EN BANC
Lukes Medical Center for a biopsy of tissues taken
G.R. No. 165279 --- DR. RUBI LI, Petitioner, versus
SPOUSES REYNALDO AND LINA SOLIMAN,
Respondent.
Promulgated:
June 7, 2011
x ------------------------------------------------------------
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CONCURRING OPINION
ABAD, J.:
I join the opinion of the majority of my colleagues
as well as that of Justice Arturo D. Brion. I write
this concurring opinion out of the belief that,
ultimately, the issue in this case rests on a
question of fact.
Plaintiffs Reynaldo and Lina Soliman claim
damages against defendant Dr. Rubi Li for her
failure to sufficiently inform them before hand of
the risks of complications, pains, and quick death
that their sick daughter, Angelica, faced when
placed under chemotherapy.
As the majority points out, the Solimans had the
burden of proving the following to be entitled to
damages: 1) that Dr. Li had a duty to disclose the
material risks of placing Angela under
chemotherapy; 2) that the doctor failed to disclose
or inadequately disclosed those risks; 3) that as a
direct and proximate result of the failure to
disclose, the Solimans consented to have Angela
undergo such therapy that they otherwise would
not have consented to; and 4) that Angela suffered
injury on account of the chemotherapy.
The Key Issue of Fact
The key issue in this controversy, to my mind, is
whether or not Dr. Li failed to disclose or
inadequately disclosed to the Solimans the risks of
chemotherapy for their daughter since Dr. Li and
the Solimans gave opposing versions of what were
disclosed.
The Plaintiffs evidence
Lina Soliman (Lina) testified that in the summer of
1993 she noticed her daughter Angelica walking
with some difficulty. She brought her to a hospital
in Bicol where she was diagnosed with a malignant
tumor in her right knee. They then went to the
National Childrens Medical Center in Manila for a
second opinion but the doctor who attended her
gave the same view.
On July 7, 1993 Lina brought Angelica to St.
from her ailing leg. Dr. Tamayo, whom the
Solimans consulted, later told them that their
daughter had cancer and her leg had to be severed
to prevent the disease from spreading. Still, the
procedure, he said, offered only a 50% chance that
it would contain the spread of the malignant cells.
With the Solimans consent, the doctor amputated
the affected leg from above the knee on July 23,
1993. Dr. Tamayo then referred Angela to Dr. Li for
chemotherapy.
Before starting the chemotherapy, Dr. Li told Lina
when they met its three possible side-effects:
vomiting, hair loss, and weakening. When Lina
asked Dr. Li if the chemotherapy had any other
possible effects, she replied in the negative. The
chemotherapy was originally set for August 12,
1993 but had to be reset because the Solimans
returned to Bicol for a rest. Lina called up Dr. Li
about the deferment and during that call she
asked the doctor anew about the effects of the
drugs that she would use on Angelica. Dr. Li
repeated the three side effects she earlier
mentioned.
When Angelica checked in at St. Lukes on August
18, Dr. Li came to administer dextrose to her. On
this occasion, Dr. Li told the Solimans that Angela
had a 95% chance of becoming normal again after
the chemotherapy. Lina asked the doctor anew
about the side-effects and the latter said the same
thing: falling hair, vomiting, and weakness.
Dr. Li first administered the drugs for
chemotherapy to Angela on August 19. That night,
Angelica started vomiting. Lina asked the attending
nurse about it but the latter said that it was just
an effect of the drugs. The treatment continued on
the second day and so did the vomiting. On the
third day of chemotherapy, Lina observed redness
all over Angelicas face. She asked Dr. Li about this
but the doctor told her that it was only a reaction
to the drugs.
On the fourth day, the discoloration on Angelas
face grew darker and spread to the neck and chest.
Dr. Li assured Lina that this was an effect of the
drugs. During the following days, Angelica
complained of chest pains and difficulty in
breathing, prompting Dr. Li to administer oxygen
to her. As Lina saw that her daughter could not
bear it anymore, she asked Dr. Li to stop the
chemotherapy. Angelica passed black stool and
had reddish urine. Dr. Li explained that this, too,
was a reaction to the drugs. Lina wanted Angelica
discharged but she had to be confined because of
convulsion, which Dr. Li treated by giving her
calcium.
Afterwards, when Angelicas nose and mouth
secreted blood, Dr. Li attributed this to the
lowering of her platelet count. They decided to
move her to the hospitals intensive care unit for
closer monitoring. After getting blood transfusion,
Angelicas vomiting lessened but the color of her
skin darkened. Later, her skin shredded by just
rubbing cotton on it. She vomited blood and her
convulsions resumed to the point that she became
hysterical and said ayaw ko na. She passed away
soon after.
Reynaldo Soliman (Reynaldo), Angelicas father,
testified that they consulted with a number of
doctors from the Ago Medical and Educational
Center, the UERM Medical Center, and the
National Childrens Hospital regarding Angelicas
case. After her amputation at St. Lukes hospital,
they returned to Bicol but, on Dr. Tamayos advice,
Reynaldo decided to have Angelica undergo
chemotherapy. She was readmitted at St. Luke on
August 18, 1993. When Reynaldo met Dr. Li on
August 19, he asked her about the effects of
chemotherapy on his daughter. She replied that
Angelica would manifest falling hair, vomiting, and
weakness.
Angelica showed no reaction to the chemotherapy
on its first day. On the next day, however, redness
appeared on her face and she started vomiting.
Upon inquiry from Dr. Li, she told them that this
was normal. On August 23 Angelica appeared very
weak. When asked about this, Dr. Li said that it
was a normal reaction. Seeing the effects of
chemotherapy, Reynaldo advised the doctor to stop
the treatment. As they were settling the bills the
next day, Angelica had an epileptic fit. It took a
while for a doctor to come and give her calcium
injection to calm her down. Angelica had another
convulsion the next day. They again gave her
calcium.
Dr. Li moved Angelica to another room to ward off
infection. But she bled through her mouth. As Dr.
Li could not be located, a certain Dr. Marbella
came and told him that Angelicas blood platelets
had gone down. They gave her continuous blood
transfusions but the bleeding did not stop. Dr. Li
called Dr. Abesamis, an oncologist-pediatrician, to
assist in the case. When Angelica had another
attack, Dr. Abesamis pumped her chest to revive
her. They strapped her hands to the bed and
attached instruments to her to provide her oxygen
and suction blood from her stomach. She later
became hysterical and tried to remove the
instruments attached to her. Angelica died at 3:00
a.m. When Dr. Li came by, she said that a
malfunction occurred.
When Reynaldo asked Dr. Li for a death certificate,
she became arrogant, calling him names. Dr. Li
even asked him to sign a promissory note as he did
not have enough cash on him to settle the hospital
bill.
For her part, Dr. Li testified that Dr. Tamayo
referred Angelica to her after he operated on the
patient. Angelica suffered from a highly malignant,
highly aggressive type of cancer known as
osteosarcoma. Less than 20% of patients who were
operated on for this type of cancer survived the
first year. It usually came back within six months.
There has been no known cure for cancer as even
its causes have not been ascertained.
Dr. Tamayo referred the case to Dr. Li because he
found during the surgery that the cancer could
have already spread from the bone to the soft
tissue and the surrounding area. Dr. Tamayo
asked Dr. Li if she could give Angelica adjuvant
chemotherapy. When she met the Solimans, Dr. Li
told them what adjuvant chemotherapy was about,
why it would be given, how it would be given, and
how chemotherapy works. Surgery, she told them,
was not enough for, while the tumor had been
removed, it left small lesions that could not be seen
by the eyes. Chemotherapy would clean out the
small lesions to lower the chances of the cancer
recurring. Dr. Li gave no guarantee of a cure. She
merely told the Solimans that, if adjuvant
chemotherapy was to be given, the chances of their
daughters survival would increase and the chances
of the cancer returning would lower.
Dr. Li met the Solimans following Angelicas
amputation and they discussed the side-effects of
chemotherapy. Dr. Li told the Solimans that, since
it could not be helped that the drugs would get into
the other parts of Angelicas body, those parts
could also be affected. Angelica might lose hair and
experience nausea and vomiting (which may be
controlled by medicines). She could become
infertile or sterile. Blood elements, such as the red
and white blood cells, might also be affected and so
had to be monitored. She also explained to the
Solimans other side-effects, including loss of
appetite and darkening of skin when exposed to
sunlight. The kidneys and heart could also be
affected which was the reason for monitoring these
organs as well.
Dr. Li met the Solimans again sometime in the first
week of August at which meeting they again
discussed the chemotherapy procedure and its
side-effects. When Dr. Li met Lina about a week
later to once more discuss the treatment, the latter
wanted to be told again about the side-effects of
chemotherapy. Before Angelica was admitted to the
hospital, Lina called up Dr. Li at her house and
they discussed the same things.
On August 18 St. Lukes hospital readmitted
Angelica for the chemotherapy. On the first day,
they gave her fluids to make sure that her kidney
functioned well and that she was hydrated. Seeing
no problem, Dr. Li started Angelicas chemotherapy
on August 19.
Regarding the redness on Angelicas face, Dr. Li
explained that these were rashes. To make sure,
Dr. Li consulted Dr. Abesamis because the rashes
could also possibly mean that the patient had
systemic lupus. Regarding Angelicas convulsions
or epileptic attacks, these were actually carpo-petal
spasms, a twitching of a group of muscles of the
hands and legs. Dr. Li checked Angelicas calcium
levels, which turned out low, so she gave her
supplemental calcium. Regarding the vomiting of
blood, Dr. Li explained that she did not actually
vomit blood but that her gums began bleeding. She
just had to spit it out.
According to Dr. Li, Angelica died due to
overwhelming infection which had spread
throughout her body, causing multiple organ
failures and platelet reduction. Dr. Li insisted that
the reduction in platelet count was due to infection
although she conceded on cross-examination that,
theoretically, the chemotherapy could have
reduced the platelets as well. Dr. Li also alleged
that Angelica had a poor defense mechanism
because of her cancer.
Dr. Jaime Tamayo testified for Dr. Li. He recalled
treating the cancerous growth in Angelicas lower
left leg. The doctor amputated the leg to remove the
source of the tumor. Residual tumor cells had to
be treated, however, by chemotherapy. Even before
the amputation, the Solimans knew of the
possibility that Angelica would have to undergo
chemotherapy after surgery. The Solimans
consultation with other doctors, including the
doctor who performed the biopsy and confirmed
the diagnosis for osteosarcoma, made them aware
of that possibility.
After the surgery, Dr. Tamayo explained to the
Solimans that the amputation was not enough and
that chemotherapy was needed to go after the
malignant cells that might have metastasized. He
told the Solimans that their daughters condition
was grave and that her chances would improve
with chemotherapy. Dr. Tamayo knew that even
with surgery and chemotherapy, very few patients
lived beyond five years, as the mortality rate was
between 80 to 90%. He did not, however, consider
it necessary to tell the Solimans this.
In sum, the Solimans claim that Dr. Li informed
them of only three possible side-effects of
chemotherapy: falling hair, vomiting, and
weakness. Dr. Li, on the other hand, testified that
she was more thorough than this, apprising the
Solimans of the following side-effects of
chemotherapy: hair loss, nausea, vomiting,
possible infertility or sterility, lowering of red and
white blood cells, adverse effects on platelets, loss
of appetite, darkening of the skin, and possible
adverse effects on the heart and kidneys.
The question now is who to believe.
First. The burden is of course on the Solimans to
prove their allegations of wrong-doing on Dr. Lis
part. Quite importantly, the trial court which had
the benefit of perceiving not only the witnesses
utterances but what the movements of their eyes
and mouths said, gave credence to Dr. Lis
testimony over that of the Solimans. The trial court
held that Dr. Li in fact explained the effects of the
chemotherapy to them prior to the procedure.
Second. The Court of Appeals (CA) of course found
otherwise. It believed the Solimans version that Dr.
Li warned them only of the three side effects, given
that every time Angelicas condition appeared to
worsen, they would seek an explanation from Dr.
Li. This, said the CA, tended to show that they
were unaware of the other side-effects of the
treatment.
But if it were true that Dr. Li assured Lina no less
than three times that her daughter would suffer
only three bearable side effects, why did Lina not
confront the doctor when other side effects, which
caused Angelica greater pains, began to surface?
Besides, the fact that the Solimans, especially
Lina, still sought explanations from Dr. Li for her
daughters new pains and distress is
understandable. Lina had a clear tendency to
repeatedly inquire about matters of which she had
been previously informed. By her own admission,
she asked Dr. Li to tell her of the side effects of
chemotherapy no less than three times: a) when
they first met after the amputation; b) on the
phone while she discussed the rescheduling of the
chemotherapy with Dr. Li; and c) when the latter
came to administer dextrose to Angelica before the
chemotherapy. It should not, therefore, be
surprising for Lina to want to hear the doctors
explanation about those side effects even when the
latter had previously done so.
What is more, it would be quite natural for
parents, watching their daughters deteriorating
condition, to want to know the doctors explanation
for it. The previous explanations did not have the
benefit of the real thing occurring in their sight.
The Solimans needed assurances that these
manifestations, now come to pass, were to be
expected. In fact, when Angelica began vomiting,
the first anticipated side effect, the Solimans still
anxiously queried the attending medical staff the
reason for it.[1]
Third. The claim that Dr. Li gave assurance that performed by Dr. Tamayo, including the latters
Angelica had a 95% chance of recovery after professional fees. The amputation that Dr. Tamayo
chemotherapy cannot be believed. The Solimans performed took place before the chemotherapy and
knew that their daughter had bone cancer. Having before the Solimans met Dr. Li. The Solimans
consulted with other doctors from four medical cannot be trusted to make an appropriate claim.
institutions, the Ago Medical and Educational
Center in Bicol, the UERM Medical Center in
Manila, the National Childrens Hospital in Quezon
City, and finally the St. Lukes hospital, all of whom ROBERTO A. ABAD
gave the same dire opinion, it would be quite Associate Justice
unlikely for the Solimans to accept Dr. Lis
supposed assurance that their daughter had 95%
chance of returning to normal health after
chemotherapy. In fact, it would be most unlikely
for someone of Dr. Lis expertise to make such a [1] TSN, September 19, 1994, p. 14; TSN,
grossly reckless claim to a patient who actually December 15, 1994, pp. 6-7.
had only a 20% chance of surviving the first year.
She would literary be inviting a malpractice suit.

Fourth. At the heart of the Solimans claim for

damages is the proposition that they would not
have agreed to submit their daughter to
chemotherapy had they known that the side effects
she faced were more than just hair loss, vomiting,
and weakness. They would not have agreed if they
had known that she would suffer greater distress
and soon die.

But the Solimans are arguing from hindsight. The

fact is that they were willing to assume huge risks
on the chance that their daughter could cheat
death. They did not mind that their young
daughters left leg would be amputated from above
the knee for a 50% chance of preventing the spread
of the cancer. There is probably no person on this
planet whose family members, relatives, or close
friends have not been touched by cancer. Every
one knows of the travails and agonies of
chemotherapy, yet it is rare indeed for a cancer
patient or his relatives not to take a chance with
this treatment, which had proved successful in
extending the lives of some. Unfortunately for the
Solimans, their daughter did not number among
the successful cases.

Fifth. The Solimans accepted the risks that

chemotherapy offered with full knowledge of its
effects on their daughter. It is not fair that they
should blame Dr. Li for Angelicas suffering and
death brought about by a decease that she did not
wish upon her. Indeed, it was not Dr. Li, according
to Reynaldo, who convinced him to agree to submit
his daughter to chemotherapy but Dr. Tamayo. The
latter explained to him the need for her daughter to
undergo chemotherapy to increase the chance of
containing her cancer. This consultation took place
even before the Solimans met Dr. Li.

It is a mark of their insensitivity that the Solimans

included as proof of the damages they suffered, the
expenses they incurred for the surgical procedure
 With prior leave of court,[1] petitioner Professional
EN BANC Services, Inc. (PSI) filed a second motion for
reconsideration[2] urging referral thereof to the
PROFESSIONAL SERVICES, G.R. No. 126297 Court en banc and seeking modification of the
INC., decision dated January 31, 2007 and resolution
Petitioner, Present: dated February 11, 2008 which affirmed its
PUNO, C.J., vicarious and direct liability for damages to
CARPIO, respondents Enrique Agana and the heirs of
CORONA, Natividad Agana (Aganas).
CARPIO MORALES,
VELASCO, JR., Manila Medical Services, Inc. (MMSI),[3] Asian
NACHURA, Hospital, Inc. (AHI),[4] and Private Hospital
- v e r s u s - LEONARDO-DE CASTRO, Association of the Philippines (PHAP)[5] all sought
BRION, to intervene in these cases invoking the common
PERALTA, ground that, unless modified, the assailed decision
BERSAMIN,* and resolution will jeopardize the financial viability
DEL CASTILLO, of private hospitals and jack up the cost of health
ABAD, care.
VILLARAMA, JR.,
PEREZ and The Special First Division of the Court granted the
MENDOZA, JJ.** motions for intervention of MMSI, AHI and PHAP
THE COURT OF APPEALS and NATIVIDAD and (hereafter intervenors),[6] and referred en consulta
ENRIQUE to the Court en banc the motion for prior leave of
AGANA, court and the second motion for reconsideration of
Respondents. PSI.[7]

x-------------------x Due to paramount public interest, the Court en

NATIVIDAD [substituted by her G.R. No. 126467 banc accepted the referral[8] and heard the parties
children Marcelino Agana III, on oral arguments on one particular issue:
Enrique Agana, Jr., whether a hospital may be held liable for the
Emma Agana-Andaya, negligence of physicians-consultants allowed to
Jesus Agana and Raymund practice in its premises.[9]
Agana] and ENRIQUE AGANA,
Petitioners, To recall the salient facts, PSI, together with Dr.
Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes
(Dr. Fuentes), was impleaded by Enrique Agana
- versus- and Natividad Agana (later substituted by her
heirs), in a complaint[10] for damages filed in the
THE COURT OF APPEALS and JUAN FUENTES, Regional Trial Court (RTC) of Quezon City, Branch
Respondents. 96, for the injuries suffered by Natividad when Dr.
Ampil and Dr. Fuentes neglected to remove from
x-------------------x her body two gauzes[11] which were used in the
MIGUEL AMPIL, G.R. No. 127590 surgery they performed on her on April 11, 1984 at
Petitioner, the Medical City General Hospital. PSI was
impleaded as owner, operator and manager of the
hospital.
-versus- In a decision[12] dated March 17, 1993, the RTC
held PSI solidarily liable with Dr. Ampil and Dr.
Fuentes for damages.[13] On appeal, the Court of
NATIVIDAD and ENRIQUE Appeals (CA), absolved Dr. Fuentes but affirmed
AGANA, the liability of Dr. Ampil and PSI, subject to the
Respondents. right of PSI to claim reimbursement from Dr.
Promulgated: Ampil.[14]
February 2, 2010
x---------------------------------- On petition for review, this Court, in its January
- - - - - - - - - - - - - - - - -x 31, 2007 decision, affirmed the CA decision.[15]
PSI filed a motion for reconsideration[16] but the
RESOLUTION Court denied it in a resolution dated February 11,
CORONA, J.: 2008.[17]
The Court premised the direct liability of PSI to the
Aganas on the following facts and law:
First, there existed between PSI and Dr. Ampil an
employer-employee relationship as contemplated in
the December 29, 1999 decision in Ramos v. Court
of Appeals[18] that for purposes of allocating
responsibility in medical negligence cases, an
employer-employee relationship exists between
hospitals and their consultants.[19] Although the
Court in Ramos later issued a Resolution dated
April 11, 2002[20] reversing its earlier finding on
the existence of an employment relationship
between hospital and doctor, a similar reversal was
not warranted in the present case because the
defense raised by PSI consisted of a mere general
denial of control or responsibility over the actions
of Dr. Ampil.[21]
Second, by accrediting Dr. Ampil and advertising
his qualifications, PSI created the 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 wife's (Natividad's) condition.[23]
After his meeting with Dr. Ampil, Enrique asked
Natividad to personally consult Dr. Ampil.[24] In
effect, when Enrigue and Natividad engaged the
services of Dr. Ampil, at the back of their minds
was that the latter was a staff member of a
prestigious hospital. Thus, under the doctrine of
apparent authority applied in Nogales, et al. v.
Capitol Medical Center, et al.,[25] PSI was liable for
the negligence of Dr. Ampil.
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 Ampil but under the principle of ostensible agency
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.
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 it utilizes
doctors, surgeons and medical practitioners in the
conduct of its business 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 2176[34] in relation to Article 2180[35] 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 1431[36] and Article 1869[37] 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.
xx xx xx
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
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 resolution[42] 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 appealed[44] 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
patients 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)
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.
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
prominence[57] 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.
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 Natividads 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 Natividads
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 Let the long-delayed entry of judgment be made in
standard of hospital care. It committed corporate this case upon receipt by all concerned parties of
negligence. 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 RENATO C. CORONA
duties of the hospital are distinct from those of the Associate Justice
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 PSIs

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 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 P15 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 P15
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.
THIRD DIVISION
[G.R. No. 122445. November 18, 1997]
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF
APPEALS and LYDIA UMALI, respondents.
DECISION
FRANCISCO, J.:
"Doctors 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 mishap
or unusual consequences. Furthermore they are
not liable for honest mistake of judgment"[1]
The present case against petitioner is in the nature
of a medical malpractice suit, which in simplest
term is the type of claim which a victim has
available to him or her to redress a wrong
committed by a medical professional which has
cause bodily harm.[2] In this jurisdiction, however,
such claims are most often brought as a civil
action for damages under Article 2176 of the Civil
Code,[3] and in some instances, as a criminal case
under Article 365 of the Revised Penal Code[4] with
which the civil action for damages is impliedly
instituted. It is via the latter type of action that the
heirs of the deceased sought redress for the
petitioner's alleged imprudence and negligence in
treating the deceased thereby causing her death.
The petitioner and one Dr. Lina Ercillo who was
the attending anaesthesiologist during the
operation of the deceased were charged with
"reckless imprudence and negligence resulting to
(sic) homicide" in an information which reads:
"That on or about March 23, 1991, in the City of
San Pablo, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the
accused abovenamed, being then the attending
anaesthesiologist and surgeon, respectively, did
then and there, in a negligence (sic), careless,
imprudent, and incompetent manner, and failing
to supply or store sufficient provisions and
facilities necessary to meet any and all exigencies
apt to arise before, during and/or after a surgical
operation causing by such negligence,
carelessness, imprudence, and incompetence, and
causing by such failure, including the lack of
preparation and foresight needed to avert a
tragedy, the untimely death of said Lydia Umali on
the day following said surgical operation."[5]
Trial ensued after both the petitioner and Dr. Lina
Ercillo pleaded not guilty to the above-mentioned
charge. On March 4, 1994, the Municipal Trial
Court in Cities (MTCC) of San Pablo City rendered
a decision, the dispositive portion of which is
hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dr.
Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the
death of Lydia Umali on March 24, 1991, and
therefore guilty under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to suffer the
penalty of 2 months and 1 day imprisonment of
arresto mayor with costs."[6]
The petitioner appealed her conviction to the
Regional Trial Court (RTC) which affirmed in toto
the decision of the MTCC[7] prompting the
petitioner to file a petition for review with the Court
of Appeals but to no avail. Hence this petition for
review on certiorari assailing the decision
promulgated by the Court of Appeals on October
24, 1995 affirming petitioner's conviction with
modification that she is further directed to pay the
heirs of Lydia Umali P50,000.00 as indemnity for
her death.[8]
In substance, the petition brought before this
Court raises the issue of whether or not petitioner's
conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged
medical malpractice, is supported by the evidence
on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena
Umali De Ocampo, accompanied her mother to the
Perpetual Help Clinic and General Hospital
situated in Balagtas Street, San Pablo City,
Laguna. They arrived at the said hospital at
around 4:30 in the afternoon of the same day.[9]
Prior to March 22, 1991, Lydia was examined by
the petitioner who found a "myoma"[10] in her
uterus, and scheduled her for a hysterectomy
operation on March 23, 1991.[11] Rowena and her
mother slept in the clinic on the evening of March
22, 1991 as the latter was to be operated on the
next day at 1:00 o'clock in the afternoon.[12]
According to Rowena, she noticed that the clinic
was untidy and the window and the floor were very
dusty prompting her to ask the attendant for a rag
to wipe the window and the floor with.[13] Because
of the untidy state of the clinic, Rowena tried to
persuade her mother not to proceed with the
operation.[14] The following day, before her mother
was wheeled into the operating room, Rowena
asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her
office and the two had a conversation. Lydia then
informed Rowena that the petitioner told her that
she must be operated on as scheduled.[15]
Rowena and her other relatives, namely her
husband, her sister and two aunts waited outside
the operating room while Lydia underwent
operation. While they were waiting, Dr. Ercillo went
out of the operating room and instructed them to
buy tagamet ampules which Rowena's sister
immediately bought. About one hour had passed
when Dr. Ercillo came out again this time to ask
them to buy blood for Lydia. They bought type "A"
blood from the St. Gerald Blood Bank and the
same was brought by the attendant into the
operating room. After the lapse of a few hours, the
petitioner informed them that the operation was
finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty
minutes after, Lydia was brought out of the
operating room in a stretcher and the petitioner
asked Rowena and the other relatives to buy
additional blood for Lydia. Unfortunately, they
were not able to comply with petitioner's order as
there was no more type "A" blood available in the
blood bank. Thereafter, a person arrived to donate
blood which was later transfused to Lydia. Rowena
then noticed her mother, who was attached to an
oxygen tank, gasping for breath. Apparently the
oxygen supply had run out and Rowena's husband
together with the driver of the accused had to go to
the San Pablo District Hospital to get oxygen. Lydia
was given the fresh supply of oxygen as soon as it
arrived.[16] But at around 10:00 o'clock P.M. she
went into shock and her blood pressure dropped to
60/50. Lydia's unstable condition necessitated her
transfer to the San Pablo District Hospital so she
could be connected to a respirator and further
examined.[17] The transfer to the San Pablo City
District Hospital was without the prior consent of
Rowena nor of the other relatives present who
found out about the intended transfer only when
an ambulance arrived to take Lydia to the San
Pablo District Hospital. Rowena and her other
relatives then boarded a tricycle and followed the
ambulance.[18]
Upon Lydia's arrival at the San Pablo District
Hospital, she was wheeled into the operating room
and the petitioner and Dr. Ercillo re-operated on
her because there was blood oozing from the
abdominal incision.[19] The attending physicians
summoned Dr. Bartolome Angeles, head of the
Obstetrics and Gynecology Department of the San
Pablo District Hospital. However, when Dr. Angeles
arrived, Lydia was already in shock and possibly
dead as her blood pressure was already 0/0. Dr.
Angeles then informed petitioner and Dr. Ercillo
that there was nothing he could do to help save the
patient.[20] While petitioner was closing the
abdominal wall, the patient died.[21] Thus, on
March 24, 1991, at 3:00 o'clock in the morning,
Lydia Umali was pronounced dead. Her death
certificate states "shock" as the immediate cause of
death and "Disseminated Intravascular
Coagulation (DIC)" as the antecedent cause.[22]
In convicting the petitioner, the MTCC found the
following circumstances as sufficient basis to
conclude that she was indeed negligent in the
performance of the operation:
"x x x, the clinic was untidy, there was lack of
provision like blood and oxygen to prepare for any
contingency that might happen during the
operation. The manner and the fact that the
patient was brought to the San Pablo District
Hospital for reoperation indicates that there was
something wrong in the manner in which Dra.
Cruz conducted the operation. There was no
showing that before the operation, accused Dr.
Cruz had conducted a cardio pulmonary clearance
or any typing of the blood of the patient. It was (sic)
said in medical parlance that the "abdomen of the
person is a temple of surprises" because you do
not know the whole thing the moment it was open
(sic) and surgeon must be prepared for any
eventuality thereof. The patient (sic) chart which is
a public document was not presented because it is
only there that we could determine the condition of
the patient before the surgery. The court also
noticed in Exh. "F-1" that the sister of the deceased
wished to postpone the operation but the patient
was prevailed upon by Dra. Cruz to proceed with
the surgery. The court finds that Lydia Umali died
because of the negligence and carelessness of the
surgeon Dra. Ninevetch Cruz because of loss of
blood during the operation of the deceased for
evident unpreparedness and for lack of skill, the
reason why the patient was brought for operation
at the San Pablo City District Hospital. As such,
the surgeon should answer for such negligence.
With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate
that she should be held jointly liable with Dra.
Cruz who actually did the operation."[23]
The RTC reiterated the abovementioned findings of
the MTCC and upheld the latter's declaration of
"incompetency, negligence and lack of foresight
and skill of appellant (herein petitioner) in
handling the subject patient before and after the
operation."[24] And likewise affirming the
petitioner's conviction, the Court of Appeals echoed
similar observations, thus:
"x x x. While we may grant that the untidiness and
filthiness of the clinic may not by itself indicate
negligence, it nevertheless shows the absence of
due care and supervision over her subordinate
employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments
properly sterilized? Could the conditions in the OR
have contributed to the infection of the patient?
Only the petitioner could answer these, but she
opted not to testify. This could only give rise to the
presumption that she has nothing good to testify
on her defense. Anyway, the alleged "unverified
statement of the prosecution witness" remains
unchallenged and unrebutted.

Likewise undisputed is the prosecution's version
indicating the following facts: that the accused
asked the patient's relatives to buy Tagamet
capsules while the operation was already in
progress; that after an hour, they were also asked
to buy type "A" blood for the patient; that after the
surgery, they were again asked to procure more
type "A" blood, but such was not anymore available
from the source; that the oxygen given to the
patient was empty; and that the son-in-law of the
patient, together with a driver of the petitioner, had
to rush to the San Pablo City District Hospital to
get the much-needed oxygen. All these conclusively
show that the petitioner had not prepared for any
unforeseen circumstances before going into the
first surgery, which was not emergency in nature,
but was elective or pre-scheduled; she had no
ready antibiotics, no prepared blood, properly
typed and cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions that keep
nagging Us. Was the patient given any cardio-
pulmonary clearance, or at least a clearance by an
internist, which are standard requirements before
a patient is subjected to surgery. Did the petitioner
determine as part of the pre-operative evaluation,
the bleeding parameters of the patient, such as
bleeding time and clotting time? There is no
showing that these were done. The petitioner just
appears to have been in a hurry to perform the
operation, even as the family wanted the
postponement to April 6, 1991. Obviously, she did
not prepare the patient; neither did she get the
family's consent to the operation. Moreover, she
did not prepare a medical chart with instructions
for the patient's care. If she did all these, proof
thereof should have been offered. But there is
none. Indeed, these are overwhelming evidence of
recklessness and imprudence."[25]
This court, however, holds differently and finds the
foregoing circumstances insufficient to sustain a
judgment of conviction against the petitioner for
the crime of reckless imprudence resulting in
homicide. The elements of reckless 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 reckless
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 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.[26] In the recent
case of Leonila Garcia-Rueda v. Wilfred L. Pacasio,
et. al.,[27] 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.[28] 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.[29]
Immediately apparent from a review of the records
of this case is the absence of any expert testimony
on the matter of the standard of care employed by
other physicians of good standing in the conduct of
similar operations. The prosecution's expert
witnesses in the persons of Dr. Floresto Arizala
and Dr. Nieto Salvador, Jr. of the National Bureau
of Investigation (NBI) only testified as to the
possible cause of death but did not venture to
illuminate the court on the matter of the standard
of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the
facilities of the clinic and its untidiness; the lack of
provisions such as blood, oxygen, and certain
medicines; the failure to subject the patient to a
cardio-pulmonary test prior to the operation; the
omission of any form of blood typing before
transfusion; and even the subsequent transfer of
Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But
while it may be true that the circumstances
pointed out by the courts below seemed beyond
cavil to constitute reckless imprudence on the part
of the surgeon, this conclusion is still best arrived
at not through the educated surmises nor
conjectures of laymen, including judges, but by the
unquestionable knowledge of expert witnesses. For
whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment
of his patient is, in the generality of cases, a matter
of expert opinion.[30] The deference of courts to
the expert opinion of qualified physicians stems
from its realization that the latter possess unusual
technical skills which laymen in most instances
are incapable of intelligently evaluating.[31] Expert
testimony should have been offered to prove that
the circumstances cited by the courts below are
constitutive of conduct falling below the standard
of care employed by other physicians in good
standing when performing the same operation. It
must be remembered that when the qualifications
of a physician are admitted, as in the instant case,
there is an inevitable presumption that in proper
cases he takes the necessary precaution and
employs the best of his knowledge and skill in
attending to his clients, unless the contrary is
sufficiently established.[32] This presumption is
rebuttable by expert opinion which is so sadly
lacking in the case at bench.
Even granting arguendo that the inadequacy of the
facilities and untidiness of the clinic; the lack of
provisions; the failure to conduct pre-operation
tests on the patient; and the subsequent transfer
of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner do
indicate, even without expert testimony, that
petitioner was recklessly imprudent in the exercise
of her duties as a surgeon, no cogent proof exists
that any of these circumstances caused petitioner's
death. Thus, the absence of the fourth element of
reckless imprudence: that the injury to the person
or property was a consequence of the reckless
imprudence.
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 casual
connection of such breach and the resulting death
of his patient.[33] In Chan Lugay v. St Luke's
Hospital, Inc.,[34] 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.'''[35] (Underscoring
supplied.)
Dr. Arizala who conducted an autopsy on the body
of the deceased summarized his findings as
follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report
which has been marked as Exh. "A-1-b". There
appears here a signature above the typewritten
name Floresto Arizala, Jr., whose signature is
that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of
Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the
time and place and everything after the post
mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings"
about surgical incision, 14:0 cm., infraumbilical
area, anterior abdominal area, midline, will you
please explain that in your own language?
A. There was incision wound (sic) the area just
below the navel, sir.
Q. And the last paragraph of the postmortem
findings which I read: Uterus, pear-shaped and
pale measuring 7.5 x 5.5 x 5.0 cm, with some
surface nodulation of the fundic area posteriorly.
Cut-section shows diffusely pale myometrium with
areas of streak induration. The ovaries and
adnexal structures are missing with the raw
surfaces patched with clotted blood. Surgical
sutures were noted on the operative site.
Intestines and mesenteries are pale with blood
clots noted between the mesentric folds.
Hemoperitonium: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own
language or in ordinary
A. There was a uterus which was not attached to
the adnexal structures namely ovaries which were
not present and also sign of previous surgical
operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical
sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are
place (sic) with blood clots noted between the
mesenteric folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are mostly
perritonial blood.
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood
vessel. Blood were (sic) outside as a result of the
injuries which destroyed the integrity of the vessel
allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings
indicated in Exh. A-1-B, can you tell the court the
cause of death?
A. Yes, sir. The cause of death is: Gross findings
are compatible with hemorrhagic shock.
Q. Can you tell the us what could have caused this
hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood
loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir.[36] (Underscoring
supplied.)
The foregoing was corroborated by Dr. Nieto
Salvador:
"Q. And were you able to determine the cause of
death by virtue of the examination of the specimen
submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it
would be difficult for me to determine the cause of
death, sir.
Q. Have you examined the post mortem of Dr.
Arizala?
A. Yes, sir, and by virtue of the autopsy report in
connection with your pathology report.
Q. What could have caused the death of the
victim?
A. This pathologic examination are (sic) compatible
with the person who died, sir.
Q. Will you explain to us the meaning of
hemorrhagic compatible?
A. It means that a person died of blood loss.
Meaning a person died of non-replacement of blood
and so the victim before she died there was shock
of diminish of blood of the circulation. She died
most probably before the actual complete blood
loss, sir.
Court: Is it possible doctor that the loss of the
blood was due on (sic) operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone
surgery. Another may be a blood vessel may be cut
while on operation and this cause (sic) bleeding, or
may be set in the course of the operation, or may
be (sic) he died after the operation. Of course there
are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood
replacement?
A. Yes, sir."[37] (Underscoring supplied.)
The testimonies of both doctors establish
hemorrhage or hemorrhagic shock as the cause of
death. However, as likewise testified to by the
expert witnesses in open court, hemorrhage or
hemorrhagic shock during surgery may be caused
by several different factors. Thus, Dr. Salvador's
elaboration on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that
you mentioned you said that it could be at the
moment of operation when one losses (sic) control
of the presence, is that correct? During the
operation there is lost (sic) of control of the cut
vessel?
A. Yes, sir.

Q. Or there is a failure to ligate a vessel of
considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may
have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible
also to some clotting defect, is that correct?
A. May be (sic)."[38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the
following expert opinion:
"Q. Doctor even a patient after an operations (sic)
would suffer hemorrage what would be the possible
causes of such hemorrage (sic)?
A. Among those would be what we call
Intravascular Coagulation and this is the reason
for the bleeding, sir, which cannot be prevented by
anyone, it will happen to anyone, anytime and to
any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the
cutting or the operations done in the body?
A. Not related to this one, the bleeding here is not
related to any cutting or operation that I (sic) have
done.
Q. Aside from the DIC what could another causes
(sic) that could be the cause for the hemorrhage or
bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic)
and it is possible that the ligature in the suture
was (sic) become (sic) loose, it is (sic) becomes loose
if proven.
xxxxxxxxx
Q. If the person who performed an autopsy does
not find any untight (sic) clot (sic) blood vessel or
any suture that become (sic) loose the cause of the
bleeding could not be attributed to the fault of the
subject?
A. Definitely, sir."[39] (Underscoring supplied.)
According to both doctors, the possible causes of
hemorrhage during an operation are: (1) the failure
of the surgeon to tie or suture a cut blood vessel;
(2) allowing a cut blood vessel to get out of control;
(3) the subsequent loosening of the tie or suture
applied to a cut blood vessel; and (4) and a clotting
defect known as DIC. It is significant to state at
this juncture that the autopsy conducted by Dr.
Arizala on the body of Lydia did not reveal any
untied or unsutured cut blood vessel nor was there
any indication that the tie or suture of a cut blood
vessel had become loose thereby causing the
hemorrhage.[40] Hence the following pertinent
portion of Dr. Arizala's testimony:
"Q: Doctor, in examining these structures did you
know whether these were sutured ligature or plain
ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if
the cut structures were tied by first suturing it and
then tying a knot or the tie was merely placed
around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because
you did not even bothered (sic) to examine, is that
correct?
A: Well, I bothered enough to know that they were
sutured, sir.
Q: So, therefore, Doctor, you would not know
whether any of the cut structures were not sutured
or tied neither were you able to determine whether
any loose suture was found in the peritoneal
cavity?
A: I could not recall any loose sutured (sic),
sir."[41]
On the other hand, the findings of all three doctors
do not preclude the probability that DIC caused
the hemorrhage and consequently, Lydia's death.
DIC which is a clotting defect creates a serious
bleeding tendency and when massive DIC occurs
as a complication of surgery leaving raw surface,
major hemorrhage occurs.[42] And as testified to
by defense witness, Dr. Bu C. Castro, hemorrhage
due to DIC "cannot be prevented, it will happen to
anyone, anytime."[43] He testified further:
"Q. Now, under the circumstance one of the
possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that it cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?

A. Possible, sir.
Q. Are there any specific findings of autopsy that
will tell you whether this patient suffered among
such things as DIC?
A. Well, I did reserve because of the condition of
the patient.
Q. Now, Doctor you said that you went through the
record of the deceased Lydia Umali looking for the
chart, the operated (sic) records, the post mortem
findings on the histophanic (sic) examination
based on your examination of record, doctor, can
you more or less says (sic) what part are (sic)
concerned could have been the caused (sic) of
death of this Lydia Umali?
A. As far as the medical record is concern (sic) the
caused (sic) of death is dessimulated (sic) Intra
Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is
knowing (sic) the doctor would say whether the
doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on
finding they just read the chart as well as the other
record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the
surgeon, sir." [44]
This court has no recourse but to rely on the
expert testimonies rendered by both prosecution
and defense witnesses that substantiate rather
than contradict petitioner's allegation that the
cause of Lydia's death was DIC which, as attested
to by an expert witness, cannot be attributed to the
petitioner's fault or negligence. The probability that
Lydia's death was caused by DIC was unrebutted
during trial and has engendered in the mind of this
Court a reasonable doubt as to the petitioner's
guilt. Thus, her acquittal of the crime of reckless
imprudence resulting in homicide. While we
condole with the family of Lydia Umali, our hands
are bound by the dictates of justice and fair
dealing which hold inviolable the right of an
accused to be presumed innocent until proven
guilty beyond reasonable doubt. Nevertheless, this
Court finds the petitioner civilly liable for the death
of Lydia Umali, for while a conviction of a crime
requires proof beyond reasonable doubt, only a
preponderance of evidence is required to establish
civil liability.[45]
The petitioner is a doctor in whose hands a patient
puts his life and limb. For insufficiency of evidence
this Court was not able to render a sentence of
conviction but it is not blind to the reckless and
imprudent manner in which the petitioner carried
out her duties. A precious life has been lost and
the circumstances leading thereto exacerbated the
grief of those left behind. The heirs of the deceased
continue to feel the loss of their mother up to the
present time[46] and this Court is aware that no
amount of compassion and commiseration nor
words of bereavement can suffice to assuage the
sorrow felt for the loss of a loved one. Certainly, the
award of moral and exemplary damages in favor of
the heirs of Lydia Umali are proper in the instant
case.
WHEREFORE, premises considered, petitioner DR.
NINEVETCH CRUZ is hereby ACQUITTED of the
crime of reckless imprudence resulting in homicide
but is ordered to pay the heirs of the deceased
Lydia Umali the amount of FIFTY THOUSAND
PESOS (P50,000.00) as civil liability, ONE
HUNDRED THOUSAND PESOS (P100,000.00) as
moral damages, and FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages.
Let the copy of this decision be furnished to the
Professional Regulation Commission (PRC) for
appropriate action.
SO ORDERED.
Romero, Melo, and Panganiban, JJ., concur.
Narvasa, C.J., (Chairman), on leave.
 by certiorari under Rule 45 of the Rules of Court.
The petition assails the Decision[1] of the Court of
Appeals (CA) in CA G.R. CV No. 63234, which
SECOND DIVISION affirmed with modification the Decision[2] of the
Regional Trial Court (RTC) of Nueva Ecija, Branch
37 in Civil Case No. SD-1233. The dispositive
SPOUSES FREDELICTO FLORES (deceased) and portion of the assailed CA decision states:
FELICISIMA FLORES,
Petitioners, WHEREFORE, premises considered, the assailed
Decision of the Regional Trial Court of Baloc, Sto.
Domingo, Nueva Ecija, Branch 37 is hereby
- versus - AFFIRMED but with modifications as follows:

1) Ordering defendant-appellants Dr. and Dra.

SPOUSES DOMINADOR PINEDA and VIRGINIA Fredelicto A. Flores and the United Doctors
SACLOLO, and FLORENCIO, CANDIDA, MARTA, Medical Center, Inc. to jointly and severally pay the
GODOFREDO, BALTAZAR and LUCENA, all plaintiff-appellees heirs of Teresita Pineda, namely,
surnamed PINEDA, as heirs of the deceased Spouses Dominador Pineda and Virginia Saclolo
TERESITA S. PINEDA, and UNITED DOCTORS and Florencio, Candida, Marta, Godofredo,
MEDICAL CENTER, INC., Baltazar and Lucena, all surnamed Pineda, the
Respondents. sum of P400,000.00 by way of moral damages;
G.R. No. 158996
2) Ordering the above-named defendant-
Present: appellants to jointly and severally pay the above-
named plaintiff-appellees the sum of P100,000.00
QUISUMBING, J., Chairperson, by way of exemplary damages;
CARPIO MORALES,
TINGA, 3) Ordering the above-named defendant-
VELASCO, JR., and appellants to jointly and severally pay the above-
BRION, JJ. named plaintiff-appellees the sum of P36,000.00
by way of actual and compensatory damages; and

Promulgated: 4) Deleting the award of attorneys fees and

costs of suit.
November 14, 2008
SO ORDERED.

While this case essentially involves questions of

x ------------------------------------------------------------
-------------------------------x
facts, we opted for the requested review in light of
questions we have on the findings of negligence
below, on the awarded damages and costs, and on
the importance of this type of ruling on medical
practice.[3]

BACKGROUND FACTS

Teresita Pineda (Teresita) was a 51-year old

DECISION unmarried woman living in Sto. Domingo, Nueva
Ecija. She consulted on April 17, 1987 her
townmate, Dr. Fredelicto Flores, regarding her
medical condition. She complained of general body
weakness, loss of appetite, frequent urination and
thirst, and on-and-off vaginal bleeding. Dr.
BRION, J.: Fredelicto initially interviewed the patient and
asked for the history of her monthly period to
analyze the probable cause of the vaginal bleeding.
He 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
This petition involves a medical negligence case other symptoms, he suspected that Teresita might
that was elevated to this Court through an appeal
be suffering from diabetes and told her to continue
her medications.[4]
Teresita did not return the next week as advised.
However, when her condition persisted, she went
to further consult Dr. Flores at his UDMC clinic on
April 28, 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 testified that her sister
was then so weak that she had to lie down on the
couch of the clinic while they waited for the doctor.
When Dr. Fredelicto arrived, he did a 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 call
D&C[5] operation to be performed by his wife, Dr.
Felicisima Flores (Dr. Felicisima). Teresita was
brought to her hospital room at around 12 noon;
the hospital staff forthwith took her blood and
urine samples for the laboratory tests[6] which Dr.
Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken
to the operating room. It was only then that she
met Dr. Felicisima, an obstetrician and
gynecologist. The two doctors Dr. Felicisima and
Dr. Fredelicto, conferred on the patients medical
condition, while the resident physician and the
medical intern gave Dr. Felicisima their own
briefings. She also interviewed and conducted an
internal vaginal examination of 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
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
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.
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 which
resulted in the patients death. Due to this
negligent conduct, liability must attach to the
petitioner spouses.
Liability of the Hospital
In the proceedings below, UDMC was the spouses
Flores co-defendant. The RTC found the hospital
jointly and severally liable with the petitioner
spouses, which decision the CA affirmed. In a
Resolution dated August 28, 2006, this Court
however denied UDMCs petition for review on
certiorari. Since UDMCs appeal has been 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.
Award of Damages
Both the trial and the appellate court awarded
actual damages as compensation for the pecuniary
loss the respondents suffered. The loss was
presented in terms of the hospital bills and
expenses the respondents incurred on account of
Teresitas confinement and death. The settled rule
is that a plaintiff is entitled to be compensated for
proven pecuniary loss.[52] This proof the
respondents successfully presented. Thus, we
affirm the award of actual damages of P36,000.00
representing the hospital expenses the patient
incurred.
In addition to the award for actual damages, the
respondent heirs of Teresita are 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.

With the award of exemplary damages, the grant of

attorneys fees is legally in 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 the legal
route this case has taken.

WHEREFORE, we AFFIRM the Decision of the CA

dated June 20, 2003 in CA G.R. CV No. 63234
finding petitioner spouses liable for negligent
medical practice. We likewise AFFIRM the awards
of actual and compensatory damages of
P36,000.00; moral damages of P400,000.00; and
exemplary damages of P100,000.00.

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 costs and restoring the
award of P100,000.00 as attorneys fees. Costs of
litigation are adjudged against petitioner spouses.

To summarize, the following awards shall be paid

to the family of the late Teresita Pineda:

1. The sum of P36,000.00 by way of actual and

compensatory damages;
2. The sum of P50,000.00 by way of death
indemnity;
3. The sum of P400,000.00 by way of moral
damages;
4. The sum of P100,000.00 by way of exemplary
damages;
5. The sum of P100,000.00 by way of attorneys
fees; and
6. Costs.
SO ORDERED.

ARTURO D. BRION
Associate Justice
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, 19922 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.5 Dr. 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.8 His 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,13 alleging: –
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 P500,000.00 as moral damages and
P100,000.00 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:
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
P500,000.00 as moral damages and P100,000 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.
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 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
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.32 Reckless
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 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
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.
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.
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."45 However, 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
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.
LUCAS P. BERSAMIN
Associate Justice
 Due to persistent and profuse vaginal bleeding,
Republic of the Philippines petitioner advised Editha to undergo a Dilatation
Supreme Court and Curettage Procedure (D&C) or raspa.
Manila
On July 30, 1994, petitioner performed the D&C
procedure. Editha was discharged from the
THIRD DIVISION hospital the following day.

On September 16, 1994, Editha was once again

FE CAYAO-LASAM, brought at the LMC, as she was suffering from
vomiting and severe abdominal pains. Editha was
G.R. No. 159132 attended by Dr. Beatriz de la Cruz, Dr. Victor B.
Petitioner, Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly
informed Editha that there was a dead fetus in the
Present: latters womb. After, Editha underwent
laparotomy,[5] she was found to have a massive
YNARES-SANTIAGO, J., intra-abdominal hemorrhage and a ruptured
uterus. Thus, Editha had to undergo a procedure
Chairperson, for hysterectomy[6] and as a result, she has no
- versus - more chance to bear a child.

AUSTRIA-MARTINEZ, On November 7, 1994, Editha and her husband

Claro Ramolete (respondents) filed a Complaint[7]
CHICO-NAZARIO, for Gross Negligence and Malpractice against
petitioner before the Professional Regulations
NACHURA, and Commission (PRC).

REYES, JJ. Respondents alleged that Edithas hysterectomy

SPOUSES CLARO and
EDITHA RAMOLETE,
Promulgated:
Respondents.*
December 18, 2008
x----------------------------------
-----------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court filed
by Dr. Fe Cayao-Lasam (petitioner) seeking to
annul the Decision[1] dated July 4, 2003 of the
Court of Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months
pregnant Editha Ramolete (Editha) was brought to
the Lorma Medical Center (LMC) in San Fernando,
La Union due to vaginal bleeding. Upon advice of
petitioner relayed via telephone, Editha was
admitted to the LMC on the same day. A pelvic
sonogram[2] was then conducted on Editha
revealing the fetus weak cardiac pulsation.[3] The
following day, Edithas repeat pelvic sonogram[4]
showed that aside from the fetus weak cardiac
pulsation, no fetal movement was also appreciated.
was caused by petitioners unmitigated negligence
and professional incompetence in conducting the
D&C procedure and the petitioners failure to
remove the fetus inside Edithas womb.[8] Among
the alleged acts of negligence were: first, petitioners
failure to check up, visit or administer medication
on Editha during her first day of confinement at
the LMC;[9] second, petitioner recommended that a
D&C procedure be performed on Editha without
conducting any internal examination prior to the
procedure;[10] third, petitioner immediately
suggested a D&C procedure instead of closely
monitoring the state of pregnancy of Editha.[11]
In her Answer,[12] petitioner denied the allegations
of negligence and incompetence with the following
explanations: upon Edithas confirmation that she
would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the
arrival of Editha and ordered through the
telephone the medicines Editha needed to take,
which the nurses carried out; petitioner visited
Editha on the morning of July 28, 1994 during her
rounds; on July 29, 1994, she performed an
internal examination on Editha and she discovered
that the latters cervix was already open, thus,
petitioner discussed the possible D&C procedure,
should the bleeding become more profuse; on July
30 1994, she conducted another internal
examination on Editha, which revealed that the
latters cervix was still open; Editha persistently
complained of her vaginal bleeding and her passing
out of some meaty mass in the process of urination
and bowel movement; thus, petitioner advised
Editha to undergo D&C procedure which the
respondents consented to; petitioner was very
vocal in the operating room about not being able to
see an abortus;[13] taking the words of Editha to
mean that she was passing out some meaty mass
and clotted blood, she assumed that the abortus
must have been expelled in the process of bleeding;
it was Editha who insisted that she wanted to be
discharged; petitioner agreed, but she advised
Editha to return for check-up on August 5, 1994,
which the latter failed to do.
Petitioner contended that it was Edithas gross
negligence and/or omission in insisting to be
discharged on July 31, 1994 against doctors advice
and her unjustified failure to return for check-up
as directed by petitioner that contributed to her
life-threatening condition on September 16, 1994;
that Edithas hysterectomy was brought about by
her very abnormal pregnancy known as placenta
increta, which was an extremely rare and very
unusual case of abdominal placental implantation.
Petitioner argued that whether or not a D&C
procedure was done by her or any other doctor,
there would be no difference at all because at any
stage of gestation before term, the uterus would
rupture just the same.
On March 4, 1999, the Board of Medicine (the
Board) of the PRC rendered a Decision,[14]
exonerating petitioner from the charges filed
against her. The Board held:
Based on the findings of the doctors who
conducted the laparotomy on Editha, hers is a case
of Ectopic Pregnancy Interstitial. This type of
ectopic pregnancy is one that is being protected by
the uterine muscles and manifestations may take
later than four (4) months and only attributes to
two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma
Medical Center on July 28, 1994 due to vaginal
bleeding, an ultra-sound was performed upon her
and the result of the Sonogram Test reveals a
morbid fetus but did not specify where the fetus
was located. Obstetricians will assume that the
pregnancy is within the uterus unless so specified
by the Sonologist who conducted the ultra-sound.
Respondent (Dr. Lasam) cannot be faulted if she
was not able to determine that complainant Editha
is having an ectopic pregnancy interstitial. The
D&C conducted on Editha is necessary considering
that her cervix is already open and so as to stop
the profuse bleeding. Simple curettage cannot
remove a fetus if the patient is having an ectopic
pregnancy, since ectopic pregnancy is pregnancy
conceived outside the uterus and curettage is done
only within the uterus. Therefore, a more extensive
operation needed in this case of pregnancy in order
to remove the fetus.[15]
Feeling aggrieved, respondents went to the PRC on
appeal. On November 22, 2000, the PRC rendered
a Decision[16] reversing the findings of the Board
and revoking petitioners authority or license to
practice her profession as a physician.[17]
Petitioner brought the matter to the CA in a
Petition for Review under Rule 43 of the Rules of
Court. Petitioner also dubbed her petition as one
for certiorari[18] under Rule 65 of the Rules of
Court.
In the Decision dated July 4, 2003, the CA held
that the Petition for Review under Rule 43 of the
Rules of Court was an improper remedy, as the
enumeration of the quasi-judicial agencies in Rule
43 is exclusive.[19] PRC is not among the quasi-
judicial bodies whose judgment or final orders are
subject of a petition for review to the CA, thus, the
petition for review of the PRC Decision, filed at the
CA, was improper. The CA further held that should
the petition be treated as a petition for certiorari
under Rule 65, the same would still be dismissed
for being improper and premature. Citing Section
26[20] of Republic Act (R.A.) No. 2382 or the
Medical Act of 1959, the CA held that the plain,
speedy and adequate remedy under the ordinary
course of law which petitioner should have availed
herself of was to appeal to the Office of the
President.[21]
Hence, herein petition, assailing the decision of the
CA on the following grounds:
1. THE COURT OF
APPEALS ERRED ON A QUESTION OF LAW IN
HOLDING THAT THE PROFESSIONAL
REGULATION[S] COMMISSION (PRC) WAS
EXCLUDED AMONG THE QUASI-JUDICIAL
AGENCIES CONTEMPLATED UNDER RULE 43 OF
THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING,
ARGUENDO, THAT PRC WAS EXCLUDED FROM
THE PURVIEW OF RULE 43 OF THE RULES OF
CIVIL PROCEDURE, THE PETITIONER WAS NOT
PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO
ISSUED IN EXCESS OF OR WITHOUT
JURISDICTION, OR WHERE THE DECISION WAS
A PATENT NULLITY;
3. HEREIN
RESPONDENTS-SPOUSES ARE NOT ALLOWED
BY LAW TO APPEAL FROM THE DECISION OF
THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION;
4. THE COURT OF
APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN DENYING FOR IMPROPER
FORUM THE PETITION FOR REVIEW/PETITION
FOR CERTIORARI WITHOUT GOING OVER THE
MERITS OF THE GROUNDS RELIED UPON BY
THE PETITIONER;
5. PRCS GRAVE
OMISSION TO AFFORD HEREIN PETITONER A
CHANCE TO BE HEARD ON APPEAL IS A CLEAR
VIOLATION OF HER CONSTITUTIONAL RIGHT TO
DUE PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE
FOURTH ASSIGNED ERROR, PRC COMMITTED
GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OF JURISDICTION, IN ACCEPTING AND
CONSIDERING THE MEMORANDUM ON APPEAL
WITHOUT PROOF OF SERVICE TO HEREIN
PETITIONER, AND IN VIOLATION OF ART. IV,
SEC. 35 OF THE RULES AND REGULATIONS
GOVERNING THE REGULATION AND PRACTICE
OF PROFESSIONALS;
7. PRC COMMITTED
GRAVE ABUSE OF DISCRETION IN REVOKING
PETITIONERS LICENSE TO PRACTICE MEDICINE
WITHOUT AN EXPERT TESTIMONY TO SUPPORT
ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES
INJURY;
8. PRC COMMITTED AN
EVEN GRAVER ABUSE OF DISCRETION IN
TOTALLY DISREGARDING THE FINDING OF THE
BOARD OF MEDICINE, WHICH HAD THE
NECESSARY COMPETENCE AND EXPERTISE TO
ESTABLISH THE CAUSE OF RESPONDENT
EDITHAS INJURY, AS WELL AS THE TESTIMONY
OF THE EXPERT WITNESS AUGUSTO MANALO,
M.D. ;[AND]
9. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN MAKING CONCLUSIONS OF
FACTS THAT WERE NOT ONLY UNSUPPORTED
BY EVIDENCE BUT WERE ACTUALLY CONTRARY
TO EVIDENCE ON RECORD.[22]
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow
complainants to appeal to the PRC from the
decision of the Board. She invokes Article IV,
Section 35 of the Rules and Regulations Governing
the Regulation and Practice of Professionals, which
provides:
Sec. 35. The respondent may appeal the decision of
the Board within thirty days from receipt thereof to
the Commission whose decision shall be final.
Complainant, when allowed by law, may interpose
an appeal from the Decision of the Board within
the same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the
above law indicates that while the respondent, as a
matter of right, may appeal the Decision of the
Board to the Commission, the complainant may
interpose an appeal from the decision of the Board
only when so allowed by law.[23] Petitioner cited
Section 26 of Republic Act No. 2382 or The Medical
Act of 1959, to wit:
Section 26. Appeal from judgment. The decision of
the Board of Medical Examiners (now Medical
Board) shall automatically become final thirty days
after the date of its promulgation unless the
respondent, during the same period, has appealed
to the Commissioner of Civil Service (now
Professional Regulations Commission) and later to
the Office of the President of the Philippines. If the
final decision is not satisfactory, the respondent
may ask for a review of the case, or may file in
court a petition for certiorari.
Petitioner posits that the reason why the Medical
Act of 1959 allows only the respondent in an
administrative case to file an appeal with the
Commission while the complainant is not allowed
to do so is double jeopardy. Petitioner is of the
belief that the revocation of license to practice a
profession is penal in nature.[24]
The Court does not agree.
For one, the principle of double jeopardy finds no
application in administrative cases. Double
jeopardy attaches only: (1) upon a valid indictment;
(2) before a competent court; (3) after arraignment;
(4) when a valid plea has been entered; and (5)
when the defendant was acquitted or convicted, or
the case was dismissed or otherwise terminated
without the express consent of the accused.[25]
These elements were not present in the
proceedings before the Board of Medicine, as the
proceedings involved in the instant case were
administrative and not criminal in nature. The
Court has already held that double jeopardy does
not lie in administrative cases.[26]
Moreover, Section 35 of the Rules and Regulations
Governing the Regulation and Practice of
Professionals cited by petitioner was subsequently
amended to read:
Sec. 35. The complainant/respondent may appeal
the order, the resolution or the decision of the
Board within thirty (30) days from receipt thereof
to the Commission whose decision shall be final
and executory. Interlocutory order shall not be
appealable to the Commission. (Amended by Res.
174, Series of 1990).[27] (Emphasis supplied)

Whatever doubt was created by the previous
provision was settled with said amendment. It is
axiomatic that the right to appeal is not a natural
right or a part of due process, but a mere statutory
privilege that may be exercised only in the manner
prescribed by law.[28] In this case, the clear intent
of the amendment is to render the right to appeal
from a decision of the Board available to both
complainants and respondents.
Such conclusion is bolstered by the fact that in
2006, the PRC issued Resolution No. 06-342(A), or
the New Rules of Procedure in Administrative
Investigations in the Professional Regulations
Commission and the Professional Regulatory
Boards, which provides for the method of appeal,
to wit:
Sec. 1. Appeal; Period Non-Extendible.- The
decision, order or resolution of the Board shall be
final and executory after the lapse of fifteen (15)
days from receipt of the decision, order or
resolution without an appeal being perfected or
taken by either the respondent or the complainant.
A party aggrieved by the decision, order or
resolution may file a notice of appeal from the
decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt
thereof, and serving upon the adverse party a
notice of appeal together with the appellants brief
or memorandum on appeal, and paying the appeal
and legal research fees. x x x[29]
The above-stated provision does not qualify
whether only the complainant or respondent may
file an appeal; rather, the new rules provide that a
party aggrieved may file a notice of appeal. Thus,
either the complainant or the respondent who has
been aggrieved by the decision, order or resolution
of the Board may appeal to the Commission. It is
an elementary rule that when the law speaks in
clear and categorical language, there is no need, in
the absence of legislative intent to the contrary, for
any interpretation.[30] Words and phrases used in
the statute should be given their plain, ordinary,
and common usage or meaning.[31]
Petitioner also submits that appeals from the
decisions of the PRC should be with the CA, as
Rule 43[32] of the Rules of Court was precisely
formulated and adopted to provide for a uniform
rule of appellate procedure for quasi-judicial
agencies.[33] Petitioner further contends that a
quasi-judicial body is not excluded from the
purview of Rule 43 just because it is not mentioned
therein.[34]
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals
from judgments or final orders of the Court of Tax
Appeals, and from awards, judgments, final orders
or resolutions of or authorized by any quasi-
judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil
Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission,
Office of the President, Land Registration
Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks
and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural
Inventions Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized
by law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one
of the agencies which are expressly enumerated
under Section 1, Rule 43 of the Rules of Court.
However, its absence from the enumeration does
not, by this fact alone, imply its exclusion from the
coverage of said Rule.[35] The Rule expressly
provides that it should be applied to appeals from
awards, judgments final orders or resolutions of
any quasi-judicial agency in the exercise of its
quasi-judicial functions. The phrase among these
agencies confirms that the enumeration made in
the Rule is not exclusive to the agencies therein
listed.[36]
Specifically, the Court, in Yang v. Court of
Appeals,[37] ruled that Batas Pambansa (B.P.) Blg.
129[38] conferred upon the CA exclusive appellate
jurisdiction over appeals from decisions of the
PRC. The Court held:
The law has since been changed, however, at least
in the matter of the particular court to which
appeals from the Commission should be taken. On
August 14, 1981, Batas Pambansa Bilang 129
became effective and in its Section 29, conferred on
the Court of Appeals exclusive appellate
jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial
Courts and quasi-judicial agencies,
instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of the
Supreme Court. x x x. In virtue of BP 129, appeals
from the Professional Regulations Commission are
now exclusively cognizable by the Court of
Appeals.[39] (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the
precursor of the present Rules of Civil
Procedure,[40] lodged with the CA such
jurisdiction over the appeals of decisions made by
the PRC.
Anent the substantive merits of the case, petitioner
questions the PRC decision for being without an
expert testimony to support its conclusion and to
establish the cause of Edithas injury. Petitioner
avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion
as to the cause of the injury.[41]
Medical malpractice is a particular form of
negligence which consists in the failure of a
physician or surgeon to apply to his practice of
medicine that degree of care and skill which is
ordinarily employed by the profession generally,
under similar conditions, and in like surrounding
circumstances.[42] In order to successfully pursue
such a claim, a patient must prove that the
physician or surgeon either failed to do something
which a reasonably prudent physician or surgeon
would not have done, and that the failure or action
caused injury to the patient.[43]
There are four elements involved in medical
negligence cases: duty, breach, injury and
proximate causation.[44]
A physician-patient relationship was created when
Editha employed the services of the petitioner. As
Edithas physician, petitioner was duty-bound to
use at least the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances.[45] The
breach of these professional duties of skill and
care, or their improper performance by a physician
surgeon, whereby the patient is injured in body or
in health, constitutes actionable malpractice.[46]
As to this aspect of medical malpractice, the
determination of the reasonable level of care and
the breach thereof, expert testimony is
essential.[47] 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.[48]
In the present case, respondents did not present
any expert testimony to support their claim that
petitioner failed to do something which a
reasonably prudent physician or surgeon would
have done.
Petitioner, on the other hand, presented the
testimony of Dr. Augusto M. Manalo, who was
clearly an expert on the subject.
Generally, to qualify as an expert witness, one
must have acquired special knowledge of the
subject matter about which he or she is to testify,
either by the study of recognized authorities on the
subject or by practical experience.[49]
Dr. Manalo specializes in gynecology and
obstetrics, authored and co-authored various
publications on the subject, and is a professor at
the University of the Philippines.[50] According to
him, his diagnosis of Edithas case was Ectopic
Pregnancy Interstitial (also referred to as Cornual),
Ruptured.[51] In stating that the D&C procedure
was not the proximate cause of the rupture of
Edithas uterus resulting in her hysterectomy, Dr.
Manalo testified as follows:
Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter.
The complainant had testified here that the D&C
was the proximate cause of the rupture of the
uterus. The condition which she found herself in
on the second admission. Will you please tell us
whether that is true or not?
A: Yah, I do not think so for two reasons. One, as I
have said earlier, the instrument cannot reach the
site of the pregnancy, for it to further push the
pregnancy outside the uterus. And, No. 2, I was
thinking a while ago about another reason- well,
why I dont think so, because it is the triggering
factor for the rupture, it could havethe rupture
could have occurred much earlier, right after the
D&C or a few days after the D&C.
Q: In this particular case, doctor, the rupture
occurred to have happened minutes prior to the
hysterectomy or right upon admission on
September 15, 1994 which is about 1 months after
the patient was discharged, after the D&C was
conducted. Would you tell us whether there is any
relation at all of the D&C and the rupture in this
particular instance?
A: I dont think so for the two reasons that I have
just mentioned- that it would not be possible for
the instrument to reach the site of pregnancy. And,
No. 2, if it is because of the D&C that rupture
could have occurred earlier.[52] (Emphases
supplied)
Clearly, from the testimony of the expert witness
and the reasons given by him, it is evident that the
D&C procedure was not the proximate cause of the
rupture of Edithas uterus.
During his cross-examination, Dr. Manalo testified
on how he would have addressed Edithas condition
should he be placed in a similar circumstance as
the petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you
consider that you have done a good, correct and
ideal dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets
well. Because even after the procedure, even after
the procedure you may feel that you have scraped
everything, the patient stops bleeding, she feels
well, I think you should still have some
reservations, and wait a little more time.
Q: If you were the OB-Gyne who performed the
procedure on patient Editha Ramolete, would it be
your standard practice to check the fetal parts or
fetal tissues that were allegedly removed?
A: From what I have removed, yes. But in this
particular case, I think it was assumed that it was
part of the meaty mass which was expelled at the
time she was urinating and flushed in the toilet. So
theres no way.
Q: There was [sic] some portions of the fetal parts
that were removed?
A: No, it was described as scanty scraping if I
remember it rightscanty.
Q: And you would not mind checking those scant
or those little parts that were removed?
A: Well, the fact that it was described means, I
assume that it was checked, no. It was described
as scanty and the color also, I think was described.
Because it would be very unusual, even
improbable that it would not be examined, because
when you scrape, the specimens are right there
before your eyes. Its in front of you. You can touch
it. In fact, some of them will stick to the
instrument and therefore to peel it off from the
instrument, you have to touch them. So,
automatically they are examined closely.
Q: As a matter of fact, doctor, you also give
telephone orders to your patients through
telephone?
A: Yes, yes, we do that, especially here in Manila
because you know, sometimes a doctor can also be
tied-up somewhere and if you have to wait until he
arrive at a certain place before you give the order,
then it would be a lot of time wasted. Because if
you know your patient, if you have handled your
patient, some of the symptoms you can interpret
that comes with practice. And, I see no reason for
not allowing telephone orders unless it is the first
time that you will be encountering the patient.
That you have no idea what the problem is.
Q: But, doctor, do you discharge patients without
seeing them?
A: Sometimes yes, depending on how familiar I am
with the patient. We are on the question of
telephone orders. I am not saying that that is the
idle [sic] thing to do, but I think the reality of
present day practice somehow justifies telephone
orders. I have patients whom I have justified and
then all of a sudden, late in the afternoon or late in
the evening, would suddenly call they have decided
that they will go home inasmuch as they
anticipated that I will discharge them the following
day. So, I just call and ask our resident on duty or
the nurse to allow them to go because I have seen
that patient and I think I have full grasp of her
problems. So, thats when I make this telephone
orders. And, of course before giving that order I ask
about how she feels.[53] (Emphases supplied)
From the foregoing testimony, it is clear that the
D&C procedure was conducted in accordance with
the standard practice, with the same level of care
that any reasonably competent doctor would use to
treat a condition under the same circumstances,
and that there was nothing irregular in the way the
petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often
brought as a civil action for damages under Article
2176[54] of the Civil Code. The defenses in an
action for damages, provided for under Article
2179 of the Civil Code are:
Art. 2179. When the plaintiffs own negligence was
the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence
was only contributory, the immediate and
proximate cause of the injury being the defendants
lack of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be
awarded.
Proximate cause has been defined as that which,
in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury,
and without which the result would not have
occurred.[55] An injury or damage is proximately
caused by an act or a failure to act, whenever it
appears from the evidence in the case that the act
or omission played a substantial part in bringing
about or actually causing the injury or damage;
and that the injury or damage was either a direct
result or a reasonably probable consequence of the
act or omission.[56]
In the present case, the Court notes the findings of
the Board of Medicine:
When complainant was discharged on July 31,
1994, herein respondent advised her to return on
August 4, 1994 or four (4) days after the D&C. This
advise was clear in complainants Discharge Sheet.
However, complainant failed to do so. This being
the case, the chain of continuity as required in
order that the doctrine of proximate cause can be
validly invoked was interrupted. Had she returned,
the respondent could have examined her
thoroughly.[57] x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated
further that assuming that there was in fact a
misdiagnosis, the same would have been rectified if
Editha followed the petitioners order to return for a
check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist has
been misled (justifiably) up to thus point that there
would have been ample opportunity to rectify the
misdiagnosis, had the patient returned, as
instructed for her follow-up evaluation. It was one
and a half months later that the patient sought
consultation with another doctor. The continued
growth of an ectopic pregnancy, until its eventual
rupture, is a dynamic process. Much change in
physical findings could be expected in 1 months,
including the emergence of suggestive ones.[58]
It is undisputed that Editha did not return for a
follow-up evaluation, in defiance of the petitioners
advise. Editha omitted the diligence required by
the circumstances which could have avoided the
injury. The omission in not returning for a follow-
up evaluation played a substantial part in bringing
about Edithas own injury. Had Editha returned,
petitioner could have conducted the proper medical
tests and procedure necessary to determine
Edithas health condition and applied the
corresponding treatment which could have
prevented the rupture of Edithas uterus. The D&C
procedure having been conducted in accordance
with the standard medical practice, it is clear that
Edithas omission was the proximate cause of her
own injury and not merely a contributory
negligence on her part.
Contributory negligence is the act or omission
amounting to want of ordinary care on the part of
the person injured, which, concurring with the
defendants negligence, is the proximate cause of
the injury.[59] Difficulty seems to be apprehended
in deciding which acts of the injured party shall be
considered immediate causes of the accident.[60]
Where the immediate cause of an accident
resulting in an injury is the plaintiffs own act,
which contributed to the principal occurrence as
one of its determining factors, he cannot recover
damages for the injury.[61] Again, based on the
evidence presented in the present case under
review, in which no negligence can be attributed to
the petitioner, the immediate cause of the accident
resulting in Edithas injury was her own omission
when she did not return for a follow-up check up,
in defiance of petitioners orders. The immediate
cause of Edithas injury was her own act; thus, she
cannot recover damages from the injury.
Lastly, petitioner asserts that her right to due
process was violated because she was never
informed by either respondents or by the PRC that
an appeal was pending before the PRC.[62]
Petitioner claims that a verification with the
records section of the PRC revealed that on April
15, 1999, respondents filed a Memorandum on
Appeal before the PRC, which did not attach the
actual registry receipt but was merely indicated
therein.[63]
Respondents, on the other hand avers that if the
original registry receipt was not attached to the
Memorandum on Appeal, PRC would not have
entertained the appeal or accepted such pleading
for lack of notice or proof of service on the other
party.[64] Also, the registry receipt could not be
appended to the copy furnished to petitioners
former counsel, because the registry receipt was
already appended to the original copy of the
Memorandum of Appeal filed with PRC.[65]
It is a well-settled rule that when service of notice
is an issue, the rule is that the person alleging that
the notice was served must prove the fact of
service. The burden of proving notice rests upon
the party asserting its existence.[66] In the present
case, respondents did not present any proof that
petitioner was served a copy of the Memorandum
on Appeal. Thus, respondents were not able to
satisfy the burden of proving that they had in fact
informed the petitioner of the appeal proceedings
before the PRC.
In EDI-Staffbuilders International, Inc. v. National
Labor Relations Commission,[67] in which the
National Labor Relations Commission failed to
order the private respondent to furnish the
petitioner a copy of the Appeal Memorandum, the
Court held that said failure deprived the petitioner
of procedural due process guaranteed by the
Constitution, which could have served as basis for
the nullification of the proceedings in the appeal.
The same holds true in the case at bar. The Court
finds that the failure of the respondents to furnish
the petitioner a copy of the Memorandum of Appeal
submitted to the PRC constitutes a violation of due
process. Thus, the proceedings before the PRC
were null and void.
All told, doctors are protected by a special rule of
law. They are not guarantors of care. They are not
insurers against mishaps or unusual
consequences[68] specially so if the patient herself
did not exercise the proper diligence required to
avoid the injury.
WHEREFORE, the petition is GRANTED. The
assailed Decision of the Court of Appeals dated
July 4, 2003 in CA-GR SP No. 62206 is hereby
REVERSED and SET ASIDE. The Decision of the
Board of Medicine dated March 4, 1999
exonerating petitioner is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
THIRD DIVISION
ROGELIO P. NOGALES, G.R. No. 142625
for himself and on behalf of the minors,
ROGER ANTHONY, Present:
ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, QUISUMBING, J.,
all surnamed NOGALES, Chairperson,
Petitioners, CARPIO,
CARPIO MORALES,
- versus - TINGA, and
VELASCO, JR., JJ.
CAPITOL MEDICAL CENTER,
DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR,
DR. ROSA UY,
DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON,
DR. NOE ESPINOLA, and Promulgated:
NURSE J. DUMLAO,
Respondents. December 19, 2006
x-------------------------------------------------------------
----------------------------x
DECISION
CARPIO, J.:
The Case
This petition for review[1] assails the 6 February
1998 Decision[2] and 21 March 2000 Resolution[3]
of the Court of Appeals in CA-G.R. CV No. 45641.
The Court of Appeals affirmed in toto the 22
November 1993 Decision[4] 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 request[8] of Dr. Estrada. Upon
Corazons 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 Doctors 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 Nurses Observation Notes,[12] Dr.
Joel Enriquez (Dr. Enriquez), an anesthesiologist at
CMC, was notified at 4:15 a.m. of Corazons
admission. Subsequently, when asked if he needed
the services of an anesthesiologist, Dr. Estrada
refused. Despite Dr. Estradas refusal, Dr. Enriquez
stayed to observe Corazons condition.
At 6:00 a.m., Corazon was transferred to Delivery
Room No. 1 of the CMC. At 6:10 a.m., Corazons
bag of water ruptured spontaneously. At 6:12 a.m.,
Corazons 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 Corazons 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.
Corazons 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. Estradas 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 Corazons 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]
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. Espinolas 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
damages[15] with the Regional Trial Court[16] 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 Corazons
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 patients
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 oclock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00
oclock 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 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) Attorneys 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 courts 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 respondents 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 2002[21] 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 courts judgment, is already final as against
Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration[25] of
the Courts 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 courts ruling. The Court of
Appeals rejected petitioners view that the doctrine
in Darling v. Charleston Community Memorial
Hospital[27] 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 physicians 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. Conole[30] and Campbell v. Emma Laing
Stevens Hospital[31] applicable 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 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.
Estradas 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. Estradas negligence in handling the treatment
and management of Corazons condition which
ultimately resulted in Corazons 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. Estradas negligence is already final.
Petitioners maintain that CMC is vicariously liable
for Dr. Estradas 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 ones 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 physicians 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. Estradas
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 wifes 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 Agreement[37] 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 physicians 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
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
physicians 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
patients 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
petitioners 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
formers responsibility under a relationship of
patria potestas. x x x[40] (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 CMCs exercise of control over
Dr. Estradas treatment and management of
Corazons condition. It is undisputed that
throughout Corazons pregnancy, she was under
the exclusive prenatal care of Dr. Estrada. At the
time of Corazons 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
Corazons 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 facilities[43] 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.
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 hospitals
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
CMCs 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. Estradas request for Corazons
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 Corazons
admission and supposed hysterectomy, CMC
asked Rogelio to sign release forms, the contents of
which reinforced Rogelios belief that Dr. Estrada
was a member of CMCs 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 x[51] (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 CMCs surgical staff.[53]
Third, Dr. Estradas referral of Corazons 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 CMCs medical staff was collaborating
with other CMC-employed specialists in treating
Corazon.
The second factor focuses on the patients 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]
The records show that the Spouses Nogales relied
upon a perceived employment relationship with
CMC in accepting Dr. Estradas services. Rogelio
testified that he and his wife specifically chose Dr.
Estrada to handle Corazons delivery not only
because of their friends recommendation, but more
importantly because of Dr. Estradas connection
with a reputable hospital, the [CMC].[55] In other
words, Dr. Estradas relationship with CMC played
a significant role in the Spouses Nogales decision
in accepting Dr. Estradas services as the
obstetrician-gynecologist for Corazons delivery.
Moreover, as earlier stated, there is no showing
that before and during Corazons 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 Corazons delivery. The Court notes that prior to
Corazons fourth pregnancy, she used to give birth
inside a clinic. Considering Corazons 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,
Rogelios consent in Corazons hysterectomy to be
performed by a different physician, namely Dr.
Espinola, is a clear indication of Rogelios
confidence in CMCs surgical staff.
CMCs 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 CMCs 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 Corazons 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 Courts pronouncement in its 9
September 2002[59] 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 Corazons bleeding and to
suggest the correct remedy to Dr. Estrada.[60]
Petitioners assert that it was Dr. Villaflors 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. Villaflors allegation,
Dr. Villaflors defense remains uncontroverted. Dr.
Villaflors act of administering a lower dosage of
magnesium sulfate was not out of her own volition
or was in contravention of Dr. Estradas order.
b) Dr. Rosa Uy
Dr. Rosa Uys 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 Dumlaos wrong
method of hemacel administration.
The Court believes Dr. Uys 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
Corazons 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.
Estradas errors. Besides, there was no evidence of
Dr. Enriquezs 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 Corazons
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. Estradas diagnosis that the
cause of bleeding was uterine atony.
Dr. Espinolas order to do hysterectomy which was
based on the information he received by phone is
not negligence. The Court agrees with the trial
courts observation that Dr. Espinola, upon hearing
such information about Corazons condition,
believed in good faith that hysterectomy was the
correct remedy. At any rate, the hysterectomy did
not push through because upon Dr. Espinolas
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
Dumlaos alleged failure to follow Dr. Estradas
specific instructions. Even assuming Nurse
Dumlao defied Dr. Estradas order, there is no
showing that side-drip administration of hemacel
proximately caused Corazons death. No evidence
linking Corazons 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.

SECOND DIVISION
DR. MILAGROS L. CANTRE,
Petitioner,
G.R. No. 160889
- versus -
Present:
QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
SPS. JOHN DAVID Z. GO and NORA S. GO,
Respondents.
Promulgated:
April 27, 2007
x----------------------------------
--------------x
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision[1] dated
October 3, 2002 and Resolution[2] 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 Noras blood
pressure. Her blood pressure was frequently
monitored with the use of a sphygmomanometer.
While petitioner was massaging Noras 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 ) by three and a
half (3 ) 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 Noras 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, Noras 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 Noras 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, Noras arm would never be the
same. 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 attorneys 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:
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, attorneys fees and expenses of litigation;
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]
Petitioners 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
RESPONDENTS 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 Noras body. She maintains the
injury was due to the constant taking of Noras
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 respondents 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
petitioners counsel. Respondents point out that
petitioners 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 Noras 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.
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 Noras medical records, which
were produced by the hospital during trial
pursuant to a subpoena duces tecum. Petitioners
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.
Petitioners contention that the medico-legal officer
who conducted Noras 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 someones 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
Noras 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 surgeons
control.[19] In this particular case, it can be
logically inferred that petitioner, the senior
consultant in charge during the delivery of Noras
baby, exercised control over the assistants
assigned to both the use of the droplight and the
taking of Noras blood pressure. Hence, the use of
the droplight and the blood pressure cuff is also
within petitioners exclusive control.
Third, the gaping wound on Noras 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.
Petitioners defense that Noras 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 Noras wound was caused by the
blood pressure cuff, then the taking of Noras 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.
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.
LEONARDO A. QUISUMBING
Associate Justice

Further, petitioners 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 defendants wrongful act or
omission.

Clearly, under the law, petitioner is obliged to pay

Nora for moral damages suffered by the latter as a
proximate result of petitioners negligence.

We note, however, that petitioner has served well

as Noras 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 Noras wound before infection
and other complications set in is also indicative of
petitioners 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 petitioners 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 (P200,000) as moral damages in favor of
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. Hosakas arrival. While she held
the hand of Erlinda, Cruz saw Dr. Gutierrez trying
to intubate the patient. Cruz heard Dr. Gutierrez
utter: ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. Cruz noticed
a bluish discoloration of Erlindas nailbeds on her
left hand. She (Cruz) then heard Dr. Hosaka
instruct someone to call Dr. Calderon, another
anesthesiologist. When he arrived, Dr. Calderon
attempted to intubate the patient. The nailbeds of
the patient remained bluish, thus, she was placed
in a trendelenburg position a position where the
head of the patient is placed in a position lower
than her feet. At this point, Cruz went out of the
operating room to express her concern to petitioner
Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room
and saw that the patient was still in trendelenburg
position. At almost 3:00 in the afternoon, she saw
Erlinda being wheeled to the Intensive Care Unit
(ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in
the ICU for a month. She was released from the
hospital only four months later or on November 15,
1985. Since the ill-fated operation, Erlinda
remained in comatose condition until she died on
August 3, 1999.[1]
Petitioners filed with the Regional Trial Court of
Quezon City a civil case for damages against
private respondents. After due trial, the court a
quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private
respondents were negligent in the performance of
their duties to Erlinda. On appeal by private
respondents, the Court of Appeals reversed the
trial courts decision and directed petitioners to pay
their unpaid medical bills to private respondents.
Petitioners filed with this Court a petition for
review on certiorari. The private respondents were
then required to submit their respective comments
thereon. On December 29, 1999, this Court
promulgated the decision which private
respondents now seek to be reconsidered. The
dispositive portion of said Decision states:
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified
so as to award in favor of petitioners, and solidarily
against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of
the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages; 4)
P100,000.00 each exemplary damages and
attorneys fees; and 5) the costs of the suit.[2]
In his Motion for Reconsideration, private
respondent Dr. Hosaka submits the following as
grounds therefor:
I SEVERAL FACTUAL CIRCUMSTANCES WHICH
THE HONORABLE SUPREME COURT
COMMITTED REVERSIBLE ERROR WHEN IT
HELD RESPONDENT DR. HOSAKA LIABLE ON
THE BASIS OF THE CAPTAIN-OF-THE-SHIP
DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN
HOLDING RESPONDENT DR. HOSAKA LIABLE
DESPITE THE FACT THAT NO NEGLIGENCE CAN
BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT
RESPONDENT DR. HOSAKA IS LIABLE, THE
HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY
EXCESSIVE AND WITHOUT LEGAL BASIS.[3]
Private respondent Dr. Gutierrez, for her part,
avers that:
A. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY OVERLOOKED THE FACT
THAT THE COURT OF APPEALS DECISION
DATED 29 MAY 1995 HAD ALREADY BECOME
FINAL AND EXECUTORY AS OF 25 JUNE 1995,
THEREBY DEPRIVING THIS HONORABLE COURT
OF JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY OVERLOOKED SEVERAL
MATERIAL FACTUAL CIRCUMSTANCES WHICH,
IF PROPERLY CONSIDERED, WOULD
INDUBITABLY LEAD TO NO OTHER CONCLUSION
BUT THAT PRIVATE RESPONDENT DOCTORS
WERE NOT GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA
GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL
PROOF OF HER COMPLIANCE WITH THE
STANDARDS OF DUE CARE EXPECTED IN HER
RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA
GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL
PROOF OF HER HAVING SUCCESSFULLY
INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE
INADVERTENTLY PLACED TOO MUCH RELIANCE
ON THE TESTIMONY OF PETITIONERS WITNESS
HERMINDA CRUZ, DESPITE THE EXISTENCE OF
RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE
INADVERTENTLY DISREGARDED THE EXPERT
TESTIMONY OF DR. JAMORA AND DRA.
CALDERON
E. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY AWARDED DAMAGES TO
PETITIONERS DESPITE THE FACT THAT THERE
WAS NO NEGLIGENCE ON THE PART OF
RESPONDENT DOCTOR.[4]
Private respondent De Los Santos Medical Center
likewise moves for reconsideration on the following
grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE
COURSE TO THE INSTANT PETITION AS THE
DECISION OF THE HONORABLE COURT OF
APPEALS HAD ALREADY BECOME FINAL AND
EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN
FINDING THAT AN EMPLOYER-EMPLOYEE
[RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL
CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN
FINDING THAT RESPONDENT DE LOS SANTOS
MEDICAL CENTER IS SOLIDARILY LIABLE WITH
RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN
INCREASING THE AWARD OF DAMAGES IN
FAVOR OF PETITIONERS.[5]
In the Resolution of February 21, 2000, this Court
denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then
filed their respective second motions for
reconsideration. The Philippine College of Surgeons
filed its Petition-in-Intervention contending in the
main that this Court erred in holding private
respondent Dr. Hosaka liable under the captain of
the ship doctrine. According to the intervenor, said
doctrine had long been abandoned in the United
States in recognition of the developments in
modern medical and hospital practice.[6] The
Court noted these pleadings in the Resolution of
July 17, 2000.[7]
On March 19, 2001, the Court heard the oral
arguments of the parties, including the intervenor.
Also present during the hearing were the amicii
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
Philippine Charity Sweepstakes, former Director of
the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay,
President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-
Chair for Research, Department of Anesthesiology,
College of Medicine-Philippine General Hospital,
University of the Philippines; and Dr. Lydia M.
Egay, Professor and Vice-Chair for Academics,
Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the
Philippines.
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 Erlindas comatose condition.
The following objective facts allegedly negate a
finding of negligence on her part: 1) That the
outcome of the procedure was a comatose patient
and not a dead one; 2) That the patient had a
cardiac arrest; and 3) That the patient was revived
from that cardiac arrest.[9] In effect, Dr. Gutierrez
insists that, contrary to the finding of this Court,
the intubation she performed on Erlinda was
successful.
Unfortunately, Dr. Gutierrez claim of lack of
negligence on her part is belied by the records of
the case. It has been sufficiently established that
she failed to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards
are:
x x x What are the standards of care that an
anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of
the patient for surgery and this is a 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
patients medical history, reviewing his current
drug therapy, conducting physical examination,
interpreting laboratory data, and determining the
appropriate prescription of preoperative
medications as necessary to the conduct of
anesthesia.[12]
Physical examination of the patient entails not only
evaluating the patients central nervous system,
cardiovascular system and lungs but also the
upper airway. Examination of the upper airway
would in turn include an analysis of the patients
cervical spine mobility, temporomandibular
mobility, prominent central incisors, deceased or
artificial teeth, ability to visualize uvula and the
thyromental distance.[13]
Nonetheless, Dr. Gutierrez omitted to perform a
thorough preoperative evaluation on Erlinda. As
she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour
before the scheduled operation. She
auscultated[14] the patients heart and lungs and
checked the latters blood pressure to determine if
Erlinda was indeed fit for operation.[15] However,
she did not proceed to examine the patients
airway. Had she been able to check petitioner
Erlindas airway prior to the operation, Dr.
Gutierrez would most probably not have
experienced difficulty in intubating the former, and
thus the resultant injury could have been avoided.
As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez
admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985.
Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by
her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological
make-up and needs of Erlinda. She was likewise
not properly informed of the possible difficulties
she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez
act of seeing her patient for the first time only an
hour before the scheduled operative procedure
was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with
human lives lie at the core of the physicians
centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a clear
indicia of her negligence.[16]
Further, there is no cogent reason for the Court to
reverse its finding that it was the faulty intubation
on Erlinda that caused her comatose condition.
There is no question that Erlinda became comatose
after Dr. Gutierrez performed a medical procedure
on her. Even the counsel of Dr. Gutierrez admitted
to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying
that this involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose
after any other acts were done by Dr. Gutierrez or
comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the
procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after
some intervention, professional acts have been
done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a
consequence of some acts performed by D.
Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.[17]
What is left to be determined therefore is whether
Erlindas hapless condition was due to any fault or
negligence on the part of Dr. Gutierrez while she
(Erlinda) was under the latters care. Dr. Gutierrez
maintains that the bronchospasm and cardiac
arrest resulting in the patients comatose condition
was brought about by the anaphylactic reaction of
the patient to Thiopental Sodium (pentothal).[18]
In the Decision, we explained why we found Dr.
Gutierrez theory unacceptable. In the first place,
Dr. Eduardo Jamora, the witness who was
presented to support her (Dr. Gutierrez) theory,
was a pulmonologist. Thus, he could not be
considered an authority on anesthesia practice and
procedure and their complications.[19]
Secondly, there was no evidence on record to
support the theory that Erlinda developed an
allergic reaction to pentothal. Dr. Camagay
enlightened the Court as to the manifestations of
an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In
medical terminology an allergic reaction is
something which is not usual response and it is
further qualified by the release of a hormone called
histamine and histamine has an effect on all the
organs of the body generally release because the
substance that entered the body reacts with the
particular cell, the mass cell, and the mass cell
secretes this histamine. In a way it is some form of
response to take away that which is not mine,
which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects
as you will see you will have redness, if you have
an allergy you will have tearing of the eyes, you will
have swelling, very crucial swelling sometimes of
the larynges which is your voice box main airway,
that swelling may be enough to obstruct the entry
of air to the trachea and you could also have
contraction, constriction of the smaller airways
beyond the trachea, you see you have the trachea
this way, we brought some visual aids but
unfortunately we do not have a projector. And then
you have the smaller airways, the bronchi and
then eventually into the mass of the lungs you
have the bronchus. The difference is that these
tubes have also in their walls muscles and this
particular kind of muscles is smooth muscle so,
when histamine is released they close up like this
and that phenomenon is known as bronco spasm.
However, the effects of histamine also on blood
vessels are different. They dilate blood vessel open
up and the patient or whoever has this histamine
release has hypertension or low blood pressure to a
point that the patient may have decrease blood
supply to the brain and may collapse so, you may
have people who have this.[20]
These symptoms of an allergic reaction were not
shown to have been extant in Erlindas case. As we
held in our Decision, no evidence of stridor, skin
reactions, or wheezing some of the more common
accompanying signs of an allergic reaction appears
on record. No laboratory data were ever presented
to the court.[21]
Dr. Gutierrez, however, insists that she
successfully intubated Erlinda as evidenced by the
fact that she was revived after suffering from
cardiac arrest. Dr. Gutierrez faults the Court for
giving credence to the testimony of Cruz on the
matter of the administration of anesthesia when
she (Cruz), being a nurse, was allegedly not
qualified to testify thereon. Rather, Dr. Gutierrez
invites the Courts attention to her synopsis on
what transpired during Erlindas intubation:
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
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?
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 Erlindas 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 one.[24] Cruz,
Erlindas sister-in-law, was with her inside the
operating room. Moreover, being a nurse and Dean
of the Capitol Medical Center School of Nursing at
that, she is not entirely ignorant of anesthetic
procedure. Cruz narrated that she heard Dr.
Gutierrez remark, Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan. She
observed that the nailbeds of Erlinda became
bluish and thereafter Erlinda was placed in
trendelenburg position.[25] Cruz further averred
that she noticed that the abdomen of Erlinda
became distended.[26]
The cyanosis (bluish discoloration of the skin or
mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and
enlargement of the stomach of Erlinda indicate
that the endotracheal tube was improperly inserted
into the esophagus instead of the trachea.
Consequently, oxygen was delivered not to the
lungs but to the gastrointestinal tract. This
conclusion is supported by the fact that Erlinda
was placed in trendelenburg position. This
indicates that there was a decrease of blood supply
to the patients brain. The brain was thus
temporarily deprived of oxygen supply causing
Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not
normally happen absent any negligence in the
administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision,
the instruments used in the administration of
anesthesia, including the endotracheal tube, were
all under the exclusive control of private
respondents Dr. Gutierrez and Dr. Hosaka.[27] In
Voss vs. Bridwell,[28] which involved a patient who
suffered brain damage due to the wrongful
administration of anesthesia, and even before the
scheduled mastoid operation could be performed,
the Kansas Supreme Court applied the doctrine of
res ipsa loquitur, reasoning that the injury to the
patient therein was one which does not ordinarily
take place in the absence of negligence in the
administration of an anesthetic, and in the use
and employment of an endotracheal tube. The
court went on to say that [o]rdinarily a person
being put under anesthesia is not rendered
decerebrate as a consequence of administering
such anesthesia in the absence of negligence.
Upon these facts and under these circumstances, a
layman would be able to say, as a matter of
common knowledge and observation, that the
consequences of professional treatment were not
as such as would ordinarily have followed if due
care had been exercised.[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 patients voice, considering that the
surgeon did not have a hand in the intubation of
the patient. The court rejected the application of
the Captain-of-the-Ship Doctrine, citing the fact
that the field of medicine has become specialized
such that surgeons can no longer be deemed as
having control over the other personnel in the
operating room. It held that [a]n assignment of
liability based on actual control more realistically
reflects the actual relationship which exists in a
modern operating room.[35] Hence, only the
anesthesiologist who inserted the endotracheal
tube into the patients throat was held liable for the
injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to
do away with the Captain-of-the-Ship doctrine
does not mean that this Court will ipso facto follow
said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine.
From the facts on record it can be logically inferred
that Dr. Hosaka exercised a certain degree of, at
the very least, supervision over the procedure then
being performed on Erlinda.
First, it was Dr. Hosaka who recommended to
petitioners the services of Dr. Gutierrez. In effect,
he represented to petitioners that Dr. Gutierrez
possessed the necessary competence and skills.
Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr.
Gutierrez to administer the anesthesia on his
patient.[36]
Second, Dr. Hosaka himself admitted that he was
the attending physician of Erlinda. Thus, when
Erlinda showed signs of cyanosis, it was Dr.
Hosaka who gave instructions to call for another
anesthesiologist and cardiologist to help
resuscitate Erlinda.[37]
Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka and
Gutierrez worked as a team. Their work cannot be
placed in separate watertight compartments
because their duties intersect with each other.[38]
While the professional services of Dr. Hosaka and
Dr. Gutierrez were secured primarily for their
performance of acts within their respective fields of
expertise for the treatment of petitioner Erlinda,
and that one does not exercise control over the
other, they were certainly not completely
independent of each other so as to absolve one
from the negligent acts of the other physician.
That they were working as a medical team is
evident from the fact that Dr. Hosaka was keeping
an eye on the intubation of the patient by Dr.
Gutierrez, and while doing so, he observed that the
patients nails had become dusky and had to call
Dr. Gutierrezs attention thereto. The Court also
notes that the counsel for Dr. Hosaka admitted
that in practice, the anesthesiologist would also
have to observe the surgeons acts during the
surgical process and calls the attention of the
surgeon whenever necessary[39] in the course of
the treatment. The duties of Dr. Hosaka and those
of Dr. Gutierrez in the treatment of petitioner
Erlinda are therefore not as clear-cut as
respondents claim them to be. On the contrary, it
is quite apparent that they have a common
responsibility to treat the patient, which
responsibility necessitates that they call each
others attention to the condition of the patient
while the other physician is performing the
necessary medical procedures.
It is equally important to point out that Dr. Hosaka
was remiss in his duty of attending to petitioner
Erlinda promptly, for he arrived more than three
(3) hours late for the scheduled operation. The
cholecystectomy was set for June 17, 1985 at 9:00
a.m., but he arrived at DLSMC only at around
12:10 p.m. In reckless disregard for his patients
well being, Dr. Hosaka scheduled two procedures
on the same day, just thirty minutes apart from
each other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept
in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas
scheduled operation subjected her to continued
starvation and consequently, to the risk of
acidosis,[40] or the condition of decreased
alkalinity of the blood and tissues, marked by
sickly sweet breath, headache, nausea and
vomiting, and visual disturbances.[41] The long
period that Dr. Hosaka made Erlinda wait for him
certainly aggravated the anxiety that she must
have been feeling at the time. It could be safely
said that her anxiety adversely affected the
administration of anesthesia on her. As explained
by Dr. Camagay, the patients anxiety usually
causes the outpouring of adrenaline which in turn
results in high blood pressure or disturbances in
the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main
functions: One is to alleviate anxiety. Second is to
dry up the secretions and Third is to relieve pain.
Now, it is very important to alleviate anxiety
because anxiety is associated with the outpouring
of certain substances formed in the body called
adrenalin. When a patient is anxious there is an
outpouring of adrenalin which would have adverse
effect on the patient. One of it is high blood
pressure, the other is that he opens himself to
disturbances in the heart rhythm, which would
have adverse implications. So, we would like to
alleviate patients anxiety mainly because he will
not be in control of his body there could be adverse
results to surgery and he will be opened up; a knife
is going to open up his body. x x x[42]
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?
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 DLSMCs liability for the
resulting injury to petitioner Erlinda, we held that
respondent hospital is solidarily liable with
respondent doctors therefor under Article 2180 of
the Civil Code[45] 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 consultants
fee for services rendered by the latter.[49] Third, a
hospital does not dismiss a consultant; instead,
the latter may lose his or her accreditation or
privileges granted by the hospital.[50] Lastly,
DLSMC argues that when a doctor refers a patient
for admission in a hospital, it is the doctor who
prescribes the treatment to be given to said
patient. The hospitals obligation is limited to
providing the patient with the preferred room
accommodation, the nutritional diet and
medications prescribed by the doctor, the
equipment and facilities necessary for the
treatment of the patient, as well as the services of
the hospital staff who perform the ministerial tasks
of ensuring that the doctors orders are carried out
strictly.[51]
After a careful consideration of the arguments
raised by DLSMC, the Court finds that respondent
hospitals position on this issue is meritorious.
There is no employer-employee relationship
between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the
injury suffered by petitioner Erlinda under Article
2180 of the Civil Code.
As explained by respondent hospital, that the
admission of a physician to membership in
DLSMCs medical staff as active or visiting
consultant is first decided upon by the Credentials
Committee thereof, which is composed of the heads
of the various specialty departments such as the
Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head of
the particular specialty applied for as chairman.
The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital
Administrator the acceptance or rejection of the
applicant physician, and said director or
administrator validates the committee's
recommendation.[52] Similarly, in cases where a
disciplinary action is lodged against a consultant,
the same is initiated by the department to whom
the consultant concerned belongs and filed with
the Ethics Committee consisting of the department
specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of
said committee.
Neither is there any showing that it is DLSMC
which pays any of its consultants for medical
services rendered by the latter to their respective
patients. Moreover, the contract between the
consultant in respondent hospital and his patient
is separate and distinct from the contract between
respondent hospital and said patient. The first has
for its object the rendition of medical services by
the consultant to the patient, while the second
concerns the provision by the hospital of facilities
and services by its staff such as nurses and
laboratory personnel necessary for the proper
treatment of the patient.
Further, no evidence was adduced to show that the
injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide
for hospital facilities and staff necessary for her
treatment.
For these reasons, we reverse the finding of liability
on the part of DLSMC for the injury suffered by
petitioner Erlinda.
Finally, the Court also deems it necessary to
modify the award of damages to petitioners in view
of the supervening event of petitioner Erlindas
death. In the assailed Decision, the Court awarded
actual damages of One Million Three Hundred Fifty
Two Thousand Pesos (P1,352,000.00) to cover the
expenses for petitioner Erlindas treatment and
care from the date of promulgation of the Decision
up to the time the patient expires or survives.[53]
In addition thereto, the Court awarded temperate
damages of One Million Five Hundred Thousand
Pesos (P1,500,000.00) in view of the chronic and
continuing nature of petitioner Erlindas injury and
the certainty of further pecuniary loss by
petitioners as a result of said injury, the amount of
which, however, could not be made with certainty
at the time of the promulgation of the decision. The
Court justified such award in this manner:
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the
injury suffered as a consequence of an act of
negligence has been completed and that the cost
can be liquidated. However, these provisions
neglect to take into account those situations, as in
this case, where the resulting injury might be
continuing and possible future complications
directly arising from the injury, while certain to
occur, are difficult to predict.
In these cases, the amount of damages which
should be awarded, if they are to adequately and
correctly respond to the injury caused, should be
one which compensates for pecuniary loss incurred
and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered
but which could not, from the nature of the case,
be made with certainty. In other words, temperate
damages can and should be awarded on top of
actual or compensatory damages in instances
where the injury is chronic and continuing. And
because of the unique nature of such cases, no
incompatibility arises when both actual and
temperate damages are provided for. The reason is
that these damages cover two distinct phases.
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;

As it would not be equitableand certainly not in the (d) P100,000.00 as attorneys fees; and
best interests of the administration of justicefor the
victim in such cases to constantly come before the (e) the costs of the suit.
courts and invoke their aid in seeking adjustments
to the compensatory damages previously SO ORDERED.
awardedtemperate damages are appropriate. The
amount given as temperate damages, though to a Davide, Jr., C.J., (Chairman), Puno, and Ynares-
certain extent speculative, should take into Santiago, JJ., concur.
account the cost of proper care.

In the instant case, petitioners were able to provide

only home-based nursing care for a comatose
patient who has remained in that condition for
over a decade. Having premised our award for
compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be
now much more in step with the interests of justice
if the value awarded for temperate damages would
allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in
such care. They should not be compelled by dire
circumstances to provide substandard care at
home without the aid of professionals, for anything
less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in
temperate damages would therefore be
reasonable.[54]

However, subsequent to the promulgation of the

Decision, the Court was informed by petitioner
Rogelio that petitioner Erlinda died on August 3,
1999.[55] In view of this supervening event, the
award of temperate damages in addition to the
actual or compensatory damages would no longer
be justified since the actual damages awarded in
the Decision are sufficient to cover the medical
expenses incurred by petitioners for the patient.
Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees and
costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby

modified as follows:

(1) Private respondent De Los Santos Medical

Center is hereby absolved from liability arising
from the injury suffered by petitioner Erlinda
Ramos on June 17, 1985;

(2) Private respondents Dr. Orlino Hosaka and Dr.

Perfecta Gutierrez are hereby declared to be
Republic of the Philippines
Supreme Court
Manila
Promulgated:

THIRD DIVISION
February 15, 2012

x ------------------------------------------------------------
--------------------------- x
DR. EMMANUEL JARCIA, JR. and DR. MARILOU
BASTAN,

Petitioners, DECISION

MENDOZA, J.:

Even early on, patients have consigned their lives

to the skill of their doctors. Time and again, it can
- versus - 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.
PEOPLE OF THE PHILIPPINES, 29559, dismissing the appeal and affirming in toto
the June 14, 2005 Decision[4] of the Regional Trial
Respondent. Court, Branch 43, Manila (RTC), finding the
accused guilty beyond reasonable doubt of simple
imprudence resulting to serious physical injuries.

G.R. No. 187926

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a

Present: complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou
Bastan (Dr. Bastan), for their alleged neglect of
CARPIO,* J., professional duty which caused her son, Roy
Alfonso Santiago (Roy Jr.), to suffer serious
PERALTA,** Acting Chairperson, physical injuries. Upon investigation, the NBI
found that Roy Jr. was hit by a taxicab; that he
ABAD, was rushed to the Manila Doctors Hospital for an
emergency medical treatment; that an X-ray of the
PEREZ,*** and victims ankle was ordered; that the X-ray result
showed no fracture as read by Dr. Jarcia; that Dr.
MENDOZA, JJ. Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim,
informed Mrs. Santiago that since it was only the
ankle that was hit, there was no need to examine
the upper leg; that eleven (11) days later, Roy Jr.
developed fever, swelling of the right leg and
misalignment of the right foot; that Mrs. Santiago
brought him back to the hospital; and that the X-
ray revealed a right mid-tibial fracture and a linear
hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the
City Prosecutor of Manila for preliminary
investigation. Probable cause was found and a
criminal case for reckless imprudence resulting to
serious physical injuries, was filed against Dr.
Jarcia, Dr. Bastan and Dr. Pamittan,[5] before the
RTC, docketed as Criminal Case No. 01-196646.
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 portion of the RTC decision
reads:
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:
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 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:
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.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
xxxxxxxxx
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be
done?
A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the
wounds of my son, are you not going to x-ray up to
the knee because my son was complaining pain
from his ankle up to the middle part of the right
leg.
Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-
ray because it was the ankle part that was run
over.
Q: What did you do or tell her?
A: I told her, sir, why is it that they did not
examine[x] the whole leg. They just lifted the pants
of my son.
Q: So you mean to say there was no treatment
made at all?
A: None, sir.
xxxxxxxxx
A: I just listened to them, sir. And I just asked if I
will still return my son.
xxxxxxxxx
Q: And you were present when they were called?
A: Yes, sir.
Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they
have mistakes, sir.
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;
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.
In the above requisites, the fundamental element is
the control of the instrumentality which caused the
damage. Such element of control must be shown 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 where it is applicable and must
establish that the essential elements of the
doctrine were present in a particular incident. The
early treatment of the leg of Roy would have lessen
his suffering if not entirely relieve him from the
fracture. A boy of 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 who only practice
general surgery and without specialization with the
case consulted before them, they should have
referred the matter to a specialist. This 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
refused to do so. The mother would not have asked
them if they had no exclusive control or prerogative
to request an x-ray test. Such is a fact because a
radiologist would only conduct the x-ray test upon
request of a physician.
The testimony of Mrs. Santiago was corroborated
by a bone specialist Dr. Tacata. He further testified
based on his personal knowledge, and not as an
expert, as he examined himself the child Roy. He
testified as follows:
Fiscal Macapagal:
Q: And was that the correct respon[se] to the
medical problem that was presented to Dr. Jarcia
and Dra. Bastan?
A: I would say at that stage, yes. Because they
have presented the patient and the history. At sabi
nila, nadaanan lang po ito. And then, considering
their year of 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 orthopedic
resident, I am not trying to saybut if I were an
orthopedic resident, there would be more precise
and accurate decision compare to a general
surgery resident in so far as involved.
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 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]
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?
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 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.
JOSE CATRAL MENDOZA
Associate Justice
 Due to her lumbar pains, private respondent
Editha Sioson went to Rizal Medical Center (RMC)
Republic of the Philippines for check-up on February 4, 1995. Sometime in
Supreme Court 1999, due to the same problem, she was referred
Manila to Dr. Pedro Lantin III of RMC who, accordingly,
ordered several diagnostic laboratory tests. The
SECOND DIVISION tests revealed that her right kidney is normal. It
was ascertained, however, that her left kidney is
RICO ROMMEL ATIENZA, non-functioning and non-visualizing. Thus, she
Petitioner, 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
- versus - 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.
BOARD OF MEDICINE and EDITHA SIOSON,
Respondents. It was alleged in the complaint that the gross
G.R. No. 177407 negligence and/or incompetence committed by the
said doctors, including petitioner, consists of the
Present: removal of private respondents fully functional
NACHURA, 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
VILLARAMA, JR.,** and complainant Romeo Sioson presented his evidence,
MENDOZA, JJ. private respondent Editha Sioson, also named as
complainant there, filed her formal offer of
Promulgated: documentary evidence. Attached to the formal offer
of documentary evidence are her Exhibits A to D,
February 9, 2011 which she offered for the purpose of proving that
her kidneys were both in their proper anatomical
locations at the time she was operated. She
x------------------------------------------------------------- described her exhibits, as follows:
-----------------------x
EXHIBIT A the certified photocopy of the X-ray
Request form dated December 12, 1996, which is
DECISION also marked as Annex 2 as it was actually
originally the Annex to x x x Dr. Pedro Lantin, IIIs
NACHURA, J.: counter affidavit filed with the City Prosecutor of
Pasig City in connection with the criminal
complaint filed by [Romeo Sioson] with the said
Before us is a petition for review on certiorari office, on which are handwritten entries which are
under Rule 45 of the Rules of Court, assailing the the interpretation of the results of the ultrasound
Decision[1] dated September 22, 2006 of the Court examination. Incidentally, this exhibit happens to
of Appeals (CA) in CA-G.R. SP No. 87755. The CA be the same as or identical to the certified
dismissed the petition for certiorari filed by photocopy of the document marked as Annex 2 to
petitioner Rico Rommel Atienza (Atienza), which, in the Counter-Affidavit dated March 15, 2000, filed
turn, assailed the Orders[2] issued by public by x x x Dr. Pedro Lantin, III, on May 4, 2000, with
respondent Board of Medicine (BOM) in this Honorable Board in answer to this complaint;
Administrative Case No. 1882.
EXHIBIT B the certified photo copy of the X-ray
The facts, fairly summarized by the appellate request form dated January 30, 1997, which is
court, follow. 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.
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.
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
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.

Sec. 3. Original document must be produced; SO ORDERED.

exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document itself, ANTONIO EDUARDO B. NACHURA
except in the following cases: Associate Justice
Acting Chairperson
(a) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on
the part of the offeror;

(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
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192973 September 29, 2014
PEDRITO DELA TORRE, Petitioner,
vs.
DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in
their capacity as owners and operators of DIVINE
SPIRIT GENERAL HOSPITAL and/or DR. NESTOR
PASAMBA, Respondents.
RESOLUTION
REYES, J.:
This resolves the petition for review on certiorari1
filed by petitioner Pedrito Dela Torre (Pedrito)
assailing the Decision2 dated December 15, 2009
and Resolution3 dated July 27, 2010 of the Court
of Appeals (CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages
filed by Pedrito against herein respondents Dr.
ArturoImbuido and Dr. Norma Imbuido (Dr.
Norma), in their capacity as the ownersand
operators of the Divine Spirit General Hospital in
Olongapo City, and Dr. Nestor Pasamba (Dr.
Nestor) (respondents). Pedrito alleged in his
complaint that he was married to one Carmen
Castillo Dela Torre(Carmen), who died while
admitted at the Divine Spirit General Hospital on
February 13, 1992. Carmen was due to give birth
on February 2,1992 and was brought at around
11:30 p.m. on that day by Pedrito to the Divine
Spirit General Hospital. When Carmen still had not
delivered her baby at the expected time, Dr. Norma
discussed with Pedrito the possibility of a
caesarean section operation.5
At around 3:00 p.m. on February 3, 1992, Carmen
was brought to the hospital’s operating room for
her caesarian section operation, which was to be
performed by Dr. Nestor. By 5:30 p.m. of the same
day, Pedrito was informed of his wife’s delivery of a
baby boy. In the early morning of February 4,
1992, Carmen experienced abdominal pain and
difficulty in urinating. She was diagnosed to be
suffering from urinary tract infection (UTI), and
was prescribed medications by Dr. Norma. On
February 10, 1992, Pedrito noticed that Carmen’s
stomach was getting bigger, but Dr. Norma
dismissed the patient’s condition as mere
flatulence (kabag).6
When Carmen’s stomach still grewbigger despite
medications, Dr. Norma advised Pedrito of the
possibility of a second operation on Carmen. Dr.
Norma, however, provided no detailson its purpose
and the doctor who would perform it. At around
3:00 p.m. on February 12, 1992, Carmen had her
second operation. Later in the evening, Dr. Norma
informed Pedrito that "everything was going on fine
with [his] wife."7
The condition of Carmen, however, did not
improve. It instead worsened that on February 13,
1992, she vomited dark red blood. At 9:30 p.m. on
the same day, Carmen died.8 Per her certificate of
death upon information provided by the
hospital,the immediate cause of Carmen’s death
was "cardio-respiratory arrest secondary to cerebro
vascular accident, hypertension and chronic
nephritis induced by pregnancy."9 An autopsy
Report10 prepared by Dr. Richard Patilano(Dr.
Patilano), Medico-Legal Officer-Designate of
Olongapo City, however, provided that the cause of
Carmen’s death was "shock due to peritonitis,
severe, with multiple intestinal adhesions; Status
post C[a]esarian Section and Exploratory
Laparotomy."
Pedrito claimed in his complaint that the
respondents "failed to exercise the degree of
diligence required of them" as members of the
medical profession, and were "negligent for
practicing surgery on [Carmen] in the most
unskilled, ignorant and cruel manner, x x x[.]"11
In their answer12 to the complaint, the
respondents argued that they "observed the
required standard of medical care in attending to
the needs of Carmen."13 The respondents
explained that Carmen was admitted in Divine
Spirit General Hospital for "pregnancy in labor and
pre-eclampsia." Her condition was closely
monitored during her confinement. A caesarian
section operation became necessary, as she
manifested no significant progress for the
spontaneous delivery of her baby.14 No unusual
events were observed during the course of
Carmen’s caesarian section operation. The second
surgery, however, became necessary due to
suspected intestinal obstruction and adhesions.
This procedure was fully explained to Carmen and
Pedrito prior to its conduct. During the second
operation, the diagnosis of intestinal obstruction
and adhesion was confirmed but resolved by her
doctors. Despite the observance of due care by the
doctors, however, Carmen died on February 13,
1992.15
The respondents included in their answer a
counterclaim for P48,515.58 as unpaid hospital
charges, professional fees and medicines,
P3,000,000.00 for moral damages, P1,500,000.00
for exemplary damages, and attorney’s fees.16
After the pre-trial conference, trial proper ensued.
To support his claim, Pedrito presented the
testimony of Dr. Patilano, the medicolegal officer
who conducted an autopsy on the body of Carmen
upon a telephone request made by the City Health
Officer of Olongapo City, Dr. Generoso Espinosa.
Among Dr. Patilano’s observations, as narrated in
the lower court’s decision, were as follows:
In the intestines, [Dr. Patilano] found outthat it
was more reddish than the normal condition which
is supposed to bepinkish. There was presence of
adhesions, meaning, it sticks to each other and
these areas were dilated. There were constricted
areas. He concluded that there might have been
foreign organic matters in the intestines. He did
not see any swelling but assuming that there was,
it would be concomitant to the enlargement. x x x
He came to the conclusion that the cause of death
was peritonitis, with the multiple adhesions status
in the post caesarian section. In connection with
peritonitis, this is the inflammation of the
abdomen. This peritonitis in the abdominal cavity
may be caused by several conditions which are
supposed to be infections, entrance of foreign
bodies in the intestines in connection with
ruptured peptic ulcer or [may be] somewhere in the
spleen. The entrance of foreign object in the
abdominal cavities may cause severe infections of
the intra-abdominal cavities resulting [in] multiple
adhesions of the intestines. In cases of surgical
operation, it [may be] due to the conditions of the
instruments used, the materials used in the
operating room being not aseptic and the ladies
assisting the operation were not in uniform. x x
x.17
Dr. Patilano claimed that peritonitis could have
been prevented through proper medical procedures
and medicines. He also stated that if the cause of
Carmen’s death was actually cerebro-vascular
accident, there would have been ruptured blood
vessels and blood clot in her head; but there were
none in Carmen’s case.18
Among those who testified to refutePedrito’s claim
was Dr. Nestor. He claimed that when Carmen was
referred to him on February 3, 1992, she was in
full term uterine pregnancy, with pre-eclampsia,
fetal distress and active labor pains. A caesarian
section operation became necessary to terminate
the pregnancy for her safety. Carmen was ready to
go home four days after giving birth, but was
advised by the doctors to stay more because of her
persistent hypertension.19
The second surgery performed on Carmen was
necessary after she showed symptoms of intestinal
obstruction, which happens as the intestines get
twisted due to adhesions and the normal flow of
intestinal contents are obstructed. For Dr. Nestor,
this occurrence was not preventable since any
interference of the abdominal cavity would irritate
the serosa of the intestines, inviting adhesions that
could cause obstruction. Surgery could remedy the
adhesions and obstruction.20 Both Carmen and
Pedrito gave their written consent to this second
procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the
Medico-Legal Division of the Philippine National
Police (PNP) Crime Laboratory Service,22 also
testified for the respondents.He claimed that based
on Dr. Patilano’s report, vital internal organs of
Carmen, such as her brain, lungs, kidneys, liver
and adrenal glands, were not examined during the
autopsy.23
On January 28, 2003, the Regional Trial Court
(RTC) of Olongapo City, Branch 75, rendered its
Decision24 in favor of Pedrito. The trial court gave
greater weight to the testimony of Dr. Patilano and
thus disposed of the case as follows:
WHEREFORE, premises considered, judgment is
hereby rendered in favor of the plaintiff and
against the defendants, ordering the latter to pay
jointly and severally, the former, the following
sums of money, to wit:
1.) the sum of Php 28,759.46 as actual damages;
2.) the sum of Fifty Thousand (Php 50,000.00)
Pesos as indemnity for the death of Carmen dela
Torre;
3.) the sum of Fifty Thousand (Php 50,000.00)
Pesos as moral damages and the further sum of
Twenty Thousand (Php 20,000.00) Pesos as
exemplary damages;
4.) the sum of Twenty Thousand (Php 20,000.00)
Pesos as attorney’s fees; and
5.) the costs of [suit].
SO ORDERED.25
Dissatisfied with the RTC ruling, the respondents
appealed to the CA. On December 15, 2009, the CA
rendered its Decision reversing and setting aside
the decision of the RTC. For the appellate court, it
was not established that the respondents failed to
exercisethe degree of diligence required of them by
their profession as doctors. The CA also granted
the respondents’ counterclaim for the amount of
P48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial
Court of Olongapo City dated January 28, 2003 in
Civil Case No. 165-0-92 is hereby REVERSED AND
SET ASIDE.

Plaintiff-appellee is directed to pay the unpaid
balance for hospital bills, professional fees and
other expenses in the amount of [P]48,515.58.
SO ORDERED.26
Hence, this petition for review on certiorariin which
Pedrito insists that the respondents should be held
liable for the death of Carmen.
The petition is denied.
"[M]edical 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 professionalwhich
has caused bodily harm." In order to successfully
pursue such a claim, a patient, or his or her family
as in this case, "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 failure or action
caused injury to the patient."27
The Court emphasized in Lucas, et al. v. Tuaño28
that in medical negligence cases, there is a
physician-patient relationship between the doctor
and the victim, but just like in any other
proceeding for damages, four essential elements
must be established by the plaintiff, namely: (1)
duty; (2) breach; (3) injury; and (4) proximate
causation. All four elements must be present in
order to find the physician negligent and, thus,
liable for damages.29
It is settled that a physician’s duty tohis patient
relates to his exercise of the 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. There is breach of this duty when the
patient is injured in body or in health. Proof of this
breach rests upon the testimony of an expert
witness that the treatment accorded to the patient
failed to meet the standard level of care, skill and
diligence. To justify an award of damages, the
negligence of the doctor must be established to be
the proximate cause of the injury.30
Through the instant petition, Pedritoseeks the
reinstatement of the decision of the RTC whose
finding of the respondents’ medical negligence
depended mainly on the testimony of Dr. Patilano.
Upon review, however, the Court agrees with the
CA that the report and testimony of Dr. Patilano
failed to justify Pedrito’s entitlement to the
damages awarded by the RTC.
For the trial court to give weightto Dr. Patilano’s
report, it was necessary to show first Dr. Patilano’s
specialization and competence to testify on the
degree of care, skill and diligence needed for the
treatment of Carmen’s case. Considering that it
was not duly established that Dr. Patilano
practiced and was an expert inthe fields that
involved Carmen’s condition, he could not have
accurately identified the said degree of care, skill,
diligence and the medical procedures that should
have been applied by her attending physicians.
Similarly, such duty, degree of care, skill and
diligence were not sufficiently established in this
case because the testimony of Dr. Patilano was
based solely on the results of his autopsy on the
cadaver of Carmen. His study and assessment
were restrictedby limitations that denied his full
evaluation of Carmen’s case. He could have only
deduced from the injuries apparent in Carmen’s
body, and in the condition when the body was
examined. Judging from his testimony, Dr.
Patilano did not even take full consideration of the
medical history of Carmen, her actual health
condition at the time of hospital admission, and
her condition as it progressed while she was being
monitored and treated by the respondents. There
was also no reference to the respondents’ defense
that the emergency caesarian section operation
had to be performed in order to protect the lives
and safety of Carmen and her then unborn child.
For lack of sufficient information on Carmen’s
health condition while still alive, Dr. Patilano could
not have fully evaluated the suitability of the
respondents’ decisions in handling Carmen’s
medical condition as it turned critical.
On the other hand, the CA pointed out that Dr.
Nestor, a surgeon, possessed the reasonable degree
of learning, skill and experience required by his
profession for the treatment ofCarmen. The
respondents also emphasized in their pleadings
beforethe RTC that Dr. Nestor had his training and
experience in surgery and obstetrics since
1970.1âwphi1 Without sufficient proof from the
claimant on a different degree of care, skill and
diligence that should be expected from the
respondents, it could not be said with certainty
that a breachwas actually committed.
Moreover, while Dr. Patilano opined that Carmen
died of peritonitis which could be due to the poor
state of the hospital equipment and medical
supplies used during her operation, there was no
sufficient proof that any such fault actually
attended the surgery of Carmen, caused her illness
and resulted in her death. It is also significant that
the Chief of the Medico-Legal Division of the PNP
Crime Laboratory Service, Dr. Torres, testified
before the trial court that based on the autopsy
report issued by Dr. Patilano, the latter did not
comply with the basic autopsy procedure when he
examined the cadaver of Carmen. Dr. Patilano did
not appear to have thoroughly examined Carmen’s
vital organs such as her heart, lungs, uterus and
brain during the autopsy. His findings were then
inconclusive on the issue of the actual cause of
Carmen's death, and the claim of negligence
allegedly committed by the respondents.

As the Court held in Spouses Flores v. Spouses

Pineda, et al.,31 the critical and clinching factor in
a medical negligence case is proof of the causal
connection between the negligence and the
injuries. The claimant must prove not only the
injury but also the defendant's fault, and that such
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,32 which the Court
finds absent in the case at bar. As regards the
respondents' counterclaim, the CA's award of
P48,515.58 is sustained, considering that among
the parties' stipulations during the pre-trial
indicated:

5. That at the time of the death of the patient

Carmen C. dela Torrell there was an unpaid
balance for hospital bills, professional fees and
other expenses in the amount of P48,515.58,
incurred by plaintiff when the patient was confined
at said hospital from February 3 to 13, 1992.33

WHEREFORE, the petition is DENIED. The

Decision dated December 15, 2009 and Resolution
dated July 27, 2010 of the Court of Appeals in CA-
G.R. CV No. 78534 are AFFIRMED.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice
Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 175540 April 7, 2014
DR. FILOTEO A. ALANO, Petitioner,
vs.
ZENAIDA MAGUD-LOGMAO, Respondent.
DECISION
PERALTA, J.:
This deals with the Petition for Review on Certiorari
under Rule 45 of the Rules of Court praying that
the Decision1 of the Court of Appeals (CA), dated
March 31, 2006, adjudging petitioner liable for
damages, and the Resolution2 dated November 22,
2006, denying petitioner's motion for
reconsideration thereof, be reversed and set aside.
The CA's narration of facts is accurate, to wit:
Plaintiff-appellee Zenaida Magud-Logmao is the
mother of deceased Arnelito Logmao. Defendant-
appellant Dr. Filoteo Alano is the Executive
Director of the National Kidney Institute (NKI).
At around 9:50 in the evening of March 1, 1988,
Arnelito Logmao, then eighteen (18) years old, was
brought to the East Avenue Medical Center (EAMC)
in Quezon City by two sidewalk vendors, who
allegedly saw the former fall from the overpass
near the Farmers’ Market in Cubao, Quezon City.
The patient’s data sheet identified the patient as
Angelito Lugmoso of Boni Avenue, Mandaluyong.
However, the clinical abstract prepared by Dr.
Paterno F. Cabrera, the surgical resident on-duty
at the Emergency Room of EAMC, stated that the
patient is Angelito [Logmao].
Dr. Cabrera reported that [Logmao] was drowsy
with alcoholic breath, was conscious and coherent;
that the skull x-ray showed no fracture; that at
around 4:00 o’clock in the morning of March 2,
1988, [Logmao] developed generalized seizures and
was managed by the neuro-surgery resident on-
duty; that the condition of [Logmao] progressively
deteriorated and he was intubated and ambu-
bagging support was provided; that admission to
the Intensive Care Unit (ICU) and mechanical
ventilator support became necessary, but there
was no vacancy at the ICU and all the ventilator
units were being used by other patients; that a
resident physician of NKI, who was rotating at
EAMC, suggested that [Logmao] be transferred to
NKI; and that after arrangements were made,
[Logmao] was transferred to NKI at 10:10 in the
morning.
At the NKI, the name Angelito [Logmao] was
recorded as Angelito Lugmoso. Lugmoso was
immediately attended to and given the necessary
medical treatment. As Lugmoso had no relatives
around, Jennifer B. Misa, Transplant Coordinator,
was asked to locate his family by enlisting police
and media assistance. Dr. Enrique T. Ona,
Chairman of the Department of Surgery, observed
that the severity of the brain injury of Lugmoso
manifested symptoms of brain death. He requested
the Laboratory Section to conduct a tissue typing
and tissue cross-matching examination, so that
should Lugmoso expire despite the necessary
medical care and management and he would be
found to be a suitable organ donor and his family
would consent to organ donation, the organs thus
donated could be detached and transplanted
promptly to any compatible beneficiary.
Jennifer Misa verified on the same day, March 2,
1988, from EAMC the identity of Lugmoso and,
upon her request, she was furnished by EAMC a
copy of the patient’s date sheet which bears the
name Angelito Lugmoso, with address at Boni
Avenue, Mandaluyong. She then contacted several
radio and television stations to request for air time
for the purpose of locating the family of Angelito
Lugmoso of Boni Avenue, Mandaluyong, who was
confined at NKI for severe head injury after
allegedly falling from the Cubao overpass, as well
as Police Station No. 5, Eastern Police District,
whose area of jurisdiction includes Boni Avenue,
Mandaluyong, for assistance in locating the
relatives of Angelito Lugmoso. Certifications were
issued by Channel 4, ABS-CBN and GMA attesting
that the request made by the NKI on March 2,
1988 to air its appeal to locate the family and
relatives of Angelito Lugmoso of Boni Avenue,
Mandaluyong was accommodated. A Certification
was likewise issued by Police Station No. 5,
Eastern Police District, Mandaluyong attesting to
the fact that on March 2, 1988, at about 6:00 p.m.,
Jennifer Misa requested for assistance to
immediately locate the family and relatives of
Angelito Lugmoso and that she followed up her
request until March 9, 1988.
On March 3, 1988, at about 7:00 o’clock in the
morning, Dr. Ona was informed that Lugmoso had
been pronounced brain dead by Dr. Abdias V.
Aquino, a neurologist, and by Dr. Antonio Rafael, a
neurosurgeon and attending physician of Lugmoso,
and that a repeat electroencephalogram (EEG) was
in progress to confirm the diagnosis of brain death.
Two hours later, Dr. Ona was informed that the
EEG recording exhibited a flat tracing, thereby
confirming that Lugmoso was brain dead. Upon
learning that Lugmoso was a suitable organ donor
and that some NKI patients awaiting organ
donation had blood and tissue types compatible
with Lugmoso, Dr. Ona inquired from Jennifer
Misa whether the relatives of Lugmoso had been
located so that the necessary consent for organ
donation could be obtained. As the extensive
search for the relatives of Lugmoso yielded no
positive result and time being of the essence in the
success of organ transplantation, Dr. Ona
requested Dr. Filoteo A. Alano, Executive Director
of NKI, to authorize the removal of specific organs
from the body of Lugmoso for transplantation
purposes. Dr. Ona likewise instructed Dr. Rose
Marie Rosete-Liquete to secure permission for the
planned organ retrieval and transplantation from
the Medico-Legal Office of the National Bureau of
Investigation (NBI), on the assumption that the
incident which lead to the brain injury and death
of Lugmoso was a medico legal case.
On March 3, 1988, Dr. Alano issued to Dr. Ona a
Memorandum, which reads as follows:
This is in connection with the use of the human
organs or any portion or portions of the human
body of the deceased patient, identified as a certain
Mr. Angelito Lugmoso who was brought to the
National Kidney Institute on March 2, 1988 from
the East Avenue Medical Center.
As shown by the medical records, the said patient
died on March 3, 1988 at 9:10 in the morning due
to craniocerebral injury. Please make certain that
your Department has exerted all reasonable efforts
to locate the relatives or next of kin of the said
deceased patient such as appeal through the
radios and television as well as through police and
other government agencies and that the NBI
[Medico-Legal] Section has been notified and is
aware of the case.
If all the above has been complied with, in
accordance with the provisions of Republic Act No.
349 as amended and P.D. 856, permission and/or
authority is hereby given to the Department of
Surgery to retrieve and remove the kidneys,
pancreas, liver and heart of the said deceased
patient and to transplant the said organs to any
compatible patient who maybe in need of said
organs to live and survive.
A Certification dated March 10, 1988 was issued
by Dr. Maximo Reyes, Medico-Legal Officer of the
NBI, stating that he received a telephone call from
Dr. Liquete on March 3, 1988 at 9:15 a.m.
regarding the case of Lugmoso, who was declared
brain dead; that despite efforts to locate the latter’s
relatives, no one responded; that Dr. Liquete
sought from him a second opinion for organ
retrieval for donation purposes even in the absence
of consent from the family of the deceased; and
that he verbally agreed to organ retrieval.
At 3:45 in the afternoon of March 3, 1988, a
medical team, composed of Dr. Enrique Ona, as
principal surgeon, Drs. Manuel Chua-Chiaco, Jr.,
Rose Marie Rosete-Liquete, Aurea Ambrosio,
Ludivino de Guzman, Mary Litonjua, Jaime
Velasquez, Ricardo Fernando, and Myrna
Mendoza, removed the heart, kidneys, pancreas,
liver and spleen of Lugmoso. The medical team
then transplanted a kidney and the pancreas of
Lugmoso to Lee Tan Hoc and the other kidney of
Lugmoso to Alexis Ambustan. The transplant
operation was completed at around 11:00 o’clock
in the evening of March 3, 1988.
On March 4, 1988, Dr. Antonio R. Paraiso, Head of
the Cadaver Organ Retrieval Effort (CORE)
program of NKI, made arrangements with La
Funeraria Oro for the embalmment of the cadaver
of Lugmoso good for a period of fifteen (15) days to
afford NKI more time to continue searching for the
relatives of the latter. On the same day, Roberto
Ortega, Funeral Consultant of La Funeraria Oro,
sent a request for autopsy to the NBI. The Autopsy
Report and Certification of Post-Mortem
Examination issued by the NBI stated that the
cause of death of Lugmoso was intracranial
hemorrhage secondary to skull fracture.
On March 11, 1988, the NKI issued a press release
announcing its successful double organ
transplantation. Aida Doromal, a cousin of
plaintiff, heard the news aired on television that
the donor was an eighteen (18) year old boy whose
remains were at La Funeraria Oro in Quezon City.
As the name of the donor sounded like Arnelito
Logmao, Aida informed plaintiff of the news report.
It appears that on March 3, 1988, Arlen Logmao, a
brother of Arnelito, who was then a resident of 17-
C San Pedro Street, Mandaluyong, reported to
Police Station No. 5, Eastern Police District,
Mandaluyong that the latter did not return home
after seeing a movie in Cubao, Quezon City, as
evidenced by a Certification issued by said Station;
and that the relatives of Arnelito were likewise
informed that the latter was missing. Upon
receiving the news from Aida, plaintiff and her
other children went to La Funeraria Oro, where
they saw Arnelito inside a cheap casket.
On April 29, 1988, plaintiff filed with the court a
quo a complaint for damages against Dr.
Emmanuel Lenon, Taurean Protectors Agency,
represented by its Proprietor, Celso Santiago,
National Kidney Institute, represented by its
Director, Dr. Filoteo A. Alano, Jennifer Misa, Dr.
Maximo Reyes, Dr. Enrique T. Ona, Dr. Manuel
Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-
Liquete, Dr. Aurea Z. Ambrosio, Dr. Ludivino de
Guzman, Dr. Mary Litonjua, Dr. Jaime Velasquez,
Dr. Ricardo Fernando, Dr. Myrna Mendoza, Lee
Tan Koc, Alexis Ambustan, Dr. Antonio R. Paraiso,
La Funeraria Oro, Inc., represented by its
President, German E. Ortega, Roberto Ortega alias
Bobby Ortega, Dr. Mariano B. Cueva, Jr., John
Doe, Peter Doe, and Alex Doe in connection with
the death of her son Arnelito. Plaintiff alleged that
defendants conspired to remove the organs of
Arnelito while the latter was still alive and that
they concealed his true identity.
On January 17, 2000, the court a quo rendered
judgment finding only Dr. Filoteo Alano liable for
damages to plaintiff and dismissing the complaint
against the other defendants for lack of legal
basis.3
After finding petitioner liable for a quasi-delict, the
Regional Trial Court of Quezon City (RTC) ordered
petitioner to pay respondent P188,740.90 as actual
damages; P500,000.00 as moral damages;
P500,000.00 as exemplary damages; P300,000.00
as attorney's fees; and costs of suit. Petitioner
appealed to the CA.
On March 31, 2006, the CA issued its Decision,
the dispositive portion of which reads as follows:
WHEREFORE, the Decision appealed from is
AFFIRMED, with MODIFICATION by DELETING
the award of P188,740.90 as actual damages and
REDUCING the award of moral damages to
P250,000.00, the award of exemplary damages to
P200,000.00 and the award of attorney's fees to
P100,000.00.
SO ORDERED.4
Petitioner then elevated the matter to this Court
via a petition for review on certiorari, where the
following issues are presented for resolution:
A. WHETHER THE COURT OF APPEALS
DISREGARDED EXISTING JURISPRUDENCE
PRONOUNCED BY THIS HONORABLE SUPREME
COURT IN HOLDING PETITIONER DR. FILOTEO
ALANO LIABLE FOR MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY'S FEES DESPITE THE
FACT THAT THE ACT OF THE PETITIONER IS NOT
THE PROXIMATE CAUSE NOR IS THERE ANY
FINDING THAT THE ACT OF THE PETITIONER
WAS THE PROXIMATE CAUSE OF THE INJURY
OR DAMAGE ALLEGEDLY SUSTAINED BY
RESPONDENT ZENAIDA MAGUD-LOGMAO.
B. WHETHER THE COURT OF APPEALS GRAVELY
ERRED IN REFUSING AND/OR FAILING TO
DECLARE THAT PETITIONER DR. ALANO ACTED
IN GOOD FAITH AND PURSUANT TO LAW WHEN
HE ISSUED THE AUTHORIZATION TO REMOVE
AND RETRIEVE THE ORGANS OF ANGELITO
LUGMOSO (LATER IDENTIFIED TO BE IN FACT
ARNELITO LOGMAO) CONSIDERING THAT NO
NEGLIGENCE CAN BE ATTRIBUTED OR IMPUTED
ON HIM IN HIS PERFORMANCE OF AN ACT
MANDATED BY LAW.
C. WHETHER THE COURT OF APPEALS GRAVELY
ERRED IN AWARDING RESPONDENT ZENAIDA
MAGUD-LOGMAO MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY'S FEES THAT ARE
NOT IN ACCORDANCE WITH AND ARE
CONTRARY TO ESTABLISHED
JURISPRUDENCE.5
The first two issues boil down to the question of
whether respondent's sufferings were brought
about by petitioner's alleged negligence in granting
authorization for the removal or retrieval of the
internal organs of respondent's son who had been
declared brain dead.
Petitioner maintains that when he gave
authorization for the removal of some of the
internal organs to be transplanted to other
patients, he did so in accordance with the letter of
the law, Republic Act (R.A.) No. 349, as amended
by Presidential Decree (P.D.) 856, i.e., giving his
subordinates instructions to exert all reasonable
efforts to locate the relatives or next of kin of
respondent's son. In fact, announcements were
made through radio and television, the assistance
of police authorities was sought, and the NBI
Medico-Legal Section was notified. Thus, petitioner
insists that he should not be held responsible for
any damage allegedly suffered by respondent due
to the death of her son and the removal of her
son’s internal organs for transplant purposes.
The appellate court affirmed the trial court's
finding that there was negligence on petitioner's
part when he failed to ensure that reasonable time
had elapsed to locate the relatives of the deceased
before giving the authorization to remove said
deceased's internal organs for transplant purposes.
However, a close examination of the records of this
case would reveal that this case falls under one of
the exceptions to the general rule that factual
findings of the trial court, when affirmed by the
appellate court, are binding on this Court. There
are some important circumstances that the lower
courts failed to consider in ascertaining whether it
was the actions of petitioner that brought about
the sufferings of respondent.6
The Memorandum dated March 3, 1988 issued by
petitioner, stated thus:
As shown by the medical records, the said patient
died on March 3, 1988 at 9:10 in the morning due
to craniocerebral injury. Please make certain that
your Department has exerted all reasonable efforts
to locate the relatives or next-of-kin of the said
deceased patient, such as appeal through the
radios and television, as well as through police and
other government agencies and that the NBI
[Medico-Legal] Section has been notified and is
aware of the case.
If all the above has been complied with, in
accordance with the provisions of Republic Act No.
349 as amended and P.D. 856, permission and/or
authority is hereby given to the Department of
Surgery to retrieve and remove the kidneys,
pancreas, liver and heart of the said deceased
patient and to transplant the said organs to any
compatible patient who maybe in need of said
organs to live and survive.7
A careful reading of the above shows that
petitioner instructed his subordinates to "make
certain" that "all reasonable efforts" are exerted to
locate the patient's next of kin, even enumerating
ways in which to ensure that notices of the death
of the patient would reach said relatives. It also
clearly stated that permission or authorization to
retrieve and remove the internal organs of the
deceased was being given ONLY IF the provisions
of the applicable law had been complied with. Such
instructions reveal that petitioner acted prudently
by directing his subordinates to exhaust all
reasonable means of locating the relatives of the
deceased. He could not have made his directives
any clearer. He even specifically mentioned that
permission is only being granted IF the
Department of Surgery has complied with all the
requirements of the law. Verily, petitioner could
not have been faulted for having full confidence in
the ability of the doctors in the Department of
Surgery to comprehend the instructions, obeying
all his directives, and acting only in accordance
with the requirements of the law.
Furthermore, as found by the lower courts from
the records of the case, the doctors and personnel
of NKI disseminated notices of the death of
respondent's son to the media and sought the
assistance of the appropriate police authorities as
early as March 2, 1988, even before petitioner
issued the Memorandum. Prior to performing the
procedure for retrieval of the deceased's internal
organs, the doctors concerned also the sought the
opinion and approval of the Medico-Legal Officer of
the NBI.
Thus, there can be no cavil that petitioner
employed reasonable means to disseminate
notifications intended to reach the relatives of the
deceased. The only question that remains pertains
to the sufficiency of time allowed for notices to
reach the relatives of the deceased.
If respondent failed to immediately receive notice of
her son's death because the notices did not
properly state the name or identity of the deceased,
fault cannot be laid at petitioner's door. The trial
and appellate courts found that it was the EAMC,
who had the opportunity to ascertain the name of
the deceased, who recorded the wrong information
regarding the deceased's identity to NKI. The NKI
could not have obtained the information about his
name from the patient, because as found by the
lower courts, the deceased was already
unconscious by the time he was brought to the
NKI.
Ultimately, it is respondent's failure to adduce
adequate evidence that doomed this case.1âwphi1
As stated in Otero v. Tan,8 "[i]n civil cases, it is a
basic rule that the party making allegations has
the burden of proving them by a preponderance of
evidence. The parties must rely on the strength of
their own evidence and not upon the weakness of
the defense offered by their opponent."9 Here,
there is to proof that, indeed, the period of around
24 hours from the time notices were disseminated,
cannot be considered as reasonable under the
circumstances. They failed to present any expert
witness to prove that given the medical technology
and knowledge at that time in the 1980's, the
doctors could or should have waited longer before
harvesting the internal organs for transplantation.
Verily, the Court cannot, in conscience, agree with
the lower court. Finding petitioner liable for
damages is improper. It should be emphasized that
the internal organs of the deceased were removed
only after he had been declared brain dead; thus,
the emotional pain suffered by respondent due to
the death of her son cannot in any way be
attributed to petitioner. Neither can the Court find
evidence on record to show that respondent's
emotional suffering at the sight of the pitiful state
in which she found her son's lifeless body be
categorically attributed to petitioner's conduct.
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals, dated March 31,
2006, is REVERSED and SET ASIDE. The
complaint against petitioner is hereby DISMISSED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 203080 November 12, 2014
DR. IDOL L. BONDOC, Petitioner,
vs.
MARILOU R. MANTALA, Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari
assailing the Decision1 dated May 24, 2012 and
Resolution2 dated August 14, 2012 of the Court of
Appeals (CA) in CA-G.R. SP No. 120563. The CA
affirmed the Decision3 dated August 12, 2010 and
Order4 dated February 28, 2011 of the Office of the
Deputy Ombudsman for Luzon in OMB-L-A-09-
0681-K.
The Facts
On November 6, 2009, Marilou R. Mantala
(respondent) filed a complaint for grave misconduct
against Dr. Idol L. Bondoc (petitioner), Medical
Officer III at the Oriental Mindoro Provincial
Hospital (OMPH).
Respondent was admitted at the OMPH on April 3,
2009, at around 11 :00 in the morning, with
referral5 from the Bansud Municipal Health Office
(BMHO). She was due to deliver her fifth child and
was advised by the BMHO for a cesarean section
because her baby was big and there was excessive
amniotic fluid in her womb. She started to labor at
7:00 in the morning and was initially brought tothe
Bongabon Health Center. However, said health
center also told her to proceed directly to the
hospital.
In her complaint-affidavit,6 respondent alleged
that inside the delivery room of OMPH, she was
attended toby petitioner who instructed the
midwife and two younger assistants topress down
on respondent’s abdomen and even demonstrated
to them how to insert their fingers into her vagina.
Thereafter, petitioner went out of the delivery room
and later, his assistants also left. As she labored in
pain, she felt the movement of her baby inside her
womb and the intermittent stiffening of her
abdomen.
At about 4:00 in the afternoon, petitioner returned
to the delivery room and asked her, "Hindi ka pa
nanganganak?" Since she could no longer bear the
pain, she requested petitioner to perform a
cesarean section but this was not done. The
midwife arrived and berated her for not yet
sleeping and holding on to the steelbar. The
midwife and the younger assistants again pressed
down on her abdomen causing excruciating pain
on her ribs and made her very weak. They
repeatedly did this pressing until the baby and
placenta came out. When she regained
consciousness, she was already at the recovery
room. She learned that an operation was
performed on her by petitioner to removeher
ruptured uterus but what depressed her most was
her stillborn baby and the loss of her reproductive
capacity. The next day, she was transferred to a
ward. She noticedher very swollen vulva and her
surgical wound open with liquid squirting from it.
Her wound was regularly cleaned by a nurse. On
April 9, 2009, she was discharged notwithstanding
that the suture on her wound needs to be fixed
and she still has a cough. At home, she took the
antibiotics, cough medicine and multivitamins
prescribed by petitioner.
After two days, the opening in her wound
widened.Her husband brought her to the
Bongabon Community Hospital but they were
advised to have her wound re-stitched by the
samesurgeon (petitioner) who operated on her.
Thus, on April 14, 2009, theywent back to OMPH.
She was attended to by a certain Dr. Gonzales who
cleaned her wound which now has a lot of pus,
and the said doctor commented that "problema ito
ni Bondoc." On April 18, 2009, after she was given
blood transfusion, petitioner re-stitched her
wound. Thereafter, it was Dr. Gonzales who
regularly checked on her condition.
On April 27, 2009, petitioner removed the sutures
but still left open three of them. She wondered
then why petitioner suddenly showed kindness
towards her. In the evening of April 28, 2009,
petitioner talked to her and said in a threatening
tone "Ikaw ang sadyang ayaw magpa-cs" and also
told her that he just came from Pinamalayan and
Bansud and already talked to Dr. Atienza and Dr.
Sales. Petitioner then told the nurse on duty,
"Papirmahin mo si Mantala, pauuwiin ko na ‘yan
bukas. Tanggalin mo na rin ang tahi." He further
said, "huwag sana akong idemanda ni Mantala
kasi kaya ko siyang baligtarin." The following day,
she was discharged after the nurse had removed
the remaining sutures. At home, it was her sister
who cleaned the still open wound. Joel F. Mantala,
respondent’s husband, and her sisters Mylen R.
Amistad and Lucia Rala, executed their respective
affidavits7 to corroborate her story. In addition,
respondent submitted the affidavit of Dr. Rosinico
F. Fabon, the anesthesiologist on duty during the
operation performed by petitioner on April 3, 2009.
Joel Mantala claimed that at the OMPH at around
2:30 in the afternoon when her wife was still
laboring, petitioner talked to him and told her that
the baby is too big and if it comes out alive it will
probably be abnormal so that it would be better
ifthe baby is stillborn. He further averred that
despite the pleas of her wife for a cesarean
operation, petitioner insisted on a normal delivery
during which she almost died.8
On the other hand, Dr. Fabon narrated that in the
afternoon of April 3, 2009, he was attending to a
patient being operated on by petitioner when he
heard the latter saying that "meron pa nga kami sa
DR macrosomia, polyhydramnios pa, pero
paanakin na lang ‘yon, abnormal din naman ang
bata kahit mabuhay, kawawa lang siya." After the
operation, petitioner went out of the Operating
Room (OR)and proceeded towards the direction of
the OB ward. At 5:35 in the afternoon, a Request
for Surgery9 was forwarded to the OR for
Emergency Pelvic Laparotomy of respondent with a
diagnosis of T/C Ruptured Uterus.
When respondent was brought to the OR at 8:15
p.m., Dr. Fabon found her conscious but very weak
and pale, with abdominal pain and tenderness on
very slight palpation. He then heard from petitioner
himself that it was the same patient he was
referring to earlier with a diagnosis of macrosomia,
polyhydramnios. Petitioner volunteered that
respondent had just delivered her baby but that
her uterus probably ruptured in the process of
childbirth. "Pinilit no’ng tatlong ungas, ayon
lumusot pero patay ang bata, tapos ito, mukhang
pumutok," petitioner said.
Dr. Fabon immediately prepared respondent for
General Anesthesia; respondent was inducted at
8:35 p.m. while surgery began at 8:45 p.m. He
continued to narrate what transpired next and his
observations, as follows:
That right after induction – when patient was
asleep already and don’t feel any pain at all – her
blood pressure suddenly dropped to 70/40 mmHg;
That after opening the abdomen, I saw massive
hemoperitonium and the ruptured uterus with
bleeding from various directions. I immediately
requested for additional blood to be used intra-
operatively while at the same time I established
another intravenous lineso as to cope with on-
going surgical blood loss. I had now three big-bore
fast-dripping IV lines.
That in spite of this measure,blood pressure
dropped to 50/30 mmHg. There was an instance
wherein I cannot even appreciate the blood
pressure of the patient, her pulse hardly noticeable
on palpation and she was very pale that
necessitates turning the anesthetic gas off so as to
keep her alive. She was given a dose of Atropine
after patientdid not respond to two 10mg doses of
Ephedrine. I prescribed Dobutamine and
Dopamine drips to help improve her blood pressure
and maintain adequate urine output.
Unfortunately, only Dopamine was available. I had
to use 100% Oxygen at 3L/minute without mixture
ofvolatile gas for several minutes. She was
maintained using musclerelaxants alone on
controlled ventilation.
That Dr. Bondoc operated on the patient all by
himself without the help of a consultant or an
assistant surgeon. Nowhere in the patient chart
will show that he referred this case tohis
consultant; one thing that I was wondering why he
was doing the surgery alone. He utilized the scrub
nurse to assist him making a delicate and bloody
surgery more bloody and difficult.
That after Dr. Bondoc had removed the ruptured
uterus and the bleeding was controlled, he made
intra-operative referral to Dr. Ariel Tria, a resident
surgeon, to check on the urinary bladder and the
ureters.
That the operation performed was Subtotal
Hysterectomy with Unilateral
Salpingooophorectomy. I noticed that the operation
technique was different from that which Dr.
Bondoc had written in the Surgical Memo and that
the patient did nottolerate the procedure well.
That the patient was very pale after the procedure
with low blood pressure due to massive blood loss.
That her blood pressure started to improve at the
Recovery Room but the pulse rate remained
considerably high for several hours. Her urine
outputwas inadequate and that it had to be
maintained using Dopamine.
That when Leo Reyes, the Recovery Room nurse,
referred the patient to me and I checked the
urinary catheter, I noticed her vagina to be
massively swollen with hematomas all over.
That the patient had to be referred to Internal
Medicine for comanagement[.]
That Marilou Mantala stayed in the Recovery Room
for almost eleven (11) hours. She was transferred
to Gyne Ward at 9:20 AM the following day.10
In his counter-affidavit,11 petitioner averred
thatwhen respondent was brought to OMPH with
referral form from BMHO, she had been in labor for
more than twelve (12) hours at home. He
submitted his admitting diagnosis of the patient,
"Gravida 5 Parity 4 (4004) Pregnancy Uterine 38 to
39 Weeks Age of Gestation by Last Menstrual
Period Cephalic in Labor; Macrosomia; Fetal Death
in Utero."
Petitioner alleged that during his interview with
respondent, the latter admitted to him that she
doesn’t want tobe confined at any hospital because
she was afraid to be handled by medical doctors.
Instead, she went to a traditional birth attendant
(TBA) or "hilot" which she voluntarily named as
Apolonia Salcedo, residing at Dalapian, Labasan,
Bongabon, Oriental Mindoro. Respondent clearly
defied the advice of Drs. Theresa Atienza and Mario
Sales not to give birth at home. As to her swollen
vulvar hematoma which was noticed by Dr. Fabon,
it was the result of prolonged labor.
As to the charge that he abandoned the respondent
to his assistants, petitioner claimed that between
12 noonand 2:00 o’clock in the afternoon, he was
busy checking on pregnant patients at the out-
patient department (OPD) of OMPH until he was
called for his first cesarean section (CS). Later at
4:00 o’clock, without resting and having lunch, he
visited respondent and other admitted patients
atthe delivery room. Together with the nurse on
duty, Mrs. Evelyn D. Morales, petitioner said he
explained to respondent her and her baby’s
condition based on the referral from BMHO
(polyhydramnios)and initial findings that her
abdomen and baby were big and the baby’s
heartbeat is not appreciated. He presented the
respondent with two options: have a normal
delivery or undergo cesarean section, and the
consequences of each choice. Respondent chose
the former believing that she can handle this
childbirth at home, and petitioner respected her
decision.
After seeing other patients at the delivery room,
petitioner was called for his second CS that day.
Thus, he was obliged to proceed to the OR and left
the respondent under the care of three assistants,
one of whom is an experienced midwife. That he
was not the one who attended to the respondent
during her delivery is confirmed by the statements
of respondent herself, Dr. Fabon and Mrs. Morales.
Further, petitioner claimed it has been a long-time
practice at OMPH that whenever the doctor is at
the OR, the experienced midwives will take over the
delivery of laboring patients.
Petitioner blamed respondent for risking her own
life in not seeking immediately a higher level of
medical care and instead preferring a TBA who is
prohibited under a 2006 provincial circular
tohandle deliveries at home. He emphasized that
upon admission the fetal heart tone is no longer
appreciated and maintained that diligent care was
extended to respondent during her stay at OMPH.
As to the complications like cough and wound
dehiscence, he explained that these were the
effects of anesthesia and surgery (loss of blood,
massive bloodtransfusion and intravenous fluid
infusion), and also poor compliance withprescribed
medication. He further asserted that he had
referred the patient to other co-doctors on duty like
Dr. Romy Lomio (Internal Medicine) for co-
management.
On April 23, 2010, petitioner submitted a
manifestation that he had resigned as Medical
Officer of OMPH effective March 5, 2010. He thus
posited that the administrative case isnow
rendered moot and academic.
On August 12, 2010, the Office of the Deputy
Ombudsman for Luzon rendered a Decision finding
the petitioner administratively liable. It held that
by fully entrusting to his subordinates the task of
handling respondent’s complicated delivery,
petitioner exhibited an improper or wrongful
conduct and dereliction of duty as medical
practitioner. Being the most competent person who
should have rendered the appropriate medical
service to respondent, petitioner should have
personally attended to the latter. Such action or
inaction of his part amounts tointentional or willful
neglect in discharging his sworn duty as a
government physician which is also equivalent to
misconduct in office. The administrative case filed
against the respondent is also not rendered moot
by his subsequent resignation in office.
The Decision of the OMB thus decreed:
WHEREFORE, judgment is hereby rendered
finding respondent Medical Officer Idol L. Bondoc
of Oriental Mindoro Provincial Hospital (OMPH),
Barangay Ilaya, Calapan City, Oriental Mindoro,
guilty of Grave Misconduct.
Respondent Idol L. Bondocis hereby meted the
penalty of DISMISSALin the Government Service
pursuant to Section 10, Rule III, Administrative
Order No. 07, as amended by Administrative Order
No. 17, in relation to Section 25 of Republic Act
No. 6770. The penalty of dismissal shall carry with
it that of cancellation of eligibility, forfeiture of the
retirement benefits, and the perpetual
disqualification for reemployment in the
government service pursuant to Section 58, Rule
IV of the Uniform Rules on Administrative Cases in
the Civil Service.
The Honorable Governor of the Province of Oriental
Mindoro, is hereby directed to implement this
DECISION immediately upon receipt thereof
pursuant to Section 7, Rule III of Administrative
Order No. 7, as amended by Administrative Order
No. 17 (Ombudsman Rules of Procedure) in
relation to Memorandum Circular No. 1, series of
2006 dated 11 April 2006 and to promptly inform
this Office of the action taken hereon.
SO DECIDED.12
The foregoing ruling was affirmedby the CA and
petitioner’s motion for reconsideration was denied.
The CA concurred that petitioner should have
chosen to stay in the delivery room and personally
attend to the patient as he is the most competent
person to render medical service in view of
respondent’s critical condition. It likewise faulted
the petitioner for deliberately leaving the laboring
and unstable respondent tothe care of his
inexperienced subordinates at the time she was
about to give birth. As to petitioner’s excuse that
he had to attend to an equally important cesarean
operation, the CA said there was no sufficient
showing of the latter’s urgency and assuming it to
be true, still, petitioner should have exerted efforts
to refer respondent’s case to another competent
doctor or one of his consultants.
Petitioner is now before this Court arguing that the
CA erred in affirming the Ombudsman’s ruling that
he is guilty of grave misconduct and imposing on
him the penalty of dismissal from the service. He
reiterates that his failure to attend to respondent
was not without justification and that in the seven
years he had been a medical officer of OMPH, he
has dutifully observed the sworn duties of the
medical profession and would not neglect his
responsibilities nor commit misconductat the risk
of his medical career which he had nurtured
through the years.
The petition has no merit.
Misconduct is defined as a transgression of some
established and definite rule of action, more
particularly, unlawful behavior or gross negligence
by a public officer,13 a forbidden act, a dereliction
of duty, willful in character, and implies wrongful
intent and not mere error in judgment.14 It
generally means wrongful, improper or unlawful
conduct motivated by a premeditated, obstinate or
intentional purpose. The term, however, does not
necessarily imply corruption or criminal intent. To
constitute an administrative offense,misconduct
should relate to or be connected with the
performance of the official functions and duties of
a public officer. On the other hand, whenthe
elements of corruption, clear intent to violate the
law or flagrant disregard of established rule are
manifest, the public officer shall be liable for grave
misconduct.15
In this case, both the Ombudsman and CA found
the petitioner guilty of grave misconduct in failing
to attend to respondent when she was having
prolonged difficult labor and vaginal delivery after
being diagnosed with macrosamiaand
polyhydramnios.
Polyhydramniosis an abnormal condition occurring
in pregnancy, characterized by excessive amniotic
fluid (the fluid surrounding the baby in the
uterus). Apart from protecting the baby from any
external impact by providing a cushioning effect,
the clear or slightly yellowish fluid plays a vital role
in proper fetal development aswell. However,
increased levels of the fluid can cause various
complications during different stages of pregnancy
and childbirth.16 Intra-amniotic pressureis
markedly elevated in most patients with severe
hydramnios. The incidence of cesarean section is
also increased as a result of unstable lie and
placental abruption, which may occur with the
rapid decrease in intrauterine pressure that
accompanies membrane rupture.17 One of the
known causes and risk factors of polyhydramniosis
fetal macrosomia (having a baby too large for the
gestational age).18
According to medical authorities,a macrosomic
infant poses a different set of complications. The
incidences of shoulder dystocia,19 birth injuries,
perinatal death, and low Apgar scores are
increased in macrosomic infants.20 In these cases,
careful attention to the patient, potential risk
factors, clinical progress, and fetal size should
allow obstetricians to reduce the occurrence of
maternaland neonatal morbidity.21 Vaginal
delivery of the macrosomic infant is associated
with anincreased incidence of birth trauma. The
question whether to perform cesarean section thus
arises.22
If the estimated fetal weight is 4000 to 4500 g by
ultrasonography and the patient has a clinically
adequate pelvis, labor may be allowed. If labor is
protracted or the second stage is prolonged, a
cesarean section would avoid the possible trauma
of a difficult vaginal delivery. Because of the
greater morbidity associated with infants who
weigh more than 4500 g, elective cesarean section
is warranted.23
On the other hand, prolonged labormay culminate
in obstructed labor, and is associated with
maternal infection, uterine rupture and
postpartum hemorrhage.24
As per the admitting diagnosis25 submitted by
petitioner, the latter was aware of macrosomia and
the fetal heartbeat notappreciated. He also
maintains that respondent’s baby was already
dead due to prolonged labor but she had insisted
on having a normal delivery. However, this claim is
belied by the sworn statements of respondent, her
husband and her sisters, all of whom averred that
they requested for a cesarean section as per the
advice given by Dr. Atienza who examined her in
March 2009, and as confirmed at the Bansud
Health Center where she was told that it would be
risky for her to have a normal delivery.Moreover,
Joel Mantala asserted that what petitioner said to
him was that the baby was too big and if born alive
it would probably have abnormalities so it would
be better that the baby is stillborn.
The Court is more inclined to believe respondent’s
version which was duly corroborated by Dr. Fabon
who heard petitioner saying that: "Meron pa nga
kami sa DR macrosomnia, polyhydramnios pa,
pero paanakin na lang ‘yon. Abnormal din
namanang bata kahit mabuhay." This puts into
doubt petitioner’s supposed finding that the baby
was already dead upon respondent’s admission at
OMPH and thatit was respondent who insisted on
a normal delivery. Even assuming that petitioner
had actually confirmed intrauterine fetal death,
this only aggravates the patient’s condition and it
was incumbent upon petitioner as the obstetrician
on duty to personally attend to her and render
appropriate management or treatment.
In deliberately leaving the respondent to a midwife
and two inexperienced assistants despite knowing
that she was under prolonged painful labor and
about to give birth to a macrosomic baby by
vaginal delivery, petitioner clearly committed a
dereliction of duty and a breach of his professional
obligations. The gravity of respondent’s condition is
highlighted by the expected complications she
suffered – her stillborn baby, a ruptured uterus
that necessitated immediate surgery and blood
transfusion, and vulvar hematomas.
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 physician’s 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.26
A doctor’s duty to his patient is not required to be
extraordinary. The standard contemplated for
doctors issimply the reasonable average merit
among ordinarily good physicians, i.e.reasonable
skill and competence.27 Even by this standard,
petitioner fell short when he routinely delegated an
important task that requires his professional skill
and competence to his subordinates who have no
requisite training and capability to make crucial
decisions in difficult childbirths.
Petitioner’s proffered excuse that it was the
practice in OMPH to allow midwives to administer
to patients during deliveries, is unacceptable. No
proof of such alleged hospital practice such as an
official written directive was presented. Besides, it
is doubtful whether hospital administrators would
remedy personnel shortage by permitting
inexperienced staff, by themselves, to handle
laboring patients with high-risk pregnancies and
maternal/fetal complications.
As to the two other scheduled CS performed by
petitioner on the same day, this will not exculpate
him from administrative liability.1âwphi1 As
correctly pointed out by the CA, there was no
showing of similar urgency in the said operations,
and petitioner could have referred respondent to
another competent physician. He could have
likewise arranged for adjustment in the operation
schedules considering that his personal attention
and management is urgently needed in
respondent’s difficult and complicated delivery. But
there is no indication in the records that petitioner
duly informed or referred the matter to the other
doctors or the administrators of OMPH.
We therefore hold that the CA correctly affirmed
the Ombudsman in finding the petitioner guilty of
grave misconduct. His violation of the sworn duty
to attend to his patients faithfully and
conscientiously is inexcusable. Such flagrant
disregard of established rule and improper conduct
were proven by substantial evidence.
Not only did petitioner routinely delegate his
responsibility to his subordinates, he casually
instructedthem to press down repeatedly on
respondent’s abdomen, unmindful of her critical
condition as borne out by his very own findings.
Worse, petitioner haughtily and callously spoke of
respondent’s case to the other doctors and medical
staff while performing a CS after he had briefly
attended to her at the delivery room "…paanakin
na lang ‘yon, abnormal din naman ang bata kahit
mabuhay, kawawa lang siya." Such insensitive and
derisive language was again heard from the
petitioner when he referred for the second time to
respondent’s traumatic delivery, saying that:
"Pinilit no’ng tatlong ungas,ayon lumusot pero
patay ang bata, tapos ito, mukhang pumutok." As
a government physician, petitioner’s demeanor is
unbecoming and bespeaks of his indifference to the
well-being of his patients.
Petitioner thus not only committed a dereliction of
duty, but also transgressed the ethical norms of
his profession when he failed to render competent
medical care with compassion and respect for his
patient’s dignity.
A physician should be dedicated to provide
competent medical care with full professional skill
in accordance with the current standards of care,
compassion, independence and respect for human
dignity.28 (Italics supplied.)

Finally, we find no merit in petitioner's argument

that the CA should have at least considered as
mitigating circumstances his being a first
offender,29 his 16 years in government service,
and that he had not acted in bad faith and with
clear intent to violate the law and established
rules. Jurisprudence is replete with cases declaring
that a grave offense cannot be mitigated by the fact
that the accused is a first time offender or by the
length of service of the accused.30 While in most
cases, length of service is considered in favor of the
respondent, it is not considered where the offense
committed is found to be serious or grave.31 In
Medina v. Commission on Audit,32 the Court
stressed that dishonesty and grave misconduct
have always been and should remain anathema in
the civil service. They inevitably reflect on the
fitness of a civil servant to continue in office. When
an officer or employee is disciplined, the object
sought is not the punishment of such officer or
employee but the improvement of the public
service and the preservation of the public's faith
and confidence in the government. WHEREFORE,
the petition is DENIED for lack of merit. The
Decision dated May 24, 2012 and Resolution dated
August 14, 2012 of the Court of Appeals in CA-
G.R. SP No. 120563 are AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice
THIRD DIVISION
[G.R. No. 176675 : September 15, 2010]
SPS. ALFREDO BONTILAO AND SHERLINA
BONTILAO, PETITIONERS, VS. DR. CARLOS
GERONA, RESPONDENT.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari[1]
under Rule 45 of the 1997 Rules of Civil Procedure,
as amended, assailing the June 28, 2006
Decision[2] and January 19, 2007 Resolution[3] of
the Court of Appeals (CA) in CA-G.R. CV No,
00201. The CA had reversed the March 23, 2004
Decision[4] of the Regional Trial Court (RTC) of
Cebu City, Branch 6 and dismissed petitioners'
complaint in Civil Case No. CEB-17822.
The facts are as follows:
On December 28, 1991, respondent Dr. Carlos
Gerona, an orthopedic surgeon at the Vicente
Gullas Memorial Hospital, treated petitioners' son,
eight (8)-year-old Allen Key Bontilao (Allen), for a
fractured right wrist. Respondent administered a
"U-splint" and immobilized Allen's wrist with a
cast, then sent Allen home. On June 4, 1992,
Allen re-fractured the same wrist and was brought
back to the hospital. The x-ray examination
showed a complete fracture and displacement of
the bone, with the fragments overlapping each
other. Respondent performed a closed reduction
procedure, with Dr. Vicente Jabagat (Dr. Jabagat)
as the anesthesiologist. Then he placed Allen's
arm in a plaster cast to immobilize it. He allowed
Allen to go home after the post reduction x-ray
showed that the bones were properly aligned, but
advised Allen's mother, petitioner Sherlina Bontilao
(Sherlina), to bring Allen back for re-tightening of
the cast not later than June 15, 1992.
Allen, however, was brought back to the hospital
only on June 1992. By then, because the cast had
not been re-tightened, a rotational deformity had
developed in Allen's arm. The x-ray examination
showed that the deformity was caused by a re-
displacement of the bone fragments, so it was
agreed that an open reduction surgery will be
conducted on June 24, 1992 by respondent, again
with Dr. Jabagat as the anesthesiologist.
On the said date, Sherlina was allowed to observe
the operation behind a glass panel. Dr. Jabagat
failed to intubate the patient after five (5) attempts
so anesthesia was administered through a gas
mask. Respondent asked Dr. Jabagat if the
operation should be postponed given the failure to
intubate, but Dr. Jabagat said that it was alright to
proceed. Respondent verified that Allen was
breathing properly before proceeding with the
surgery.[5] As respondent was about to finish the
suturing, Sherlina decided to go out of the
operating
room to make a telephone call and wait for her
son. Later, she was informed that her son had died
on the operating table. The cause of death was
"asphyxia due to congestion and edema of the
epiglottis."[6]
Aside from criminal and administrative cases,
petitioners filed a complaint for damages against
both respondent and Dr. Jabagat in the RTC of
Cebu City alleging negligence and incompetence on
the part of the doctors. The documentary evidence
and testimonies of several witnesses presented in
the criminal proceedings were offered and admitted
in evidence at the RTC.
On March 23, 2004, the RTC decided in favor of
the petitioners. It held that the doctrine of res ipsa
loquitur was applicable in establishing
respondent's liability. According to the RTC,
asphyxia or cardiac arrest does not normally occur
in an operation on a fractured bone in the absence
of negligence in the administration of anesthesia
and the use of an endotracheal tube. Also, the
instruments used in the administration of
anesthesia were all under the exclusive control of
respondent and Dr. Jabagat, and neither Allen nor
his mother could be said to be guilty of
contributory negligence. Thus, the trial court held
that respondent and Dr. Jabagat were solidarity
liable for they failed to prove that they were not
negligent. The trial court likewise said that
respondent cannot shift the blame solely to Dr.
Jabagat as the fault of the latter is also the fault of
the former, respondent being the attending
physician and being equally in care, custody and
control of Allen.[7]
Aggrieved, respondent appealed the trial court's
decision to the CA. Dr. Jabagat, for his part, no
longer appealed the decision.
On June 28, 2006, the CA reversed the RTC's
ruling. It held that the doctrine of res ipsa loquitur
does not apply for it must be satisfactorily shown
that (1) the accident is of a kind which ordinarily
does not occur in the absence of someone's
negligence; (2) the plaintiff was not guilty of
contributory conduct; and (3) the instrumentality
which caused the accident was within the control
of the defendant.
The CA held that while it may be true that an Open
Reduction and Internal Fixation or ORIF could not
possibly lead to a patient's death unless somebody
was negligent, still what was involved in this case
was a surgical procedure with all risks attendant,
including death. As explained by the expert
testimony, unexplained death and mal-occurrence
is a possibility in surgical procedures especially
those involving the administration of general
anesthesia. It had also been established in both
the criminal and administrative cases against
respondent that Allen's death was the result of the
anesthesiologist's negligence and not his.[8]
The CA added that the trial court erred in applying
the "captain of the ship" doctrine to make
respondent liable even though he was the lead
surgeon. The CA noted that unlike in Ramos v.
Court of Appeals,[9] relied upon by the trial court,
the anesthesiologist was chosen by petitioners and
no specific act of negligence was attributable to
respondent. The alleged failure to perform a skin
test and a tracheotomy does not constitute
negligence. Tracheotomy is an emergency
procedure, and its performance is a judgment call
of the attending physician as it is another surgical
procedure done during instances of failure of
intubation. On the other hand, a skin test for a
patient's possible adverse reaction to the
anesthesia to be administered is the
anesthesiologist's decision. The CA also noted that
the same anesthesia was previously administered
to Allen and he did not manifest any allergic
reaction to it. Finally, unlike in the Ramos case,
respondent arrived only a few minutes late for the
surgery and he was able to complete the procedure
within the estimated time frame of less than an
hour.
Petitioners filed the present petition on the
following grounds:
[1] THE COURT OF APPEALS ERRED IN
REVERSING THE DECISION OF THE REGIONAL
TRIAL COURT BY DISMISSING THE COMPLAINT
IN SO FAR AS THE
SURGEON, DR. CARLOS GERONA IS
CONCERNED [AFTER] CONCLUDING THAT HE IS
NOT SOLIDARILY LIABLE WITH HIS CO-
DEFENDANT, DR. VICENTE JABAGAT, THE
ANESTHESIOLOGIST, IN THE ABSENCE OF ANY
NEGLIGENT ACT ON HIS PART.
[2] THE COURT OF APPEALS ERRED WHEN IT
MISAPPRECIATED ESSENTIAL FACTS OF THE
CASE THAT LED TO ITS FINDINGS THAT
DOCTRINE OF RES IPSA LOQUITfUJR AS
APPLIED IN THE RAMOS CASE IS NOT
APPLICABLE IN THE INSTANT CASE.[10]
Essentially, the issue before us is whether
respondent is liable for damages for Allen's death.
Petitioners argued that the doctrine of res ipsa
loquitur applies to the present case because Allen
was healthy, fully conscious, coherent, and
ambulant when he went to the hospital to correct a
deformed arm. Yet, he did not survive the
operation, which was not even an emergency
surgery but a corrective one. They contend that
respondent, being the lead surgeon, should be held
liable for the negligence of the physicians and
nurses working with him during the operation.
On the other hand, respondent posited that he
should not be held solidarity liable with Dr.
Jabagat as they were employed independently from
each other and their services were divided as their
best judgment dictated. He insisted that the
captain-of-the-ship doctrine had long been
abandoned especially in this age of specialization.
An anesthesiologist and a surgeon are specialists
in their own field and neither one (1) could dictate
upon the other. The CA was correct in finding that
the Ramos case does not apply to respondent. Dr.
Jabagat was contracted separately from
respondent and was chosen by petitioner Sherlina.
Respondent was only a few minutes late from the
operation and he waited for the signal of the
anesthesiologist to start the procedure. He also
determined the condition of Allen before and after
the operation.
We affirm the assailed CA decision.
The trial court erred in applying the doctrine of res
ipsa loquitur to pin liability on respondent for
Allen's death. Res ipsa loquitur is a rebuttable
presumption or inference that the defendant was
negligent. The presumption only arises upon proof
that the instrumentality causing injury was in the
defendant's exclusive control, and that the
accident was one (1) which ordinarily does not
happen in the absence of negligence. It is a rule of
evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere fact that
the accident happened, provided that the character
of the accident and circumstances attending it lead
reasonably to the belief that in the absence of
negligence it would not have occurred and that the
thing which caused injury is shown to have been
under the management and control of the alleged
wrongdoer.[11]
Under this doctrine, the happening of an injury
permits an inference of negligence where the
plaintiff produces substantial evidence that the
injury was caused by an agency or instrumentality
under the exclusive control and management of the
defendant, and that the injury was such that in the
ordinary course of things would not happen if
reasonable care had been used.[12]
However, 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.[13] In malpractice
cases, the doctrine is generally restricted to
situations 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. In other words, as held in
Ramos v. Court of Appeals,[14] the real question 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 professional activity in such
operations, and which, if unexplained, would
themselves reasonably speak to the average man
as the negligent cause or causes of the untoward
consequence.
Here, we find that the CA correctly found that
petitioners failed to present substantial evidence of
any specific act of negligence on respondent's part
or of the surrounding facts and circumstances
which would lead to the reasonable inference that
the untoward consequence was caused by
respondent's negligence. In fact, under the
established facts, respondent appears to have
observed the proper amount of care required under
the circumstances. Having seen that Dr. Jabagat
failed in the intubation, respondent inquired from
the latter, who was the expert on the matter of
administering anesthesia, whether the surgery
should be postponed considering the failure to
intubate. Respondent testified,
WITNESS:
A-
Actually sir, if I may cut short, I'm sorry. I don't
know what is the term of this sir. But what
actually, what we had was that Dr. Jabagat failed
in the intubation. He was not able to insert the
tube.
ATTY. PADILLA:
Q-
And you noticed that he failed?
A-
Yes, sir.
xxxx
ATTY. PADILLA:
Q-
And you noticed that he failed and still you
continued the surgery, Dr. Gerona?
A-
Yes, I continued the surgery.
xxxx
COURT:
Q-
Did not Dr. Jabagat advise you not to proceed with
the operation because the tube cannot be inserted?
A-
No, sir. In fact, I was the one who asked him, sir,
the tube is not inserted, shall we postpone this for
another date? He said, it's alright.[15]
Respondent further verified that Allen was still
breathing by looking at his chest to check that
there was excursion before proceeding with the
surgery.[16] That respondent decided to continue
with the surgery even though there was a failure to
intubate also does not tend to establish liability,
contrary to the trial court's ruling. Petitioners
failed to present substantial proof that intubation
was an indispensable prerequisite for the operation
and that it would be grave error for any surgeon to
continue with the operation under such
circumstances. In fact, the testimony of the expert
witness presented by the prosecution in the
criminal proceedings and admitted into evidence at
the RTC, was even to the effect that the anesthesia
could be administered by alternative means such
as a mask and that the operation could proceed
even without intubation.[17]
There was also no indication in the records that
respondent saw or should have seen that
something was wrong as to prompt him to act
differently than he did in this case. The anesthesia
used in the operation was the same anesthesia
used in the previous closed reduction procedure,
and Allen did not register any adverse reaction to
it. In fact, respondent knows the anesthesia
Ketalar to be safe for children. Dr. Jabagat was
also a specialist and more competent than
respondent to determine whether the patient has
been properly anesthetized for the operation, all
things considered. Lastly, it appears that Allen
started experiencing difficulty in breathing only
after the operation, when respondent was already
about to jot down his post-operation notes in the
adjacent room. Respondent was called back to the
operating room after Dr. Jabagat failed to
appreciate a heartbeat on the patient.[18] He acted
promptly and called for other doctors to assist and
revive Allen, but to no avail.
Moreover, we note that in the instant case, the
instrument which caused the damage or injury
was not even within respondent's exclusive
management and control as Dr. Jabagat was
exclusively in control and management of the
anesthesia and the endotracheal tube. 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.[19]

Here, the respondent could only supervise Dr.

Jabagat to make sure that he was performing his
duties. But respondent could not dictate upon Dr.
Jabagat the particular anesthesia to administer,
the dosage thereof, or that it be administered in
any particular way not deemed appropriate by Dr.
Jabagat. Respondent's specialization not being in
the field of anesthesiology, it would be dangerous
for him to substitute his judgment for Dr.
Jabagat's decisions in matters that fall
appropriately within the scope of Dr. Jabagat's
expertise.

Under the above circumstances, although the

Court commiserates with the petitioners on their
infinitely sorrowful loss, the Court cannot properly
declare that respondent failed to exercise the
required standard of care as lead surgeon as to
hold him liable for damages for Allen's death.

In civil cases, the burden of proof to be established

by preponderance of evidence is on the plaintiff
who is asserting the affirmative of an issue.20
Unless the party asserting the affirmative of an
issue sustains the burden of proof, his or her
cause will not succeed.

WHEREFORE, the petition is DENIED. The

Decision dated June 28, 2006 and Resolution
dated January 19, 2007 of the Court of Appeals in
CA-G.R. CV No. 00201 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.