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EN BANC PROFESSIONAL SERVICES, G.R. No. 126297 INC., Petitioner, Present:

PUNO, C.J., CARPIO,

CORONA, CARPIO MORALES, VELASCO, JR.,

NACHURA, - v e r s u s - LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN,* DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ and MENDOZA, JJ.** THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents. x - - - - - - - - - - - - - - - - - - - x

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NATIVIDAD [substituted by her G.R. No. 126467 children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners,

- v e r s u s -

THE COURT OF APPEALS and JUAN FUENTES, Respondents. x - - - - - - - - - - - - - - - - - - - x MIGUEL AMPIL, G.R. No. 127590 Petitioner, - v e r s u s - NATIVIDAD and ENRIQUE AGANA, Respondents.

Promulgated: February 2, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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R E S O L U T I O N CORONA, J.:

With prior leave of court,[1] petitioner Professional

Services, Inc. (PSI) filed asecond motion for

reconsideration[2] urging referral thereof to the Court en

banc and seeking modification of the decision dated January

31, 2007 and resolution dated February 11, 2008 which

affirmed its vicarious and direct liability for damages to

respondents Enrique Agana and the heirs of Natividad Agana

(Aganas).

Manila Medical Services, Inc. (MMSI),[3] Asian Hospital,

Inc. (AHI),[4] and Private Hospital Association of the Philippines

(PHAP)[5] all sought to intervene in these cases invoking the

common ground that, unless modified, the assailed decision

and resolution will jeopardize the financial viability of private

hospitals and jack up the cost of health care.

The Special First Division of the Court granted the motions

for intervention of MMSI, AHI and PHAP (hereafter

intervenors),[6] and referred en consulta to the Court en

banc the motion for prior leave of court and the second motion

for reconsideration of PSI.[7]

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Due to paramount public interest, the Court en

banc accepted the referral[8] andheard the parties on oral

arguments on one particular issue: whether a hospital may be

held liable for the negligence of physicians-consultants allowed

to practice in its premises.[9]

To recall the salient facts, PSI, together with Dr. Miguel

Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was

impleaded by Enrique Agana and Natividad Agana (later

substituted by her heirs), in a complaint[10] for damages filed in

the Regional Trial Court (RTC) of Quezon City, Branch

96, for the injuries suffered by Natividad when Dr. Ampil and

Dr. Fuentes neglected to remove from her body two

gauzes[11] which were used in the surgery they performed on

her on April 11, 1984 at the Medical City General Hospital. PSI

was impleaded as owner, operator and manager of the

hospital.

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 Appeals (CA), absolved

Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI,

subject to the right of PSI to claim reimbursement from Dr.

Ampil.[14]

On petition for review, this Court, in its January 31,

2007 decision, affirmed the CA decision.[15] PSI filed a motion

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for reconsideration[16] but the Court denied it in a resolution

dated February 11, 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

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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

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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.

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III

PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of the principle of corporate negligence.[29]

In their respective memoranda, intervenors raise parallel

arguments that the Court's ruling on the existence of an

employer-employee relationship between private hospitals and

consultants will force a drastic and complex alteration in the

long-established and currently prevailing relationships among

patient, physician and hospital, with burdensome operational

and financial consequences and adverse effects on all three

parties.[30]

The Aganas comment that the arguments of PSI need no

longer be entertained for they have all been traversed in the

assailed decision and resolution.[31]

After gathering its thoughts on the issues, this Court

holds that PSI is liable to the Aganas, not under the principle

of respondeat superior for lack of evidence of an employment

relationship with Dr. Ampil but under the principle of ostensible

agency for the negligence of Dr. Ampil and, pro hac vice, under

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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 ofrespondeat

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

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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,

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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] inRamos, 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 thatthe 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-

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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

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vicariously liable for the negligence of Dr. Ampil under the

principle ofrespondeat superior.

There is, however, ample evidence that the hospital (PSI)

held out to the patient (Natividad)[48] that the doctor (Dr.

Ampil) was its agent. Present are the two factors that

determine apparent authority: first, the hospital's implied

manifestation to the patient which led the latter to conclude

that the doctor was the hospital's agent; and second, the

patient’s reliance upon the conduct of the hospital and the

doctor, consistent with ordinary care and prudence.[49]

Enrique testified that on April 2, 1984, he consulted Dr.

Ampil regarding the condition of his wife; that after the

meeting and as advised by Dr. Ampil, he “asked [his] wife to go

to Medical City to be examined by [Dr. Ampil]”; and that the

next day, April 3, he told his daughter to take her mother to Dr.

Ampil.[50] This timeline indicates that it was Enrique who

actually made the decision on whom Natividad should consult

and where, and that the latter merely acceded to it. It explains

the testimony of Natividad that she consulted Dr. Ampil at the

instigation of her daughter.[51]

Moreover, when asked what impelled him to choose

Dr. Ampil, Enrique testified: Atty. Agcaoili

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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 CityGeneral 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 GeneralHospital to perform such diagnostic procedures and to administer

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such medications and treatmentsas 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 GeneralHospital, 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.

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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 theAgana'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

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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

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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]

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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 Natividad’s

recovery. Certainly, PSI could not have expected that purpose

to be achieved by merely hoping that the person likely to have

mislaid the gauzes might be able to retrace his own steps. By its

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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.

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As it happened, PSI took no heed of the record of

operation and consequently did not initiate a review of what

transpired during Natividad’s operation. Rather, it shirked its

responsibility and passed it on to others – to Dr. Ampil whom it

expected to inform Natividad, and to Natividad herself to

complain before it took any meaningful step. By its inaction,

therefore, PSI failed its own standard of hospital care. It

committed corporate negligence.

It should be borne in mind that the corporate negligence

ascribed to PSI is different from the medical negligence

attributed to Dr. Ampil. The duties of the hospital are distinct

from those of the doctor-consultant practicing within its

premises in relation to the patient; hence, the failure of PSI to

fulfill its duties as a hospital corporation gave rise to a direct

liability to the Aganas distinct from that of Dr. Ampil.

All this notwithstanding, we make it clear that

PSI’s hospital liability based on ostensible agency and

corporate negligence applies only to this case, pro hac vice. It is

not intended to set a precedent and should not serve as a basis

to hold hospitals liable for every form of negligence of their

doctors-consultants under any and all 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]

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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 believesP15 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.

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No further pleadings by any party shall be entertained in

this case.

Let the long-delayed entry of judgment be made in this

case upon receipt by all concerned parties of this resolution.

SO ORDERED.

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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.

R E S O L U T I O N

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,

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who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room.

At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, “Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor.”

By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation.

Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival. While she held the hand of Erlinda,

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Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: “ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.” Cruz noticed a bluish discoloration of Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position – a position where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlinda’s operation was not going well.

Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999.[1]

Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed

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the trial court’s decision and directed petitioners to pay their “unpaid medical bills” to private respondents.

Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private respondents now seek to be reconsidered. The dispositive portion of said Decision states:

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each exemplary damages and attorney’s fees; and 5) the costs of the suit.[2]

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:

I

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

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THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.

III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.[3]

Private respondent Dr. Gutierrez, for her part, avers that:

A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF APPEAL’S DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT PETITION;

B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER

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COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.

B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONER’S WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY

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

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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

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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

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finding her negligent and in holding that it was the faulty intubation which was the proximate cause of Erlinda’s comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from that cardiac arrest.[9] In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the intubation she performed on Erlinda was successful.

Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is belied by the records of the case. It has been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Egay enlightened the Court on what these standards are:

x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and establishing consent to

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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.

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Pre-evaluation for anesthesia involves taking the patient’s medical history, reviewing his current drug therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate prescription of preoperative medications as necessary to the conduct of anesthesia.[12]

Physical examination of the patient entails not only evaluating the patient’s central nervous system, cardiovascular system and lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the patient’s cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the thyromental distance.[13]

Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. She auscultated[14] the patient’s heart and lungs and checked the latter’s blood pressure to determine if Erlinda was indeed fit for operation.[15] However, she did not proceed to examine the patient’s airway. Had she been able to check petitioner Erlinda’s airway prior to the operation, Dr. Gutierrez would most probably not have experienced difficulty in intubating the former, and thus the resultant injury could have been avoided. As we have stated in our Decision:

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

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the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician’s centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.[16]

Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments:

CHIEF JUSTICE:

Mr. Counsel, you started your argument saying that this involves a comatose patient?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

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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]

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What is left to be determined therefore is whether Erlinda’s hapless condition was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patient’s comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium (pentothal).[18] In the Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority on anesthesia practice and procedure and their complications.[19]

Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise:

DR. CAMAGAY:

All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is not usual response and it is further qualified by the release of a hormone called histamine and histamine has an effect on all the organs of the body generally release because the substance that entered the body reacts with the particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is some form of response to take away that which is not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of the effects as you will see you will have redness, if

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you have an allergy you will have tearing of the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and you could also have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this way, we brought some visual aids but unfortunately we do not have a projector. And then you have the smaller airways, the bronchi and then eventually into the mass of the lungs you have the bronchus. The difference is that these tubes have also in their walls muscles and this particular kind of muscles is smooth muscle so, when histamine is released they close up like this and that phenomenon is known as bronco spasm. However, the effects of histamine also on blood vessels are different. They dilate blood vessel open up and the patient or whoever has this histamine release has hypertension or low blood pressure to a point that the patient may have decrease blood supply to the brain and may collapse so, you may have people who have this.[20]

These symptoms of an allergic reaction were not shown to have been extant in Erlinda’s case. As we held in our Decision, “no evidence of stridor, skin reactions, or wheezing – some of the more common accompanying signs of an allergic reaction – appears on record. No laboratory data were ever presented to the court.”[21]

Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived

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after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s attention to her synopsis on what transpired during Erlinda’s intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight difficulty (short neck & slightly prominent upper teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min.

12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis disappeared. Blood pressure and heart beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac

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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

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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?

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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?

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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?

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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)

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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.

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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?

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A No, the first cyanosis (interrupted).[23]

We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her admission that it does not fully reflect the events that transpired during the administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is particularly significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to five (5) minutes that caused Erlinda’s comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances and manifest conditions which are observable by any one.[24] Cruz, Erlinda’s sister-in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark, “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.” She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in trendelenburg position.[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

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indicate that the endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease of blood supply to the patient’s brain. The brain was thus temporarily deprived of oxygen supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.[27] In Voss vs. Bridwell,[28] which involved a patient who suffered brain damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that “[o]rdinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as

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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

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loss of the patient’s voice, considering that the surgeon did not have a hand in the intubation of the patient. The court rejected the application of the “Captain-of-the-Ship Doctrine,” citing the fact that the field of medicine has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the operating room. It held that “[a]n assignment of liability based on actual control more realistically reflects the actual relationship which exists in a modern operating room.”[35] Hence, only the anesthesiologist who inserted the endotracheal tube into the patient’s throat was held liable for the injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda.

First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient.[36]

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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 patient’s nails had become dusky and had to call Dr. Gutierrez’s attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also have to observe the surgeon’s acts during the surgical process and calls the attention of the surgeon whenever 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-

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cut as respondents claim them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility necessitates that they call each other’s attention to the condition of the patient while the other physician is performing the necessary medical procedures.

It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patient’s well being, Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other, at different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlinda’s scheduled operation subjected her to continued starvation and consequently, to the risk of acidosis,[40] or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual disturbances.[41] The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely affected the administration of anesthesia on her. As explained by Dr. Camagay, the patient’s anxiety usually causes the outpouring of adrenaline which in turn results in high blood pressure or disturbances in the heart rhythm:

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DR. CAMAGAY:

x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have adverse implications. So, we would like to alleviate patient’s anxiety mainly because he will not be in control of his body there could be adverse results to surgery and he will be opened up; a knife is going to open up his body. x x 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:

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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:

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Courtesy.

DR. CAMAGAY:

And care.

CHIEF JUSTICE:

Duty as a matter of fact?

DR. CAMAGAY:

Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician “to serve the interest of his patients with the greatest solicitude, giving them always his best talent and skill,”[44] but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and give everyone his due.

Anent private respondent DLSMC’s liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil 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

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wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x[46]

DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors.

It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end.[47]

DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and references.[48] Second, it is not the hospital but the patient who pays the consultant’s fee for services rendered by the latter.[49] Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital.[50] Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The

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hospital’s obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctor’s orders are carried out strictly.[51]

After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospital’s position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.

As explained by respondent hospital, that the admission of a physician to membership in DLSMC’s medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the

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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 Erlinda’s death. In the assailed Decision, the Court awarded actual damages of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlinda’s treatment and care from the date of promulgation of the Decision up to the time the patient expires or survives.[53] In addition thereto, the Court awarded temperate damages of One Million Five Hundred Thousand

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Pesos (P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlinda’s injury and the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.

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As it would not be equitable—and certainly not in the best interests of the administration of justice—for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded—temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

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

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.[55] In view of this supervening event, the award of temperate damages in addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient

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to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary damages, attorney’s fees and costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:

(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;

(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners—

(a) P1,352,000.00 as actual damages;

(b) P2,000,000.00 as moral damages;

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorney’s fees; and

(e) the costs of the suit.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

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SECOND DIVISION

G.R. No. 167366 September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, vs. COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.

D E C I S I O N

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking the annulment and setting aside of the 21 February 2005 decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC), Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.

Culled from the records are the following antecedent facts:

At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim of a stabbing incident, was rushed to the emergency room of the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) — the emergency room resident physician.

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Subsequently, the parents of Raymond—the spouses Deogenes Olavere (Deogenes) and Fe R. Serrano—arrived at the BRMC. They were accompanied by one Andrew Olavere, the uncle of Raymond.

After extending initial medical treatment to Raymond, Dr. Realuyo recommended that the patient undergo "emergency exploratory laparotomy." Dr. Realuyo then requested the parents of Raymond to procure 500 cc of type "O" blood needed for the operation. Complying with the request, Deogenes and Andrew Olavere went to the Philippine National Red Cross to secure the required blood.

At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also happened to be the head of Anesthesiology Department of the BRMC.

Just before the operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the operating room.

At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however, Dr. Tatad was already working with the obstetricians who will perform surgery on Lilia Aguila. There being no other available anesthesiologist to assist them,

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Drs. Zafe and Cereno decided to defer the operation on Raymond.

Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the latter’s blood pressure was normal and "nothing in him was significant."3 Dr. Cereno reported that based on the xray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc.

At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag containing the requested 500 cc type "O" blood. They handed over the bag of blood to Dr. Realuyo.

After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately started their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon opening of Raymond’s thoracic cavity, they found that 3,200 cc of blood was stocked therein. The blood was evacuated and petitioners found a puncture at the inferior pole of the left lung.

In his testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not immediately transfuse blood because he had to control the bleeders first.4

Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going, Raymond suffered a cardiac arrest. The operation ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M.

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Raymond’s death certificate5 indicated that the immediate cause of death was "hypovolemic shock" or the cessation of the functions of the organs of the body due to loss of blood.6

Claiming that there was negligence on the part of those who attended to their son, the parents of Raymond, on 25 October 1995, filed before the RTC, Branch 22, Naga City a complaint for damages7 against Nurse Balares, Dr. Realuyo and attending surgeons Dr. Cereno and Dr. Zafe.

During trial, the parents of Raymond testified on their own behalf. They also presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego Reposo testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad, among others.

On 15 October 1999, the trial court rendered a decision8 the dispositive portion of which reads:

WHEREFORE, premises considered, this Court hereby renders judgment:

1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of merit;

2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of Raymond Olavere, jointly and severally the following amounts:

1. P 50,000.00 for the death of the victim;

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2. P 150,000.00 as moral damages;

3. P 100,000.00 as exemplary damages;

4. P 30,000.00 for attorney’s fees; and

5. Cost of suit.9

x x x x.

The trial court found petitioners negligent in not immediately conducting surgery on Raymond. It noted that petitioners have already finished operating on Charles Maluluy-on as early as 10:30 in the evening, and yet they only started the operation on Raymond at around 12:15 early morning of the following day. The trial court held that had the surgery been performed promptly, Raymond would not have lost so much blood and, therefore, could have been saved.10

The trial court also held that the non-availability of Dr. Tatad after the operation on Maluluy-on was not a sufficient excuse for the petitioners to not immediately operate on Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed the possibility of calling a standby anesthesiologist in that situation. The trial court opined that the petitioners could have just requested for the standby anesthesiologist from Dr. Tatad, but they did not.

Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on Raymond.

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On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the judgment rendered by the RTC finding herein petitioners guilty of gross negligence in the performance of their duties and awarding damages to private respondents.

Hence, this petition for review on certiorari under Rule 45 of the Rules of Court assailing the CA decision on the following grounds:

1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES;

2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND LIABLE FOR DAMAGES; and

3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEY’S FEES EXORBITANT OR EXCESSIVE.

We grant the petition

It is well-settled that under Rule 45 of the Rules of Court, only questions of law may be raised. The reason behind this is that this Court is not a trier of facts and will not re-examine and re-evaluate the evidence on record.11Factual findings of the CA, affirming that of the trial court, are therefore generally final and conclusive on this Court. This rule is subject to the following exceptions: (1) the conclusion is grounded on

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speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the findings of absence of fact are contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to those of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties.12 In this case, We find exceptions (1) and (4) to be applicable.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that the failure or action caused injury to the patient.13 Stated otherwise, the complainant must prove: (1) that the health care provider, either by his act or omission, had been negligent, and (2) that such act or omission proximately caused the injury complained of.

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The best way to prove these is through the opinions of expert witnesses belonging in the same neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence, the indispensability of expert testimonies.14

Guided by the foregoing standards, We dissect the issues at hand.

Petitioners Not Negligent

The trial court first imputed negligence on the part of the petitioners by their failure to perform the operation on Raymond immediately after finishing the Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court relied on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the possibility that a standby anesthesiologist could have been called upon. The pertinent portions of the testimony of Dr. Tatad provides:

Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?

A: We have a protocol at the Bicol Medical Center to have a consultant who is on call.

Q: How many of them?

A: One.

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Q: Who is she?

A: Dra. Flores.

Q: What is the first name?

A: Rosalina Flores.

Q: Is she residing in Naga City?

A: In Camaligan.

Q: She is on call anytime when there is an emergency case to be attended to in the Bicol Medical Center?

A: Yes sir.15

Dr. Tatad further testified:

Q: Alright (sic), considering that you said you could not attend to Raymond Olavere because another patient was coming in the person of Lilia Aguila, did you not suggest to Dr. Cereno to call the standby anesthesiologist?

A: They are not ones to do that. They have no right to call for the standby anesthesiologist.

Q: Then, who should call for the standby anesthesiologist?

A: It is me if the surgeon requested.

Q: But in this case, the surgeon did not request you?

A: No. It is their prerogative.

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Q: I just want to know that in this case the surgeon did not request you to call for the standby anesthesiologist?

A: No sir.16

From there, the trial court concluded that it was the duty of the petitioners to request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since petitioners failed to do so, their inability to promptly perform the operation on Raymond becomes negligence on their part.

This Court does not agree with the aforesaid conclusion.

First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the record for that matter, which shows that the petitioners were aware of the "BRMC protocol" that the hospital keeps a standby anesthesiologist available on call. Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves that any such "BRMC protocol" is being practiced by the hospital’s surgeons at all.

Evidence to the effect that petitioners knew of the "BRMC protocol" is essential, especially in view of the contrary assertion of the petitioners that the matter of assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology Department. Without any prior knowledge of the "BRMC protocol," We find that it is quite reasonable for the petitioners to assume that matters regarding the administration of anesthesia and the assignment of anesthesiologists are concerns of the Anesthesiology Department, while matters pertaining to the surgery itself fall

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under the concern of the surgeons. Certainly, We cannot hold petitioners accountable for not complying with something that they, in the first place, do not know.

Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and that petitioners knew about it, We find that their failure to request for the assistance of the standby anesthesiologist to be reasonable when taken in the proper context. There is simply no competent evidence to the contrary.

From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for a standby anaesthesiologist is not within the full discretion of petitioners. The "BRMC protocol" described in the testimony requires the petitioners to course such request to Dr. Tatad who, as head of the Department of Anesthesiology, has the final say of calling the standby anesthesiologist.

As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to examine Raymond and they found that the latter’s blood pressure was normal and "nothing in him was significant."17 Dr. Cereno even concluded that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged and were unrebutted.

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Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not showing any symptom of suffering from major blood loss requiring an immediate operation, We find it reasonable that petitioners decided to wait for Dr. Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There is, after all, no evidence that shows that a prudent surgeon faced with similar circumstances would decide otherwise.

Here, there were no expert witnesses presented to testify that the course of action taken by petitioners were not in accord with those adopted by other reasonable surgeons in similar situations. Neither was there any testimony given, except that of Dr. Tatad’s, on which it may be inferred that petitioners failed to exercise the standard of care, diligence, learning and skill expected from practitioners of their profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of surgical practices and diagnoses. Her expertise is in the administration of anesthesia and not in the determination of whether surgery ought or not ought to be performed.

Another ground relied upon by the trial court in holding petitioners negligent was their failure to immediately transfuse blood on Raymond. Such failure allegedly led to the eventual death of Raymond through "hypovolemic shock." The trial court relied on the following testimony of Dr. Tatad:

Q: In this case of Raymond Olavere was blood transfused to him while he was inside the operating room?

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A: The blood arrived at 1:40 a.m. and that was the time when this blood was hooked to the patient.

x x x x

Q: Prior to the arrival of the blood, you did not request for blood?

A: I requested for blood.

Q: From whom?

A: From the attending physician, Dr. Realuyo.

Q: What time was that?

x x x x

A: 9:30.

x x x x

Q: Had this blood been given to you before the operation you could have transfused the blood to the patient?

A: Of course, yes.

Q: And the blood was transfused only after the operation?

A: Because that was the time when the blood was given to us.

x x x x

Q: Have you monitored the condition of Raymond Olavere?

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A: I monitored the condition during the time when I would administer anesthesia.

Q: What time was that?

A: 11:45 already.

Q: What was the condition of the blood pressure at that time?

A: 60/40 initial.

Q: With that kind of blood pressure the patient must have been in critical condition?

A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood was already needed.

Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did not decide on transfusing blood to him?

A: I was asking for blood but there was no blood available.

Q: From whom did you ask?

A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for cross-matching.18

From the aforesaid testimony, the trial court ruled that there was negligence on the part of petitioners for their failure to have the blood ready for transfusion. It was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by Raymond’s parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes had passed. Yet, the blood was not

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ready for transfusion as it was still being cross-matched.19 It took another two hours before blood was finally transfused to Raymond at 1:40 A.M. of 17 September 1995.

Again, such is a mistaken conclusion.

First, the alleged delay in the cross-matching of the blood, if there was any, cannot be attributed as the fault of the petitioners. The petitioners were never shown to be responsible for such delay. It is highly unreasonable and the height of injustice if petitioners were to be sanctioned for lapses in procedure that does not fall within their duties and beyond their control.

Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in the transfusion of blood on Raymond before and during the operation.

Before the operation, Dr. Cereno explained that the reason why no blood transfusion was made on Raymond was because they did not then see the need to administer such transfusion, viz:

Q: Now, you stated in your affidavit that prior to the operation you were informed that there was 500 cc of blood available and was still to be cross-matched. What time was that when you were informed that 500 cc of blood was due for crossmatching?

A: I am not sure of the time.

Q: But certainly, you learned of that fact that there was 500 cc of blood, which was due for crossmatching immediately prior to the operation?

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A: Yes, sir.

Q: And the operation was done at 12:15 of September 17?

A: Yes, sir.

Q: And that was the reason why you could not use the blood because it was being crossmatched?

A: No, sir. That was done only for a few minutes. We did not transfuse at that time because there was no need.There is a necessity to transfuse blood when we saw there is gross bleeding inside the body. 20(Emphasis supplied)

During the operation, on the other hand, Dr. Cereno was already able to discover that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the puncture in the latter’s left lung. Even then, however, immediate blood transfusion was not feasible because:

Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not immediately transfuse blood to the patient and you waited for 45 minutes to elapse before transfusing the blood?

A: I did not transfuse blood because I had to control the bleeders. If you will transfuse blood just the same the blood that you transfuse will be lost. After evacuation of blood and there is no more bleeding…

Q: It took you 45 minutes to evacuate the blood?

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A: The evacuation did not take 45 minutes.

Q: So what was the cause of the delay why you only transfuse blood after 45 minutes?

A: We have to look for some other lesions. It does not mean that when you slice the chest you will see the lesions already.21

(Emphasis supplied)

Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted. The parents of Raymond were not able to present any expert witness to dispute the course of action taken by the petitioners.

Causation Not Proven

In medical negligence cases, it is settled that the complainant has the burden of establishing breach of duty on the part of the doctors or surgeons. It must be proven that such breach of duty has a causal connection to the resulting death of the patient.22 A verdict in malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.

The parents of Raymond failed in this respect. Aside from their failure to prove negligence on the part of the petitioners, they also failed to prove that it was petitioners’ fault that caused the injury. Their cause stands on the mere assumption that Raymond’s life would have been saved had petitioner surgeons

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immediately operated on him; had the blood been cross-matched immediately and had the blood been transfused immediately. There was, however, no proof presented that Raymond’s life would have been saved had those things been done. Those are mere assumptions and cannot guarantee their desired result. Such cannot be made basis of a decision in this case, especially considering that the name, reputation and career of petitioners are at stake.

The Court understands the parents’ grief over their son’s death.1âwphi1 That notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who was a victim of a stabbing incident, had multiple wounds when brought to the hospital. Upon opening of his thoracic cavity, it was discovered that there was gross bleeding inside the body. Thus, the need for petitioners to control first what was causing the bleeding. Despite the situation that evening i.e. numerous patients being brought to the hospital for emergency treatment considering that it was the height of the Peñafrancia Fiesta, it was evident that petitioners exerted earnest efforts to save the life of Raymond. It was just unfortunate that the loss of his life was not prevented.

In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not liable for honest mistake of judgment…"23

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This Court affirms the ruling of the CA that the BRMC is not an indispensible party. The core issue as agreed upon by the parties and stated in the pre-trial order is whether petitioners were negligent in the performance of their duties. It pertains to acts/omissions of petitioners for which they could be held liable. The cause of action against petitioners may be prosecuted fully and the determination of their liability may be arrived at without impleading the hospital where they are employed. As such, the BRMC cannot be considered an indispensible party without whom no final determination can be had of an action.24

IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CA-G.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

JOSE PORTUGAL PEREZ Associate Justice

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Republic of the Philippines Supreme Court

Manila

THIRD DIVISION

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

Petitioners,

- versus -

G.R. No. 187926

Present:

CARPIO,* J.,

PERALTA,** Acting Chairperson,

ABAD,

PEREZ,*** and

MENDOZA, JJ.

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PEOPLE OF THEPHILIPPINES,

Respondent.

Promulgated:

February 15, 2012

x --------------------------------------------------------------------------------------- x

D E C I S I O N

MENDOZA, J.:

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting

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injury. This Court, as this case would show, cannot and will not let the act go unpunished.[1]

This is a petition for review under Rule 45 of the Rules of

Court challenging the August 29, 2008 Decision[2] of the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries. THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a 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 professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victim’s ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was

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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 ofONE (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

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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

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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, 2008Decision 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

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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 ofLeonila 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.

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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

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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 latter’s ordeal at the hospital. She testified as follows:

Fiscal Formoso:

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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 don’t 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. x x x x x x x x x 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

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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. x x x x x x x x x A: I just listened to them, sir. And I just

asked if I will still return my son. x x x x x x x x x Q: And you were present when they

were called? A: Yes, sir.

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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 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.

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

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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

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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, it’s entirely different thing. Because if you are an orthopedic resident, I am not trying to say…but 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 Doctor’s 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 don’t [know]

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why they don’t….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.

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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 herebyDISMISSED 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]

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The petitioners filed a motion for reconsideration, but it was denied by the CA in itsMay 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 PATIENT’S RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENT’S 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

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OPINION OF THE PROSECUTION’S 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 PATIENT’S 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 PATIENT’S 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 PATIENT’S ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHER’S ACT OR OMISSION.

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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 LATTER’S 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 COURT’S 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.

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0

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

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1

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]

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2

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 patient’s 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. Bastan’s 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]

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3

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?

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4

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 don’t 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.

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5

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?

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6

A: The patient was sideswiped, I don’t 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.

x x x x A: At the emergency room, at the Manila Doctor’s

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

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7

consultant on duty. Now at that time, I don’t why they don’t … Because at that time, I think, it is the decision. Since the x-rays…

x x x 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.

x x x x 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?

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8

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.

x x x x

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. That’s why the leg seems to be fractured.[17] [Emphases supplied]

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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 patient’s 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

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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

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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 physician–patient relationship,” the Court finds and so holds that there was a “physician–patient” relationship in this case.

In the case of Lucas v. Tuaño,[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

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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.

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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 thePhilippines 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.[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

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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.

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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

WE CONCUR:

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ANTONIO T. CARPIO Associate Justice

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

Acting Chairperson

JOSE PORTUGAL PEREZ

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had

been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

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DIOSDADO M. PERALTA Associate Justice

Acting Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. RENATO C. CORONA Chief Justice

* Designated as additional member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 1185 datedFebruary 10, 2012. ** Designated as Acting Chairperson, per Special Order No. 1184 dated February 10, 2012.

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*** Designated as additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special Order No. 1192 datedFebruary 10, 2012. [1] See the case of Dr. Batiquin v. Court of Appeals, 327 Phil. 965 (1996). [2] Rollo, pp. 50-65. Penned by Associate Justice Isaias Dicdican, with Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Marlene Gonzales-Sison, concurring. [3] Id. at 67-68. [4] Id. at 70-79. [5] No first name on record. [6] Rollo, p. 79. [7] Id. at 78. [8] Id. at 58-65. [9] Id. at 20-22. [10] Also quoted in the case of Layugan v. Intermediate Appellate Court, 249 Phil. 363, 377 (1988). [11] Dr. Batiquin v. CA, supra note 1, at 979-980. [12] Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 98 (2000). [13] TSN, September 20, 2004, p. 13. [14] Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 497. [15] Id. at 495. [16] Id. at 497. [17] TSN, September 20, 2004, pp. 9-24. [18] Balitaosan v. The Secretary of Education, 457 Phil. 300, 304 (2003). [19] Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001).

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[20] G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200. [21] TSN, September 20, 2004, p. 13. [22] As quoted in the case of Ruñez, Jr. v. Jurado, 513 Phil. 101, 106 (2005). [23] Quezon City Govt. v. Dacara, 499 Phil. 228, 243 (2005).

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EN BANC

DR. RUBI LI, Petitioner, - versus -

G.R. No. 165279 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,* ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents.

Promulgated: June 7, 2011

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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is the Decision[1] dated June 15, 2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September 5, 1997 of theRegional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents’ 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Luke’s Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelica’s right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of the patient’s body (metastasis), chemotherapy

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was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died onSeptember 1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said institution indicated the cause of death as “Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation.”[5]

On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA Antecedent cause : b. (above knee amputation) Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelica’s safety, health and welfare by their careless administration of the chemotherapy

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drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelica’s untimely demise. Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy (“Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing”) and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness (“Magsusuka ng kaunti. Malulugas ang buhok. Manghihina”). Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patient’s normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to bleeding

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in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelica’s surgery and discussed with them Angelica’s condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing business.[9] Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelica’s cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white

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blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelica’s ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the fourth time when Angelica’s mother called her through long distance.[10] This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests requested by petitioner: Angelica’s chest x-ray, ultrasound of the liver, creatinine and complete liver function tests.[13] Petitioner proceeded with the chemotherapy by first administering hydration fluids to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs – Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] – intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In his

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testimony, Dr. Marbella denied having any participation in administering the said chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelica’s face.[21] They asked petitioner about it, but she merely quipped, “Wala yan. Epekto ng gamot.”[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelica’s face had extended to her neck, but petitioner dismissed it again as merely the effect of medicines.[24] Petitioner testified that she did not see any discoloration on Angelica’s face, nor did she notice any difficulty in the child’s breathing. She claimed that Angelica merely complained of nausea and was given ice chips.[25]

On August 22, 1993, at around ten o’clock in the morning, upon seeing that their child could not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: “Dapat 15 Cosmegen pa iyan. Okay, let’s observe. If pwede na, bigyan uli ng chemo.” At this point, respondents asked petitioner’s permission to bring their child home. Later in the evening, Angelica passed black stool and reddish urine.[26] Petitioner

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countered that there was no record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as “naninigas ang kamay at paa”). She then requested for a serum calcium determination and stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided.[27]

The following day, August 23, petitioner yielded to respondents’ request to take Angelica home. But prior to discharging Angelica, petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while she observes Angelica’s muscle twitching and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate problem arises.[28]

However, Angelica remained in confinement because while still in the premises of SLMC, her “convulsions” returned and she also had LBM. Angelica was given oxygen and administration of calcium continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that

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she had a fever and had difficulty breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around 4:50that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a “stat dose.” She further ordered that Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any infection on the child’s body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, “Bagsak ang platelets ng anak mo.” Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelica’s fever was high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were gadgets attached to Angelica at that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven o’clock that evening, which petitioner likewise denied.

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On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may induce further bleeding.[35] She was also transferred to the intensive care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelica’s skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying “Ayaw ko na”; there were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter could not answer her anymore.[36] At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelica’s platelets were down and respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughter’s case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from her stomach. A nurse was posted inside Angelica’s room to assist her breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel consisted of

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blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. Atthree o’clock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and supposedly told respondents that there was “malfunction” or bogged-down machine.[37]

By petitioner’s own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelica’s skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died.[40] The cause of death, according to petitioner, was septicemia, or overwhelming infection, which caused Angelica’s other organs to fail.[41] Petitioner attributed this to the patient’s poor defense mechanism brought about by the cancer itself.[42]

While he was seeking the release of Angelica’s cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill.[43]

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Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelica’s cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of “hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular coagulation.” Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient to cause the victim’s death. The time lapse for the production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case Angelica’s death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a

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pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physician’s duty to inform and explain to the patient or his relatives every known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the patient’s condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects based on studies and observations, even if such will aggravate the patient’s condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s lower extremity, testified for the defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated

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with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them died within six months from amputation because he did not see them anymore after follow-up; it is either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid

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down in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount ofP139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial court’s finding that there was no negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a different course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants’ child was suffering from a malignant disease. The attending physician recommended that she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the

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chemotherapy treatment because they believed in Dr. Rubi Li’s representation that the deceased would have a strong chance of survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica. The appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelica’s condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to their claim for damages.

x x x x

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:

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1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorney’s fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorney’s fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly predict how a particular patient’s genetic make-up, state of mind, general

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health and body constitution would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did everything within her professional competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she would have

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to undergo dialysis. Indeed, respondents could have spent as much because of these complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her “quality of life” surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in

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the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents’ child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioner’s lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patient’s death. Furthermore, respondents’ case was not at all helped by the non-production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of “battery” (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients

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prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital[53] which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”[54] From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are persons

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unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physician’s responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patient’s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions.[58] The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment.[59] As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physician’s failure to divulge and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physician’s overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of

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dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent.[62] The court thus concluded that the patient’s right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physician’s communications to the patient, then must be measured by the patient’s need, and that need is whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality to the patient’s decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physician’s failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: “(1) the physician had a duty to disclose material risks;

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(2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.” The gravamen in an informed consent case requires the plaintiff to “point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.[64]

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelica’s parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelica’s lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patient’s reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot

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be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents’ claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapy’s success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary.[65]

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, “the plaintiff must prove both the duty and the breach of that duty through expert testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOH’s Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to

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establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining “adequate” disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patient’s position regards as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution.

As we progress toward the twenty-first century,

we now realize that the legal standard of disclosure

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is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case.Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumer—“a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure.”[68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.

No costs.

SO ORDERED.