, witnesses with special medical qualifications
must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be
determined from expert testimony in most cases; and in the case of a specialist (like
an anesthesiologist), the standard of care by which the specialist is judged is the
care and skill commonly possessed and exercised by similar specialists under similar
circumstances. The specialty standard of care may be higher than that required of
the general practitioner.37
The standard of care is an objective standard by which the conduct of a physician
sued for negligence or malpractice may be measured, and it does not depend,
therefore, on any individual physician’s own knowledge either. In attempting to fix
a standard by which a court may determine whether the physician has properly
performed the requisite duty toward the patient, expert medical testimony from
both plaintiff and defense experts is required. The judge, as the trier of fact,
ultimately determines the standard of care, after listening to the testimony of all
medical experts.38
Here, the Prosecution presented no witnesses with special medical qualifications in
anesthesia to provide guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not impossible, to determine
whether the first three elements of a negligence and malpractice action were
attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist
himself who served as the Chairman of the Committee on Ethics and Malpractice of
the Philippine Society of Anesthesiologists that investigated the complaint against
Dr. Solidum, his testimony mainly focused on how his Committee had conducted
the investigation.39 Even then, the report of his Committee was favorable to Dr.
Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old male who
underwent a pull-thru operation and was administered general anesthesia by a
team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the
anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof
was the triggering of the vago-vagal reflex, administered atropine to block it but
despite the administration of the drug in two doses, cardiac arrest ensued. As the
records show, prompt resuscitative measures were administered and spontaneous
cardiac function re-established in less than five (5) minutes and that oxygen was
continuously being administered throughout, unfortunately, as later become
manifest, patient suffered permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration of
anaesthesia, the committee find that the same were all in accordance with the
universally accepted standards of medical care and there is no evidence of any fault
or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of
Investigation, was also presented as a Prosecution witness, but his testimony
concentrated on the results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction of
Anesthesia and in this case, halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after one
hour and 45 minutes after the operation, the patient experienced a bradycardia or
slowing of heart rate, now as a doctor, would you be able to tell this Honorable
Court as to what cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a
bradycardia of time because is some reason one way or another that might caused
bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility,
we’re talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the slowing
of heart rate, now what is the immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why there is slowing of the heart
rate is when you do a vagal reflex in the neck wherein the vagal receptors are
located at the lateral part of the neck, when you press that, you produce the
slowing of the heart rate that produce bradycardia.
33
LEGMED (IV. Medical Negligence cases)
Q I am pro[p]ounding to you another question doctor, what about the deficiency in
the supply of oxygen by the patient, would that also cause the slowing of the heart
rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a
hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is
to pump or to do not a bradycardia but a … to counter act the Hypoxia that is being
experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using
100% halothane and other anesthetic medications probably were contributory to
the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his
interpretation of the anesthesia record and the factors that could have caused
Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read
to this Honorable court your last paragraph and if you will affirm that as if it is
correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be
contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will
you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0,
will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable
Court and even to this representation the word "one hundred" or 1-0-0 and then
call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there
is, you just call me and even the attention of the Presiding Judge of this Court. Okay,
you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and
100 figures, tell me, yes or no?
WITNESS I’m trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the fiscal, that the
percentage here that the Halothane administered by Dr. Solidum to the patient is
1% only so may we request that this portion, temporarily your Honor, we are
marking this anesthesia record as our Exhibit 1 and then this 1% Halothane also be
bracketed and the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are so
many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that contributed
to what you call hypoxia and according to you, when this Gerald suffered hypoxia,
there are other factors that might lead to this Hypoxia at the time of this operation
is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might
be due to operations being conducted by the doctor at the time when the
operation is being done might also contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
34
LEGMED (IV. Medical Negligence cases)
Q In other words, when you say major operation conducted to this Gerald, there is
a possibility that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s
operation for his imperforate anus, considered a major operation, had exposed him
to the risk of suffering the same condition.43 He then corrected his earlier finding
that 100% halothane had been administered on Gerald by saying that it should be
100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate properly the
levels of anesthesia administered to said Gerald Albert Gercayo and using 100%
halothane and other anesthetic medications."45However, the foregoing
circumstances, taken together, did not prove beyond reasonable doubt that Dr.
Solidum had been recklessly imprudent in administering the anesthetic agent to
Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other
factors related to Gerald’s major operation, which could or could not necessarily be
attributed to the administration of the anesthesia, had caused the hypoxia and had
then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his
report, instead, that "although the anesthesiologist followed the normal routine
and precautionary procedures, still hypoxia and its corresponding side effects did
occur."46
The existence of the probability about other factors causing the hypoxia has
engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s guilt,
and moves us to acquit him of the crime of reckless imprudence resulting to serious
physical injuries. "A reasonable doubt of guilt," according to United States v.
Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a
captious doubt; not a doubt engendered merely by sympathy for the unfortunate
position of the defendant, or a dislike to accept the responsibility of convicting a
fellow man. If, having weighed the evidence on both sides, you reach the conclusion
that the defendant is guilty, to that degree of certainty as would lead you to act on
the faith of it in the most important and crucial affairs of your life, you may properly
convict him. Proof beyond reasonable doubt is not proof to a mathematical
demonstration. It is not proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately exempt
him from civil liability.1âwphi1 But we cannot now find and declare him civilly liable
because the circumstances that have been established here do not present the
factual and legal bases for validly doing so. His acquittal did not derive only from
reasonable doubt. There was really no firm and competent showing how the injury
to Gerard had been caused. That meant that the manner of administration of the
anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused
the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly
liable would be to speculate on the cause of the hypoxia. We are not allowed to do
so, for civil liability must not rest on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we have to
address the unusual decree of the RTC, as affirmed by the CA, of expressly holding
Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree
was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is
deemed instituted with the criminal action refers only to that arising from the
offense charged.48 It is puzzling, therefore, how the RTC and the CA could have
adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng Maynila, being an artificial entity,
had not been charged along with Dr. Solidum. The lower courts thereby acted
capriciously and whimsically, which rendered their judgment against Ospital ng
Maynila void as the product of grave abuse of discretion amounting to lack of
jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the RTC and
the CA overlooked. We deem it important, then, to express the following
observations for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its
fundamental right to be heard was not respected from the outset. The R TC and the
CA should have been alert to this fundamental defect. Verily, no person can be
prejudiced by a ruling rendered in an action or proceeding in which he was not
made a party. Such a rule would enforce the constitutional guarantee of due
process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary
liability would be properly enforceable pursuant to Article 103 of the Revised Penal
Code. But the subsidiary liability seems far-fetched here. The conditions for
35
LEGMED (IV. Medical Negligence cases)
subsidiary liability to attach to Ospital ng Maynila should first be complied with.
Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must
be shown to be a corporation "engaged in any kind of industry." The term industry
means any department or branch of art, occupation or business, especially one that
employs labor and capital, and is engaged in industry.49 However, Ospital ng
Maynila, being a public hospital, was not engaged in industry conducted for profit
but purely in charitable and humanitarian work.50 Secondly, assuming that Ospital
ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an
employee of Ospital ng Maynila acting in the discharge of his duties during the
operation on Gerald. Yet, he definitely was not such employee but a consultant of
the hospital. And, thirdly, assuming that civil liability was adjudged against Dr.
Solidum as an employee (which did not happen here), the execution against him
was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES
AND SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr.
Fernando P. Solidum of the crime of reckless imprudence resulting to serious
physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.

36
LEGMED (IV. Medical Negligence cases)
6.) Republic of the Philippines
Supreme Court
Manila
SECOND DIVISION
RICO ROMMEL ATIENZA,
Petitioner,
- versus -
BOARD OF MEDICINE and EDITHA SIOSON,
Respondents.
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the Decision[1] dated September 22, 2006 of the Court of Appeals (CA) in
CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner
Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders[2] issued by
public respondent Board of Medicine (BOM) in Administrative Case No. 1882.
The facts, fairly summarized by the appellate court, follow.
Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical
Center (RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same
problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered
several diagnostic laboratory tests. The tests revealed that her right kidney is
normal. It was ascertained, however, that her left kidney is non-functioning and
non-visualizing. Thus, she underwent kidney operation in September, 1999.
On February 18, 2000, private respondents husband, Romeo Sioson (as
complainant), filed a complaint for gross negligence and/or incompetence before
the [BOM] against the doctors who allegedly participated in the fateful kidney
operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio
Florendo and petitioner Rico Rommel Atienza.
G.R. No. 177407
It was alleged in the complaint that the gross negligence and/or incompetence
Present: committed by the said doctors, including petitioner, consists of the removal of
NACHURA, private respondents fully functional right kidney, instead of the left non-functioning
Acting Chairperson, and non-visualizing kidney.
PERALTA,
DEL CASTILLO,* The complaint was heard by the [BOM]. After complainant Romeo Sioson presented
VILLARAMA, JR.,** and his evidence, private respondent Editha Sioson, also named as complainant there,
MENDOZA, JJ. filed her formal offer of documentary evidence. Attached to the formal offer of
documentary evidence are her Exhibits A to D, which she offered for the purpose of
Promulgated: proving that her kidneys were both in their proper anatomical locations at the time
she was operated. She described her exhibits, as follows:
February 9, 2011
EXHIBIT A the certified photocopy of the X-ray Request form dated December 12,
1996, which is also marked as Annex 2 as it was actually originally the Annex to x x x
Dr. Pedro Lantin, IIIs counter affidavit filed with the City Prosecutor of Pasig City in
connection with the criminal complaint filed by [Romeo Sioson] with the said office,
on which are handwritten entries which are the interpretation of the results of the
ultrasound examination. Incidentally, this exhibit happens to be the same as or
identical to the certified photocopy of the document marked as Annex 2 to the
Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May
4, 2000, with this Honorable Board in answer to this complaint;
EXHIBIT B the certified photo copy of the X-ray request form dated January 30,
1997, which is also marked as Annex 3 as it was actually likewise originally an Annex
to x x x Dr. Pedro Lantin, IIIs counter-affidavit filed with the Office of the City
Prosecutor of Pasig City in connection with the criminal complaint filed by the
herein complainant with the said office, on which are handwritten entries which are
the interpretation of the results of the examination. Incidentally, this exhibit
happens to be also the same as or identical to the certified photo copy of the
document marked as Annex 3 which is likewise dated January 30, 1997, which is
appended as such Annex 3 to the counter-affidavit dated March 15, 2000, filed by x
x x Dr. Pedro Lantin, III on May 4, 2000, with this Honorable Board in answer to this
complaint.
EXHIBIT C the certified photocopy of the X-ray request form dated March 16, 1996,
which is also marked as Annex 4, on which are handwritten entries which are the
interpretation of the results of the examination.
37
LEGMED (IV. Medical Negligence cases)
EXHIBIT D the certified photocopy of the X-ray request form dated May 20, 1999,
which is also marked as Annex 16, on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit appears to
be the draft of the typewritten final report of the same examination which is the
document appended as Annexes 4 and 1 respectively to the counter-affidavits filed
by x x x Dr. Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In
the case of Dr. dela Vega however, the document which is marked as Annex 4 is not
a certified photocopy, while in the case of Dr. Lantin, the document marked as
Annex 1 is a certified photocopy. Both documents are of the same date and
typewritten contents are the same as that which are written on Exhibit D.
Petitioner filed his comments/objections to private respondents [Editha Siosons]
formal offer of exhibits. He alleged that said exhibits are inadmissible because the
same are mere photocopies, not properly identified and authenticated, and
intended to establish matters which are hearsay. He added that the exhibits are
incompetent to prove the purpose for which they are offered.
Dispositions of the Board of Medicine
The formal offer of documentary exhibits of private respondent [Editha Sioson] was
admitted by the [BOM] per its Order dated May 26, 2004. It reads:
The Formal Offer of Documentary Evidence of [Romeo Sioson], the
Comments/Objections of [herein petitioner] Atienza, [therein respondents] De la
Vega and Lantin, and the Manifestation of [therein] respondent Florendo are
hereby ADMITTED by the [BOM] for whatever purpose they may serve in the
resolution of this case.
Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the
evidence of the respondents.
SO ORDERED.
Petitioner moved for reconsideration of the abovementioned Order basically on the
same reasons stated in his comment/objections to the formal offer of exhibits.
The [BOM] denied the motion for reconsideration of petitioner in its Order dated
October 8, 2004. It concluded that it should first admit the evidence being offered
so that it can determine its probative value when it decides the case. According to
the Board, it can determine whether the evidence is relevant or not if it will take a
look at it through the process of admission. x x x.[3]
Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition
for certiorari with the CA, assailing the BOMs Orders which admitted Editha Siosons
(Edithas) Formal Offer of Documentary Evidence. The CA dismissed the petition
for certiorari for lack of merit.
Hence, this recourse positing the following issues:
I. PROCEDURAL ISSUE:
WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED
THE PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF
APPEALS UNDER RULE 65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED
26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD.
II. SUBSTANTIVE ISSUE:
WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND
DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW
AND THE APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE
ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT
BOARD, WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE A
PROPERTY RIGHT OR ONES LIVELIHOOD.[4]
We find no reason to depart from the ruling of the CA.
Petitioner is correct when he asserts that a petition for certiorari is the proper
remedy to assail the Orders of the BOM, admitting in evidence the exhibits of
Editha. As the assailed Orders were interlocutory, these cannot be the subject of an
appeal separate from the judgment that completely or finally disposes of the
case.[5] At that stage, where there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, the only and remaining remedy left to
petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the
ground of grave abuse of discretion amounting to lack or excess of jurisdiction.
However, the writ of certiorari will not issue absent a showing that the BOM has
acted without or in excess of jurisdiction or with grave abuse of discretion.
Embedded in the CAs finding that the BOM did not exceed its jurisdiction or act in
grave abuse of discretion is the issue of whether the exhibits of Editha contained in
her Formal Offer of Documentary Evidence are inadmissible.
Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate
the best evidence rule; (2) have not been properly identified and authenticated; (3)
are completely hearsay; and (4) are incompetent to prove their purpose. Thus,
petitioner contends that the exhibits are inadmissible evidence.
38
LEGMED (IV. Medical Negligence cases)
We disagree.
To begin with, it is well-settled that the rules of evidence are not strictly applied in
proceedings before administrative bodies such as the BOM. [6] Although trial courts
are enjoined to observe strict enforcement of the rules of evidence, [7] in connection
with evidence which may appear to be of doubtful relevancy, incompetency, or
admissibility, we have held that:
[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical
grounds, but admitting them unless plainly irrelevant, immaterial or incompetent,
for the reason that their rejection places them beyond the consideration of the
court, if they are thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent, can easily be
remedied by completely discarding them or ignoring them.[8]
From the foregoing, we emphasize the distinction between the admissibility of
evidence and the probative weight to be accorded the same pieces of
evidence. PNOC Shipping and Transport Corporation v. Court of Appeals[9] teaches:
Admissibility of evidence refers to the question of whether or not the circumstance
(or evidence) is to be considered at all. On the other hand, the probative value of
evidence refers to the question of whether or not it proves an issue.
Second, petitioners insistence that the admission of Edithas exhibits violated his
substantive rights leading to the loss of his medical license is misplaced. Petitioner
mistakenly relies on Section 20, Article I of the Professional Regulation Commission
Rules of Procedure, which reads:
Section 20. Administrative investigation shall be conducted in accordance with
these Rules. The Rules of Court shall only apply in these proceedings by analogy or
on a suppletory character and whenever practicable and convenient. Technical
errors in the admission of evidence which do not prejudice the substantive rights of
either party shall not vitiate the proceedings.[10]
As pointed out by the appellate court, the admission of the exhibits did not
prejudice the substantive rights of petitioner because, at any rate, the fact sought
to be proved thereby, that the two kidneys of Editha were in their proper
anatomical locations at the time she was operated on, is presumed under Section 3,
Rule 131 of the Rules of Court:
Sec. 3. Disputable presumptions. The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
xxxx
(y) That things have happened according to the ordinary course of nature and the
ordinary habits of life.
The exhibits are certified photocopies of X-ray Request Forms dated December 12,
1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with
Edithas medical case. The documents contain handwritten entries interpreting the
results of the examination. These exhibits were actually attached as annexes to Dr.
Pedro Lantin IIIs counter affidavit filed with the Office of the City Prosecutor of
Pasig City, which was investigating the criminal complaint for negligence filed by
Editha against the doctors of Rizal Medical Center (RMC) who handled her surgical
procedure. To lay the predicate for her case, Editha offered the exhibits in evidence
to prove that her kidneys were both in their proper anatomical locations at the time
of her operation.
The fact sought to be established by the admission of Edithas exhibits, that her
kidneys were both in their proper anatomical locations at the time of her operation,
need not be proved as it is covered by mandatory judicial notice. [11]
Unquestionably, the rules of evidence are merely the means for ascertaining the
truth respecting a matter of fact.[12] Thus, they likewise provide for some facts
which are established and need not be proved, such as those covered by judicial
notice, both mandatory and discretionary.[13] Laws of nature involving the physical
sciences, specifically biology,[14] include the structural make-up and composition of
living things such as human beings. In this case, we may take judicial notice that
Edithas kidneys before, and at the time of, her operation, as with most human
beings, were in their proper anatomical locations.
Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable.
Section 3 of Rule 130 provides:
1. Best Evidence Rule
Sec. 3. Original document must be produced; exceptions. When the subject of
inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
39
LEGMED (IV. Medical Negligence cases)
(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable
notice;

(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.

The subject of inquiry in this case is whether respondent doctors before the BOM
are liable for gross negligence in removing the right functioning kidney of Editha
instead of the left non-functioning kidney, not the proper anatomical locations of
Edithas kidneys. As previously discussed, the proper anatomical locations of Edithas
kidneys at the time of her operation at the RMC may be established not only
through the exhibits offered in evidence.

Finally, these exhibits do not constitute hearsay evidence of the anatomical

locations of Edithas kidneys. To further drive home the point, the anatomical
positions, whether left or right, of Edithas kidneys, and the removal of one or both,
may still be established through a belated ultrasound or x-ray of her abdominal
area.

In fact, the introduction of secondary evidence, such as copies of the exhibits, is

allowed.[15] Witness Dr. Nancy Aquino testified that the Records Office of RMC no
longer had the originals of the exhibits because [it] transferred from the previous
building, x x x to the new building.[16] Ultimately, since the originals cannot be
produced, the BOM properly admitted Edithas formal offer of evidence and,
thereafter, the BOM shall determine the probative value thereof when it decides
the case.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-
G.R. SP No. 87755 is AFFIRMED. Costs against petitioner.

SO ORDERED.

40
LEGMED (IV. Medical Negligence cases)
7.) Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 167366 September 26, 2012
DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners,
vs.
COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R.
SERRANO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules
of Court seeking the annulment and setting aside of the 21 February 2005
decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed
decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC),
Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr.
Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.
Culled from the records are the following antecedent facts:
At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere
(Raymond), a victim of a stabbing incident, was rushed to the emergency room of
the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by
Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) — the
emergency room resident physician.
Subsequently, the parents of Raymond—the spouses Deogenes Olavere (Deogenes)
and Fe R. Serrano—arrived at the BRMC. They were accompanied by one Andrew
Olavere, the uncle of Raymond.
After extending initial medical treatment to Raymond, Dr. Realuyo recommended
that the patient undergo "emergency exploratory laparotomy." Dr. Realuyo then
requested the parents of Raymond to procure 500 cc of type "O" blood needed for
the operation. Complying with the request, Deogenes and Andrew Olavere went to
the Philippine National Red Cross to secure the required blood.
At 10:30 P.M., Raymond was wheeled inside the operating room. During that time,
the hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim
Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr.
Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr.
Tatad also happened to be the head of Anesthesiology Department of the BRMC.
Just before the operation on Maluluy-on was finished, another emergency case
involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the
operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time,
however, Dr. Tatad was already working with the obstetricians who will perform
surgery on Lilia Aguila. There being no other available anesthesiologist to assist
them, Drs. Zafe and Cereno decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they
found that the latter’s blood pressure was normal and "nothing in him was
significant."3 Dr. Cereno reported that based on the xray result he interpreted, the
fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag
containing the requested 500 cc type "O" blood. They handed over the bag of blood
to Dr. Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners
immediately started their operation on Raymond at around 12:15 A.M. of 17
September 1995. Upon opening of Raymond’s thoracic cavity, they found that 3,200
cc of blood was stocked therein. The blood was evacuated and petitioners found a
puncture at the inferior pole of the left lung.
In his testimony, Dr. Cereno stated that considering the loss of blood suffered by
Raymond, he did not immediately transfuse blood because he had to control the
bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the
operation was on-going, Raymond suffered a cardiac arrest. The operation ended at
1:50 A.M. and Raymond was pronounced dead at 2:30 A.M.
Raymond’s death certificate5 indicated that the immediate cause of death was
"hypovolemic shock" or the cessation of the functions of the organs of the body due
to loss of blood.6
Claiming that there was negligence on the part of those who attended to their son,
the parents of Raymond, on 25 October 1995, filed before the RTC, Branch 22, Naga
City a complaint for damages7 against Nurse Balares, Dr. Realuyo and attending
surgeons Dr. Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own behalf. They also
presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of
Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security
41
LEGMED (IV. Medical Negligence cases)
Guard Diego Reposo testified for the defense. On rebuttal, the parents of Raymond
presented Dr. Tatad, among others.
On 15 October 1999, the trial court rendered a decision8 the dispositive portion of
which reads:
WHEREFORE, premises considered, this Court hereby renders judgment:
1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of
merit;
2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of
Raymond Olavere, jointly and severally the following amounts:
1. ₱ 50,000.00 for the death of the victim;
2. ₱ 150,000.00 as moral damages;
3. ₱ 100,000.00 as exemplary damages;
4. ₱ 30,000.00 for attorney’s fees; and
5. Cost of suit.9
x x x x.
The trial court found petitioners negligent in not immediately conducting surgery
on Raymond. It noted that petitioners have already finished operating on Charles
Maluluy-on as early as 10:30 in the evening, and yet they only started the operation
on Raymond at around 12:15 early morning of the following day. The trial court
held that had the surgery been performed promptly, Raymond would not have lost
so much blood and, therefore, could have been saved. 10
The trial court also held that the non-availability of Dr. Tatad after the operation on
Maluluy-on was not a sufficient excuse for the petitioners to not immediately
operate on Raymond. It called attention to the testimony of Dr. Tatad herself, which
disclosed the possibility of calling a standby anesthesiologist in that situation. The
trial court opined that the petitioners could have just requested for the standby
anesthesiologist from Dr. Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on
Raymond.
On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the
judgment rendered by the RTC finding herein petitioners guilty of gross negligence
in the performance of their duties and awarding damages to private respondents.
Hence, this petition for review on certiorari under Rule 45 of the Rules of Court
assailing the CA decision on the following grounds:
1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN
THE PERFORMANCE OF THEIR DUTIES;
2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL
CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD
PETITIONERS BE FOUND LIABLE FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY
DAMAGES AS WELL AS ATTORNEY’S FEES EXORBITANT OR EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of Court, only questions of law may
be raised. The reason behind this is that this Court is not a trier of facts and will not
re-examine and re-evaluate the evidence on record.11 Factual findings of the CA,
affirming that of the trial court, are therefore generally final and conclusive on this
Court. This rule is subject to the following exceptions: (1) the conclusion is
grounded on speculations, surmises or conjectures; (2) the inference is manifestly
mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the findings of fact are
conflicting; (6) there is no citation of specific evidence on which the factual findings
are based; (7) the findings of absence of fact are contradicted by the presence of
evidence on record; (8) the findings of the CA are contrary to those of the trial
court; (9) the CA manifestly overlooked certain relevant and undisputed facts that,
if properly considered, would justify a different conclusion; (10) the findings of the
CA are beyond the issues of the case; and (11) such findings are contrary to the
admissions of both parties.12 In this case, We find exceptions (1) and (4) to be
applicable.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or
that he or she did something that a reasonably prudent provider would not have
done; and that the failure or action caused injury to the patient.13 Stated
otherwise, the complainant must prove: (1) that the health care provider, either by
his act or omission, had been negligent, and (2) that such act or omission
proximately caused the injury complained of.
The best way to prove these is through the opinions of expert witnesses belonging
in the same neighborhood and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the expert opinion of qualified
physicians stems from the former’s realization that the latter possess unusual
technical skills which laymen in most instances are incapable of intelligently
evaluating, hence, the indispensability of expert testimonies.14
42
LEGMED (IV. Medical Negligence cases)
Guided by the foregoing standards, We dissect the issues at hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of the petitioners by their failure
to perform the operation on Raymond immediately after finishing the Maluluy-on
operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court
relied on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the
possibility that a standby anesthesiologist could have been called upon. The
pertinent portions of the testimony of Dr. Tatad provides:
Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?
A: We have a protocol at the Bicol Medical Center to have a consultant who is on
call.
Q: How many of them?
A: One.
Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency case to be attended to in the
Bicol Medical Center?
A: Yes sir.15
Dr. Tatad further testified:
Q: Alright (sic), considering that you said you could not attend to Raymond Olavere
because another patient was coming in the person of Lilia Aguila, did you not
suggest to Dr. Cereno to call the standby anesthesiologist?
A: They are not ones to do that. They have no right to call for the standby
anesthesiologist.
Q: Then, who should call for the standby anesthesiologist?
A: It is me if the surgeon requested.
Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.
Q: I just want to know that in this case the surgeon did not request you to call for
the standby anesthesiologist?
A: No sir.16
From there, the trial court concluded that it was the duty of the petitioners to
request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since
petitioners failed to do so, their inability to promptly perform the operation on
Raymond becomes negligence on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the
record for that matter, which shows that the petitioners were aware of the "BRMC
protocol" that the hospital keeps a standby anesthesiologist available on call.
Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves that
any such "BRMC protocol" is being practiced by the hospital’s surgeons at all.
Evidence to the effect that petitioners knew of the "BRMC protocol" is essential,
especially in view of the contrary assertion of the petitioners that the matter of
assigning anesthesiologists rests within the full discretion of the BRMC
Anesthesiology Department. Without any prior knowledge of the "BRMC protocol,"
We find that it is quite reasonable for the petitioners to assume that matters
regarding the administration of anesthesia and the assignment of anesthesiologists
are concerns of the Anesthesiology Department, while matters pertaining to the
surgery itself fall under the concern of the surgeons. Certainly, We cannot hold
petitioners accountable for not complying with something that they, in the first
place, do not know.
Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and
that petitioners knew about it, We find that their failure to request for the
assistance of the standby anesthesiologist to be reasonable when taken in the
proper context. There is simply no competent evidence to the contrary.
From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for
a standby anaesthesiologist is not within the full discretion of petitioners. The
"BRMC protocol" described in the testimony requires the petitioners to course such
request to Dr. Tatad who, as head of the Department of Anesthesiology, has the
final say of calling the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad
was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then
proceeded to examine Raymond and they found that the latter’s blood pressure
was normal and "nothing in him was significant."17 Dr. Cereno even concluded that
based on the x-ray result he interpreted, the fluid inside the thoracic cavity of
Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe
were never challenged and were unrebutted.
Given that Dr. Tatad was already engaged in another urgent operation and that
Raymond was not showing any symptom of suffering from major blood loss
requiring an immediate operation, We find it reasonable that petitioners decided to
wait for Dr. Tatad to finish her surgery and not to call the standby anesthesiologist
anymore. There is, after all, no evidence that shows that a prudent surgeon faced
with similar circumstances would decide otherwise.
Here, there were no expert witnesses presented to testify that the course of action
taken by petitioners were not in accord with those adopted by other reasonable
43
LEGMED (IV. Medical Negligence cases)
surgeons in similar situations. Neither was there any testimony given, except that of
Dr. Tatad’s, on which it may be inferred that petitioners failed to exercise the
standard of care, diligence, learning and skill expected from practitioners of their
profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of
surgical practices and diagnoses. Her expertise is in the administration of anesthesia
and not in the determination of whether surgery ought or not ought to be
performed.
Another ground relied upon by the trial court in holding petitioners negligent was
their failure to immediately transfuse blood on Raymond. Such failure allegedly led
to the eventual death of Raymond through "hypovolemic shock." The trial court
relied on the following testimony of Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused to him while he was inside
the operating room?
A: The blood arrived at 1:40 a.m. and that was the time when this blood was
hooked to the patient.
xxxx
Q: Prior to the arrival of the blood, you did not request for blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
xxxx
A: 9:30.
xxxx
Q: Had this blood been given to you before the operation you could have
transfused the blood to the patient?
A: Of course, yes.
Q: And the blood was transfused only after the operation?
A: Because that was the time when the blood was given to us.
xxxx
Q: Have you monitored the condition of Raymond Olavere?
A: I monitored the condition during the time when I would administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have been in critical
condition?
A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that
blood was already needed.
Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did
not decide on transfusing blood to him?
A: I was asking for blood but there was no blood available.
Q: From whom did you ask?
A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for cross-
matching.18
From the aforesaid testimony, the trial court ruled that there was negligence on the
part of petitioners for their failure to have the blood ready for transfusion. It was
alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by
Raymond’s parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30
minutes had passed. Yet, the blood was not ready for transfusion as it was still
being cross-matched.19 It took another two hours before blood was finally
transfused to Raymond at 1:40 A.M. of 17 September 1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood, if there was any, cannot
be attributed as the fault of the petitioners. The petitioners were never shown to
be responsible for such delay. It is highly unreasonable and the height of injustice if
petitioners were to be sanctioned for lapses in procedure that does not fall within
their duties and beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent
delay in the transfusion of blood on Raymond before and during the operation.
Before the operation, Dr. Cereno explained that the reason why no blood
transfusion was made on Raymond was because they did not then see the need to
administer such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the operation you were informed
that there was 500 cc of blood available and was still to be cross-matched. What
time was that when you were informed that 500 cc of blood was due for
crossmatching?
A: I am not sure of the time.
Q: But certainly, you learned of that fact that there was 500 cc of blood, which was
due for crossmatching immediately prior to the operation?
A: Yes, sir.
Q: And the operation was done at 12:15 of September 17?
A: Yes, sir.
Q: And that was the reason why you could not use the blood because it was being
crossmatched?
A: No, sir. That was done only for a few minutes. We did not transfuse at that time
because there was no need. There is a necessity to transfuse blood when we saw
there is gross bleeding inside the body. 20 (Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was already able to discover
that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the
44
LEGMED (IV. Medical Negligence cases)
puncture in the latter’s left lung. Even then, however, immediate blood transfusion
was not feasible because:
Q: Now considering the loss of blood suffered by Raymund Olavere, why did you
not immediately transfuse blood to the patient and you waited for 45 minutes to
elapse before transfusing the blood?
A: I did not transfuse blood because I had to control the bleeders. If you will
transfuse blood just the same the blood that you transfuse will be lost. After
evacuation of blood and there is no more bleeding…
Q: It took you 45 minutes to evacuate the blood?
A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only transfuse blood after 45
minutes?
A: We have to look for some other lesions. It does not mean that when you slice
the chest you will see the lesions already.21
(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted.
The parents of Raymond were not able to present any expert witness to dispute the
course of action taken by the petitioners.
The Court understands the parents’ grief over their son’s death.1âwphi1 That
notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who
was a victim of a stabbing incident, had multiple wounds when brought to the
hospital. Upon opening of his thoracic cavity, it was discovered that there was gross
bleeding inside the body. Thus, the need for petitioners to control first what was
causing the bleeding. Despite the situation that evening i.e. numerous patients
being brought to the hospital for emergency treatment considering that it was the
height of the Peñafrancia Fiesta, it was evident that petitioners exerted earnest
efforts to save the life of Raymond. It was just unfortunate that the loss of his life
was not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special
law. They are not guarantors of care. They do not even warrant a good result. They
are not insurers against mishaps or unusual consequences. Furthermore, they are
not liable for honest mistake of judgment…"23
This Court affirms the ruling of the CA that the BRMC is not an indispensible party.
The core issue as agreed upon by the parties and stated in the pre-trial order is
whether petitioners were negligent in the performance of their duties. It pertains to
acts/omissions of petitioners for which they could be held liable. The cause of
action against petitioners may be prosecuted fully and the determination of their
liability may be arrived at without impleading the hospital where they are
employed. As such, the BRMC cannot be considered an indispensible party without
whom no final determination can be had of an action.24

Causation Not Proven IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is
hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CA-G.R.
In medical negligence cases, it is settled that the complainant has the burden of CV No. 65800 is hereby REVERSED and SET ASIDE. No costs.
establishing breach of duty on the part of the doctors or surgeons. It must be
proven that such breach of duty has a causal connection to the resulting death of SO ORDERED.
the patient.22 A verdict in malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability
based upon competent expert testimony.

The parents of Raymond failed in this respect. Aside from their failure to prove
negligence on the part of the petitioners, they also failed to prove that it was
petitioners’ fault that caused the injury. Their cause stands on the mere assumption
that Raymond’s life would have been saved had petitioner surgeons immediately
operated on him; had the blood been cross-matched immediately and had the
blood been transfused immediately. There was, however, no proof presented that
Raymond’s life would have been saved had those things been done. Those are mere
assumptions and cannot guarantee their desired result. Such cannot be made basis
of a decision in this case, especially considering that the name, reputation and
career of petitioners are at stake.

45
LEGMED (IV. Medical Negligence cases)
8.) Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates and lives to the skill of their
doctors. For a breach of this trust, men have been quick to demand retribution.
Some 4,000 years ago, the Code of Hammurabi1 then already provided: "If a
physician make a deep incision upon a man with his bronze lancet and cause the
man's death, or operate on the eye socket of a man with his bronze lancet and
destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
Hippocrates3wrote what was to become part of the healer's oath: "I will follow that
method of treatment which according to my ability and judgment, I consider for the
benefit of my patients, and abstain from whatever is deleterious and mischievous. .
. . While I continue to keep this oath unviolated may it be granted me to enjoy life
and practice the art, respected by all men at all times but should I trespass and
violate this oath, may the reverse be my lot." At present, the primary objective of
the medical profession if the preservation of life and maintenance of the health of
the people.4
Needless to say then, when a physician strays from his sacred duty and endangers
instead the life of his patient, he must be made to answer therefor. Although
society today cannot and will not tolerate the punishment meted out by the
ancients, neither will it and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in
CA-G.R. CV No. 30851, which reversed the decision6 of 21 December 1990 of Branch
30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital,
Dumaguete City from January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as
the latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris
Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed a simple caesarean
section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that
morning. Thereafter, Plaintiff remained confined at the Hospital until September
27, 1988 during which period of confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and
on that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of
P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and
complained of being feverish. She also gradually lost her appetite, so she consulted
Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines. . .
which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on
October 31, 1988. . . certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas
returned to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end
despite the medications administered by Dr. Batiquin. When the pains became
unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at
the Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas
at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be
feverish, pale and was breathing fast. Upon examination she felt an abdominal mass
one finger below the umbilicus which she suspected to be either a tumor of the
uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her
abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest
that Mrs. Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on each of the left and right ovaries which gave out
pus, dirt and pus behind the uterus, and a piece of rubber material on the right side
of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a "foreign body" looked like a
piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could
46
LEGMED (IV. Medical Negligence cases)
have been a torn section of a surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on
September 21, 1988.7
The piece of rubber allegedly found near private respondent Flotilde Villegas's
uterus was not presented in court, and although Dr. Ma. Salud Kho Testified that
she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in
the pathologist's Surgical Pathology Report.9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber
are a Medical Certificate,10 a Progress Record,11 an Anesthesia Record,12 a Nurse's
Record,13 and a Physician's Discharge Summary.14 The trial court, however,
regarded these documentary evidence as mere hearsay, "there being no showing
that the person or persons who prepared them are deceased or unable to testify on
the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), all the
above documents were allegedly prepared by persons other than Dr. Kho, and she
merely affixed her signature on some of them to express her agreement thereto. . .
."15 The trial court also refused to give weight to Dr. Kho's testimony regarding the
subject piece of rubber as Dr. Kho "may not have had first-hand knowledge"
thereof,16 as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was
rubber indeed but that she threw it away."18 This statement, the trial court noted,
was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending
"rubber" — (1) that it was sent to the Pathologist in Cebu as testified to in Court by
Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure
of the Plaintiffs to reconcile these two different versions serve only to weaken their
claim against Defendant Batiquin.19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even
without admitting the private respondents' documentary evidence, deemed Dr.
Kho's positive testimony to definitely establish that a piece of rubber was found
near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the
decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance
of evidence. The trial court itself had narrated what happened to appellant Flotilde
after the caesarean operation made by appellee doctor. . . . After the second
operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles
were caused by the infection due to the "rubber" that was left inside her abdomen.
Both appellant; testified that after the operation made by appellee doctor, they did
not go to any other doctor until they finally decided to see another doctor in
January, 1989 when she was not getting any better under the care of appellee Dr.
Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand that she alone
decided when to close the operating area; that she examined the portion she
operated on before closing the same. . . Had she exercised due diligence, appellee
Dr. Batiquin would have found the rubber and removed it before closing the
operating area.20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's
fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that
saved her life.
For the miseries appellants endured for more than three (3) months, due to the
negligence of appellee Dr. Batiquin they are entitled to moral damages in the
amount of P100,000.00; exemplary damages in the amount of P20,000.00 and
attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and
ovaries were removed by Dr. Kho is not taken into consideration as it is not shown
that the removal of said organs were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is that the rubber left by appellee
caused infection, placed the life of appellant Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is
REVERSED and SET ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and
for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for
exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of
litigation.
SO ORDERED.21
From the above judgment, the petitioners appealed to this Court claiming that the
appellate court: (1) committed grave abuse of discretion by resorting to findings of
fact not supported by the evidence on record, and (2) exceeded its discretion,
47
LEGMED (IV. Medical Negligence cases)
amounting to lack or excess of jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact,
which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review
on certiorari, there are exceptions, among which are when the factual findings of
the trial court and the appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate court
misapprehended the facts.22
After deciphering the cryptic petition, we find that the focal point of the instant
appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the
Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn
out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber
was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e.,
that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the underscored phrase was taken out
of context by the trial court. According to the Court of Appeals, the trial court
should have likewise considered the other portions of Dr. Kho's testimony,
especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on the left and side and there was also an
ovarian cyst on the right which, on opening up or freeing it up from the uterus,
turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning up
the uterus, at the back of the uterus it was very dirty, it was full of pus. And there
was a [piece of] rubber, we found a [piece of] rubber on the right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial court does
not negate the fact that Dr. Kho saw a piece of rubber in private respondent
Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for
examination by a pathologist.25 Not even the Pathologist's Report, although devoid
of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr.
Kho's knowledge of the piece of rubber could not be based on other than first-hand
knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible27 but it carries no probative
value.28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie
the fact that Dr. Kho found a piece of rubber near private respondent Villegas's
uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber from private respondent
Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony
of a witness with respect to some facts and disbelieve his testimony with respect to
other facts. And it has been aptly said that even when a witness is found to have
deliberately falsified in some material particulars, it is not required that the whole
of his uncorroborated testimony be rejected, but such portions thereof deemed
worthy of belief may be credited.29
It is here worth noting that the trial court paid heed to the following portions of Dr.
Batiquin's testimony: that no rubber drain was used in the operation, 30 and that
there was neither any tear on Dr. Batiquin's gloves after the operation nor blood
smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed
out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr.
Batiquin's assistant during the operation on private respondent Villegas. 32 But the
trial court failed to recognize that the assertions of Drs. Batiquin and Sy were
denials or negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony.33 Of course, as the petitioners advocate, such
positive testimony must come from a credible source, which leads us to the second
assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's
testimony, a regarding of the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on
the witness stand. Furthermore, no motive to state any untruth was ever imputed
48
LEGMED (IV. Medical Negligence cases)
against Dr. Kho, leaving her trustworthiness unimpaired.34 The trial court's following
declaration shows that while it was critical of the lack of care with which Dr. Kho
handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus
only supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her
findings, but it can also be said that she did not take the most appropriate
precaution to preserve that "piece of rubber" as an eloquent evidence of what she
would reveal should there be a "legal problem" which she claim[s] to have
anticipated.35
Considering that we have assessed Dr. Kho to be a credible witness, her positive
testimony [that a piece of rubber was indeed found in private respondent Villega's
abdomen] prevails over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to
delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury
is shown to be under the management of the defendant, and the accident is such as
in the ordinary course of things does not happen in those who have the
management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference
that defendant was negligent, which arises upon proof that [the] instrumentality
causing injury was in defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a]
rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred
from [the] mere fact that [the] accident happened provided [the] character of [the]
accident and circumstances attending it lead reasonably to belief that in [the]
absence of negligence it would not have occurred and that thing which caused
injury is shown to have been under [the] management and control of [the] alleged
wrongdoer. . . . Under [this] doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and
that the occurrence [sic] was such that in the ordinary course of things would not
happen if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence. The
doctrine is not a rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to the facts and circumstances
of a particular case, is not intended to and does not dispense with the requirement
of proof of culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. The doctrine can be invoked
when and only when, under the circumstances involved, direct evidence is absent
and not readily available.36
In the instant case, all the requisites for recourse to the doctrine are present. First,
the entire proceedings of the caesarean section were under the exclusive control of
Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as
to the actual culprit or the exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to say, does not occur unless
through the intersection of negligence. Second, since aside from the caesarean
section, private respondent Villegas underwent no other operation which could
have caused the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the caesarean section
performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the doctrine of res ipsa loquitur.
Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in
private respondent Villegas's abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical
profession plays in the lives of the people,3 7 and the State's compelling interest to
enact measures to protect the public from "the potentially deadly effects of
incompetence and ignorance in those who would undertake to treat our bodies and
minds for disease or trauma."38 Indeed, a physician is bound to serve the interest of
his patients "with the greatest of solicitude, giving them always his best talent and
skill."39 Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in contravention of
the legal standards set forth for professionals, in general,40 and members of the
medical profession,41 in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-
G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
49
LEGMED (IV. Medical Negligence cases)
9.) FIRST DIVISION
G.R. No. 124354 April 11, 2002
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON
RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DR. PERFECTA GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for petitioner Erlinda Ramos’
comatose condition after she delivered herself to them for their professional care
and management.
For better understanding of the issues raised in private respondents’ respective
motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical
help, was advised to undergo an operation for the removal of a stone in her gall
bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed
to perform the operation on her. The operation was scheduled for June 17, 1985 at
9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC).
Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any
anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was
already being prepared for operation. Upon the request of petitioner Erlinda, her
sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the
Capitol Medical Center, was allowed to accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried
to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the
operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime,
the patient, petitioner Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor."
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio
already wanted to pull out his wife from the operating room. He met Dr. Garcia,
who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally
arrived at the hospital at around 12:10 in the afternoon, or more than three (3)
hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival.
While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the
patient. Cruz heard Dr. Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish discoloration of
Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct
someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient. The nailbeds of the patient remained
bluish, thus, she was placed in a trendelenburg position – a position where the head
of the patient is placed in a position lower than her feet. At this point, Cruz went
out of the operating room to express her concern to petitioner Rogelio that
Erlinda’s operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was still in
trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being
wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner
Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She
was released from the hospital only four months later or on November 15, 1985.
Since the ill-fated operation, Erlinda remained in comatose condition until she died
on August 3, 1999.1
Petitioners filed with the Regional Trial Court of Quezon City a civil case for
damages against private respondents. After due trial, the court a quo rendered
judgment in favor of petitioners. Essentially, the trial court found that private
respondents were negligent in the performance of their duties to Erlinda. On appeal
by private respondents, the Court of Appeals reversed the trial court’s decision and
directed petitioners to pay their "unpaid medical bills" to private respondents.
Petitioners filed with this Court a petition for review on certiorari. The private
respondents were then required to submit their respective comments thereon. On
December 29, 1999, this Court promulgated the decision which private respondents
now seek to be reconsidered. The dispositive portion of said Decision states:
WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages computed as of the
date of promulgation of this decision plus a monthly payment of P8,000.00 up to
the time that petitioner Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each exemplary damages and attorney’s fees; and 5) the costs of the
suit.2
50
LEGMED (IV. Medical Negligence cases)
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the
following as grounds therefor:
I D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD
RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-SHIP"
DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA
LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE
HONORABLE SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE
CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.3
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED
THE FACT THAT THE COURT OF APPEAL’S DECISION DATED 29 MAY 1995 HAD
ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995, THEREBY
DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT
PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED
SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED,
WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT PRIVATE
RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF
THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH
THE STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY
INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE
ON THE TESTIMONY OF PETITIONER’S WITNESS HERMINDA CRUZ, DESPITE THE
EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON
HER CREDIBILITY
TESTIMONY OF DR. JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED
DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE
ON THE PART OF RESPONDENT DOCTOR.4
Private respondent De Los Santos Medical Center likewise moves for
reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION
AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME
FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-
EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS
MEDICAL CENTER AND DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS
SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF
DAMAGES IN FAVOR OF PETITIONERS.5
In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration. The Philippine College of
Surgeons filed its Petition-in-Intervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable under the captain of the ship
doctrine. According to the intervenor, said doctrine had long been abandoned in
the United States in recognition of the developments in modern medical and
hospital practice.6 The Court noted these pleadings in the Resolution of July 17,
2000.7
51
LEGMED (IV. Medical Negligence cases)
On March 19, 2001, the Court heard the oral arguments of the parties, including the
intervenor. Also present during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of
the Philippine General Hospital and former Secretary of Health; Dr. Iluminada T.
Camagay, President of the Philippine Society of Anesthesiologists, Inc. and
Professor and Vice-Chair for Research, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines; and Dr. Lydia M.
Egay, Professor and Vice-Chair for Academics, Department of Anesthesiology,
College of Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR
NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE
FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT
SURGEON AND ANESTHESIOLOGIST.8
We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She
maintains that the Court erred in finding her negligent and in holding that it was the
faulty intubation which was the proximate cause of Erlinda’s comatose condition.
The following objective facts allegedly negate a finding of negligence on her part: 1)
That the outcome of the procedure was a comatose patient and not a dead one; 2)
That the patient had a cardiac arrest; and 3) That the patient was revived from that
cardiac arrest.9 In effect, Dr. Gutierrez insists that, contrary to the finding of this
Court, the intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is belied by the
records of the case. It has been sufficiently established that she failed to exercise
the standards of care in the administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist should do before we
administer anesthesia? The initial step is the preparation of the patient for surgery
and this is a pre-operative evaluation because the anesthesiologist is responsible
for determining the medical status of the patient, developing the anesthesia plan
and acquainting the patient or the responsible adult particularly if we are referring
with the patient or to adult patient who may not have, who may have some mental
handicaps of the proposed plans. We do pre-operative evaluation because this
provides for an opportunity for us to establish identification and personal
acquaintance with the patient. It also makes us have an opportunity to alleviate
anxiety, explain techniques and risks to the patient, given the patient the choice
and establishing consent to proceed with the plan. And lastly, once this has been
agreed upon by all parties concerned the ordering of pre-operative medications.
And following this line at the end of the evaluation we usually come up on writing,
documentation is very important as far as when we train an anesthesiologist we
always emphasize this because we need records for our protection, well, records.
And it entails having brief summary of patient history and physical findings
pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia
technique, the plan post operative, pain management if appropriate, special issues
for this particular patient. There are needs for special care after surgery and if it so
it must be written down there and a request must be made known to proper
authorities that such and such care is necessary. And the request for medical
evaluation if there is an indication. When we ask for a cardio-pulmonary clearance
it is not in fact to tell them if this patient is going to be fit for anesthesia, the
decision to give anesthesia rests on the anesthesiologist. What we ask them is
actually to give us the functional capacity of certain systems which maybe affected
by the anesthetic agent or the technique that we are going to use. But the burden
of responsibility in terms of selection of agent and how to administer it rest on the
anesthesiologist.10
The conduct of a preanesthetic/preoperative evaluation prior to an operation,
whether elective or emergency, cannot be dispensed with.11 Such evaluation is
necessary for the formulation of a plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the patient’s medical history,
reviewing his current drug therapy, conducting physical examination, interpreting
laboratory data, and determining the appropriate prescription of preoperative
medications as necessary to the conduct of anesthesia.12
Physical examination of the patient entails not only evaluating the patient’s central
nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patient’s
cervical spine mobility, temporomandibular mobility, prominent central incisors,
deceased or artificial teeth, ability to visualize uvula and the thyromental distance. 13
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation
on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of
the operation itself, one hour before the scheduled operation. She auscultated 14 the
patient’s heart and lungs and checked the latter’s blood pressure to determine if
Erlinda was indeed fit for operation.15 However, she did not proceed to examine the
patient’s airway. Had she been able to check petitioner Erlinda’s airway prior to the
operation, Dr. Gutierrez would most probably not have experienced difficulty in
intubating the former, and thus the resultant injury could have been avoided. As we
have stated in our Decision:
52
LEGMED (IV. Medical Negligence cases)
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the
first time on the day of the operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of Erlinda was done by her.
Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly informed
of the possible difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the first time only
an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the physician’s
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.16
Further, there is no cogent reason for the Court to reverse its finding that it was the
faulty intubation on Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the
oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done
by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional
acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by
D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.17
What is left to be determined therefore is whether Erlinda’s hapless condition was
due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was
under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and cardiac
arrest resulting in the patient’s comatose condition was brought about by the
anaphylactic reaction of the patient to Thiopental Sodium (pentothal).18 In the
Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the
first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an
authority on anesthesia practice and procedure and their complications. 19
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as
to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic
reaction is something which is not usual response and it is further qualified by the
release of a hormone called histamine and histamine has an effect on all the organs
of the body generally release because the substance that entered the body reacts
with the particular cell, the mass cell, and the mass cell secretes this histamine. In a
way it is some form of response to take away that which is not mine, which is not
part of the body. So, histamine has multiple effects on the body. So, one of the
effects as you will see you will have redness, if you have an allergy you will have
tearing of the eyes, you will have swelling, very crucial swelling sometimes of the
larynges which is your voice box main airway, that swelling may be enough to
obstruct the entry of air to the trachea and you could also have contraction,
constriction of the smaller airways beyond the trachea, you see you have the
trachea this way, we brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and then eventually
into the mass of the lungs you have the bronchus. The difference is that these tubes
have also in their walls muscles and this particular kind of muscles is smooth muscle
so, when histamine is released they close up like this and that phenomenon is
known as bronco spasm. However, the effects of histamine also on blood vessels
are different. They dilate blood vessel open up and the patient or whoever has this
histamine release has hypertension or low blood pressure to a point that the
patient may have decrease blood supply to the brain and may collapse so, you may
have people who have this.20
These symptoms of an allergic reaction were not shown to have been extant in
Erlinda’s case. As we held in our Decision, "no evidence of stridor, skin reactions, or
wheezing – some of the more common accompanying signs of an allergic reaction –
appears on record. No laboratory data were ever presented to the court." 21
53
LEGMED (IV. Medical Negligence cases)
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced
by the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez
faults the Court for giving credence to the testimony of Cruz on the matter of the
administration of anesthesia when she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s attention to her
synopsis on what transpired during Erlinda’s intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by
slow IV. 02 was started by mask. After pentothal injection this was followed by IV
injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure for
about one minute. Intubation with endotracheal tube 7.5 m in diameter was done
with slight difficulty (short neck & slightly prominent upper teeth) chest was
examined for breath sounds & checked if equal on both sides. The tube was then
anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was
given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02
given alone. Cyanosis disappeared. Blood pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all
over the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started.
Still the cyanosis was persistent. Patient was connected to a cardiac monitor.
Another ampule of of [sic] aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac
injection of adrenalin was given & heart beat reappeared in less than one minute.
Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive pressure. Laboratory
exams done (see results in chart).
Patient was transferred to ICU for further management.22
From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared after
pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly
contained in Dr. Gutierrez’ synopsis. It is significant to note that the said record
prepared by Dr. Gutierrez was made only after Erlinda was taken out of the
operating room. The standard practice in anesthesia is that every single act that the
anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she could not
account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the
amicii curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
Q You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was
the laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a
certain lawyer, you were asked that you did a first attempt and the question was –
did you withdraw the tube? And you said – you never withdrew the tube, is that
right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no
insertion of the tube during that first attempt. Now, the other thing that we have to
settle here is – when cyanosis occurred, is it recorded in the anesthesia record
when the cyanosis, in your recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that
period or from the time of induction to the time that you probably get the patient
out of the operating room that every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time anymore because I did
that after the, when the patient was about to leave the operating room. When
there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to
two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very
slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after
(interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a
relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
54
LEGMED (IV. Medical Negligence cases)
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is
that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you
push it downwards and when I saw that the patient was relax because that
monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope
if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I
saw the trachea was deeply interiorly. So, what I did ask "mahirap ata ito ah." So, I
removed the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt as
you claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible
intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said "mahirap ata ito" when the first attempt I did not see the trachea right
away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three
seconds.
Q At what point, for purposes of discussion without accepting it, at what point
did you make the comment "na mahirap ata to intubate, mali ata ang pinasukan"
A I did not say "mali ata ang pinasukan" I never said that.
Q Well, just for the information of the group here the remarks I am making is
based on the documents that were forwarded to me by the Supreme Court. That is
why for purposes of discussion I am trying to clarify this for the sake of
enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The "mahirap intubate ito" assuming that you (interrupted)
A Iyon lang, that is what I only said "mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope,
right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript
of records that when the lawyer of the other party try to inquire from you during
the first attempt that was the time when "mayroon ba kayong hinugot sa tube, I do
not remember the page now, but it seems to me it is there. So, that it was on the
second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia
records from 12:20 to 12:30 there was no recording of the vital signs. And can we
presume that at this stage there was already some problems in handling the
patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I
am here just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over your narration, it seems to me that
the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going
over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it
seems to me that there is no recording from 12:20 to 12:30, so, I am just wondering
why there were no recordings during the period and then of course the second
cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).23
We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a
ten-minute gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is particularly significant
because, as found by the trial court, it was the absence of oxygen supply for four (4)
to five (5) minutes that caused Erlinda’s comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As
we stated in the Decision, she is competent to testify on matters which she is
capable of observing such as, the statements and acts of the physician and surgeon,
external appearances and manifest conditions which are observable by any
55
LEGMED (IV. Medical Negligence cases)
one.24 Cruz, Erlinda’s sister-in-law, was with her inside the operating room.
Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing
at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she
heard Dr. Gutierrez remark, "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." She observed that the nailbeds of Erlinda
became bluish and thereafter Erlinda was placed in trendelenburg position. 25Cruz
further averred that she noticed that the abdomen of Erlinda became distended.26
The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack
of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach
of Erlinda indicate that the endotracheal tube was improperly inserted into the
esophagus instead of the trachea. Consequently, oxygen was delivered not to the
lungs but to the gastrointestinal tract. This conclusion is supported by the fact that
Erlinda was placed in trendelenburg position. This indicates that there was a
decrease of blood supply to the patient’s brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an endotracheal
tube. As was noted in our Decision, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control of
private respondents Dr. Gutierrez and Dr. Hosaka.27 In Voss vs. Bridwell,28 which
involved a patient who suffered brain damage due to the wrongful administration
of anesthesia, and even before the scheduled mastoid operation could be
performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur,
reasoning that the injury to the patient therein was one which does not ordinarily
take place in the absence of negligence in the administration of an anesthetic, and
in the use and employment of an endotracheal tube. The court went on to say that
"[o]rdinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon
these facts and under these circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the consequences of
professional treatment were not as such as would ordinarily have followed if due
care had been exercised."29 Considering the application of the doctrine of res ipsa
loquitur, the testimony of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine.30 Dr. Hosaka
argues that the trend in United States jurisprudence has been to reject said
doctrine in light of the developments in medical practice. He points out that
anesthesiology and surgery are two distinct and specialized fields in medicine and
as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills and
knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not
possess.31 He states further that current American jurisprudence on the matter
recognizes that the trend towards specialization in medicine has created situations
where surgeons do not always have the right to control all personnel within the
operating room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 which involved a
suit filed by a patient who lost his voice due to the wrongful insertion of the
endotracheal tube preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued both the
anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court
of Appeals of West Virginia held that the surgeon could not be held liable for the
loss of the patient’s voice, considering that the surgeon did not have a hand in the
intubation of the patient. The court rejected the application of the "Captain-of-the-
Ship Doctrine," citing the fact that the field of medicine has become specialized
such that surgeons can no longer be deemed as having control over the other
personnel in the operating room. It held that "[a]n assignment of liability based on
actual control more realistically reflects the actual relationship which exists in a
modern operating room."35 Hence, only the anesthesiologist who inserted the
endotracheal tube into the patient’s throat was held liable for the injury suffered by
the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-the-
Ship doctrine does not mean that this Court will ipso facto follow said trend. Due
regard for the peculiar factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts on record it can be
logically inferred that Dr. Hosaka exercised a certain degree of, at the very least,
supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the
services of Dr. Gutierrez to administer the anesthesia on his patient. 36
Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda.
Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to help resuscitate
Erlinda.37
Third, it is conceded that in performing their responsibilities to the patient, Drs.
Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate
watertight compartments because their duties intersect with each other.38
56
LEGMED (IV. Medical Negligence cases)
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of expertise for
the treatment of petitioner Erlinda, and that one does not exercise control over the
other, they were certainly not completely independent of each other so as to
absolve one from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact that Dr. Hosaka
was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while
doing so, he observed that the patient’s nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist would also have to observe the
surgeon’s acts during the surgical process and calls the attention of the surgeon
whenever necessary39 in the course of the treatment. The duties of Dr. Hosaka and
those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as
clear-cut as respondents claim them to be. On the contrary, it is quite apparent that
they have a common responsibility to treat the patient, which responsibility
necessitates that they call each other’s attention to the condition of the patient
while the other physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3) hours
late for the scheduled operation. The cholecystectomy was set for June 17, 1985 at
9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard
for his patient’s well being, Dr. Hosaka scheduled two procedures on the same day,
just thirty minutes apart from each other, at different hospitals. Thus, when the first
procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time,
Erlinda was kept in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda’s scheduled operation subjected her to
continued starvation and consequently, to the risk of acidosis, 40 or the condition of
decreased alkalinity of the blood and tissues, marked by sickly sweet breath,
headache, nausea and vomiting, and visual disturbances. 41 The long period that Dr.
Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must
have been feeling at the time. It could be safely said that her anxiety adversely
affected the administration of anesthesia on her. As explained by Dr. Camagay, the
patient’s anxiety usually causes the outpouring of adrenaline which in turn results
in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate anxiety.
Second is to dry up the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When a patient is anxious
there is an outpouring of adrenalin which would have adverse effect on the patient.
One of it is high blood pressure, the other is that he opens himself to disturbances
in the heart rhythm, which would have adverse implications. So, we would like to
alleviate patient’s anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going to
open up his body. x x x42
Dr. Hosaka cannot now claim that he was entirely blameless of what happened to
Erlinda. His conduct clearly constituted a breach of his professional duties to
Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you
consider a patient's stay on the operating table for three hours sufficient enough to
aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three
hours waiting and the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of
the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety
and most operating tables are very narrow and that patients are usually at risk of
falling on the floor so there are restraints that are placed on them and they are
never, never left alone in the operating room by themselves specially if they are
already pre-medicated because they may not be aware of some of their movement
that they make which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
57
LEGMED (IV. Medical Negligence cases)
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation
of petitioner Erlinda is violative, not only of his duty as a physician "to serve the
interest of his patients with the greatest solicitude, giving them always his best
talent and skill,"44 but also of Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and give everyone his due.
Anent private respondent DLSMC’s liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent
doctors therefor under Article 2180 of the Civil Code45 since there exists an
employer-employee relationship between private respondent DLSMC and Drs.
Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting "consultant" staff. While "consultants" are not, technically
employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. x x x 46
DLSMC however contends that applying the four-fold test in determining whether
such a relationship exists between it and the respondent doctors, the inescapable
conclusion is that DLSMC cannot be considered an employer of the respondent
doctors.
It has been consistently held that in determining whether an employer-employee
relationship exists between the parties, the following elements must be present: (1)
selection and engagement of services; (2) payment of wages; (3) the power to hire
and fire; and (4) the power to control not only the end to be achieved, but the
means to be used in reaching such an end.47
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary qualifications, such as
accreditation by the appropriate board (diplomate), evidence of fellowship and
references.48 Second, it is not the hospital but the patient who pays the consultant’s
fee for services rendered by the latter.49 Third, a hospital does not dismiss a
consultant; instead, the latter may lose his or her accreditation or privileges granted
by the hospital.50 Lastly, DLSMC argues that when a doctor refers a patient for
admission in a hospital, it is the doctor who prescribes the treatment to be given to
said patient. The hospital’s obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and medications prescribed by
the doctor, the equipment and facilities necessary for the treatment of the patient,
as well as the services of the hospital staff who perform the ministerial tasks of
ensuring that the doctor’s orders are carried out strictly.51
After a careful consideration of the arguments raised by DLSMC, the Court finds
that respondent hospital’s position on this issue is meritorious. There is no
employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the injury suffered by petitioner
Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMC’s medical staff as active or visiting consultant is first decided
upon by the Credentials Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department head of the particular
specialty applied for as chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of
the applicant physician, and said director or administrator validates the
committee's recommendation.52 Similarly, in cases where a disciplinary action is
lodged against a consultant, the same is initiated by the department to whom the
consultant concerned belongs and filed with the Ethics Committee consisting of the
department specialty heads. The medical director/hospital administrator merely
acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants for
medical services rendered by the latter to their respective patients. Moreover, the
contract between the consultant in respondent hospital and his patient is separate
and distinct from the contract between respondent hospital and said patient. The
58
LEGMED (IV. Medical Negligence cases)
first has for its object the rendition of medical services by the consultant to the
patient, while the second concerns the provision by the hospital of facilities and
services by its staff such as nurses and laboratory personnel necessary for the
proper treatment of the patient.
Further, no evidence was adduced to show that the injury suffered by petitioner
Erlinda was due to a failure on the part of respondent DLSMC to provide for
hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for the
injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlinda’s death. In the
assailed Decision, the Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner
Erlinda’s treatment and care from the date of promulgation of the Decision up to
the time the patient expires or survives.53 In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00)
in view of the chronic and continuing nature of petitioner Erlinda’s injury and the
certainty of further pecuniary loss by petitioners as a result of said injury, the
amount of which, however, could not be made with certainty at the time of the
promulgation of the decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect
to take into account those situations, as in this case, where the resulting injury
might be continuing and possible future complications directly arising from the
injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty. In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable—and certainly not in the best interests of the
administration of justice—for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awarded—temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care
for a comatose patient who has remained in that condition for over a decade.
Having premised our award for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 54
However, subsequent to the promulgation of the Decision, the Court was informed
by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.55 In view of this
supervening event, the award of temperate damages in addition to the actual or
compensatory damages would no longer be justified since the actual damages
awarded in the Decision are sufficient to cover the medical expenses incurred by
petitioners for the patient. Hence, only the amounts representing actual, moral and
exemplary damages, attorney’s fees and costs of suit should be awarded to
petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June 17,
1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June
17, 1985 and are ordered to pay petitioners—
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney’s fees; and
(e) the costs of the suit.
SO ORDERED.
59
LEGMED (IV. Medical Negligence cases)
10.) Republic of the Philippines brought Edmer to their family doctor; and two hours after administering
SUPREME COURT medications, Edmer’s fever had subsided.5
Manila
SECOND DIVISION After taking Edmer’s medical history, Dr. Livelo took his vital signs, body
G.R. No. 171127 March 11, 2015 temperature, and blood pressure.6 Based on these initial examinations and the
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS chest x-ray test that followed, Dr. Livelo diagnosed Edmer with
HOSPITAL, Petitioners, "bronchopneumonia.7 " Edmer’s blood was also taken for testing, typing, and for
vs. purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
NELSON CORTEJO, Respondent. antibiotic medication to lessen his fever and to loosen his phlegm.
x-----------------------x
G.R. No. 171217 Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and
DRA. RUBY SANGA-MIRANDA, Petitioner, was referred to an accredited Fortune Care coordinator, who was then out of town.
vs. She was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician
NELSON CORTEJO, Respondent. also accredited with Fortune Care.8
x-----------------------x
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time
G.R. No. 171228
examined Edmer in his room. Using only a stethoscope, he confirmed the initial
SAN JUAN DEDIOS HOSPITAL, Petitioner,
diagnosis of "Bronchopneumonia."9
vs.
NELSON CORTEJO, Respondent. At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor’s
diagnosis. She immediately advised Dr. Casumpang that Edmer had a high fever,
DECISION and had no colds or cough10 but Dr. Casumpang merely told her that her son’s
BRION, J.: "blood pressure is just being active,"11 and remarked that "that’s the usual
bronchopneumonia, no colds, no phlegm."12 Dr. Casumpang next visited and
We resolve the three (3) consolidated petitions for review on Certiorari1 involving
examined Edmer at 9:00 in the morning the following day.13 Still suspicious about
medical negligence, commonly assailing the October 29, 2004 decision2 and the
his son’s illness, Mrs. Cortejo again called Dr. Casumpang’s attention and stated
January 12, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400.
that Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs.
This CA decision affirmed en totothe ruling of the Regional Trial Court (RTC), Branch
Cortejo also alerted Dr. Casumpang about the traces of blood in Edmer’s sputum.
134, Makati City.
Despite these pieces of information, however, Dr. Casumpang simply nodded,
The RTC awarded Nelson Cortejo (respondent) damages in the total amount of inquired if Edmer has an asthma, and reassured Mrs. Cortejo that Edmer’s illness is
₱595,000.00, for the wrongful death of his son allegedly due to the medical bronchopneumonia.14
negligence of the petitioning doctors and the hospital.
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with
Factual Antecedents blood streak"15 prompting the respondent (Edmer’s father) to request for a doctor
at the nurses’ station.16 Forty-five minutes later, Dr. Ruby Miranda-Sanga (Dr.
The common factual antecedents are briefly summarized below. Sanga), 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
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her the blood specimen because the respondent washed it away. She then advised the
11-year old son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de respondent to preserve the specimen for examination.
Dios Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain,
and fever.4 Thereafter, Dr. Sanga 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-
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her continuing fever, and rashes that were not typical of dengue fever. 17 Her medical
testimony, Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had findings state:
developed a slight fever that lasted for one day; a few hours upon discovery, she
60
LEGMED (IV. Medical Negligence cases)
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
18
"Herman’s Rash" and not typical of dengue fever.
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Sanga,
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. Sanga 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. Sanga 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. Sanga called up Dr. Casumpang at his clinic and told
him about Edmer’s condition.22Upon 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. Sanga 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 ₱600.00.23
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. Sanga (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 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 history and physical examination, and also the information
that the petitioning doctors gathered from his family members, dengue fever was a
reasonably foreseeable illness; yet, the petitioning doctors failed to take a second
look, much less, consider these indicators of dengue.
The trial court also found that aside from their self-serving testimonies, the
petitioning doctors did not present other evidence to prove that they exercised the
proper medical attention in diagnosing and treating the patient, leading it to
conclude that they were guilty of negligence. The RTC also held SJDH solidarily 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. Sanga, 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:
61
LEGMED (IV. Medical Negligence cases)
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, ordering the latter to pay solidarily and severally plaintiff the following:
(1) Moral damages in the amount of ₱500,000.00;
(2) Costs of burial and funeral in the amount of ₱45,000.00;
(3) Attorney’s fees of ₱50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en toto the RTC’s ruling,
finding that SJDH and its attending physicians failed to exercise the minimum
medical care, attention, and treatment expected of an ordinary doctor under like
circumstances.
The CA found the petitioning doctors’ failure to read even the most basic signs of
"dengue fever" expected of an ordinary doctor as medical negligence. The CA also
considered the petitioning doctors’ testimonies as self-serving, noting that they
presented no other evidence to prove that they exercised due diligence in
diagnosing Edmer’s illness.
The CA likewise found Dr. Rodolfo Jaudian’s (Dr. Jaudian) testimony admissible. It
gave credence to his opinion26that: (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.
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
physicians.
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
petitions pursuant to Rule 45 of the Rules of Court.
The Petitions
I. Dr. Casumpang’s Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical treatment and care to the
best of his abilities, and within the proper standard of care required from physicians
under similar circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only after several days of
confinement. He alleged that when he had suspected that Edmer might be suffering
from dengue fever, he immediately attended and treated him.
Dr. Casumpang likewise raised serious doubts on Dr. Jaudian’s credibility, arguing
that the CA erred in appreciating his testimony as an expert witness since he lacked
the necessary training, skills, and experience as a specialist in dengue fever cases.
II. Dr. Sanga’s Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her responsible for Edmer’s
wrong diagnosis, stressing that the function of making the diagnosis and
undertaking the medical treatment devolved upon Dr. Casumpang, the doctor
assigned to Edmer, and who confirmed "bronchopneumonia."
Dr. Sanga also alleged that she exercised prudence in performing her duties as a
physician, underscoring that it was her professional intervention that led to the
correct diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmer’s Complete
Blood Count (CBC) showed leukopenia and an increase in balance as shown by the
differential count, demonstrating that Edmer’s infection, more or less, is of bacterial
and not viral in nature.
Dr. Sanga as well argued that there is no causal relation between the alleged
erroneous diagnosis and medication for "Bronchopneumonia," and Edmer’s death
due to "Dengue Hemorrhagic Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since he never
presented any evidence of formal residency training and fellowship status in
Pediatrics.
III. SJDH’s Position (G.R. No. 171228)
62
LEGMED (IV. Medical Negligence cases)
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr.
Sanga are mere independent contractors and "consultants" (not employees) of the
hospital. SJDH alleges that since it did not exercise control or supervision over the
consultants’ exercise of medical profession, there is no employer-employee
relationship between them, and consequently, Article 2180 of the Civil Code does
not apply.
SJDH likewise anchored the absence of employer-employee relationship on the
following circumstances: (1) SJDH does not hire consultants; it only grants them
privileges to admit patients in the hospital through accreditation; (2) SJDH does not
pay the consultants wages similar to an ordinary employee; (3) the consultants earn
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
and the means the consultants use in the treatment of their patients. It merely
provides them with adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test when it
treated the hospital’s practice of accrediting consultants as an exercise of control. It
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, and not any kind of control, however significant, in accrediting the
consultants.
SJDH moreover contends that even if the petitioning doctors are considered
employees and not merely consultants of the hospital, SJDH cannot still be held
solidarily liable under Article 2180 of the Civil Code because it observed the
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 petitioning doctors’ qualifications and medical competence; and (2) the
documentary evidence that the petitioning doctors presented to prove their
competence in the field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning doctors are its agents,
claiming that this theory, aside from being inconsistent with the CA’s finding of
employment relationship, is unfounded because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and second, as a medical institution,
SJDH cannot practice medicine, much more, extend its personality to physicians to
practice medicine on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently
deduced and correct diagnosis. It claimed that based on Edmer's signs and
symptoms at the time of admission (i.e., one day fever,28 bacterial infection,29 and
lack of hemorrhagic manifestations30), there was no reasonable indication yet that
he was suffering from dengue fever, and accordingly, their failure to diagnose
dengue fever, does not constitute negligence on their part.
The Case for the Respondent
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 Rules of Courts does not allow.
In any case, he contends that the petitioning doctors were negligent in conducting
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 of the proper and acceptable standard of medical examination; (2) the
petitioning doctors’ medical examination was not comprehensive, as they were
always in a rush; and (3) the petitioning doctors employed a guessing game in
diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection between the
petitioning doctors’ negligence and Edmer’s untimely death, warranting the claim
for damages.
The respondent, too, asserted that SJDH is also negligent because it was not
equipped with proper paging system, has no bronchoscope, and its doctors are not
proportionate to the number of its patients. He also pointed out that out of the
seven resident physicians in the hospital, only two resident physicians were doing
rounds at the time of his son’s confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had committed "inexcusable lack of
precaution" in diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is solidarily liable with the petitioning
doctors;
3. Whether or not there is a causal connection between the petitioners’ negligent
act/omission and the patient’s resulting death; and
4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora
Jaudian as an expert witness.
Our Ruling
We find the petition partly meritorious.
63
LEGMED (IV. Medical Negligence cases)
A Petition for Review on Certiorari
under Rule 45 of the Rules of Court
is Limited to Questions of Law.
The settled rule is that the Court’s jurisdiction in a petition for review on certiorari
under Rule 45 of the Rules of Court is limited only to the review of pure questions
of law. It is not the Court’s function to inquire on the veracity of the appellate
court’s factual findings and conclusions; this Court is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a certain state
of facts, while there is a question of fact when the doubt arises as to the truth or
falsity of the alleged facts.32
These consolidated petitions before us involve mixed questions of fact and law. As a
rule, we do not resolve questions of fact. However, in determining the legal
question of whether the respondent is entitled to claim damages under Article 2176
of the Civil 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 patient’s illness, whether there is causal relation between the
petitioners’ act/omission and the patient’s resulting death, and whether Dr. Jaudian
is qualified as an expert witness– must necessarily be resolved. We resolve these
factual questions solely for the purpose of determining the legal issues raised.
Medical Malpractice Suit as a
Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors’ negligence in diagnosing
and treating the deceased Edmer, the child of the respondent. It is a medical
malpractice suit, an action available to victims to redress a wrong committed by
medical professionals who caused bodily harm to, or the death of, a patient.33 As
the term is used, the suit is brought whenever a medical practitioner or health care
provider fails to meet the standards demanded by his profession, or deviates from
this standard, and causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the
deceased patient’s heir) must prove that the doctor either failed to do what a
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 patient’s heir/s bears the burden of proving his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4)
proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's
conduct.35 It requires proof of professional relationship between the physician and
the patient. Without the professional relationship, a physician owes no duty to the
patient, and cannot therefore incur any liability.
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
establishment of this relationship is consensual,38 and the acceptance by the
physician essential. The mere fact that an individual approaches a physician and
seeks diagnosis, advice or treatment does not create the duty of care unless the
physician agrees.39
The consent needed to create the relationship does not always need to be
express.40 In 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 participation in such diagnosis and/or treatment.41 The usual
illustration would be the case of a patient who goes to a hospital or a clinic, and is
examined and treated by the doctor. In this case, we can infer, based on the
established and customary practice in the medical community that a patient-
physician relationship exists.
Once a physician-patient relationship is established, the legal duty of care follows.
The doctor accordingly becomes duty-bound to use at least the same standard of
care that a reasonably competent doctor would use to treat a medical condition
under similar circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly performs
his duties under professional standards. This determination is both factual and
legal, and is specific to each individual case.42
If the patient, as a result of the breach of duty, is injured in body or in health,
actionable malpractice is committed, entitling the patient to damages. 43
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
should be unbroken by any intervening efficient causes. In other words, the
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
evidence and the expert testimony, that the negligence played an integral part in
causing the injury or damage, and that the injury or damage was either a direct
result, or a reasonably probable consequence of the physician’s negligence. 45
a. The Relationship Between Dr. Casumpang and Edmer
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LEGMED (IV. Medical Negligence cases)
In the present case, the physician-patient relationship between Dr. Casumpang and
Edmer was created when the latter’s parents sought the medical services of Dr.
Casumpang, and the latter knowingly accepted Edmer as a patient. Dr. Casumpang’s
acceptance is implied from his affirmative examination, diagnosis and treatment of
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
hospital’s assigned doctor without objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with Edmer arose when she
assumed the obligation to provide resident supervision over the latter. As second
year resident doctor tasked to do rounds and assist other physicians, Dr. Sanga is
deemed to have agreed to the creation of physician-patient relationship with the
hospital’s patients when she participated in the diagnosis and prescribed a course
of treatment for Edmer.
The undisputed evidence shows that Dr. Sanga examined Edmer twice (at around
12:00 and 3:30 in the afternoon of April 23, 1988),and in both instances, she
prescribed treatment and participated in the diagnosis of Edmer’s medical
condition. Her affirmative acts amounted to her acceptance of the physician-patient
relationship, and incidentally, the legal duty of care that went with it.
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. It held that a physician-patient relationship was established when they
examined the patient, and later assured the mother that everything was fine.
In the US case of Mead v. Legacy Health System, 47 the Court also considered the
rendering of an opinion in the course of the patient’s care as the doctor’s assent to
the physician-patient relationship. It ruled that the relationship was formed
because of the doctor’s affirmative action. Likewise, in Wax v. Johnson,48 the court
found that a physician patient relationship was formed between a physician who
"contracts, agrees, undertakes, or otherwise assumes" the obligation to provide
resident supervision at a teaching hospital, and the patient with whom the doctor
had no direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required
standard of 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 provide guidance to the court on matters clearly falling within the
domain of medical science, and legal, insofar as the Court, after evaluating the
expert testimonies, and guided by medical literature, learned treatises, and its fund
of common knowledge, ultimately determines whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Sanga committed a breach of duty is to be
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 aspect of medical malpractice that expert testimony is
essential to establish not only the professional standards observed in the medical
community, but also that the physician’s conduct in the treatment of care falls
below such standard.50
In the present case, expert testimony is crucial in determining first, the standard
medical examinations, tests, and procedures that the attending physicians should
have undertaken in the diagnosis and treatment of dengue fever; and second, the
dengue fever signs and symptoms that the attending physicians should have
noticed and considered.
Both the RTC and the CA relied largely on Dr. Jaudian’s expert testimony on dengue
diagnosis and management to support their finding that the petitioning doctors
were guilty of breach of duty of care.
Dr. Jaudian testified that Edmer’s rapid breathing, chest and stomach pain, fever,
and the presence of blood in his saliva are classic symptoms of dengue fever.
According to him, if the patient was admitted for chest pain, abdominal pain, and
difficulty in 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 drops to 47,000, it becomes a clear case of dengue fever,
and bronchopneumonia can be reasonably ruled out.52
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 fresh blood and thrombocytopenia has already occurred, the doctor should
order blood transfusion, monitoring of the patient every 30 minutes, hemostatic to
stop bleeding, and oxygen if there is difficulty in breathing.54
We find that Dr. Casumpang, as Edmer’s attending physician, did not act according
to these standards and, hence, was guilty of breach of duty. We do not find Dr.
Sanga liable for the reasons discussed below.
Dr. Casumpang’s Negligence
a. Negligence in the Diagnosis
At the trial, Dr. Casumpang declared that a doctor’s impression regarding a
patient’s illness is 90% based on the physical examination, the information given by
the patient or the latter’s parents, and the patient’s medical history.55 He testified
that he did not consider either dengue fever or dengue hemorrhagic fever because
65
LEGMED (IV. Medical Negligence cases)
the patient’s history showed that Edmer had low breath and voluntary submission,
and that he was up and about playing basketball.56He based his diagnosis of
bronchopneumonia on 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: 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 to confirm the source of bleeding. The Physician’s Progress Notes 59 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
66
LEGMED (IV. Medical Negligence cases)
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 failure, especially when reasonable prudence would have shown that
indications of dengue were evident and/or foreseeable, constitutes negligence.
a. Negligence in the Treatment and Management of Dengue
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to
promptly undertake the proper medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once the patient had
exhibited the classic symptoms of dengue fever should have been: oxygen
inhalation, use of analgesic, and infusion of fluids or dextrose; 67 and once the
patient had twice vomited fresh blood, the doctor should have ordered: blood
transfusion, monitoring of the patient every 30 minutes, hemostatic to stop
bleeding, and oxygen if there is difficulty in breathing.68
Dr. Casumpang failed to measure up to these standards. The evidence strongly
suggests that he ordered a transfusion of platelet concentrate instead of blood
transfusion. The tourniquet test was only conducted after Edmer’s second episode
of bleeding, and the medical management (as reflected in the records) did not
include antibiotic therapy and complete physical examination. Dr. Casumpang’s
testimony states:
Q: Now, after entertaining – After considering that the patient Edmer Cortero was
already suffering from dengue hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and
respiratory rate of the patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
67
LEGMED (IV. Medical Negligence cases)
A: During those times, the blood pressure of the patient was even normal during
those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since
admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the
patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were _____; his blood pressure
was normal so we continued with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988, I stayed in the hospital and I was informed by
the pediatric resident on duty at around 11:15 in the evening that the blood
pressure of the patient went down to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid
from the present fluid which was D5 0.3 sodium chloride to lactated ringers
solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the
volume and to bring back the blood pressure, to increase the blood pressure.
[Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr.
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
who read Edmer’s chest x-ray result), these witnesses failed to dispute the standard
of action that Dr. Jaudian established in his expert opinion. We cannot consider
them expert witnesses either for the sole reason that they did not testify on the
standard of care in dengue cases.69
On the whole, after examining the totality of the adduced evidence, we find that
the lower courts correctly did not rely on Dr. Casumpang’s claim that he exercised
prudence and due diligence in handling Edmer’s case. Aside from being self-serving,
his claim is not supported by competent evidence. As the lower courts did, we rely
on the uncontroverted fact that he failed, as a medical professional, to observe the
most prudent medical procedure under the circumstances in diagnosing and
treating Edmer.
Dr. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, the junior resident physician who was on-duty
at the time of Edmer’s confinement, we see the need to draw distinctions between
the responsibilities and corresponding liability of Dr. Casumpang, as the attending
physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors
of medicine licensed to practice in the Philippines and who would like to pursue a
particular specialty.70 They are usually the front line doctors responsible for the first
contact with the patient. During the scope of the residency program, 71 resident
physicians (or "residents")72 function under the supervision of attending
physicians73 or of the hospital’s teaching staff. Under this arrangement, residents
operate merely as subordinates who usually defer to the attending physician on the
decision to be made and on the action to be taken.
The attending physician, on the other hand, is primarily responsible for managing
the resident’s exercise of duties. While attending and resident physicians share the
collective responsibility to deliver safe and appropriate care to the patients,74 it is
the attending physician who assumes the principal responsibility of patient
care.75 Because he/she exercises a supervisory role over the resident, and is
ultimately responsible for 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 of the attending physician. These relative burdens and distinctions,
however, do not translate to immunity from the legal duty of care for residents, 76 or
from the responsibility arising from their own negligent act.
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
reasonably prudent physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized
one but of physicians in general in the community. In order to establish medical
malpractice, it must be shown by a preponderance of the evidence that a physician
did some particular thing or things that a physician or surgeon of ordinary skill, care
and diligence would not have done under like or similar conditions or
circumstances, or 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 conditions or circumstances, and that the inquiry complained
of was the direct result of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a proper
one. It clearly informed the jury that the medical care required is that of reasonably
careful physicians or hospital emergency room operators, not of interns or
residents. [Emphasis supplied]
68
LEGMED (IV. Medical Negligence cases)
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns
and first-year residents are "practitioners of medicine required to exercise the same
standard of care applicable to physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year resident practices under a temporary
medical permit, he/she impliedly contracts that he/she has the reasonable and
ordinary qualifications of her profession and that he/she will exercise reasonable
skill, diligence, and care in treating the patient.
We find that Dr. Sanga was not independently negligent. Although she had greater
patient exposure, and was subject to the same standard of care applicable to
attending physicians, we believe that a finding of negligence should also depend on
several competing factors, among them, her authority to make her own diagnosis,
the degree of supervision of the attending physician over her, and the shared
responsibility between her and the attending physicians.
In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr.
Casumpang had diagnosed Edmer with bronchopneumonia. In her testimony, Dr.
Sanga admitted that she had been briefed about Edmer’s condition, his medical
history, and initial diagnosis;79 and based on these pieces of information, she
confirmed the finding of bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted receiving
updates regarding Edmer’s condition.80There is also evidence supporting Dr. Sanga’s
claim that she extended diligent care to Edmer. In fact, when she suspected –
during Edmer’s second episode of bleeding– that Edmer could be suffering from
dengue fever, she wasted no time in conducting the necessary tests, and promptly
notified Dr. Casumpang about the incident. Indubitably, her medical assistance led
to the finding of dengue fever.
We note however, that during Edmer’s second episode of bleeding, 81 Dr. Sanga
failed to immediately examine and note the cause of the blood specimen. Like Dr.
Casumpang, she merely assumed that the blood in Edmer’s phlegm was caused by
bronchopneumonia. Her testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient cocked [sic] out
phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands.
xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels a
phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the
lung alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father
that Edmer Cortejo had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a
product of broncho pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was no
internal bleeding? A: At that time I did not do anything to determine the cause of
coughing of the blood because I presumed that it was a mucous (sic) produced by
broncho pneumonia, And besides the patient did not even show any signs of any
other illness at that time.83
Based on her statements we find that Dr. Sanga was not entirely faultless.
Nevertheless, her failure to discern the import of Edmer’s second bleeding does not
necessarily amount to negligence as the respondent himself admitted that Dr.
Sanga failed to examine the blood specimen because he wash edit away. In
addition, considering the diagnosis previously made by two doctors, and the
uncontroverted fact that the burden of final diagnosis pertains to the attending
physician (in this case, Dr. Casumpang), we believe that Dr. Sanga’s error was
merely an honest mistake of judgment influenced in no small measure by her status
in the hospital hierarchy; hence, she should not be held liable for medical
negligence.
Dr. Jaudian’s Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before the lower
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 lacked the proper training and fellowship status in pediatrics.
● Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to decide upon
in the exercise of its discretion. The test of qualification is necessarily a relative one,
69
LEGMED (IV. Medical Negligence cases)
depending upon the subject matter of the investigation, and the fitness of the
expert 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
highly technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a
pulmonologist, not qualified to testify on the field of anesthesiology. Similarly, in
Cereno v. Court of Appeals,86 a 2012 case involving medical negligence, the Court
excluded the testimony of an expert witness whose specialty was anesthesiology,
and concluded that an anesthesiologist cannot be considered an expert in the field
of surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a
pediatrician but a practicing physician who specializes in pathology. 87 He likewise
does not possess any formal residency training in pediatrics. Nonetheless, both the
lower courts found his knowledge acquired through study and practical experience
sufficient to advance an expert opinion on dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court primarily based the
witnesses’ disqualification to testify as an expert on their incapacity to shed light on
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
70
LEGMED (IV. Medical Negligence cases)
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.1avvphi1
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
pediatrics, had been practicing medicine for 16 years, and had handled not less
than 50 dengue related cases.
As a licensed medical practitioner specializing in pathology, who had practical and
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 dengue fever cases. Furthermore, we agree that he possesses knowledge and
experience sufficient to qualify him to speak with authority on the subject.
The Causation Between Dr. Casumpang’s
Negligent Act/Omission, and the Patient’s
Resulting Death was Adequately Proven
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.
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
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
further spread of the virus.96 That Edmer later died of "Hypovolemic
Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever Stage IV," a severe and
fatal form of dengue fever, established the causal link between Dr. Casumpang’s
negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the
element of causation.
Liability of SJDH
We now discuss the liability of the hospital.
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;
(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
(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
71
LEGMED (IV. Medical Negligence cases)
Between SJDH and the Petitioning 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 Solidarily 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
The US case of Gilbert v. Sycamore Municipal Hospital 100 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
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:
72
LEGMED (IV. Medical Negligence cases)
(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.1âwphi1
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.

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. Sanga is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
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
solidarily liable for negligent medical practice. We SET ASIDE the finding of liability
as to Dr. Ruby Miranda-Sanga. The amounts of ₱45,000.00 as actual damages and
₱500,000.00 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.

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. Sanga, 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.

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LEGMED (IV. Medical Negligence cases)
11.) THIRD DIVISION
G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY,
ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA
UY, DR. JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J.
DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2 and 21 March 2000
Resolution3 of the Court of Appeals in CA-G.R. CV No. 45641. The Court of Appeals
affirmed in toto the 22 November 1993 Decision4 of the Regional Trial Court of
Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death
of his patient, Corazon Nogales, while absolving the remaining respondents of any
liability. The Court of Appeals denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37
years old, was under the exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada")
beginning on her fourth month of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in
her blood pressure and development of leg edema 5 indicating preeclampsia,6 which
is a dangerous complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to experience mild labor pains
prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada at
his home. After examining Corazon, Dr. Estrada advised her immediate admission to
the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff
nurse noted the written admission request8 of Dr. Estrada. Upon Corazon's
admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement"9 and "Admission Agreement."10 Corazon
was then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an
internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of
her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada ordered for 10
mg. of valium to be administered immediately by intramuscular injection. Dr.
Estrada later ordered the start of intravenous administration of syntocinon admixed
with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-
drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr. Enriquez"), an
anesthesiologist at CMC, was notified at 4:15 a.m. of Corazon's admission.
Subsequently, when asked if he needed the services of an anesthesiologist, Dr.
Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe
Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10
a.m., Corazon's bag of water ruptured spontaneously. At 6:12 a.m., Corazon's cervix
was fully dilated. At 6:13 a.m., Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate.
However, Dr. Ely Villaflor ("Dr. Villaflor"), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract
Corazon's baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly
torn. The baby came out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and
Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly
became profuse. Corazon's blood pressure dropped from 130/80 to 60/40 within
five minutes. There was continuous profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle as a side drip to the ongoing
intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled
blood. It took approximately 30 minutes for the CMC laboratory, headed by Dr.
Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver the
blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology
Department of the CMC, was apprised of Corazon's condition by telephone. Upon
being informed that Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a "Consent to Operation." 13
74
LEGMED (IV. Medical Negligence cases)
Due to the inclement weather then, Dr. Espinola, who was fetched from his
residence by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m.
He examined the patient and ordered some resuscitative measures to be
administered. Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The cause of
death was "hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for damages15 with the Regional Trial
Court16 of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr.
Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon.
Petitioners mainly contended that defendant physicians and CMC personnel were
negligent in the treatment and management of Corazon's condition. Petitioners
charged CMC with negligence in the selection and supervision of defendant
physicians and hospital staff.
For failing to file their answer to the complaint despite service of summons, the trial
court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default.17 CMC, Dr.
Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying
and opposing the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22
November 1993 finding Dr. Estrada solely liable for damages. The trial court ruled
as follows:
The victim was under his pre-natal care, apparently, his fault began from his
incorrect and inadequate management and lack of treatment of the pre-eclamptic
condition of his patient. It is not disputed that he misapplied the forceps in causing
the delivery because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the application of inadequate
injection of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even
failed to notice the erroneous administration by nurse Dumlao of hemacel by way
of side drip, instead of direct intravenous injection, and his failure to consult a
senior obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson,
Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification to find
them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the
principal physician of Corazon Nogales. She can only make suggestions in the
manner the patient maybe treated but she cannot impose her will as to do so
would be to substitute her good judgment to that of Dr. Estrada. If she failed to
correctly diagnose the true cause of the bleeding which in this case appears to be a
cervical laceration, it cannot be safely concluded by the Court that Dra. Villaflor had
the correct diagnosis and she failed to inform Dr. Estrada. No evidence was
introduced to show that indeed Dra. Villaflor had discovered that there was
laceration at the cervical area of the patient's internal organ.
On the part of nurse Dumlao, there is no showing that when she administered the
hemacel as a side drip, she did it on her own. If the correct procedure was directly
thru the veins, it could only be because this was what was probably the orders of
Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief
of the Department of Obstetrics and Gynecology who attended to the patient Mrs.
Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of
typhoon Didang (Exhibit 2). While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was based on the information
given to him by phone and he acted on the basis of facts as presented to him,
believing in good faith that such is the correct remedy. He was not with Dr. Estrada
when the patient was brought to the hospital at 2:30 o'clock a.m. So, whatever
errors that Dr. Estrada committed on the patient before 9:00 o'clock a.m. are
certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola.
His failure to come to the hospital on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not
incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of
Nurse Dumlao on the alleged errors committed by them. Besides, as
anesthesiologist, he has no authority to control the actuations of Dr. Estrada and
Dra. Villaflor. For the Court to assume that there were errors being committed in
the presence of Dr. Enriquez would be to dwell on conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of
the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that
there was delay in delivering the blood needed by the patient. It was testified, that
in order that this blood will be made available, a laboratory test has to be
conducted to determine the type of blood, cross matching and other matters
consistent with medical science so, the lapse of 30 minutes maybe considered a
reasonable time to do all of these things, and not a delay as the plaintiffs would
want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She
was sued because of her alleged failure to notice the incompetence and negligence
of Dr. Estrada. However, there is no evidence to support such theory. No evidence
was adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical
Center, had knowledge of the mismanagement of the patient Corazon Nogales, and
that notwithstanding such knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have
any hand or participation in the selection or hiring of Dr. Estrada or his assistant
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LEGMED (IV. Medical Negligence cases)
Dra. Ely Villaflor as attending physician[s] of the deceased. In other words, the two
(2) doctors were not employees of the hospital and therefore the hospital did not
have control over their professional conduct. When Mrs. Nogales was brought to
the hospital, it was an emergency case and defendant CMC had no choice but to
admit her. Such being the case, there is therefore no legal ground to apply the
provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious
liability of an employer for the negligence of its employees. If ever in this case there
is fault or negligence in the treatment of the deceased on the part of the attending
physicians who were employed by the family of the deceased, such civil liability
should be borne by the attending physicians under the principle of "respondeat
superior".
WHEREFORE, premises considered, judgment is hereby rendered finding defendant
Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly
liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00;
2) By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in the
amount of P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic] allegations against
the other defendants, the complaint is hereby ordered dismissed. While the Court
looks with disfavor the filing of the present complaint against the other defendants
by the herein plaintiffs, as in a way it has caused them personal inconvenience and
slight damage on their name and reputation, the Court cannot accepts [sic]
however, the theory of the remaining defendants that plaintiffs were motivated in
bad faith in the filing of this complaint. For this reason defendants' counterclaims
are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed that aside from
Dr. Estrada, the remaining respondents should be held equally liable for negligence.
Petitioners pointed out the extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial
court.19 Petitioners filed a motion for reconsideration which the Court of Appeals
denied in its Resolution of 21 March 2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 200221 stating that
respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao "need no
longer be notified of the petition because they are absolutely not involved in the
issue raised before the [Court], regarding the liability of [CMC]."22 Petitioners
stressed that the subject matter of this petition is the liability of CMC for the
negligence of Dr. Estrada.23
The Court issued a Resolution dated 9 September 2002 24 dispensing with the
requirement to submit the correct and present addresses of respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with
the filing of petitioners' Manifestation, it should be understood that they are
claiming only against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who
have filed their respective comments. Petitioners are foregoing further claims
against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals
affirming the decision of the Regional Trial Court. Accordingly, the decision of the
Court of Appeals, affirming the trial court's judgment, is already final as against Dr.
Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9 September 2002
Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified
of the petition at their counsels' last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court denied petitioners'
Motion for Reconsideration in its 18 February 2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's
ruling. The Court of Appeals rejected petitioners' view that the doctrine in Darling v.
Charleston Community Memorial Hospital27 applies to this case. According to the
Court of Appeals, the present case differs from the Darling case since Dr. Estrada is
an independent contractor-physician whereas the Darling case involved a physician
and a nurse who were employees of the hospital.
Citing other American cases, the Court of Appeals further held that the mere fact
that a hospital permitted a physician to practice medicine and use its facilities is not
sufficient to render the hospital liable for the physician's negligence. 28 A hospital is
not responsible for the negligence of a physician who is an independent
contractor.29
The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v.
Emma Laing Stevens Hospital31applicable to this case. Quoting Campbell, the Court
of Appeals stated that where there is no proof that defendant physician was an
employee of defendant hospital or that defendant hospital had reason to know that
any acts of malpractice would take place, defendant hospital could not be held
liable for its failure to intervene in the relationship of physician-patient between
defendant physician and plaintiff.
On the liability of the other respondents, the Court of Appeals applied the
"borrowed servant" doctrine considering that Dr. Estrada was an independent
contractor who was merely exercising hospital privileges. This doctrine provides
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LEGMED (IV. Medical Negligence cases)
that once the surgeon enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room personnel, and any
negligence associated with such acts or omissions, are imputable to the
surgeon.32 While the assisting physicians and nurses may be employed by the
hospital, or engaged by the patient, they normally become the temporary servants
or agents of the surgeon in charge while the operation is in progress, and liability
may be imposed upon the surgeon for their negligent acts under the doctrine
of respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the
attending physician of his wife, any liability for malpractice must be Dr. Estrada's
sole responsibility.
While it found the amount of damages fair and reasonable, the Court of Appeals
held that no interest could be imposed on unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously liable for the
negligence of Dr. Estrada. The resolution of this issue rests, on the other hand, on
the ascertainment of the relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and management of Corazon's
condition which ultimately resulted in Corazon's death is no longer in issue. Dr.
Estrada did not appeal the decision of the Court of Appeals which affirmed the
ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly,
the finding of the trial court on Dr. Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based
on Article 2180 in relation to Article 2176 of the Civil Code. These provisions
pertinently state:
Art. 2180. The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the employer, master, or principal
of a physician employee, servant, or agent, may be held liable for the physician's
negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to
practice and admit patients at CMC, should be liable for Dr. Estrada's malpractice.
Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though
he discovered later that Dr. Estrada was not a salaried employee of the
CMC.35 Rogelio further claims that he was dealing with CMC, whose primary
concern was the treatment and management of his wife's condition. Dr. Estrada
just happened to be the specific person he talked to representing CMC.36 Moreover,
the fact that CMC made Rogelio sign a Consent on Admission and Admission
Agreement37 and a Consent to Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere
visiting physician and that it admitted Corazon because her physical condition then
was classified an emergency obstetrics case.38
CMC alleges that Dr. Estrada is an independent contractor "for whose actuations
CMC would be a total stranger." CMC maintains that it had no control or
supervision over Dr. Estrada in the exercise of his medical profession.
The Court had the occasion to determine the relationship between a hospital and a
consultant or visiting physician and the liability of such hospital for that physician's
negligence in Ramos v. Court of Appeals,39 to wit:
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors
who apply for "consultant" slots, visiting or attending, are required to submit proof
77
LEGMED (IV. Medical Negligence cases)
of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of
the hospital administration or by a review committee set up by the hospital who
either accept or reject the application. This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into
the hospital. In addition to these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting "consultant" staff. While "consultants" are not, technically
employees, a point which respondent hospital asserts in denying all responsibility
for the patient's condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.This being the case,
the question now arises as to whether or not respondent hospital is solidarily liable
with respondent doctors for petitioner's condition.
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the
former's responsibility under a relationship of patria potestas. x x x40 (Emphasis
supplied)
While the Court in Ramos did not expound on the control test, such test essentially
determines whether an employment relationship exists between a physician and a
hospital based on the exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must have the right to control both the
means and the details of the process by which the employee (or the physician) is to
accomplish his task.41
After a thorough examination of the voluminous records of this case, the Court
finds no single evidence pointing to CMC's exercise of control over Dr. Estrada's
treatment and management of Corazon's condition. It is undisputed that
throughout Corazon's pregnancy, she was under the exclusive prenatal care of Dr.
Estrada. At the time of Corazon's admission at CMC and during her delivery, it was
Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There was no
showing that CMC had a part in diagnosing Corazon's condition. While Dr. Estrada
enjoyed staff privileges at CMC, such fact alone did not make him an employee of
CMC.42 CMC merely allowed Dr. Estrada to use its facilities43 when Corazon was
about to give birth, which CMC considered an emergency. Considering these
circumstances, Dr. Estrada is not an employee of CMC, but an independent
contractor.
The question now is whether CMC is automatically exempt from liability considering
that Dr. Estrada is an independent contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-
physician. There is, however, an exception to this principle. The hospital may be
liable if the physician is the "ostensible" agent of the hospital.44 This exception is
also known as the "doctrine of apparent authority."45 In Gilbert v. Sycamore
Municipal Hospital,46 the Illinois Supreme Court explained the doctrine of apparent
authority in this wise:
[U]nder 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."
The element of "holding out" on the part of the hospital does not require an
express representation by the hospital that the person alleged to be negligent is an
employee. Rather, the element is satisfied if the hospital holds itself out as a
provider of emergency room care without informing the patient that the care is
provided by independent contractors.
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LEGMED (IV. Medical Negligence cases)
The element of justifiable reliance on the part of the plaintiff is satisfied if the
plaintiff relies upon the hospital to provide complete emergency room care, rather
than upon a specific physician.
The doctrine of apparent authority essentially involves two factors to determine the
liability of an independent-contractor physician.
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.47 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. 48
The doctrine of apparent authority is a species of the doctrine of estoppel. Article
1431 of the Civil Code provides that "[t]hrough estoppel, an admission or
representation is rendered conclusive upon the person making it, and cannot be
denied or disproved as against the person relying thereon." Estoppel rests on this
rule: "Whenever a party has, by his own declaration, act, or omission, intentionally
and deliberately led another to believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of such declaration, act or omission,
be permitted to falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical
staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent authority thereby
leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent
of CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff
and facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's admission,
CMC, through its personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to
Corazon's admission and supposed hysterectomy, CMC asked Rogelio to sign
release forms, the contents of which reinforced Rogelio's belief that Dr. Estrada was
a member of CMC's medical staff.50 The Consent on Admission and Agreement
explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla.,
being the father/mother/brother/sister/spouse/relative/ guardian/or person in
custody of Ma. Corazon, and representing his/her family, of my own volition and
free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter
referred to as Physician) for cure, treatment, retreatment, or emergency
measures, that the Physician, personally or by and through the Capitol Medical
Center and/or its staff, may use, adapt, or employ such means, forms or methods
of cure, treatment, retreatment, or emergency measures as he may see best and
most expedient; that Ma. Corazon and I will comply with any and all rules,
regulations, directions, and instructions of the Physician, the Capitol Medical
Center and/or its staff; and, that I will not hold liable or responsible and hereby
waive and forever discharge and hold free the Physician, the Capitol Medical Center
and/or its staff, from any and all claims of whatever kind of nature, arising from
directly or indirectly, or by reason of said cure, treatment, or retreatment, or
emergency measures or intervention of said physician, the Capitol Medical Center
and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit
said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and
Anesthesiologists of Capitol Medical Center and/or whatever succeeding
operations, treatment, or emergency measures as may be necessary and most
expedient; and, that I will not hold liable or responsible and hereby waive and
forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the
Capitol Medical Center and/or its staff, from any and all claims of whatever kind of
nature, arising from directly or indirectly, or by reason of said operation or
operations, treatment, or emergency measures, or intervention of the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center and/or its
staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an independent
contractor-physician, the Spouses Nogales could not have known that Dr. Estrada
was an independent contractor. Significantly, no one from CMC informed the
Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary,
Dr. Atencio, who was then a member of CMC Board of Directors, testified that Dr.
Estrada was part of CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola,
who was then the Head of the Obstetrics and Gynecology Department of CMC, gave
the impression that Dr. Estrada as a member of CMC's medical staff was
collaborating with other CMC-employed specialists in treating Corazon.
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.54
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LEGMED (IV. Medical Negligence cases)
The records show that the Spouses Nogales relied upon a perceived employment
relationship with CMC in accepting Dr. Estrada's services. Rogelio testified that he
and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only
because of their friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the [CMC]."55 In other words, Dr.
Estrada's relationship with CMC played a significant role in the Spouses Nogales'
decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for
Corazon's delivery. Moreover, as earlier stated, there is no showing that before and
during Corazon's confinement at CMC, the Spouses Nogales knew or should have
known that Dr. Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care and
support services for Corazon's delivery. The Court notes that prior to Corazon's
fourth pregnancy, she used to give birth inside a clinic. Considering Corazon's age
then, the Spouses Nogales decided to have their fourth child delivered at CMC,
which Rogelio regarded one of the best hospitals at the time. 56 This is precisely
because the Spouses Nogales feared that Corazon might experience complications
during her delivery which would be better addressed and treated in a modern and
big hospital such as CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to
be performed by a different physician, namely Dr. Espinola, is a clear indication of
Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable.
The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the
business of treatment. In this regard, the Court agrees with the observation made
by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc., 57 to wit:
"The conception that the hospital does not undertake to treat the patient, does not
undertake to act through its doctors and nurses, but undertakes instead simply to
procure them to act upon their own responsibility, no longer reflects the
fact. Present day hospitals, as their manner of operation plainly demonstrates, do
far more than furnish facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and internes [sic], as well as administrative
and manual workers, and they charge patients for medical care and treatment,
collecting for such services, if necessary, by legal action. Certainly, the person who
avails himself of 'hospital facilities' expects that the hospital will attempt to cure
him, not that its nurses or other employees will act on their own responsibility." x
x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are estopped from
claiming damages based on the Consent on Admission and Consent to Operation.
Both release forms consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical treatment which the CMC
medical staff deemed advisable. The second part of the documents, which may
properly be described as the releasing part, releases CMC and its employees "from
any and all claims" arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to Corazon
due to negligence during her treatment or operation. Neither do the consent forms
expressly exempt CMC from liability for Corazon's death due to negligence during
such treatment or operation. Such release forms, being in the nature of contracts of
adhesion, are construed strictly against hospitals. Besides, a blanket release in favor
of hospitals "from any and all claims," which includes claims due to bad faith or
gross negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of establishments
like hospitals but may only mitigate liability depending on the
circumstances.58 When a person needing urgent medical attention rushes to a
hospital, he cannot bargain on equal footing with the hospital on the terms of
admission and operation. Such a person is literally at the mercy of the hospital.
There can be no clearer example of a contract of adhesion than one arising from
such a dire situation. Thus, the release forms of CMC cannot relieve CMC from
liability for the negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 200259 Resolution that the
filing of petitioners' Manifestation confined petitioners' claim only against CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it
proper to resolve the individual liability of the remaining respondents to put an end
finally to this more than two-decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's
bleeding and to suggest the correct remedy to Dr. Estrada. 60 Petitioners assert that
it was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the administration
of hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of
magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was
no longer in convulsion and that her blood pressure went down to a dangerous
level.61 At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr.
Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's
act of administering a lower dosage of magnesium sulfate was not out of her own
volition or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
80
LEGMED (IV. Medical Negligence cases)
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of
Dr. Estrada on the incorrect dosage of magnesium sulfate administered by Dr.
Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlao's wrong
method of hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident physician then at
CMC, she was merely authorized to take the clinical history and physical
examination of Corazon.62 However, that routine internal examination did not ipso
facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further,
petitioners' imputation of negligence rests on their baseless assumption that Dr. Uy
was present at the delivery room. Nothing shows that Dr. Uy participated in
delivering Corazon's baby. Further, it is unexpected from Dr. Uy, a mere resident
physician at that time, to call the attention of a more experienced specialist, if ever
she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada,
Dr. Villaflor, and Nurse Dumlao about their errors.63 Petitioners insist that Dr.
Enriquez should have taken, or at least suggested, corrective measures to rectify
such errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of
expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not
expected to correct Dr. Estrada's errors. Besides, there was no evidence of Dr.
Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act
upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of
blood Corazon needed.64 Petitioners claim that Dr. Lacson was remiss in her duty of
supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the delivery of
blood from the time of the request until the transfusion to Corazon. Dr. Lacson
competently explained the procedure before blood could be given to the
patient.65 Taking into account the bleeding time, clotting time and cross-matching,
Dr. Lacson stated that it would take approximately 45-60 minutes before blood
could be ready for transfusion.66 Further, no evidence exists that Dr. Lacson
neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered immediate
hysterectomy without determining the underlying cause of Corazon's bleeding. Dr.
Espinola should have first considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing outright Dr. Estrada's
diagnosis that the cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was based on the information he
received by phone is not negligence. The Court agrees with the trial court's
observation that Dr. Espinola, upon hearing such information about Corazon's
condition, believed in good faith that hysterectomy was the correct remedy. At any
rate, the hysterectomy did not push through because upon Dr. Espinola's arrival, it
was already too late. At the time, Corazon was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held that
to recover, a patient complaining of injuries allegedly resulting when the nurse
negligently injected medicine to him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted a lack of reasonable and ordinary
care; (2) the nurse injected medicine intravenously; and (3) such injection was the
proximate cause of his injury.
In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow
Dr. Estrada's specific instructions. Even assuming Nurse Dumlao defied Dr. Estrada's
order, there is no showing that side-drip administration of hemacel proximately
caused Corazon's death. No evidence linking Corazon's death and the alleged
wrongful hemacel administration was introduced. Therefore, there is no basis to
hold Nurse Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under Article 2211 of the
Civil Code, which states that in crimes and quasi-delicts, interest as a part of the
damages may, in a proper case, be adjudicated in the discretion of the court. 68
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent
Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The
amounts of P105,000 as actual damages and P700,000 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 6 February 1998 and Resolution dated 21 March 2000 of the Court
of Appeals in CA-G.R. CV No. 45641.
SO ORDERED.
81
LEGMED (IV. Medical Negligence cases)
12.) Republic of the Philippines may be held liable for the negligence of physicians-consultants allowed to practice
SUPREME COURT in its premises.9
Manila
EN BANC To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr.
G.R. No. 126297 February 2, 2010 Juan Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad Agana
PROFESSIONAL SERVICES, INC., Petitioner, (later substituted by her heirs), in a complaint10 for damages filed in the Regional
vs. Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents. when Dr. Ampil and Dr. Fuentes neglected to remove from her body two
x - - - - - - - - - - - - - - - - - - - - - - -x gauzes11 which were used in the surgery they performed on her on April 11, 1984 at
G.R. No. 126467 the Medical City General Hospital. PSI was impleaded as owner, operator and
NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., manager of the hospital.
Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE
AGANA, Petitioners, In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr.
vs. Ampil and Dr. Fuentes for damages.13 On appeal, the Court of Appeals (CA),
THE COURT OF APPEALS and JUAN FUENTES, Respondents. absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the
x - - - - - - - - - - - - - - - - - - - - - - -x right of PSI to claim reimbursement from Dr. Ampil.141avvphi1
G.R. No. 127590
On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA
MIGUEL AMPIL, Petitioner,
decision.15 PSI filed a motion for reconsideration 16 but the Court denied it in a
vs.
resolution dated February 11, 2008.17
NATIVIDAD and ENRIQUE AGANA, Respondents.
The Court premised the direct liability of PSI to the Aganas on the following facts
RESOLUTION and law:
CORONA, J.:
First, there existed between PSI and Dr. Ampil an employer-employee relationship
With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second as contemplated in the December 29, 1999 decision in Ramos v. Court of
motion for reconsideration2urging referral thereof to the Court en banc and seeking Appeals18 that "for purposes of allocating responsibility in medical negligence cases,
modification of the decision dated January 31, 2007 and resolution dated February an employer-employee relationship exists between hospitals and their
11, 2008 which affirmed its vicarious and direct liability for damages to respondents consultants."19Although the Court in Ramos later issued a Resolution dated April 11,
Enrique Agana and the heirs of Natividad Agana (Aganas). 200220 reversing its earlier finding on the existence of an employment relationship
between hospital and doctor, a similar reversal was not warranted in the present
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private
case because the defense raised by PSI consisted of a mere general denial of control
Hospital Association of the Philippines (PHAP)5 all sought to intervene in these cases
or responsibility over the actions of Dr. Ampil. 21
invoking the common ground that, unless modified, the assailed decision and
resolution will jeopardize the financial viability of private hospitals and jack up the Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the
cost of health care. public impression that he was its agent.22 Enrique testified that it was on account of
Dr. Ampil's accreditation with PSI that he conferred with said doctor about his
The Special First Division of the Court granted the motions for intervention of
wife's (Natividad's) condition.23 After his meeting with Dr. Ampil, Enrique asked
MMSI, AHI and PHAP (hereafter intervenors),6 and referred en consulta to the
Natividad to personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad
Court en banc the motion for prior leave of court and the second motion for
engaged the services of Dr. Ampil, at the back of their minds was that the latter was
reconsideration of PSI.7
a staff member of a prestigious hospital. Thus, under the doctrine of apparent
Due to paramount public interest, the Court en banc accepted the referral8 and authority applied in Nogales, et al. v. Capitol Medical Center, et al.,25 PSI was liable
heard the parties on oral arguments on one particular issue: whether a hospital for the negligence of Dr. Ampil.

82
LEGMED (IV. Medical Negligence cases)
Finally, as owner and operator of Medical City General Hospital, PSI was bound by
its duty to provide comprehensive medical services to Natividad Agana, to exercise
reasonable care to protect her from harm,26 to oversee or supervise all persons who
practiced medicine within its walls, and to take active steps in fixing any form of
negligence committed within its premises.27 PSI committed a serious breach of its
corporate duty when it failed to conduct an immediate investigation into the
reported missing gauzes.28
PSI is now asking this Court to reconsider the foregoing rulings for these reasons:
I it utilizes doctors, surgeons and medical practitioners in the conduct of its business
The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354,
December 29, 1999) that "an employer-employee relations exists between hospital
and their consultants" stays should be set aside for being inconsistent with or
contrary to the import of the resolution granting the hospital's motion for
reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11, 2002),
which is applicable to PSI since the Aganas failed to prove an employer-employee
relationship between PSI and Dr. Ampil and PSI proved that it has no control over
Dr. Ampil. In fact, the trial court has found that there is no employer-employee
relationship in this case and that the doctor's are independent contractors.
II
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily
and specifically look to the Medical City Hospital (PSI) for medical care and support;
otherwise stated, respondents Aganas did not select Medical City Hospital (PSI) to
provide medical care because of any apparent authority of Dr. Miguel Ampil as its
agent since the latter was chosen primarily and specifically based on his
qualifications and being friend and neighbor.
III
PSI cannot be liable under doctrine of corporate negligence since the proximate
cause of Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of
the principle of corporate negligence.29
In their respective memoranda, intervenors raise parallel arguments that the
Court's ruling on the existence of an employer-employee relationship between
private hospitals and consultants will force a drastic and complex alteration in the
long-established and currently prevailing relationships among patient, physician
and hospital, with burdensome operational and financial consequences and adverse
effects on all three parties.30
The Aganas comment that the arguments of PSI need no longer be entertained for
they have all been traversed in the assailed decision and resolution. 31
After gathering its thoughts on the issues, this Court holds that PSI is liable to the
Aganas, not under the principle of respondeat superior for lack of evidence of an
employment relationship with Dr. Ampil but under the principle of ostensible
agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of
corporate negligence for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice medicine, 32 in reality
of facilitating medical and surgical treatment.33 Within that reality, three legal
relationships crisscross: (1) between the hospital and the doctor practicing within
its premises; (2) between the hospital and the patient being treated or examined
within its premises and (3) between the patient and the doctor. The exact nature of
each relationship determines the basis and extent of the liability of the hospital for
the negligence of the doctor.
Where an employment relationship exists, the hospital may be held vicariously
liable under Article 217634 in relation to Article 218035 of the Civil Code or the
principle of respondeat superior. Even when no employment relationship exists but
it is shown that the hospital holds out to the patient that the doctor is its agent, the
hospital may still be vicariously liable under Article 2176 in relation to Article
143136 and Article 186937 of the Civil Code or the principle of apparent
authority.38 Moreover, regardless of its relationship with the doctor, the hospital
may be held directly liable to the patient for its own negligence or failure to follow
established standard of conduct to which it should conform as a corporation. 39
This Court still employs the "control test" to determine the existence of an
employer-employee relationship between hospital and doctor. In Calamba Medical
Center, Inc. v. National Labor Relations Commission, et al. 40 it held:
Under the "control test", an employment relationship exists between a physician
and a hospital if the hospital controls both the means and the details of the process
by which the physician is to accomplish his task.
xxx xxx xxx
As priorly stated, private respondents maintained specific work-schedules, as
determined by petitioner through its medical director, which consisted of 24-hour
shifts totaling forty-eight hours each week and which were strictly to be observed
under pain of administrative sanctions.
That petitioner exercised control over respondents gains light from the
undisputed fact that in the emergency room, the operating room, or any
83
LEGMED (IV. Medical Negligence cases)
department or ward for that matter, respondents' work is monitored through its
nursing supervisors, charge nurses and orderlies. Without the approval or consent
of petitioner or its medical director, no operations can be undertaken in those
areas. For control test to apply, it is not essential for the employer to actually
supervise the performance of duties of the employee, it being enough that it has
the right to wield the power. (emphasis supplied)
Even in its December 29, 1999 decision 41 and April 11, 2002
resolution42 in Ramos, the Court found the control test decisive.
In the present case, it appears to have escaped the Court's attention that both the
RTC and the CA found no employment relationship between PSI and Dr. Ampil, and
that the Aganas did not question such finding. In its March 17, 1993 decision, the
RTC found "that defendant doctors were not employees of PSI in its hospital, they
being merely consultants without any employer-employee relationship and in the
capacity of independent contractors."43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the
issues of negligence, agency and corporate liability. In its September 6, 1996
decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-employee,
but it was clear in its discussion on the matter that it viewed their relationship as
one of mere apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration of
Dr. Fuentes.46 PSI also appealed from the CA decision, and it was then that the issue
of employment, though long settled, was unwittingly resurrected.
In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding became final and conclusive even to
this Court.47 There was no reason for PSI to have raised it as an issue in its petition.
Thus, whatever discussion on the matter that may have ensued was purely
academic.
Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this
particular instance, the concurrent finding of the RTC and the CA that PSI was not
the employer of Dr. Ampil is correct. Control as a determinative factor in testing the
employer-employee relationship between doctor and hospital under which the
hospital could be held vicariously liable to a patient in medical negligence cases is a
requisite fact to be established by preponderance of evidence. Here, there was
insufficient evidence that PSI exercised the power of control or wielded such power
over the means and the details of the specific process by which Dr. Ampil applied
his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously
liable for the negligence of Dr. Ampil under the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient
(Natividad)48 that the doctor (Dr. Ampil) was its agent. Present are the two factors
that determine apparent authority: first, the hospital's implied manifestation to the
patient which led the latter to conclude that the doctor was the hospital's agent;
and second, the patient’s reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the
condition of his wife; that after the meeting and as advised by Dr. Ampil, he
"asked [his] wife to go to Medical City to be examined by [Dr. Ampil]"; and that the
next day, April 3, he told his daughter to take her mother to Dr. Ampil.50 This
timeline indicates that it was Enrique who actually made the decision on whom
Natividad should consult and where, and that the latter merely acceded to it. It
explains the testimony of Natividad that she consulted Dr. Ampil at the instigation
of her daughter.51
Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for choosing Dr.
Ampil to contact with in connection with your wife's illness?
A. First, before that, I have known him to be a specialist on that part of the body as
a surgeon, second, I have known him to be a staff member of the Medical City
which is a prominent and known hospital. And third, because he is a neighbor, I
expect more than the usual medical service to be given to us, than his ordinary
patients.52 (emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was
significantly influenced by the impression that Dr. Ampil was a staff member of
Medical City General Hospital, and that said hospital was well known and
prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally
related to Medical City.
PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is
of record that PSI required a "consent for hospital care"53 to be signed preparatory
to the surgery of Natividad. The form reads:
Permission is hereby given to the medical, nursing and laboratory staff of the
Medical City General Hospital to perform such diagnostic procedures and to
administer such medications and treatments as may be deemed necessary or
advisable by the physicians of this hospital for and during the confinement of xxx.
(emphasis supplied)
84
LEGMED (IV. Medical Negligence cases)
By such statement, PSI virtually reinforced the public impression that Dr. Ampil was
a physician of its hospital, rather than one independently practicing in it; that the
medications and treatments he prescribed were necessary and desirable; and that
the hospital staff was prepared to carry them out.1avvphi1
PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the
exclusive basis of the Aganas’ decision to have Natividad treated in Medical City
General Hospital, meaning that, had Dr. Ampil been affiliated with another hospital,
he would still have been chosen by the Aganas as Natividad's surgeon.54
The Court cannot speculate on what could have been behind the Aganas’ decision
but would rather adhere strictly to the fact that, under the circumstances at that
time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member
of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique
advised his wife Natividad to go to the Medical City General Hospital to be
examined by said doctor, and the hospital acted in a way that fortified Enrique's
belief.
This Court must therefore maintain the ruling that PSI is vicariously liable for the
negligence of Dr. Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that PSI made the following admission
in its Motion for Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable
for Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was
personally engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as
"Captain of the Ship", and as the Agana's doctor to advise her on what to do with
her situation vis-a-vis the two missing gauzes. In addition to noting the missing
gauzes, regular check-ups were made and no signs of complications were
exhibited during her stay at the hospital, which could have alerted petitioner PSI's
hospital to render and provide post-operation services to and tread on Dr. Ampil's
role as the doctor of Mrs. Agana. The absence of negligence of PSI from the
patient's admission up to her discharge is borne by the finding of facts in this case.
Likewise evident therefrom is the absence of any complaint from Mrs. Agana after
her discharge from the hospital which had she brought to the hospital's attention,
could have alerted petitioner PSI to act accordingly and bring the matter to Dr.
Ampil's attention. But this was not the case. Ms. Agana complained ONLY to Drs.
Ampil and Fuentes, not the hospital. How then could PSI possibly do something to
fix the negligence committed by Dr. Ampil when it was not informed about it at
all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana "informed the
hospital of her discomfort and pain, the hospital would have been obliged to act on
it."56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had no power to control
the means or method by which Dr. Ampil conducted the surgery on Natividad
Agana, it had the power to review or cause the review of what may have
irregularly transpired within its walls strictly for the purpose of determining
whether some form of negligence may have attended any procedure done inside its
premises, with the ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its business as well
as its prominence57 in the hospital industry, it assumed a duty to "tread on" the
"captain of the ship" role of any doctor rendering services within its premises for
the purpose of ensuring the safety of the patients availing themselves of its services
and facilities.
Third, by such admission, PSI defined the standards of its corporate conduct under
the circumstances of this case, specifically: (a) that it had a corporate duty to
Natividad even after her operation to ensure her safety as a patient; (b) that its
corporate duty was not limited to having its nursing staff note or record the two
missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's
role in it, bringing the matter to his attention, and correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its second motion
for reconsideration that the concept of corporate responsibility was not yet in
existence at the time Natividad underwent treatment; 58 and that if it had any
corporate responsibility, the same was limited to reporting the missing gauzes and
did not include "taking an active step in fixing the negligence committed." 59 An
admission made in the pleading cannot be controverted by the party making such
admission and is conclusive as to him, and all proofs submitted by him contrary
thereto or inconsistent therewith should be ignored, whether or not objection is
interposed by a party.60
Given the standard of conduct that PSI defined for itself, the next relevant inquiry is
whether the hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil
assumed the personal responsibility of informing Natividad about the two missing
gauzes.61 Dr. Ricardo Jocson, who was part of the group of doctors that attended to
Natividad, testified that toward the end of the surgery, their group talked about the
missing gauzes but Dr. Ampil assured them that he would personally notify the
patient about it.62 Furthermore, PSI claimed that there was no reason for it to act
on the report on the two missing gauzes because Natividad Agana showed no signs
of complications. She did not even inform the hospital about her discomfort.63
The excuses proffered by PSI are totally unacceptable.
85
LEGMED (IV. Medical Negligence cases)
To begin with, PSI could not simply wave off the problem and nonchalantly delegate
to Dr. Ampil the duty to review what transpired during the operation. The purpose
of such review would have been to pinpoint when, how and by whom two surgical
gauzes were mislaid so that necessary remedial measures could be taken to avert
any jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that
purpose to be achieved by merely hoping that the person likely to have mislaid the
gauzes might be able to retrace his own steps. By its own standard of corporate
conduct, PSI's duty to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad
about the missing gauzes, PSI imposed upon itself the separate and independent
responsibility of initiating the inquiry into the missing gauzes. The purpose of the
first would have been to apprise Natividad of what transpired during her surgery,
while the purpose of the second would have been to pinpoint any lapse in
procedure that led to the gauze count discrepancy, so as to prevent a recurrence
thereof and to determine corrective measures that would ensure the safety of
Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI
from its self-imposed separate responsibility.
Corollary to its non-delegable undertaking to review potential incidents of
negligence committed within its premises, PSI had the duty to take notice of
medical records prepared by its own staff and submitted to its custody, especially
when these bear earmarks of a surgery gone awry. Thus, the record taken during
the operation of Natividad which reported a gauze count discrepancy should have
given PSI sufficient reason to initiate a review. It should not have waited for
Natividad to complain.
As it happened, PSI took no heed of the record of operation and consequently did
not initiate a review of what transpired during Natividad’s operation. Rather, it
shirked its responsibility and passed it on to others – to Dr. Ampil whom it expected
to inform Natividad, and to Natividad herself to complain before it took any
meaningful step. By its inaction, therefore, PSI failed its own standard of hospital
care. It committed corporate negligence.
circumstances. The ruling is unique to this case, for the liability of PSI arose from an
implied agency with Dr. Ampil and an admitted corporate duty to Natividad.64
Other circumstances peculiar to this case warrant this ruling, 65 not the least of
which being that the agony wrought upon the Aganas has gone on for 26 long
years, with Natividad coming to the end of her days racked in pain and agony. Such
wretchedness could have been avoided had PSI simply done what was logical: heed
the report of a guaze count discrepancy, initiate a review of what went wrong and
take corrective measures to ensure the safety of Nativad. Rather, for 26 years, PSI
hemmed and hawed at every turn, disowning any such responsibility to its patient.
Meanwhile, the options left to the Aganas have all but dwindled, for the status of
Dr. Ampil can no longer be ascertained.66
Therefore, taking all the equities of this case into consideration, this Court believes
₱15 million would be a fair and reasonable liability of PSI, subject to 12% p.a.
interest from the finality of this resolution to full satisfaction.
WHEREFORE, the second motion for reconsideration is DENIED and the motions for
intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by
her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus
Agana and Raymund Agana) and Enrique Agana the total amount of ₱15 million,
subject to 12% p.a. interest from the finality of this resolution to full satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon receipt by all
concerned parties of this resolution.
SO ORDERED.

It should be borne in mind that the corporate negligence ascribed to PSI is different
from the medical negligence attributed to Dr. Ampil. The duties of the hospital are
distinct from those of the doctor-consultant practicing within its premises in
relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital
corporation gave rise to a direct liability to the Aganas distinct from that of Dr.
Ampil.

All this notwithstanding, we make it clear that PSI’s hospital liability based on
ostensible agency and corporate negligence applies only to this case, pro hac vice. It
is not intended to set a precedent and should not serve as a basis to hold hospitals
liable for every form of negligence of their doctors-consultants under any and all
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LEGMED (IV. Medical Negligence cases)
13.) Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160889 April 27, 2007
DR. MILAGROS L. CANTRE, Petitioner,
vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October 3, 2002 and
Resolution2 dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184, which affirmed with modification the Decision 3 dated March 3, 1997 of the
Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the
Dr. Jesus Delgado Memorial Hospital. She was the attending physician of
respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy.
However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due
to some parts of the placenta which were not completely expelled from her womb
after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop
in her blood pressure to "40" over "0." Petitioner and the assisting resident
physician performed various medical procedures to stop the bleeding and to
restore Nora’s blood pressure. Her blood pressure was frequently monitored with
the use of a sphygmomanometer. While petitioner was massaging Nora’s uterus for
it to contract and stop bleeding, she ordered a droplight to warm Nora and her
baby.4 Nora remained unconscious until she recovered.
While in the recovery room, her husband, respondent John David Z. Go noticed a
fresh gaping wound two and a half (2 ½) by three and a half (3 ½) inches in the inner
portion of her left arm, close to the armpit.5 He asked the nurses what caused the
injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed
a request for investigation.6 In response, Dr. Rainerio S. Abad, the medical director
of the hospital, called petitioner and the assisting resident physician to explain what
happened. Petitioner said the blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the National Bureau of Investigation
for a physical examination, which was conducted by medico-legal officer Dr.
Floresto Arizala, Jr.7 The medico-legal officer later testified that Nora’s injury
appeared to be a burn and that a droplight when placed near the skin for about 10
minutes could cause such burn.8 He dismissed the likelihood that the wound was
caused by a blood pressure cuff as the scar was not around the arm, but just on one
side of the arm.9
On May 22, 1992, Nora’s injury was referred to a plastic surgeon at the Dr. Jesus
Delgado Memorial Hospital for skin grafting.10 Her wound was covered with skin
sourced from her abdomen, which consequently bore a scar as well. About a year
after, on April 30, 1993, scar revision had to be performed at the same
hospital.11 The surgical operation left a healed linear scar in Nora’s left arm about
three inches in length, the thickest portion rising about one-fourth (1/4) of an inch
from the surface of the skin. The costs of the skin grafting and the scar revision
were shouldered by the hospital.12
Unfortunately, Nora’s arm would never be the same.1a\^/phi1.net Aside from the
unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle
her wounded arm. Her movements now are also restricted. Her children cannot
play with the left side of her body as they might accidentally bump the injured arm,
which aches at the slightest touch.
Thus, on June 21, 1993, respondent spouses filed a complaint 13 for damages against
petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the
trial court decreed:
In view of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiffs and against the defendants, directing the latters, (sic) jointly and severally
–
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral
damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorney’s fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which
affirmed with modification the trial court decision, thus:
87
LEGMED (IV. Medical Negligence cases)
WHEREFORE, in view of all the foregoing, and finding no reversible error in the
appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of
Quezon City in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the
following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-
appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorney’s fees and expenses of
litigation;1awphi1.nét
3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S.
Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.
SO ORDERED.15
Petitioner’s motion for reconsideration was denied by the Court of Appeals. Hence,
the instant petition assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH
PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED
THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO
BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE
COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY
THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT
THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION
OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE
COMMITTING GRAVE ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY
THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO
AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF
RESPONDENT MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN IT MADE A RULING ON THE RESPONDENT’S INJURY QUOTING
THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE
ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION
RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE
INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES
DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE
CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION
WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED
THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED
THE COSMETIC SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION
WHEN, CONTRARY TO RESPONDENTS’ CONTRARY TESTIMONIES AND THE ABSENCE
OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH
WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE
ABUSING ITS DISCRETION.16
Petitioner contends that additional documentary exhibits not testified to by any
witness are inadmissible in evidence because they deprived her of her
constitutional right to confront the witnesses against her. Petitioner insists the
droplight could not have touched Nora’s body. She maintains the injury was due to
the constant taking of Nora’s blood pressure. Petitioner also insinuates the Court of
Appeals was misled by the testimony of the medico-legal officer who never saw the
original injury before plastic surgery was performed. Finally, petitioner stresses that
plastic surgery was not intended to restore respondent’s injury to its original state
but rather to prevent further complication.
Respondents, however, counter that the genuineness and due execution of the
additional documentary exhibits were duly admitted by petitioner’s counsel.
Respondents point out that petitioner’s blood pressure cuff theory is highly
improbable, being unprecedented in medical history and that the injury was
definitely caused by the droplight. At any rate, they argue, even if the injury was
brought about by the blood pressure cuff, petitioner was still negligent in her duties
as Nora’s attending physician.
Simply put, the threshold issues for resolution are: (1) Are the questioned
additional exhibits admissible in evidence? (2) Is petitioner liable for the injury
suffered by respondent Nora Go? Thereafter, the inquiry is whether the appellate
court committed grave abuse of discretion in its assailed issuances.
88
LEGMED (IV. Medical Negligence cases)
As to the first issue, we agree with the Court of Appeals that said exhibits are
admissible in evidence. We note that the questioned exhibits consist mostly of
Nora’s medical records, which were produced by the hospital during trial pursuant
to a subpoena duces tecum. Petitioner’s counsel admitted the existence of the
same when they were formally offered for admission by the trial court. In any case,
given the particular circumstances of this case, a ruling on the negligence of
petitioner may be made based on the res ipsa loquitur doctrine even in the absence
of such additional exhibits.
Petitioner’s contention that the medico-legal officer who conducted Nora’s physical
examination never saw her original injury before plastic surgery was performed is
without basis and contradicted by the records. Records show that the medico-legal
officer conducted the physical examination on May 7, 1992, while the skin grafting
and the scar revision were performed on Nora on May 22, 1992 and April 30, 1993,
respectively.
Coming now to the substantive matter, is petitioner liable for the injury suffered by
respondent Nora Go?
The Hippocratic Oath mandates physicians to give primordial consideration to the
well-being of their patients. If a doctor fails to live up to this precept, he is
accountable for his acts. This notwithstanding, courts face a unique restraint in
adjudicating medical negligence cases because physicians are not guarantors of
care and, they never set out to intentionally cause injury to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to reparation for the damage
caused.17
In cases involving medical negligence, the doctrine of res ipsa loquitur allows the
mere existence of an injury to justify a presumption of negligence on the part of the
person who controls the instrument causing the injury, provided that the following
requisites concur:
1. The accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.18
As to the first requirement, the gaping wound on Nora’s arm is certainly not an
ordinary occurrence in the act of delivering a baby, far removed as the arm is from
the organs involved in the process of giving birth. Such injury could not have
happened unless negligence had set in somewhere.
Second, whether the injury was caused by the droplight or by the blood pressure
cuff is of no moment. Both instruments are deemed within the exclusive control of
the physician in charge under the "captain of the ship" doctrine. This doctrine holds
the surgeon in charge of an operation liable for the negligence of his assistants
during the time when those assistants are under the surgeon’s control. 19 In this
particular case, it can be logically inferred that petitioner, the senior consultant in
charge during the delivery of Nora’s baby, exercised control over the assistants
assigned to both the use of the droplight and the taking of Nora’s blood pressure.
Hence, the use of the droplight and the blood pressure cuff is also within
petitioner’s exclusive control.
Third, the gaping wound on Nora’s left arm, by its very nature and considering her
condition, could only be caused by something external to her and outside her
control as she was unconscious while in hypovolemic shock. Hence, Nora could not,
by any stretch of the imagination, have contributed to her own injury.
Petitioner’s defense that Nora’s wound was caused not by the droplight but by the
constant taking of her blood pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As testified to by the medico-legal
officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated band can cause injury to the
patient similar to what could have happened in this case. Thus, if Nora’s wound was
caused by the blood pressure cuff, then the taking of Nora’s blood pressure must
have been done so negligently as to have inflicted a gaping wound on her arm, 20 for
which petitioner cannot escape liability under the "captain of the ship" doctrine.
Further, petitioner’s argument that the failed plastic surgery was not intended as a
cosmetic procedure, but rather as a measure to prevent complication does not help
her case. It does not negate negligence on her part.
Based on the foregoing, the presumption that petitioner was negligent in the
exercise of her profession stands unrebutted. In this connection, the Civil Code
provides:
ART. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done.…
ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendant’s wrongful act or
omission.
89
LEGMED (IV. Medical Negligence cases)
Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered
by the latter as a proximate result of petitioner’s negligence.

We note, however, that petitioner has served well as Nora’s obstetrician for her
past three successful deliveries. This is the first time petitioner is being held liable
for damages due to negligence in the practice of her profession. The fact that
petitioner promptly took care of Nora’s wound before infection and other
complications set in is also indicative of petitioner’s good intentions. We also take
note of the fact that Nora was suffering from a critical condition when the injury
happened, such that saving her life became petitioner’s elemental concern.
Nonetheless, it should be stressed that all these could not justify negligence on the
part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave
abuse of discretion in the assailed decision and resolution of the Court of Appeals.
Further, we rule that the Court of Appeals’ award of Two Hundred Thousand Pesos
(₱200,000) as moral damages in favor of respondents and against petitioner is just
and equitable.21

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and
Resolution dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

90