SECOND DIVISION

[G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYDand KRISTINE, all surnamed REYES, represented by their mother,LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCYHOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR.MARLYN RICO,respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. CV No.36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City whichdismissed a complaint for damages filed by petitioners against respondents.

The facts are as follows:

Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners,namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were theirchildren. Five days before his death on January 8, 1987, Jorge had been suffering from arecurring fever with chills. After he failed to get relief from some home medication he wastaking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He wasattended to by respondent Dr. Marlyn Rico, resident physician and admitting physician onduty, who gave Jorge a physical examination and took his medical history. She noted that atthe time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and withrespiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had beengetting from 15 to 20 cases of typhoid per month.[3] Suspecting that Jorge could be sufferingfrom this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to beperformed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smearwere also made.[4] After about an hour, the medical technician submitted the results of thetest from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift wasonly up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.

Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorgeshistory and gave him a physical examination. Like Dr. Rico, her impression was that Jorgehad typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered thata compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was

administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. Asshe did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes orderedthe first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00p.m. A second dose was administered on Jorge about three hours later just before midnight.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperaturerose to 41C. The patient also experienced chills and exhibited respiratory distress, nausea,vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, andadministered hydrocortisone, temporarily easing the patients convulsions. When he regainedconsciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailmentor had suffered from chest pains in the past. Jorge replied he did not.[5] After about 15minutes, however, Jorge again started to vomit, showed restlessness, and his convulsionsreturned. Dr. Blanes re-applied the emergency measures taken before and, in addition, valiumwas administered. Jorge, however, did not respond to the treatment and slipped intocyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficientoxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The causeof his death was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.

On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City acomplaint[6]for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr.Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987,petitioners amended their complaint to implead respondent Mercy Community Clinic asadditional defendant and to drop the name of Josephine Pagente as defendant since she wasno longer connected with respondent hospital. Their principal contention was that Jorge didnot die of typhoid fever.[7]Instead, his death was due to the wrongful administration ofchloromycetin. They contended that had respondent doctors exercised due care anddiligence, they would not have recommended and rushed the performance of the Widal Test,hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetinwithout first conducting sufficient tests on the patients compatibility with said drug. Theycharged respondent clinic and its directress, Sister Rose Palacio, with negligence in failing toprovide adequate facilities and in hiring negligent doctors and nurses.[8]

Respondents denied the charges. During the pre-trial conference, the parties agreed tolimit the issues on the following: (1) whether the death of Jorge Reyes was due to or causedby the negligence, carelessness, imprudence, and lack of skill or foresight on the part ofdefendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of itsemployees; and (3) whether either party was entitled to damages. The case was then heardby the trial court during which, in addition to the testimonies of the parties, the testimonies ofdoctors as expert witnesses were presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at theNorthern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr.Vacalares performed an autopsy on Jorge Reyes to determine the cause of hisdeath. However, he did not open the skull to examine the brain. His findings[9] showed thatthe gastro-intestinal tract was normal and without any ulceration or enlargement of thenodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that hehad not seen a patient die of typhoid fever within five days from the onset of the disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. IbarraPanopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology andinfectious diseases. He is also a consultant at the Cebu City Medical Center and an associateprofessor of medicine at the South Western University College of Medicine in Cebu City. Hehad treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patientshistory and positive Widal Test results ratio of 1:320 would make him suspect that the patienthad typhoid fever. As to Dr. Vacalares observation regarding the absence of ulceration inJorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of atyphoid victim may be microscopic. He noted that since the toxic effect of typhoid fever maylead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain.[10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board ofPathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of thePhilippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, andchief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopiostated that although he was partial to the use of the culture test for its greater reliability in thediagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed thatthe 1:320 ratio in Jorges case was already the maximum by which a conclusion of typhoidfever may be made. No additional information may be deduced from a higher dilution.[11] Hesaid that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents fromthe charges of negligence and dismissing petitioners action for damages. The trial courtlikewise dismissed respondents counterclaim, holding that, in seeking damages fromrespondents, petitioners were impelled by the honest belief that Jorges death was due to thelatters negligence.

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court ofAppeals affirmed the decision of the trial court.

Hence this petition.

Petitioners raise the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHENIT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE INTHE INSTANT CASE.

II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN ITMADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE ISLOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR ALESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICALPRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS NEGLIGENCE INTHE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which

consists in the failure of a physician or surgeon to apply to his practice of medicine thatdegree of care and skill which is ordinarily employed by the profession generally, undersimilar conditions, and in like surrounding circumstances.[12] In order to successfully pursuesuch a claim, a patient must prove that the physician or surgeon either failed to do somethingwhich a reasonably prudent physician or surgeon would have done, or that he or she didsomething that a reasonably prudent physician or surgeon would not have done, and that thefailure or action caused injury to the patient.[13] There are thus four elements involved inmedical negligence cases, namely: duty, breach, injury, and proximate causation.

In the present case, there is no doubt that a physician-patient relationship existedbetween respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use atleast the same level of care that any reasonably competent doctor would use to treat acondition under the same circumstances. It is breach of this duty which constitutes actionablemalpractice.[14]As to this aspect of medical malpractice, the determination of the reasonablelevel of care and the breach thereof, expert testimony is essential. Inasmuch as the causes ofthe injuries involved in malpractice actions are determinable only in the light of scientificknowledge, it has been recognized that expert testimony is usually necessary to support theconclusion as to causation.[15]

Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under thedoctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to provethat a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, andnot to matters that are within the common knowledge of mankind which may be testifiedto by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is

ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed becausethere is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, duringor following an operation for appendicitis, among others.[17]

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies tothe present case because Jorge Reyes was merely experiencing fever and chills for five daysand was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he diedafter only ten hours from the time of his admission.

This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa loquitur werepresent, namely: (1) the accident was of a kind which does not ordinarily occur unlesssomeone is negligent; (2) the instrumentality or agency which caused the injury was under theexclusive control of the person in charge; and (3) the injury suffered must not have been dueto any voluntary action or contribution of the person injured.[18]

The contention is without merit. We agree with the ruling of the Court of Appeals. Inthe Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospitalshould be made liable for the comatose condition of a patient scheduled for cholecystectomy.[19] In that case, the patient was given anesthesia prior to her operation. Noting that thepatient was neurologically sound at the time of her operation, the Court applied the doctrineof res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation inthe absence of negligence of the anesthesiologist. Taking judicial notice that anesthesiaprocedures had become so common that even an ordinary person could tell if it wasadministered properly, we allowed the testimony of a witness who was not an expert. In thiscase, while it is true that the patient died just a few hours after professional medicalassistance was rendered, there is really nothing unusual or extraordinary about hisdeath. Prior to his admission, the patient already had recurring fevers and chills for five daysunrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows thathe had been suffering from a serious illness and professional medical help came too late forhim.

Respondents alleged failure to observe due care was not immediately apparent to alayman so as to justify application of res ipsa loquitur. The question required expert opinion

on the alleged breach by respondents of the standard of care required by thecircumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumptionof negligence can be applied to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligenceallegedly committed by respondent doctors.

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widaltest, diagnosed Jorges illness as typhoid fever, and immediately prescribed the administrationof the antibiotic chloromycetin;[21] and (2) Dr. Marvie Blanes erred in ordering theadministration of the second dose of 500 milligrams of chloromycetin barely three hours afterthe first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares, ChiefPathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performedan autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findingsduring the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, whichcould be due to allergic reaction or chloromycetin overdose. We are not persuaded.

First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do notfind him to be so as he is not a specialist on infectious diseases like typhoidfever.Furthermore, although he may have had extensive experience in performing autopsies,he admitted that he had yet to do one on the body of a typhoid victim at the time heconducted the postmortem on Jorge Reyes. It is also plain from his testimony that he hastreated only about three cases of typhoid fever. Thus, he testified that:[23]

ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoidfever?

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?

A I have not seen one.

Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one.

Q How many typhoid fever cases had you seen while you were in the general practice of medicine?

A In our case we had no widal test that time so we cannot consider that the typhoid fever is like thisand like that. And the widal test does not specify the time of the typhoid fever.

Q The question is: how many typhoid fever cases had you seen in your general practice regardlessof the cases now you practice?

A I had only seen three cases.

Q And that was way back in 1964?

A Way back after my training in UP.

Q Clinically?

A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courtswere therefore correct in discarding his testimony, which is really inadmissible.

In Ramos, the defendants presented the testimony of a pulmonologist to prove that braininjury was due to oxygen deprivation after the patient had bronchospasms [24] triggered by herallergic response to a drug,[25] and not due to faulty intubation by the anesthesiologist. As theissue was whether the intubation was properly performed by an anesthesiologist, we rejectedthe opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist whocould enlighten the court about anesthesia practice, procedure, and their complications; nor(2) an allergologist who could properly advance expert opinion on allergic mediatedprocesses; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects ofthe drug allegedly responsible for the bronchospasms.

Second. On the other hand, the two doctors presented by respondents clearly wereexperts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr.Peter Gotiong, a diplomate whose specialization is infectious diseases and microbiology andan associate professor at the Southwestern University College of Medicine and the GullasCollege of Medicine, testified that he has already treated over a thousand cases of typhoidfever.[26] According to him, when a case of typhoid fever is suspected, the Widal test isnormally used,[27]and if the 1:320 results of the Widal test on Jorge Reyes had beenpresented to him along with the patients history, his impression would also be that the patient

was suffering from typhoid fever.[28] As to the treatment of the disease, he stated thatchloromycetin was the drug of choice.[29] He also explained that despite the measures takenby respondent doctors and the intravenous administration of two doses of chloromycetin,complications of the disease could not be discounted. His testimony is as follows:[30]

ATTY. PASCUAL:

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?

A If those are the findings that would be presented to me, the first thing I would consider would betyphoid fever.

Q And presently what are the treatments commonly used?

A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2hours later, the patient associated with chills, temperature - 41oC, what could possibly come toyour mind?

A Well, when it is change in the clinical finding, you have to think of complication.

Q And what will you consider on the complication of typhoid?

A One must first understand that typhoid fever is toximia. The problem is complications are causedby toxins produced by the bacteria . . . whether you have suffered complications to think of --heart toxic myocardities; then you can consider a toxic meningitis and other complications andperforations and bleeding in the ilium.

Q Even that 40-year old married patient who received medication of chloromycetin of 500milligrams intravenous, after the skin test, and received a second dose of chloromycetin of 500miligrams, 3 hours later, the patient developed chills . . . rise in temperature to 41oC, and thenabout 40 minutes later the temperature rose to 100oF, cardiac rate of 150 per minute whoappeared to be coherent, restless, nauseating, with seizures: what significance could youattach to these clinical changes?

A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis becauseof the high cardiac rate.

Q Even if the same patient who, after having given intramuscular valium, became conscious andcoherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs andvomitting . . . and death: what significance would you attach to this development?

A We are probably dealing with typhoid to meningitis.

Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?

A No, the finding would be more on the meninges or covering of the brain.

Q And in order to see those changes would it require opening the skull?

A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tractwas normal, Dr. Rico explained that, while hyperplasia[31] in the payers patches or layers ofthe small intestines is present in typhoid fever, the same may not always be grossly visibleand a microscope was needed to see the texture of the cells.[32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member ofthe Philippine and American Board of Pathology, an examiner of the Philippine Board ofPathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual SuccorHospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinicalpathologist, he recognized that the Widal test is used for typhoid patients, although he did notencourage its use because a single test would only give a presumption necessitating that thetest be repeated, becoming more conclusive at the second and third weeks of the disease.[33] He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really thepossible complications which could develop like perforation, hemorrhage, as well as liver andcerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge Reyes, Dr.Panopio stated that no additional information could be obtained from a higher ratio.[35] Healso agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic.[36]

Indeed, the standard contemplated is not what is actually the average merit among allknown practitioners from the best to the worst and from the most to the least experienced, butthe reasonable average merit among the ordinarily good physicians.[37] Here, Dr. Marlyn Ricodid not depart from the reasonable standard recommended by the experts as she in factobserved the due care required under the circumstances. Though the Widal test is notconclusive, it remains a standard diagnostic test for typhoid fever and, in the present case,greater accuracy through repeated testing was rendered unobtainable by the early death ofthe patient. The results of the Widal test and the patients history of fever with chills for fivedays, taken with the fact that typhoid fever was then prevalent as indicated by the fact that theclinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon anydoctor of reasonable skill the impression that Jorge Reyes had typhoid fever.

Dr. Rico was also justified in recommending the administration of the drug chloromycetin,the drug of choice for typhoid fever. The burden of proving that Jorge Reyes was sufferingfrom any other illness rested with the petitioners. As they failed to present expert opinion onthis, preponderant evidence to support their contention is clearly absent.

Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr.Rico, was negligent in ordering the intravenous administration of two doses of 500 milligramsof chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyesdied of anaphylactic shock[38] or possibly from overdose as the second dose should havebeen administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held bythe Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for typhoidfever and that no drug has yet proven better in promoting a favorable clinical response.

Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at around nine oclock in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf.Pediatric Drug Handbook, 1st Ed.,Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick, Pharmacology and Therapeutics)Even if the test was not administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp.16-17) Once more, this Court rejects any claim of professional negligence in this regard.

. . . .

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and perform standard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one which, like thebusiness of a common carrier, is affected with public interest. Moreover, they assert that sincethe law imposes upon common carriers the duty of observing extraordinary diligence in thevigilance over the goods and for the safety of the passengers, [40] physicians and surgeonsshould have the same duty toward their patients.[41] They also contend that the Court ofAppeals erred when it allegedly assumed that the level of medical practice is lower in IliganCity, thereby reducing the standard of care and degree of diligence required from physiciansand surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Codeprovides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of

each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is aright earned through years of education, training, and by first obtaining a license from thestate through professional board examinations. Such license may, at any time and for cause,be revoked by the government. In addition to state regulation, the conduct of doctors is alsostrictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules whichdoctors have imposed upon themselves in recognition and acceptance of their greatresponsibility to society. Given these safeguards, there is no need to expressly require ofdoctors the observance of extraordinary diligence. As it is now, the practice of medicine isalready conditioned upon the highest degree of diligence. And, as we have already noted, thestandard contemplated for doctors is simply the reasonable average merit among ordinarilygood physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it,the reasonable skill and competence . . . that a physician in the same or similar locality . . .should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals isAFFIRMED.

SO ORDERED.

Republic of the PhilippinesSupreme Court

Manila

THIRD DIVISION

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

Petitioners,

G.R. No. 187926

Present:

CARPIO,* J.,

PERALTA,** Acting Chairperson,

- versus -

PEOPLE OF THEPHILIPPINES,

Respondent.

ABAD,

PEREZ,*** and

MENDOZA, JJ.

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 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

victims 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 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 beyondreasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TOSERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penaltyof ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnifyMRS. BELINDA SANTIAGO the amount of ₱3,850.00 representing medicalexpenses without subsidiary imprisonment in case of insolvency and to pay thecosts.

It appearing that Dr. Pamittan has not been apprehended nor voluntarily

surrendered despite warrant issued for her arrest, let warrant be issued for herarrest and the case against her be ARCHIVED, to be reinstated upon her

apprehension. SO ORDERED.[6]

The RTC explained: After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr. However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period.[7]

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29,

2008 Decision of the CA pertinently reads:

This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doingor 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 thecase of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy. We are not convinced. The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the accused-appellants to correctly diagnose the extent of the injury sustained by Roy. For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge, negligence may be

deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or not?A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the wounds of my son. Q: And what did she [tell] you?A: They told me they will call a resident doctor, sir. 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 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. Q: And what was discussed then by Sis. Retoria?A: When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the control of the instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the accused-appellants. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable and must establish that the essential elements of the doctrine were present in a particular incident. The early treatment of the leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical attention. As junior residents who only practice general surgery and without specialization with the case consulted before them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to do so. The mother wouldnot have asked them if they had no exclusive control or prerogative to request anx-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician. The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?A: I would say at that stage, yes. Because they have presented the patient and the history. At sabi nila, nadaanan lang po ito. And then, considering their year of

residency they are still junior residents, and they are not also orthopedic residents but general surgery residents, its entirely different thing. Because if you are an orthopedic resident, I am not trying to saybut if I were an orthopedic resident, there would be more precise and accurate decisioncompare to a general surgery resident in so far as involved. Q: You mean to say there is no supervisor attending the emergency room?A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont [know] why they dont.Because at that time, I think, it is the decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements andacts 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 ofexpert 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 ifdue care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between thefailure to secure results and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order. WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is hereby AFFIRMED in toto.

SO ORDERED.[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in

its May 19, 2009 Resolution. Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA

anchored on the followingGROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE

COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL,DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICALINJURY 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 HISCUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THEVEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BYA TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECTTHE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN DISREGARDING

ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS ALLEGEDNEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OFAPPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THEPROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THATPETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCECOMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE

FAILURE OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TOAN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OFTHE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVENCONTRARY TO, THE EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED

PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED INNOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUETO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSEHERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THEHOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINEDOF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTERHE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS

ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TOHIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO

PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERSAND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THELATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTEDBY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILETHEY WERE PASSING BY THE ER FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING

ACCUSED-PETITIONERS OF THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the

doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the

petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners.

After a perusal of the records, however, the Court is not convinced that the petitioners

are guilty of criminal negligence complained of. The Court is also of the view that the

CA erred in applying the doctrine of res ipsa loquitur in this particular case.

As to the Application ofThe Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which causes injury is

shown to be under the management of the defendant, and the accident is such as in the

ordinary course of things does not happen if those who have the management use proper

care, it affords reasonable evidence, in the absence of an explanation by the defendant,

that the accident arose from want of care." The Black's Law Dictionary defines the said

doctrine. Thus: The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent,which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. Under this

doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.[10]

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence

which recognizes that prima facie negligence may be established without direct proof

and furnishes a substitute for specific proof of negligence. The doctrine, however, is not

a rule of substantive law, but merely a mode of proof or a mere procedural

convenience. The rule, when applicable to the facts and circumstances of a given case, is

not meant to and does not dispense with the requirement of proof of culpable negligence

on the party charged. It merely determines and regulates what shall

be prima facie evidence thereof and helps the plaintiff in proving a breach of the

duty. The doctrine can be invoked when and only when, under the circumstances

involved, direct evidence is absent and not readily available.[11]

The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident

was of a kind which does not ordinarily occur unless someone is negligent; (2) the

instrumentality or agency which caused the injury was under the exclusive control of the

person in charge; and (3) the injury suffered must not have been due to any voluntary

action or contribution of the person injured.[12]

In this case, the circumstances that caused patient Roy Jr.s injury and the series of

tests that were supposed to be undergone by him to determine the extent of the injury

suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was

established that they are mere residents of the Manila Doctors Hospital at that time who

attended to the victim at the emergency room.[13] While it may be true that the

circumstances pointed out by the courts below seem doubtless to constitute reckless

imprudence on the part of the petitioners, this conclusion is still best achieved, not

through the scholarly assumptions of a layman like the patients mother, but by the

unquestionable knowledge of expert witness/es. As to whether the petitioners have

exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a

matter of expert opinion.

As to Dr. Jarcia andDr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the

petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr.

Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of the interests of

another person that degree of care, precaution, and vigilance which the circumstances

justly demand, whereby such other person suffers injury.[14]

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an

act from which material damage results by reason of an inexcusable lack of

precaution on the part of the person performing or failing to perform such act.[15]

The elements of simple negligence are: (1) that there is lack of precaution on the part of

the offender, and (2) that the damage impending to be caused is not immediate or the

danger is not clearly manifest.[16]

In this case, the Court is not convinced with moral certainty that the petitioners

are guilty of reckless imprudence or simple negligence. The elements thereof were not

proved by the prosecution beyond reasonable doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric

orthopedic, although pointing to some medical procedures that could have been done by

Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries

suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and

their diagnosis or appreciation of the condition of the victim at the time they assessed

him. Thus: Q: Will you please tell us, for the record, doctor, what is your specialization?A: At present I am the chairman department of orthopedic in UP-PGH and I had

special training in pediatric orthopedic for two (2) years.

Q: In June 1998, doctor, what was your position and what was yourspecialization 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 hesustained a fracture as a result of a vehicular accident. So I examined thepatient at that time, the involved leg, I dont know if that is left or right, theinvolved leg then was swollen and the patient could not walk, so Irequested for the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal,

middle or lebistal tinial, we usually x-ray the entire extremity. Q: And what was the result?A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger

bone of the leg. Q: And when you say spiral, doctor, how long was this fracture?A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight

(8) centimeters. Q: Mid-tibial, will you please point to us, doctor, where the tibial is?(Witness pointing to his lower leg)A: The tibial is here, there are two bones here, the bigger one is the tibial and the

smaller one is the fibula. The bigger one is the one that get fractured. Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for

the history of such injury?A: Yes, actually, that was a routine part of our examination that once a patient

comes in, before we actually examine the patient, we request for a detailedhistory. If it is an accident, then, we request for the exact mechanism ofinjuries.

Q: And as far as you can recall, Doctor, what was the history of that injury that

was told to you?A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular

accident. Q: Who did you interview?A: The mother. Q: How about the child himself, Alfonso Santiago, Jr.?A: Normally, we do not interview the child because, usually, at his age, the

answers are not accurate. So, it was the mother that I interviewed.

Q: And were you informed also of his early medication that was administered onAlfonso Santiago, Jr.?

A: No, not actually medication. I was informed that this patient was seeninitially at the emergency room by the two (2) physicians that you justmentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be myresidents who were [on] duty at the emergency room.

x x x x A: At the emergency room, at the Manila Doctors Hospital, the supervisor there

is a consultant that usually comes from a family medicine. They see where acertain patient have to go and then if they cannot manage it, they refer it tothe consultant on duty. Now at that time, I dont why they dont Because atthat 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 theemergency 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 thehistory 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, wecannot subject the whole body for x-ray if we think that the damaged wasonly the leg.

Q: Not the entire body but the entire leg?A: I think, if my examination requires it, I would. Q: So, you would conduct first an examination?A: Yes, sir. Q: And do you think that with that examination that you would have conducted

you would discover the necessity subjecting the entire foot for x-ray?A: It is also possible but according to them, the foot and the ankle were swollen and

not the leg, which sometimes normally happens that the actual fractured bonedo not get swollen.

x x x x

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on thefoot and the history that was told to you is the region that was hit is the regionof 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 youhave to consider the kind of fracture that the patient sustained would you saythe exact mechanism of injury. For example spiral, paikot yung bale nya, so itwas possible that the leg was run over, the patient fell, and it got twisted.Thats why the leg seems to be fractured.[17] [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination

was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia

and Dr. Bastan were expected to know the medical protocol in treating leg fractures and

in attending to victims of car accidents. There was, however, no precise evidence and

scientific explanation pointing to the fact that the delay in the application of the cast to

the patients fractured leg because of failure to immediately diagnose the specific injury

of the patient, prolonged the pain of the child or aggravated his condition or even caused

further complications. Any person may opine that had patient Roy Jr. been treated

properly and given the extensive X-ray examination, the extent and severity of the

injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been

detected early on and the prolonged pain and suffering of Roy Jr. could have been

prevented. But still, that opinion, even how logical it may seem would not, and could

not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the

petitioners guilt.

Although the Court sympathizes with the plight of the mother and the child in this

case, the Court is bound by the dictates of justice which hold inviolable the right of the

accused to be presumed innocent until proven guilty beyond reasonable doubt. The

Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently

attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a

criminal conviction requires proof beyond reasonable doubt, only a preponderance of

evidence is required to establish civil liability. Taken into account also was the fact that

there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the

victim. It may be true that the actual, direct, immediate, and proximate cause of the

injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he

was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to

excuse themselves from any liability. If this would be so, doctors would have a ready

defense should they fail to do their job in attending to victims of hit-and-run,

maltreatment, and other crimes of violence in which the actual, direct, immediate, and

proximate cause of the injury is indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determine the extent of

Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the

medical profession. Assuming for the sake of argument that they did not have the

capacity to make such thorough evaluation at that stage, they should have referred the

patient to another doctor with sufficient training and experience instead of assuring him

and his mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitioners contention that no

physician-patient relationship existed between them and patient Roy Jr., since they were

not his attending physicians at that time. They claim that they were merely requested by

the ER nurse to see the patient while they were passing by the ER for their

lunch. Firstly, this issue was never raised during the trial at the RTC or even before the

CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first

time on appeal with this Court. It has been settled that issues raised for the first time on

appeal cannot be considered because a party is not permitted to change his theory on

appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair

play, justice and due process.[18] Stated differently, basic considerations of due process

dictate that theories, issues and arguments not brought to the attention of the trial court

need not be, and ordinarily will not be, considered by a reviewing court.[19]

Assuming again for the sake of argument that the petitioners may still raise this

issue of no physicianpatient relationship, the Court finds and so holds that there was a

physicianpatient relationship in this case.

In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the

services of a physician, a physician-patient relationship is generated. And in accepting a

case, the physician, for all intents and purposes, represents that he has the needed

training and skill possessed by physicians and surgeons practicing in the same field; and

that he will employ such training, care, and skill in the treatment of the patient. Thus, in

treating his patient, a physician is under a duty to exercise that degree of care, skill and

diligence which physicians in the same general neighborhood and in the same general

line of practice ordinarily possess and exercise in like cases. Stated otherwise, the

physician has the obligation to use at least the same level of care that any other

reasonably competent physician would use to treat the condition under similar

circumstances.

Indubitably, a physician-patient relationship exists between the petitioners and patient

Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical

attention. The petitioners allegedly passed by and were requested to attend to the

victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on

duty at the ER).[21] They obliged and examined the victim, and later assured the mother

that everything was fine and that they could go home. Clearly, a physician-patient

relationship was established between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they

were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree

of diligence and commitment expected of every doctor in a case like this, they should

have not made a baseless assurance that everything was all right. By doing so, they

deprived Roy Jr. of adequate medical attention that placed him in a more dangerous

situation than he was already in. What petitioners should have done, and could have

done, was to refer Roy Jr. to another doctor who could competently and thoroughly

examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally,

liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in

the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable.[22]

Established medical procedures and practices, though in constant instability, are

devised for the purpose of preventing complications. In this case, the petitioners failed to

observe the most prudent medical procedure under the circumstances to prevent the

complications suffered by a child of tender age.

As to the Award ofDamages

While no criminal negligence was found in the petitioners failure to administer the

necessary medical attention to Roy Jr., the Court holds them civilly liable for the

resulting damages to their patient. While it was the taxi driver who ran over the foot or

leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of ₱3,850.00, as expenses incurred by patient Roy

Jr., was adequately supported by receipts. The Court, therefore, finds the petitioners

liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by

the family of the child at that time. Certainly, the award of moral and exemplary

damages in favor of Roy Jr. in the amount of ₱100,000.00 and ₱50,000.00, respectively,

is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to

compensate and alleviate in some way the physical suffering, mental anguish, fright,

serious anxiety, besmirched reputation, wounded feelings, moral shock, social

humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration

of the psychological or emotional status quo ante, the award of moral damages is

designed to compensate emotional injury suffered, not to impose a penalty on the

wrongdoer.[23]

The Court, likewise, finds the petitioners also liable for exemplary damages in the saidamount. Article 2229 of the Civil Code provides that exemplary damages may beimposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of

Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is

entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime

of reckless imprudence resulting to serious physical injuries but declaring them civilly

liable in the amounts of:

(1) ₱3,850.00 as actual damages;

(2) ₱100,000.00 as moral damages;

(3) ₱50,000.00 as exemplary damages; and

(4) Costs of the suit.

with interest at the rate of 6% per annum from the date of the filing of the Information.

The rate shall be 12% interest per annum from the finality of judgment until fully paid.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 126297 January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner, vs.NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467 January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, vs.JUAN FUENTES, Respondent.

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

G.R. No. 127590 January 31, 2007

MIGUEL AMPIL, Petitioner, vs.NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume thegrave responsibility of pursuing it with appropriate care. The care and service dispensed through this hightrust, however technical, complex and esoteric its character may be, must meet standards of responsibilitycommensurate with the undertaking to preserve and protect the health, and indeed, the very lives of thoseplaced in the hospital’s keeping.1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming withmodification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, QuezonCity in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital)because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations,Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed ananterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread onher left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent ofNatividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, toperform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation andclosed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11,1984, the attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including thedoctors’ fees, amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr.Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr.Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were notremoved during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek furthertreatment. After four months of consultations and laboratory examinations, Natividad was told she was freeof cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter,her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampilproceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches inwidth. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seektreatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected thepresence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in widthwhich badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs whichforced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage.Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City acomplaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr.Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable fornegligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their

acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrativecomplaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed asAdministrative Case No. 1690. The PRC Board of Medicine heard the case only with respect to Dr. Fuentesbecause it failed to acquire jurisdiction over Dr. Ampil who was then in the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substitutedby her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr.Fuentes liable for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONALSERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly andseverally, except in respect of the award for exemplary damages and the interest thereon which are theliabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at PolymedicHospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of thecomplaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision,which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties ofDr. Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes toindefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the Aganasagain filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes. OnSeptember 21, 1993, the RTC granted the motion and issued the corresponding writ, prompting Dr.Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer for preliminaryinjunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued aResolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in Administrative CaseNo. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show thatDr. Fuentes was the one who left the two pieces of gauze inside Natividad’s body; and that he concealedsuch fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No.42062 and CA-G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes ishereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable toreimburse defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had paidto the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED and the instant appealDISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr.Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondentjudge dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are herebyNULLIFIED and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminaryinjunction issued by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December 19,1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it isestopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil;and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not itsemployee, but a mere consultant or independent contractor. As such, he alone should answer for hisnegligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is notguilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that thepieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable fornegligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. Hepointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing thehysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3)the medical intervention of the American doctors who examined Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampilliable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentesof any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes ofNatividad’s detriment. He argues that the Court should not discount either of the following possibilities: first,Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy; second, the attendingnurses erred in counting the gauzes; and third, the American doctors were the ones who placed the gauzesin Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present anyevidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body.Neither did he submit evidence to rebut the correctness of the record of operation, particularly the numberof gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his(Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals,directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of thepatient during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in theirreport that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ andthat a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs.Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are properlyremoved, and it is settled that the leaving of sponges or other foreign substances in the wound after theincision has been closed is at least prima facie negligence by the operating surgeon.8 To put it simply, suchact is considered so inconsistent with due care as to raise an inference of negligence. There are evenlegions of authorities to the effect that such act is negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludesa surgeon from further searching missing sponges or foreign objects left in the body. But this does notleave him free from any obligation. Even if it has been shown that a surgeon was required by the urgentnecessities of the case to leave a sponge in his patient’s abdomen, because of the dangers attendant upondelay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her ofwhat he had been compelled to do. This is in order that she might seek relief from the effects of the foreignobject left in her body as her condition might permit. The ruling in Smith v. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails toremove a sponge he has placed in his patient’s body that should be removed as part of the operation, hethereby leaves his operation uncompleted and creates a new condition which imposes upon him the legalduty of calling the new condition to his patient’s attention, and endeavoring with the means he has at handto minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled herthat the pain she was experiencing was the ordinary consequence of her operation. Had he been morecandid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzesfrom her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into adeliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfullypursue this kind of case, a patient must only prove that a health care provider either failed to do somethingwhich a reasonably prudent health care provider would have done, or that he did something that areasonably prudent provider would not have done; and that failure or action caused injury to thepatient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the leadsurgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closureof the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached bothduties. Such breach caused injury to Natividad, necessitating her further examination by American doctorsand another surgery. That Dr. Ampil’s negligence is the proximate cause12 of Natividad’s injury could betraced from his act of closing the incision despite the information given by the attending nurses that twopieces of gauze were still missing. That they were later on extracted from Natividad’s vagina establishedthe causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury washis deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it iscontrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze wereleft inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence ofan injury, taken with the surrounding circumstances, may permit an inference or raise a presumption ofnegligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet

with an explanation.13 Stated differently, where the thing which caused the injury, without the fault of theinjured, is under the exclusive control of the defendant and the injury is such that it should not haveoccurred if he, having such control used proper care, it affords reasonable evidence, in the absence ofexplanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to himto establish that he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsaloquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control andmanagement of the defendant; (3) the occurrence was such that in the ordinary course of things, would nothave happened if those who had control or management used proper care; and (4) the absence ofexplanation by the defendant. Of the foregoing requisites, the most instrumental is the "control andmanagement of the thing which caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting.Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requestedthe assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancyin her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reportedand showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr.Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about tofinish the procedure when the attending nurses informed him that two pieces of gauze were missing. A"diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that theincision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, infact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgeryroom and all personnel connected with the operation. Their duty is to obey his orders.16 As stated before,Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged suchrole is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examiningthe work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4)ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incisionnotwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body.Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, notDr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create orconstitute an independent or separate ground of liability, being a mere evidentiary rule.17 In other words,mere invocation and application of the doctrine does not dispense with the requirement of proof ofnegligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theoriesconcerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical servicesto the lowest classes of society, without regard for a patient’s ability to pay.18 Those who could affordmedical treatment were usually treated at home by their doctors.19 However, the days of house calls andphilanthropic health care are over. The modern health care industry continues to distance itself from itscharitable past and has experienced a significant conversion from a not-for-profit health care to for-profithospital businesses. Consequently, significant changes in health law have accompanied the business-related changes in the hospital industry. One important legal change is an increase in hospital liability formedical malpractice. Many courts now allow claims for hospital vicarious liability under the theories ofrespondeat superior, apparent authority, ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, whichreads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, isobliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relationbetween the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine ofrespondeat superior, thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions,but also for those of persons for whom one is responsible.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages causedby their employees in the service of the branches in which the latter are employed or on the occasion oftheir functions.

Employers shall be liable for the damages caused by their employees and household helpers acting withinthe scope of their assigned tasks even though the former are not engaged in any business or industry.

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that theyobserved all the diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists,and pharmacists, are not "employees" under this article because the manner in which they perform theirwork is not within the control of the latter (employer). In other words, professionals are consideredpersonally liable for the fault or negligence they commit in the discharge of their duties, and their employercannot be held liable for such fault or negligence. In the context of the present case, "a hospital cannot beheld liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very nature ofthe physician’s calling preclude him from being classed as an agent or employee of a hospital, wheneverhe acts in a professional capacity.22 It has been said that medical practice strictly involves highly developedand specialized knowledge,23 such that physicians are generally free to exercise their own skill andjudgment in rendering medical services sans interference.24 Hence, when a doctor practices medicine in ahospital setting, the hospital and its employees are deemed to subserve him in his ministrations to thepatient and his actions are of his own responsibility.25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this view.The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an independentcontractor because of the skill he exercises and the lack of control exerted over his work. Under thisdoctrine, hospitals are exempt from the application of the respondeat superior principle for fault ornegligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in medicalcare. Courts came to realize that modern hospitals are increasingly taking active role in supplying andregulating medical care to patients. No longer were a hospital’s functions limited to furnishing room, food,facilities for treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig,27 the NewYork Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do farmore than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff ofphysicians, interns, nurses, administrative and manual workers. They charge patients for medical care andtreatment, even collecting for such services through legal action, if necessary. The court then concludedthat there is no reason to exempt hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is renderedinconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for purposesof apportioning responsibility in medical negligence cases, an employer-employee relationship in effectexists between hospitals and their attending and visiting physicians. This Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among

private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly nothospital employees, presents problems in apportioning responsibility for negligence in medical malpracticecases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in theconduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting orattending, are required to submit proof of completion of residency, their educational qualifications,generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in mostcases, and references. These requirements are carefully scrutinized by members of the hospitaladministration or by a review committee set up by the hospital who either accept or reject the application. xx x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attendclinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grandrounds and patient audits and perform other tasks and responsibilities, for the privilege of being able tomaintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition tothese, the physician’s performance as a specialist is generally evaluated by a peer review committee onthe basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. Aconsultant remiss in his duties, or a consultant who regularly falls short of the minimum standardsacceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the hiring,and the right to terminate consultants all fulfill the important hallmarks of an employer-employeerelationship, with the exception of the payment of wages. In assessing whether such a relationship in factexists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for thepurpose of allocating responsibility in medical negligence cases, an employer-employee relationship ineffect exists between hospitals and their attending and visiting physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchoredupon the agency principle of apparent authority or agency by estoppel and the doctrine of corporatenegligence which have gained acceptance in the determination of a hospital’s liability for negligent acts ofhealth professionals. The present case serves as a perfect platform to test the applicability of thesedoctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency.It imposes liability, not as the result of the reality of a contractual relationship, but rather because of theactions of a principal or an employer in somehow misleading the public into believing that the relationshipor the authority exists.30 The concept is essentially one of estoppel and has been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits theagent to assume, or which he holds the agent out to the public as possessing. The question in every caseis whether the principal has by his voluntary act placed the agent in such a situation that a person ofordinary prudence, conversant with business usages and the nature of the particular business, is justified inpresuming that such agent has authority to perform the particular act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v.Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be anyrational basis for excluding the concept of apparent authority from the field of hospital liability." Thus, incases where it can be shown that a hospital, by its actions, has held out a particular physician as its agentand/or employee and that a patient has accepted treatment from that physician in the reasonable belief thatit is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the CivilCode reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack ofaction, or his failure to repudiate the agency, knowing that another person is acting on his behalf withoutauthority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations ofthe physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur withthe Court of Appeals’ conclusion that it "is now estopped from passing all the blame to the physicianswhose names it proudly paraded in the public directory leading the public to believe that it vouched for theirskill and competence." Indeed, PSI’s act is tantamount to holding out to the public that Medical CityHospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil andDr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they wereits agents, authorized to perform medical or surgical services for its patients. As expected, these patients,Natividad being one of them, accepted the services on the reasonable belief that such were being renderedby the hospital or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with thedefense of absence of employer-employee relationship between the hospital and the independentphysician whose name and competence are certainly certified to the general public by the hospital’s act oflisting him and his specialty in its lobby directory, as in the case herein. The high costs of today’s medicaland health care should at least exact on the hospital greater, if not broader, legal responsibility for theconduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless ofwhether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable ofacting only through other individuals, such as physicians. If these accredited physicians do their job well,the hospital succeeds in its mission of offering quality medical services and thus profits financially.Logically, where negligence mars the quality of its services, the hospital should not be allowed to escapeliability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI asowner, operator and manager of Medical City Hospital, "did not perform the necessary supervision norexercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors,and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties assurgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is directly liablefor such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem ofallocating hospital’s liability for the negligent acts of health practitioners, absent facts to support theapplication of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’sacknowledgment that in these modern times, the duty of providing quality medical service is no longer thesole prerogative and responsibility of the physician. The modern hospitals have changed structure.Hospitals now tend to organize a highly professional medical staff whose competence and performanceneed to be monitored by the hospitals commensurate with their inherent responsibility to provide qualitymedical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court ofIllinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficientnumber of trained nurses attending the patient; failing to require a consultation with or examination bymembers of the hospital staff; and failing to review the treatment rendered to the patient." On the basis ofDarling, other jurisdictions held that a hospital’s corporate negligence extends to permitting a physicianknown to be incompetent to practice at the hospital.37 With the passage of time, more duties wereexpected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe andadequate facilities and equipment; (2) the selection and retention of competent physicians; (3) theoverseeing or supervision of all persons who practice medicine within its walls; and (4) the formulation,adoption and enforcement of adequate rules and policies that ensure quality care for its patients.38 Thus, inTucson Medical Center, Inc. v. Misevich,39 it was held that a hospital, following the doctrine of corporateresponsibility, has the duty to see that it meets the standards of responsibilities for the care of patients.Such duty includes the proper supervision of the members of its medical staff. And in Bost v. Riley,40 thecourt concluded that a patient who enters a hospital does so with the reasonable expectation that it will

attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor andoversee the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose andunder the concept of providing comprehensive medical services to the public. Accordingly, it has the duty toexercise reasonable care to protect from harm all patients admitted into its facility for medical treatment.Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the notabene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence andconcealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of animmediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily owed,then in the interest of arriving at the truth. The Court cannot accept that the medical and the healingprofessions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility,can callously turn their backs on and disregard even a mere probability of mistake or negligence byrefusing or failing to investigate a report of such seriousness as the one in Natividad’s case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the MedicalCity Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is reasonable toconclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedurescarried out, particularly the report of the attending nurses that the two pieces of gauze were missing. InFridena v. Evans,41 it was held that a corporation is bound by the knowledge acquired by or notice given toits agents or officers within the scope of their authority and in reference to a matter to which their authorityextends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledgeof PSI. Now, the failure of PSI, despite the attending nurses’ report, to investigate and inform Natividadregarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to overseeor supervise all persons who practice medicine within its walls, it also failed to take an active step in fixingthe negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil underArticle 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena,the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. Theemerging trend is to hold the hospital responsible where the hospital has failed to monitor and reviewmedical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul .Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335(1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a medicalpractitioner because he was an independent contractor within the hospital. The Court of Appeals pointedout that the hospital had created a professional staff whose competence and performance was to bemonitored and reviewed by the governing body of the hospital, and the court held that a hospital would benegligent where it had knowledge or reason to believe that a doctor using the facilities was employing amethod of treatment or care which fell below the recognized standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherentresponsibilities regarding the quality of medical care furnished to patients within its walls and it must meetthe standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that ahospital has the duty of supervising the competence of the doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with itsknowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of thepatient’s injuries. We find that such general allegations of negligence, along with the evidence produced atthe trial of this case, are sufficient to support the hospital’s liability based on the theory of negligentsupervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized

that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that itexercised the diligence of a good father of a family in the accreditation and supervision of the latter. Inneglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of Article 2180cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we havediscussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on himcertain obligations. In order to escape liability, he must possess that reasonable degree of learning, skilland experience required by his profession. At the same time, he must apply reasonable care and diligencein the exercise of his skill and the application of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals inCA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

SECOND DIVISION

[G.R. No. 118141. September 5, 1997]

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAULR. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONDRADOM. VASQUEZ, all of the Office of the Ombudsman; JESUS F.GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, allof the Office of the City Prosecutor, Manila, respondents.

D E C I S I O N

ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule hasbeen enunciated in Ocampo v. Ombudsman [1] which states:

In the exercise of its investigative power, this Court has consistently held that courts willnot interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general rule? When a

patient dies soon after surgery under circumstances which indicate that the attending surgeonand anaesthesiologist may have been guilty of negligence but upon their being charged, aseries of nine prosecutors toss the responsibility of conducting a preliminary investigation toeach other with contradictory recommendations, ping-pong style, perhaps the distraughtwidow is not to be blamed if she finally decides to accuse the City Prosecutors at the end ofthe line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirelyfaulted for finally filing a petition before this Court against the Ombudsman for grave abuse ofdiscretion in dismissing her complaint against said City Prosecutors on the ground of lack ofevidence. Much as we sympathize with the bereaved widow, however, this Court is of theopinion that the general rule still finds application in instant case. In other words, therespondent Ombudsman did not commit grave abuse of discretion in deciding against filingthe necessary information against public respondents of the Office of the City Prosecutor.

The following facts are borne out by the records.

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgicaloperation at the UST hospital for the removal of a stone blocking his ureter. He was attendedby Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was theanaesthesiologist. Six hours after the surgery, however, Florencio died of complications ofunknown cause, according to officials of the UST Hospital.[2]

Not satisfied with the findings of the hospital, petitioner requested the National Bureau ofInvestigation (NBI) to conduct an autopsy on her husbands body. Consequently, the NBI ruledthat Florencios death was due to lack of care by the attending physician in administeringanaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr.Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before theOffice of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of eventswhich we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M.Israel, who had to inhibit himself because he was related to the counsel of one of thedoctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was,however, disqualified on motion of the petitioner since he disregarded prevailing laws andjurisprudence regarding preliminary investigation. The case was then referred to ProsecutorRamon O. Carisma, who issued a resolution recommending that only Dr. Reyes be heldcriminally liable and that the complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina SantosSioson, in the interest of justice and peace of mind of the parties, recommended that the casebe re-raffled on the ground that Prosecutor Carisma was partial to the petitioner. Thus, thecase was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred againwith the endorsement that the complaint against Dr. Reyes be dismissed and instead, acorresponding information be filed against Dr. Antonio. Petitioner filed a motion forreconsideration, questioning the findings of Prosecutor Dimagiba.

Pending the resolution of petitioners motion for reconsideration regarding ProsecutorDimagibas resolution, the investigative pingpong continued when the case was againassigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be

included in the criminal information of Homicide through Reckless Imprudence. While therecommendation of Prosecutor Gualberto was pending, the case was transferred to SeniorState Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from anywrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraegand City Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) ofRepublic Act No. 3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for manifestpartiality in favor of Dr. Reyes before the Office of the Ombudsman. However, on July 11,1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack ofevidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman toreview the recommendations of the government prosecutors and to approve and disapprovethe same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion,refusing to find that there exists probable cause to hold public respondent City Prosecutorsliable for violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have generally beencategorized into the following: investigatory powers, prosecutory power, public assistancefunction, authority to inquire and obtain information, and function to adopt, institute andimplement preventive measures. [4]

As protector of the people, the Office of the Ombudsman has the power, function and dutyto act promptly on complaints filed in any form or manner against public officials and toinvestigate any act or omission of any public official when such act or omission appears to beillegal, unjust, improper or inefficient. [5]

While the Ombudsman has the full discretion to determine whether or not a criminal caseshould be filed, this Court is not precluded from reviewing the Ombudsmans action whenthere is an abuse of discretion, in which case Rule 65 of the Rules of Court may exceptionallybe invoked pursuant to Section I, Article VIII of the 1987 Constitution. [6]

In this regard, grave abuse of discretion has been defined as where a power is exercisedin an arbitrary or despotic manner by reason of passion or personal hostility so patent andgross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by,or in contemplation of law. [7]

From a procedural standpoint, it is certainly odd why the successive transfers from oneprosecutor to another were not sufficiently explained in the Resolution of theOmbudsman. Being the proper investigating authority with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have been morevigilant and assiduous in determining the reasons behind the buckpassing to ensure that noirregularity took place.

Whether such transfers were due to any outside pressure or ulterior motive is a matter ofevidence. One would have expected the Ombudsman, however, to inquire into what couldhardly qualify as standard operating procedure, given the surrounding circumstances of the

case.

While it is true that a preliminary investigation is essentially inquisitorial, and is often theonly means to discover who may be charged with a crime, its function is merely to determinethe existence of probable cause. [8] Probable cause has been defined as the existence ofsuch fact and circumstances as would excite the belief, in a reasonable mind, acting on thefacts within the knowledge of the prosecution, that the person charged was guilty of the crimefor which he was prosecuted.[9]

Probable cause is a reasonable ground of presumption that a matter is, or may be, wellfounded, such a state of facts in the mind of the prosecutor as would lead a person ofordinary caution and prudence to believe, or entertain an honest or strong suspicion, that athing is so. The term does not mean actual and positive cause nor does it import absolutecertainty. It is merely based on opinion and reasonable belief. Thus, a finding of probablecause does not require an inquiry into whether there is sufficient evidence to procure aconviction. It is enough that it is believed that the act or omission complained of constitutesthe offense charged. Precisely, there is a trial for the reception of evidence of the prosecutionin support of the charge.[10]

In the instant case, no less than the NBI pronounced after conducting an autopsy thatthere was indeed negligence on the part of the attending physicians in administering theanaesthesia. [11] The fact of want of competence or diligence is evidentiary in nature, theveracity of which can best be passed upon after a full-blown trial for it is virtually impossible toascertain the merits of a medical negligence case without extensive investigation, research,evaluation and consultations with medical experts. Clearly, the City Prosecutors are not in acompetent position to pass judgment on such a technical matter, especially when there areconflicting evidence and findings. The bases of a partys accusation and defenses are betterventilated at the trial proper than at the preliminary investigation.

A word on medical malpractice or negligence cases.

In its simplest terms, 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.[12]

Hence, there are four elements involved in medical negligence cases: duty, breach, injuryand proximate causation.

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, aphysician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyesin effect represented that, having the needed training and skill possessed by physicians and

surgeons practicing in the same field, they will employ such training, care and skill in thetreatment of their patients.[13] They have a duty to use at least the same level of care that anyother reasonably competent doctor would use to treat a condition under the samecircumstances. The breach of these professional duties of skill and care, or their improperperformance, by a physician surgeon whereby the patient is injured in body or in health,constitutes actionable malpractice.[14] Consequently, in the event that any injury results to thepatient from want of due care or skill during the operation, the surgeons may be heldanswerable in damages for negligence.[15]

Moreover, in malpractice or negligence cases involving the administration of anaesthesia,the necessity of expert testimony and the availability of the charge of res ipsa loquitur to theplaintiff, have been applied in actions against anaesthesiologists to hold the defendant liablefor the death or injury of a patient under excessive or improper anaesthesia. [16] Essentially, itrequires two-pronged evidence: evidence as to the recognized standards of the medicalcommunity in the particular kind of case, and a showing that the physician in questionnegligently departed from this standard in his treatment.[17]

Another element in medical negligence cases is causation which is divided into twoinquiries: whether the doctors actions in fact caused the harm to the patient and whetherthese were the proximate cause of the patients injury. [18] Indeed here, a causal connection isdiscernible from the occurrence of the victims death after the negligent act of theanaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrantthe filing of the appropriate criminal case. To be sure, the allegation of negligence is notentirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct thenecessary interview of the patient prior to the operation. It appears that the cause of the deathof the victim could have been averted had the proper drug been applied to cope with thesymptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote wasreadily available to counteract whatever deleterious effect the anaesthesia mightproduce. [19] Why these precautionary measures were disregarded must be sufficientlyexplained.

The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft andCorrupt Practices Act which requires the following facts:

1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position;

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties. [20]

Why did the complainant, petitioner in instant case, elect to charge respondents under theabove law?

While a party who feels himself aggrieved is at liberty to choose the appropriate weaponfrom the armory, it is with no little surprise that this Court views the choice made by thecomplainant widow.

To our mind, the better and more logical remedy under the circumstances would havebeen to appeal the resolution of the City Prosecutors dismissing the criminal complaint to theSecretary of Justice under the Department of Justices Order No. 223, [21] otherwise known asthe 1993 Revised Rules on Appeals From Resolutions In PreliminaryInvestigations/Reinvestigations, as amended by Department Order No. 359, Section 1 ofwhich provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223states: The Secretary of Justice may reverse, affirm or modify the appealed resolution. On theother hand, He may motu proprio or on motion of the appellee, dismiss outright the appeal onspecified grounds. [22]

In exercising his discretion under the circumstances, the Ombudsman acted within hispower and authority in dismissing the complaint against the Prosecutors and this Court willnot interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, withoutprejudice to the filing of an appeal by the petitioner with the Secretary of Justice assailing thedismissal of her criminal complaint by the respondent City Prosecutors. No costs.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of theminors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs.COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare oftheir patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,through gross negligence or incompetence or plain human error, may spell the difference between life anddeath. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospitalshould be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturnedthe decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damagesarising from negligence in the performance of their professional duties towards petitioner Erlinda Ramosresulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints ofdiscomfort due to pains allegedly caused by the presence of a stone in her gall bladder(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married toRogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she hasthree children whose names are Rommel Ramos, Roy Roderick Ramos and Ron RaymondRamos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she soughtprofessional advice. She was advised to undergo an operation for the removal of a stone inher gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of examinationswhich included blood and urine tests (Exhs. "A" and "C") which indicated she was fit forsurgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7),she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should beHosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June 10,1985. They agreed that their date at the operating table at the DLSMC (another defendant),would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a"cholecystectomy" operation after examining the documents (findings from the CapitolMedical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however,asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogeliothat he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, whichwas to include the anesthesiologist's fee and which was to be paid after the operation (TSN,October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of theDLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for theoperation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of theCollege of Nursing at the Capitol Medical Center, was also there for moral support. Shereiterated her previous request for Herminda to be with her even during the operation. Afterpraying, she was given injections. Her hands were held by Herminda as they went downfrom her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband,Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room, Hermindasaw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was toadminister anesthesia. Although not a member of the hospital staff, Herminda introducedherself as Dean of the College of Nursing at the Capitol Medical Center who was to providemoral support to the patient, to them. Herminda was allowed to stay inside the operatingroom.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was

not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed HermindaCruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back tothe patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kangmag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operatingroom, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So,she went out again and told Rogelio about what the patient said ( id., p. 15). Thereafter, shereturned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival ofthe doctor" even as he did his best to find somebody who will allow him to pull out his wifefrom the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feelingof his wife, who was inside the operating room waiting for the doctor to arrive ( ibid.). Atalmost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired ofwaiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M.,he came to know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka,dumating na raw." Upon hearing those words, he went down to the lobby and waited for theoperation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient,heard somebody say that "Dr. Hosaka is already here." She then saw people inside theoperating room "moving, doing this and that, [and] preparing the patient for the operation"(TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr.Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirapma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because ofthe remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing.She thereafter noticed bluish discoloration of the nailbeds of the left hand of the haplessErlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order forsomeone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderonarrived at the operating room, she saw this anesthesiologist trying to intubate the patient.The patient's nailbed became bluish and the patient was placed in a trendelenburg position— a position where the head of the patient is placed in a position lower than her feet whichis an indication that there is a decrease of blood supply to the patient's brain (Id., pp. 19-20).Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos"that something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubatethe patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine beingrushed towards the door of the operating room. He also saw several doctors rushingtowards the operating room. When informed by Herminda Cruz that something wrong washappening, he told her (Herminda) to be back with the patient inside the operating room(TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburgposition (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw thepatient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latterinformed the former that something went wrong during the intubation. Reacting to what wastold to him, Rogelio reminded the doctor that the condition of his wife would not havehappened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989,p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened tothe patient. The doctors explained that the patient had bronchospasm (TSN, November 15,1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November

15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting toP93,542.25 which is the subject of a promissory note and affidavit of undertaking executedby Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, shehas been in a comatose condition. She cannot do anything. She cannot move any part ofher body. She cannot see or hear. She is living on mechanical means. She suffered braindamage as a result of the absence of oxygen in her brain for four to five minutes (TSN,November 9, 1989, pp. 21-22). After being discharged from the hospital, she has beenstaying in their residence, still needing constant medical attention, with her husband Rogelioincurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19,1989, pp. 32-34). She was also diagnosed to be suffering from "diffuse cerebralparenchymal damage" (Exh. "G"; see also TSN, December 21, 1989,p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of QuezonCity against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiffpresented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained byErlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by privaterespondents during the anesthesia phase. On the other hand, private respondents primarily relied on theexpert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage wasErlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor ofpetitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applyingthe aforecited provisions of law and jurisprudence to the case at bar, this Court finds and soholds that defendants are liable to plaintiffs for damages. The defendants were guilty of, atthe very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercisereasonable care in not only intubating the patient, but also in not repeating theadministration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the factthat the patient was inside the operating room for almost three (3) hours. For after shecommitted a mistake in intubating [the] patient, the patient's nailbed became bluish and thepatient, thereafter, was placed in trendelenburg position, because of the decrease of bloodsupply to the patient's brain. The evidence further shows that the hapless patient sufferedbrain damage because of the absence of oxygen in her (patient's) brain for approximatelyfour to five minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. PerfectaGutierrez whom he had chosen to administer anesthesia on the patient as part of hisobligation to provide the patient a good anesthesiologist', and for arriving for the scheduledoperation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts ofnegligence of the doctors in their "practice of medicine" in the operating room. Moreover, thehospital is liable for failing through its responsible officials, to cancel the scheduledoperation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they haveacted with due care and prudence in rendering medical services to plaintiff-patient. For if thepatient was properly intubated as claimed by them, the patient would not have becomecomatose. And, the fact that another anesthesiologist was called to try to intubate thepatient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, thedefendants should have rescheduled the operation to a later date. This, they should havedone, if defendants acted with due care and prudence as the patient's case was an elective,

not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffsand against the defendants. Accordingly, the latter are ordered to pay, jointly and severally,the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff ErlindaRamos reckoned from November 15, 1985 or in the total sum ofP632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum ofP200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate courtrendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion ofthe decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,and the complaint below against the appellants is hereby ordered DISMISSED. Thecounterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar asappellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, pluslegal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who wasmistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor receivedby the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of theappellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration ofthe reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with theappellate court a motion for extension of time to file a motion for reconsideration. The motion forreconsideration was submitted on 4 July 1995. However, the appellate court denied the motion forextension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services ofanother counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit themotion for reconsideration contending that the period to file the appropriate pleading on the assailed decisionhad not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copythereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit themotion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that thefifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsiderationcannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, onthe other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of thedecision as early as June 9, 1995. Computation wise, the period to file a Motion forReconsideration expired on June 24. The Motion for Reconsideration, in turn, was receivedby the Court of Appeals already on July 4, necessarily, the 15-day period already passed.For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering theComment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition

for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitionersadditional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of theresolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996.The petition was filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

I

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THEUNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness ofthe petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. Intheir Comment, 12 private respondents contend that the petition should not be given due course since the motion forreconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellatecourt for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion forreconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to thencounsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellatecourt was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he wasmistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitionerRogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of thedecision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period forfiling a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyerat his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is nonotice at all. In the present case, since a copy of the decision of the appellate court was not sent to thecounsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing ofthe motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appealsalready issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issuedon 25 July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of theformer should be considered in determining the timeliness of the filing of the present petition. Based onthis, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a morelogical presentation of the discussion we shall first consider the issue on the applicability of the doctrineof res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation tothe res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." Thephrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with thesurrounding circumstances, may permit an inference or raise a presumption of negligence, or make out aplaintiff's prima faciecase, and present a question of fact for defendant to meet with anexplanation. 13 Where the thing which caused the injury complained of is shown to be under the managementof the defendant or his servants and the accident is such as in ordinary course of things does not happen if thosewho have its management or control use proper care, it affords reasonable evidence, in the absence ofexplanation by the defendant, that the accident arose from or was caused by the defendant's want of care. 14

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 ofnegligence on the part of the person who controls the instrumentality causing the injury in the absence ofsome explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic ofordinary human experience and on the basis of such experience or common knowledge, negligence may bededuced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunctionwith the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does notcreate or constitute an independent or separate ground of liability. 17 Instead, it is considered as merelyevidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural ofconvenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof ofnegligence. 19 In other words, mere invocation and application of the doctrine does not dispense with therequirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff topresent along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,creating an inference or presumption of negligence, and to thereby place on the defendant the burden of goingforward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must besatisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence ofsomeone's negligence;

2. It is caused by an instrumentality within the exclusive control of thedefendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiffresponsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused thedamage. 22Such element of control must be shown to be within the dominion of the defendant. In order to havethe benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it isapplicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has beenapplied when the circumstances attendant upon the harm are themselves of such a character as to justify aninference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligencecases presents a question of law since it is a judicial function to determine whether a certain set ofcircumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physicianhas done a negligent act or that he has deviated from the standard medical procedure, when the doctrineof res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed withbecause the injury itself provides the proof of negligence. 27 The reason is that the general rule on thenecessity of expert testimony applies only to such matters clearly within the domain of medical science, and notto matters that are within the common knowledge of mankind which may be testified to by anyone familiar withthe facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as towhether a patient has been treated or operated upon with a reasonable degree of skill and care. However,testimony as to the statements and acts of physicians and surgeons, external appearances, and manifestconditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases wherethe res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injuryto the patient, without the aid of expert testimony, where the court from its fund of common knowledge candetermine the proper standard of care. 30 Where common knowledge and experience teach that a resultinginjury would not have occurred to the patient if due care had been exercised, an inference of negligence may bedrawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which isordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine isappropriate, all that the patient must do is prove a nexus between the particular act or omission complained ofand the injury sustained while under the custody and management of the defendant without need to produceexpert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there isno other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered byhim.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign

object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body whichwas not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part wasintended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35 andloss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation forappendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does notautomatically apply to all cases of medical negligence as to mechanically shift the burden of proof to thedefendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinarydoctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances ofeach case. It is generally restricted to situations in malpractice cases where a layman is able to say, as amatter of common knowledge and observation, that the consequences of professional care were not assuch as would ordinarily have followed if due care had been exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of somethingmore unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of thoseskilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have noapplication in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientifictreatment. 38 The physician or surgeon is not required at his peril to explain why any particular diagnosis was notcorrect, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur isnot available in a malpractice suit if the only showing is that the desired result of an operation or treatment wasnot accomplished. 40 The real question, therefore, is whether or not in the process of the operation anyextraordinary incident or unusual event outside of the routine performance occurred which is beyond the regularscope of customary professional activity in such operations, which, if unexplained would themselves reasonablyspeak to the average man as the negligent cause or causes of the untoward consequence. 41 If there was suchextraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon toexplain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, thedamage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case forthe application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court inapplying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person overto the care, custody and control of his physician who had complete and exclusive controlover him, but the operation was never performed. At the time of submission he wasneurologically sound and physically fit in mind and body, but he suffered irreparable damageand injury rendering him decerebrate and totally incapacitated. The injury was one whichdoes not ordinarily occur in the process of a mastoid operation or in the absence ofnegligence in the administration of an anesthetic, and in the use and employment of anendoctracheal tube. Ordinarily a person being put under anesthesia is not rendereddecerebrate as a consequence of administering such anesthesia in the absence ofnegligence. Upon these facts and under these circumstances a layman would be able tosay, as a matter of common knowledge and observation, that the consequences ofprofessional treatment were not as such as would ordinarily have followed if due care hadbeen exercised.

Here the plaintiff could not have been guilty of contributory negligence because he wasunder the influence of anesthetics and unconscious, and the circumstances are such thatthe true explanation of event is more accessible to the defendants than to the plaintiff forthey had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause ofaction is stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed onher gall bladder. On that fateful day she delivered her person over to the care, custody and control ofprivate respondents who exercised complete and exclusive control over her. At the time of submission,

Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit inmind and body. However, during the administration of anesthesia and prior to the performance ofcholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she wentout of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, whichErlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. Infact, this kind of situation does not in the absence of negligence of someone in the administration ofanesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is notrendered decerebrate as a consequence of administering such anesthesia if the proper procedure wasfollowed. Furthermore, the instruments used in the administration of anesthesia, including the endotrachealtube, were all under the exclusive control of private respondents, who are the physicians-in-charge.Likewise, petitioner Erlinda could not have been guilty of contributory negligence because she was underthe influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while thepatient is unconscious and under the immediate and exclusive control of the physicians, we hold that apractical administration of justice dictates the application of res ipsa loquitur. Upon these facts and underthese circumstances the Court would be able to say, as a matter of common knowledge and observation, ifnegligence attended the management and care of the patient. Moreover, the liability of the physicians andthe hospital in this case is not predicated upon an alleged failure to secure the desired results of anoperation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatmentwas ever performed on Erlinda. Thus, upon all these initial determination a case is made out for theapplication of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that thedoctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to anyand all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be withinthe res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowedtherein, the Court now comes to the issue of whether the Court of Appeals erred in finding that privaterespondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, ifin the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose condition.Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of thewitnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court ofAppeals rationalized that she was candid enough to admit that she experienced some difficulty in theendotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence with falsehood.The appellate court likewise opined that private respondents were able to show that the brain damage sustainedby Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient tothe drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr.Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor ofpetitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the latter,being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate courtreturned a verdict in favor of respondents physicians and hospital and absolved them of any liability towardsErlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable todisprove the presumption of negligence on their part in the care of Erlinda and their negligence was theproximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of thepathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. Aswill be shown hereinafter, private respondents' own testimonies which are reflected in the transcript ofstenographic notes are replete of signposts indicative of their negligence in the care and management ofErlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. Asborne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was

attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner'ssister-in-law, who was in the operating room right beside the patient when the tragic event occurred.Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered byDra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding theleft hand of the patient and all of a sudden heard some remarks coming fromDra. Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito,mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on theperson of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left handwhere I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr.Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while thepatient's nailbed became bluish and I saw the patient was placed intrendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburgposition?

A: As far as I know, when a patient is in that position, there is a decrease ofblood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is nottaught as part of nursing procedures and techniques. Indeed, we take judicial notice of thefact that nurses do not, and cannot, intubate. Even on the assumption that she is fullycapable of determining whether or not a patient is properly intubated, witness HermindaCruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).More importantly, there is no evidence that she ever auscultated the patient or that sheconducted any type of examination to check if the endotracheal tube was in its proper place,and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz'scategorical statements that appellant Dra. Gutierrez failed to intubate the appellee ErlindaRamos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack ofsufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered alayman in the process of intubation, witness Cruz is not competent to testify on whether or not theintubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not ananesthesiologist, she can very well testify upon matters on which she is capable of observing such as, thestatements and acts of the physician and surgeon, external appearances, and manifest conditions whichare observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where thetestimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary forthe proof of negligence in non-technical matters or those of which an ordinary person may be expected to haveknowledge, or where the lack of skill or want of care is so obvious as to render expert testimonyunnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, thateven an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if thetube was properly inserted. This kind of observation, we believe, does not require a medical degree to beacceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience andscholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fullycapable of determining whether or not the intubation was a success. She had extensive clinical experiencestarting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, theFEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the CapitolMedical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same weredelivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which wouldhave been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was ableto demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that sheexperienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your firstattempt (sic), you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encounteredhardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly(slightly deviated from the normal anatomy of a person) 52 making it harder to locate and, since Erlinda isobese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced noevidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior tothe induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, itappears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed tolessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesiabegins when the anesthesiologist reviews the patient's medical records and visits with the patient,traditionally, the day before elective surgery. 53 It includes taking the patient's medical history, review ofcurrent drug therapy, physical examination and interpretation of laboratory data. 54 The physical examinationperformed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascularsystem, lungs and upper airway. 55 A thorough analysis of the patient's airway normally involves investigatingthe following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased orartificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of thepatient's upper airway that could make tracheal intubation difficult should be studied. 57 Where the need arises,as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth ofErlinda) a thorough examination of the patient's airway would go a long way towards decreasing patientmorbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day ofthe operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operativeevaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez wasunaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of thepossible 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 procedurewas, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioningprudence and vigilance in dealing with human lives lie at the core of the physician's centuries-oldHippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trialcourt's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierreztried to muddle the difference between an elective surgery and an emergency surgery just so her failure toperform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see thepatient a day before so you can introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedureof the anesthesiologist and in my case, with elective cases and normalcardio-pulmonary clearance like that, I usually don't do it except onemergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available forthe fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patientonly a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative

procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologistpossesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation.There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazardsfor purposes of informed consent. Usually, the pre-operative assessment is conducted at least one daybefore the intended surgery, when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time tomake a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia.However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner onlyin the operating room, and only on the actual date of the cholecystectomy. She negligently failed to takeadvantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patientwhich, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly theproximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's comawas due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introducedinto her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physiciansand Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theorythat the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable drug reaction tothe short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because heis not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properlyenlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora islikewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediatedprocesses. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expertwould, of explaining to the court the pharmacologic and toxic effects of the supposed culprit, ThiopentalSodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in theanesthetic practice of Pentothal administration is further supported by his own admission that he formulatedhis opinions on the drug not from the practical experience gained by a specialist or expert in theadministration and use of Sodium Pentothal on patients, but only from reading certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion touse pentothal as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have tointubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on whatyou have read from books and not by your own personal application of themedicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your ownpersonal experience you feel that you can testify on pentothal here withmedical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields ofanesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathybelongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases arewithin the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergicmediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology andpharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that hecould not testify about the drug with medical authority, it is clear that the appellate court erred in givingweight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring specialknowledge, skill, experience or training which he is shown to possess, may be received inevidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matterabout which he or she is to testify, either by the study of recognized authorities on the subject or bypractical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standardsince he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart fromsubmitting testimony from a specialist in the wrong field, private respondents' intentionally avoided providingtestimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma bytriggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions,or wheezing — some of the more common accompanying signs of an allergic reaction — appears onrecord. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediatedbronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis withoutsupporting medical proof, and against the weight of available evidence, then every anesthetic accidentwould be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondentswas a mere afterthought. Such an explanation was advanced in order to advanced in order to absolve themof any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubationwhich was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by anyefficient intervening cause, produces injury, and without which the result would not have occurred. 64 Aninjury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence inthe case, that the act or omission played a substantial part in bringing about or actually causing the injury ordamage; and that the injury or damage was either a direct result or a reasonably probable consequence of theact or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably theproximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately, hercomatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This factwas likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirapma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticedabdominal distention on the body of Erlinda. The development of abdominal distention, together withrespiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of therespiratory tree. In other words, instead of the intended endotracheal intubation what actually took placewas an esophageal intubation. During intubation, such distention indicates that air has entered thegastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into theesophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carriesoxygen is in the wrong place. That abdominal distention had been observed during the first intubationsuggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was

withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in herlungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygenbecame apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, privaterespondents contend that a second intubation was executed on Erlinda and this one was successfully done. Wedo not think so. No evidence exists on record, beyond private respondents' bare claims, which supports thecontention that the second intubation was successful. Assuming that the endotracheal tube finally found its wayinto the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of asuccessful intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceedingfrom this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation wasaccomplished. Even granting that the tube was successfully inserted during the second attempt, it was obviouslytoo late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of the inadequateoxygenation of her brain for about four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems areresponsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless,ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing athorough evaluation of the patient's airway prior to the operation. 70 As stated beforehand, respondent Dra.Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunateincident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondentphysician could have been much more prepared to meet the contingency brought about by the perceivedanatomic variations in the patient's neck and oral area, defects which would have been easily overcome by aprior knowledge of those variations together with a change in technique. 71 In other words, an experiencedanesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty goingaround the short neck and protruding teeth. 72 Having failed to observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia andeventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. Asthe so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him performtheir task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise theproper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observedproper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified ifrespondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy,and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to conferwith his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professionalduties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda'scondition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (amongprivate hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who are allegedlynot hospital employees, presents problems in apportioning responsibility for negligence in medical malpracticecases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in theconduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting orattending, are required to submit proof of completion of residency, their educational qualifications;generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in mostcases, and references. These requirements are carefully scrutinized by members of the hospitaladministration or by a review committee set up by the hospital who either accept or reject theapplication. 75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attendclinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grandrounds and patient audits and perform other tasks and responsibilities, for the privilege of being able tomaintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition tothese, the physician's performance as a specialist is generally evaluated by a peer review committee onthe basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. Aconsultant remiss in his duties, or a consultant who regularly falls short of the minimum standardsacceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospitalasserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the rightto terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with theexception of the payment of wages. In assessing whether such a relationship in fact exists, the control testis determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocatingresponsibility in medical negligence cases, an employer-employee relationship in effect exists betweenhospitals and their attending and visiting physicians. This being the case, the question now arises as towhether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found inArticle 2180 of the Civil Code which considers a person accountable not only for his own acts but also forthose of others based on the former's responsibility under a relationship of patria potestas. 77 Suchresponsibility ceases when the persons or entity concerned prove that they have observed the diligence of agood father of the family to prevent damage. 78 In other words, while the burden of proving negligence rests onthe plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher oremployer) who should prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondentphysicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family inthe hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervisionwhich it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature,respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Havingfailed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda'scondition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimoniesof the witnesses for the private respondents. Indeed, as shown by the above discussions, privaterespondents were unable to rebut the presumption of negligence. Upon these disquisitions we hold thatprivate respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the careof the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision wouldbe grossly inadequate to cover the actual costs of home-based care for a comatose individual. Thecalculated amount was not even arrived at by looking at the actual cost of proper hospice care for thepatient. What it reflected were the actual expenses incurred and proved by the petitioners after they wereforced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing inthe care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimumstandards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side toprevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparationshould be normally made by a dietitian to provide her with the correct daily caloric requirements andvitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoidmuscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead torespiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligenceshould at least reflect the correct minimum cost of proper care, not the cost of the care the family is usuallycompelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual orcompensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by himas he has duly proved. The Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Suchcompensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injurysuffered 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 resultinginjury might be continuing and possible future complications directly arising from the injury, while certain tooccur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctlyrespond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, upto 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. 80 In other words, temperate damages can and should beawarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. Andbecause of the unique nature of such cases, no incompatibility arises when both actual and temperate damagesare provided for. The reason is that these damages cover two distinct phases.

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

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patientwho has remained in that condition for over a decade. Having premised our award for compensatorydamages on the amount provided by petitioners at the onset of litigation, it would be now much more instep with the interests of justice if the value awarded for temperate damages would allow petitioners toprovide optimal care for their loved one in a facility which generally specializes in such care. They shouldnot be compelled by dire circumstances to provide substandard care at home without the aid ofprofessionals, for anything less would be grossly inadequate. Under the circumstances, an award ofP1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered bythe plaintiff would have led to expenses which were difficult to estimate because while they would have been adirect result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to ariseonly in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation ofher left lower extremity at the distal left thigh just above the knee. Because of this,Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, evenwith the use of state of the art prosthetic technology. Well beyond the period ofhospitalization (which was paid for by Li), she will be required to undergo adjustments in herprosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical andoccupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have tobe replaced and readjusted to changes in the size of her lower limb effected by thebiological changes of middle-age, menopause and aging. Assuming she reachesmenopause, for example, the prosthetic will have to be adjusted to respond to the changesin bone resulting from a precipitate decrease in calcium levels observed in the bones of allpost-menopausal women. In other words, the damage done to her would not only bepermanent and lasting, it would also be permanently changing and adjusting to thephysiologic changes which her body would normally undergo through the years. Thereplacements, changes, and adjustments will require corresponding adjustive physical andoccupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount

of functional restoration of the motor functions of the lower limb. The sensory functions areforever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physicalpain are inestimable.83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much moreserious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatosestate for over fourteen years now. The burden of care has so far been heroically shouldered by herhusband and children, who, in the intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtuallyimpossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner'scondition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch thesurface of the resulting moral damage because it would be highly speculative to estimate the amount ofemotional and moral pain, psychological damage and injury suffered by the victim or those actually affectedby the victim's condition. 84The husband and the children, all petitioners in this case, will have to live with theday to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashionedtheir daily lives around the nursing care of petitioner, altering their long term goals to take into account their lifewith a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of thevictim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, anaward of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued atP100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are notinsurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intentis immaterial in negligence cases because where negligence exists and is proven, the same automaticallygives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose ofpreventing complications. A physician's experience with his patients would sometimes tempt him to deviatefrom established community practices, and he may end a distinguished career using unorthodox methodswithout incident. However, when failure to follow established procedure results in the evil precisely soughtto be averted by observance of the procedure and a nexus is made between the deviation and the injury ordamage, the physician would necessarily be called to account for it. In the case at bar, the failure toobserve pre-operative assessment protocol which would have influenced the intubation in a salutary waywas fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so asto award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00as actual damages computed as of the date of promulgation of this decision plus a monthly payment ofP8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damagesand attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

SECOND DIVISION

SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES,

Petitioners,

- versus - SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC.,Respondents.

G.R. No. 158996 Present: QUISUMBING, J., Chairperson,CARPIO MORALES,TINGA,VELASCO, JR., andBRION, JJ. Promulgated: November 14, 2008

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

D E C I S I O N

BRION, J.:

This petition involves a medical negligence case that was elevated to this Court through

an appeal by certiorari under Rule 45 of the Rules of Court. The petition assails the

Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 63234, which affirmed

with modification the Decision[2] of the Regional Trial Court (RTC) of Nueva Ecija,

Branch37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA

decision states:

WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court

of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows:

1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral damages; 2) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P100,000.00 byway of exemplary damages; 3) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory damages; and 4) Deleting the award of attorneys fees and costs of suit.

SO ORDERED.

While this case essentially involves questions of facts, we opted for the requested reviewin light of questions we have on the findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on medical practice.[3]

BACKGROUND FACTS

Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected that Teresita mightbe suffering from diabetes and told her to continue her medications.[4]

Teresita did not return the next week as advised. However, when her condition persisted,she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then so weak that she had to lie down on the couch of the clinic while they

waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresitas admission to the hospital. In the admission slip, he directed the hospital staff to prepare the patient for an on call D&C[5] operation to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took her blood and urine samples for the laboratory tests[6]which Dr. Fredelicto ordered.

At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only thenthat she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the patients medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]

Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr.

Fredelicto administering the general anesthesia. The D&C operation lasted for about 10

to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room.

A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound

examination as a confirmatory procedure. The results showed that she had an enlarged

uterus and myoma uteri.[9] Dr. Felicisima, however, advised Teresita that she could spend

her recovery period at home. Still feeling weak, Teresita opted for hospital confinement.

Teresitas complete laboratory examination results came only on that day (April 29,

1987). Teresitas urinalysis showed a three plus sign (+++) indicating that the sugar in

her urine was very high. She was then placed under the care of Dr. Amado Jorge, an

internist.

By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in breathing and was rushed to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II.[10] Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 1987.[11]

Believing that Teresitas death resulted from the negligent handling of her medical needs,

her family (respondents) instituted an action for damages against Dr. Fredelicto Flores

and Dr. Felicisima Flores (collectively referred to as the petitioner spouses) before the

RTC of Nueva Ecija.

The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary damages, plus attorneys fees and costs.[12] The CA affirmed the judgment, but modifiedthe amount of damages awarded and deleted the award for attorneys fees and costs of suit.[13]

Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto (now

deceased) and Dr. Felicisima Flores allege that the RTC and CA committed a reversible

error in finding them liable through negligence for the death of Teresita Pineda.

ASSIGNMENT OF ERRORS

The petitioner spouses contend that they exercised due care and prudence in the

performance of their duties as medical professionals. They had attended to the patient to

the best of their abilities and undertook the management of her case based on her

complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on

record shows that the death of Teresita could have been averted had they employed

means other than what they had adopted in the ministration of the patient.

THE COURTS RULING

We do not find the petition meritorious.

The respondents claim for damages is predicated on their allegation that the decision of

the petitioner spouses to proceed with the D&C operation, notwithstanding Teresitas

condition and the laboratory test results, amounted to negligence. On the other hand, the

petitioner spouses contend that a D&C operation is the proper and accepted procedure to

address vaginal bleeding the medical problem presented to them. Given that the patient

died after the D&C, the core issue is whether the decision to proceed with the D&C

operation was an honest mistake of judgment or one amounting to negligence.

Elements of a Medical Negligence Case

A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty, breach, injury, and proximate causation.[14]

Duty refers to the standard of behavior which imposes restrictions on ones conduct.[15] The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of carethat any other reasonably competent doctor would use under the same circumstances.Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable for negligence.[16]

As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff.[17] To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician either failed to do something which areasonably prudent health care provider would have done, or that he did something thata reasonably prudent provider would not have done; and two, the failure or action caused injury to the patient.[18] Expert testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert opinion.[19]

Standard of Care and Breach of Duty

D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal bleeding.[20] That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents:

DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C for diagnostic purposes.

xxx xxx xxx

Q: So are you trying to tell the Court that D&C can be a diagnostic treatment?

A: Yes, sir. Any doctor knows this.[21]

Dr. Mercado, however, objected with respect to the time the D&C operation should have

been conducted in Teresitas case. He opined that given the blood sugar level of Teresita,

her diabetic condition should have been

addressed first:Q: Why do you consider the time of performance of the D&C not appropriate? A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the urine, and blood sugar was 10.67 Q: What is the significance of the spillage in the urine? A: It is a sign that the blood sugar is very high.

Q: Does it indicate sickness?

A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.

xxx xxx xxx

COURT: In other words, the operation conducted on the patient, your opinion, that it is inappropriate? A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion, that D&C should be postponed a day or two.[22]

The petitioner spouses countered that, at the time of the operation, there was nothing toindicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic considering that this was random blood sugar;[23] there were other factors that might have caused Teresitas blood sugarto rise such as the taking of blood samples during lunchtime and while patient was being given intra-venous dextrose.[24] Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal bleeding.

The petitioner spouses contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita was already suspected to be suffering from diabetes.[25]This suspicion again arose right before the D&C operation on April 28, 1987 whenthe laboratory result revealed Teresitas increased blood sugar level.[26] Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst all of which are classic symptoms of diabetes.[27] When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the suspected disease:

[Expert testimony for the plaintiff showed that] tests should have been ordered

immediately on admission to the hospital in view of the symptoms presented, and that failure to recognize the existence of diabetes constitutes negligence.[28]

Third, the petitioner spouses cannot claim that their principal concern was the vaginal

bleeding and should not therefore be held accountable for complications coming from

other sources. This is a very narrow and self-serving view that even reflects on their

competence.

Taken together, we find that reasonable prudence would have shown that diabetes and itscomplications were foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must be taken into account so long as it is or should have been known to the physician.[29] And when the patient is exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequateprecautions.

Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the attending physician should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patients diabetes should have been managed by an internist prior to, during, and after the operation.[31]

Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so

heavy and life-threatening that urgent first-aid measures are required.[32] Indeed, the

expert witnesses declared that a D&C operation on a hyperglycemic patient may be

justified only when it is an emergency case when there is profuse vaginal bleeding. In

this case, we choose not to rely on the assertions of the petitioner spouses that there was

profuse bleeding, not only because the statements were self-serving, but also because the

petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto testified earlier

that on April 28, he personally saw the bleeding,[33] but later on said that he did not see it

and relied only on Teresitas statement that she was bleeding.[34] He went on to state that

he scheduled the D&C operation without conducting any physical examination on the

patient.

The likely story is that although Teresita experienced vaginal bleeding on April 28, it

was not sufficiently profuse to necessitate an immediate emergency D&C operation.Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal bleeding. A medical record is the only document thatmaintains a long-term transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal record-keeping includes all patient inter-actions. The records should always be clear, objective, and up-to-date.[37] Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearlyof what it does not contain.

That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician must conduct a thorough pre-operative evaluation of the patient in order to adequately prepare her for the operation and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation of all medical problems during the pre-operative evaluation.[38]

The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven by findings on history and physical examination suggestive of organ system dysfunctionThe goal is to uncover problem areas that may require further investigation or be amenable to preoperative optimization. If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of an underlying disease process, consultation with an internist or medical specialist may be required to facilitate the work-up and direct management. In this process, communication between the surgeons and the consultants is essential to define realistic goals for this optimization process and to expedite surgical management.[39] [Emphasis supplied.]

Significantly, the evidence strongly suggests that the pre-operative evaluation was less

than complete as the laboratory results were fully reported only on the day following the

D&C operation. Dr. Felicisima only secured a telephone report of the preliminary

laboratory result prior to the D&C. This preliminary report did not include the 3+ status

of sugar in the patients urine[40] a result highly confirmatory of diabetes.

Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The

presence of hyperglycemia in a surgical patient is associated with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality.[41]Elective surgery in people with uncontrolled diabetes should preferably be scheduled after acceptable glycemic control has been achieved.[42] According to Dr. Mercado, this is done by administering insulin on the patient.[43]

The management approach in this kind of patients always includes insulin therapy in combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptakeby the muscle and fat cells while decreasing glucose production by the liver xxx. The neteffect is to lower blood glucose levels.[44]

The prudent move is to address the patients hyperglycemic state immediately and

promptly before any other procedure is undertaken. In this case, there was no evidence

that insulin was administered on Teresita prior to or during the D&C operation. Insulin

was only administered two days after the operation.

As Dr. Tan testified, the patients hyperglycemic condition should have been

managed not only before and during the operation, but also immediately after. Despite

the possibility that Teresita was afflicted with diabetes, the possibility was casually

ignored even in the post-operative evaluation of the patient; the concern, as the

petitioner spouses expressly admitted, was limited to the complaint of vaginal

bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma in

her uterus, she was advised that she could be discharged a day after the operation and

that her recovery could take place at home. This advice implied that a day after the

operation and even after the complete laboratory results were submitted, the petitioner

spouses still did not recognize any post-operative concern that would require the

monitoring of Teresitas condition in the hospital.

The above facts, point only to one conclusion that the petitioner spouses failed, as

medical professionals, to comply with their duty to observe the standard of care to be

given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of

duty was the proximate cause of Teresitas death is a matter we shall next determine.

Injury and Causation

As previously mentioned, the critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries;[45] the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.[46]

The respondents contend that unnecessarily subjecting Teresita to a D&C operation

without adequately preparing her, aggravated her hyperglycemic state and caused her

untimely demise. The death certificate of Teresita lists down the following causes of

death:

Immediate cause: Cardiorespiratory arrestAntecedent cause: Septicemic shock, ketoacidocisUnderlying cause: Diabetes Mellitus IIOther significant conditionscontributing to death: Renal Failure Acute[47]

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when stress occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death.[48] Medical literature further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a medical emergency with a significant mortality).[49] This was apparently what happened in Teresitas case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death was the diabetic complication thatcould have been prevented with the observance of standard medical precautions. The D&C operation and Teresitas death due to aggravated diabetic condition is therefore sufficiently established.

The trial court and the appellate court pinned the liability for Teresitas death on both the

petitioner spouses and this Court finds no reason to rule otherwise. However, we clarify

that Dr. Fredelictos negligence is not solely the act of ordering an on call D&C operation

when he was mainly an anaesthesiologist who had made a very cursory examination of

the patients vaginal bleeding complaint. Rather, it was his failure from the very start to

identify and confirm, despite the patients complaints and his own suspicions, that

diabetes was a risk factor that should be guarded against, and his participation in the

imprudent decision to proceed with the D&C operation despite his early suspicion and

the confirmatory early laboratory results. The latter point comes out clearly from the

following exchange during the trial: Q: On what aspect did you and your wife consult [with] each other? A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal, the blood sugar was elevated, so that we have to evaluate these laboratory results what it means. Q: So it was you and your wife who made the evaluation when it was phoned in? A: Yes, sir. Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed? A: Yes, anyway, she asked me whether we can do D&C based on my experience. Q: And your answer was in the positive notwithstanding the elevation of blood sugar? A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]

If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an

internist or a diabetologist (for which reason he referred Teresita to Dr. Jorge),[51] he

should have likewise refrained from making a decision to proceed with the D&C

operation since he was niether an obstetrician nor a gynecologist.

These findings lead us to the conclusion that the decision to proceed with the D&C

operation, notwithstanding Teresitas hyperglycemia and without adequately preparing

her for the procedure, was contrary to the standards observed by the medical

profession. Deviation from this standard amounted to a breach of duty which resulted in

the patients death. Due to this negligent conduct, liability must attach to the petitioner

spouses.

Liability of the Hospital

In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC found

the hospital jointly and severally liable with the petitioner spouses, which decision the

CA affirmed. In a Resolution dated August 28, 2006, this Court however denied

UDMCs petition for review on certiorari. Since UDMCs appeal has been denied and

they are not parties to this case, we find it unnecessary to delve on the

matter. Consequently, the RTCs decision, as affirmed by the CA, stands.

Award of Damages

Both the trial and the appellate court awarded actual damages as compensation for the

pecuniary loss the respondents suffered. The loss was presented in terms of the hospital

bills and expenses the respondents incurred on account of Teresitas confinement and

death. The settled rule is that a plaintiff is entitled to be compensated for proven

pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm

the award of actual damages of P36,000.00 representing the hospital expenses the

patient incurred.

In addition to the award for actual damages, the respondent heirs of Teresita are likewise

entitled to P50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code,

which states that the amount of damages for death caused by a xxx quasi-delict shall be

at least three thousand pesos,[53] even though there may have been mitigating

circumstances xxx. This is a question of law that the CA missed in its decision and

which we now decide in the respondents favor.

The same article allows the recovery of moral damages in case of death caused by

a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or

descendants as the persons entitled thereto. Moral damages are designed to compensate

the claimant for the injury suffered, that is, for the mental anguish, serious anxiety,

wounded feelings which the respondents herein must have surely felt with the

unexpected loss of their daughter. We affirm the appellate courts award of P400,000.00

by way ofmoral damages to the respondents.

We similarly affirm the grant of exemplary damages. Exemplary damages are imposed

by way of example or correction for the public good.[54] Because of the petitioner

spouses negligence in subjecting Teresita to an operation without first recognizing and

addressing her diabetic condition, the appellate court awarded exemplary damages to

the respondents in the amount of P100,000.00. Public policy requires such imposition to

suppress the wanton acts of an offender.[55] We therefore affirm the CAs award as an

example to the medical profession and to stress that the public good requires stricter

measures to avoid the repetition of the type of medical malpractice that happened in this

case.

With the award of exemplary damages, the grant of attorneys fees is legally in order.

[56] We therefore reverse the CA decision deleting these awards, and grant the

respondents the amount of P100,000.00 as attorneys fees taking into consideration the

legal route this case has taken.

WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R.

CV No. 63234 finding petitioner spouses liable for negligent medical practice. We

likewise AFFIRM the awards of actual and compensatory damages of P36,000.00;

moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as

death indemnity and by reversing the deletion of the award of attorneys fees and costs

and restoring the award of P100,000.00 as attorneys fees. Costs of litigation are

adjudged against petitioner spouses.

To summarize, the following awards shall be paid to the family of the late Teresita

Pineda:

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

2. The sum of P50,000.00 by way of death indemnity;

3. The sum of P400,000.00 by way of moral damages;

4. The sum of P100,000.00 by way of exemplary damages;

5. The sum of P100,000.00 by way of attorneys fees; and

6. Costs.

SO ORDERED.

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, andSERENO, JJ.

SPOUSES REYNALDO and LINASOLIMAN, as parents/heirs ofdeceased Angelica Soliman,Respondents.

Promulgated: June 7, 2011

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

the Regional 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. Lukes Medical Center

(SLMC).Results showed that Angelica was suffering from osteosarcoma, osteoblastic

type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts

teenage children.Following this diagnosis and as primary intervention, Angelicas 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 patients body

(metastasis), chemotherapy 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 on September

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 AKAAntecedent 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 Angelicas safety, health and welfare by their

careless administration of the chemotherapy 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

Angelicas 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 patients normal

body parts, including the lowering of white and red blood cells and platelets. She

claimed that what happened to Angelica can be attributed to malignant tumor cells

possibly left behind after surgery. Few as they may be, these have the capacity to

compete for nutrients such that the body becomes so weak structurally (cachexia) and

functionally in the form of lower resistance of the body to combat infection. Such

infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia)

that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC),

as what the autopsy report showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate

courts had to rely on testimonial evidence, principally the declarations of petitioner and

respondents themselves. The following chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery

and discussed with them Angelicas condition. Petitioner told respondents that Angelica

should be given two to three weeks to recover from the operation before starting

chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo

earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing

business.[9] Petitioner, however, assured them not to worry about her professional fee

and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed,

there are still small lesions undetectable to the naked eye, and that adjuvant

chemotherapy is needed to clean out the small lesions in order to lessen the chance of

the cancer to recur. She did not give the respondents any assurance that chemotherapy

will cure Angelicas cancer. During these consultations with respondents, she explained

the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2)

nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red

blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas

ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially

when exposed to sunlight. She actually talked with respondents four times, once at the

hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother

called her through long distance.[10] This was disputed by respondents who countered

that petitioner gave them assurance that there is 95% chance of healing for Angelica if

she undergoes chemotherapy and that the only side effects were nausea, vomiting and

hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by

petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she

be readmitted after two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy,

bringing with them the results of the laboratory tests requested by petitioner: Angelicas

chest x-ray, ultrasound of the liver, creatinine and complete liver function tests.

[13] Petitioner proceeded with the chemotherapy by first administering hydration fluids

to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs

Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was

supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In

his testimony, Dr. Marbella denied having any participation in administering the said

chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish

discoloration on Angelicas face.[21] They asked petitioner about it, but she merely

quipped,Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes on

the nose and cheek area of Angelica. At that moment, she entertained the possibility that

Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was

thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on

Angelicas face had extended to her neck, but petitioner dismissed it again as merely the

effect of medicines.[24] Petitioner testified that she did not see any discoloration on

Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed that

Angelica merely complained of nausea and was given ice chips.[25]

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child

could not anymore bear the pain, respondents pleaded with petitioner to stop the

chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets

observe. If pwede na, bigyan uli ng chemo. At this point, respondents asked petitioners

permission to bring their child home. Later in the evening, Angelica passed black stool

and reddish urine.[26] Petitioner countered that there was no record of blackening of

stools but only an episode of loose bowel movement (LBM). Petitioner also testified that

what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack,

as respondents call it (petitioner described it in the vernacular as naninigas ang kamay

at paa). She then requested for a serum calcium determination and stopped the

chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness

subsided.[27]

The following day, August 23, petitioner yielded to respondents request to take Angelica

home. But prior to discharging Angelica, petitioner requested for a repeat serum calcium

determination and explained to respondents that the chemotherapy will be temporarily

stopped while she observes Angelicas muscle twitching and serum calcium level.Take-

home medicines were also prescribed for Angelica, with instructions to respondents that

the serum calcium test will have to be repeated after seven days. Petitioner told

respondents that she will see Angelica again after two weeks, but respondents can see

her anytime if any immediate problem arises.[28]

However, Angelica remained in confinement because while still in the premises of

SLMC, her convulsions returned and she also had LBM. Angelica was given oxygen

and administration of calcium continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered from

convulsions. They also noticed that she had a fever and had difficulty breathing.

[30]Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at

around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She

then requested for an electrocardiogram analysis, and infused calcium gluconate on the

patient at a stat dose. She further ordered that Angelica be given Bactrim,[31] a synthetic

antibacterial combination drug,[32] to combat any infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood

on her anus and urine. When Lina asked petitioner what was happening to her daughter,

petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates

were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that

Angelicas fever was high and her white blood cell count was low, petitioner prescribed

Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh

whole blood, or platelet concentrate, were transfused to Angelica. For two days (August

27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount

and in frequency. Petitioner also denied that there were gadgets attached to Angelica at

that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood

clots that should not be removed. Respondents claimed that Angelica passed about half a

liter of blood through her anus at around seven oclock that evening, which petitioner

likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and

nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric

tube inserted to Angelica also revealed a bloody content. Angelica was given more

platelet concentrate and fresh whole blood, which petitioner claimed improved her

condition.Petitioner told Angelica not to remove the endotracheal tube because this may

induce further bleeding.[35] She was also transferred to the intensive care unit to avoid

infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and

her body turned black. Part of Angelicas skin was also noted to be shredding by just

rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her,

saying Ayaw ko na; there were tears in her eyes and she kept turning her head.Observing

her daughter to be at the point of death, Lina asked for a doctor but the latter could not

answer her anymore.[36] At this time, the attending physician was Dr. Marbella who

was shaking his head saying that Angelicas platelets were down and respondents should

pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who

took over his daughters case, Dr. Abesamis who also told him to pray for his daughter.

Angelica continued to have difficulty in her breathing and blood was being suctioned

from her stomach. A nurse was posted inside Angelicas room to assist her breathing and

at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo

claimed that Angelica already experienced difficulty in urinating and her bowel

consisted of blood-like fluid. Angelica requested for an electric fan as she was in

pain. Hospital staff attempted to take blood samples from Angelica but were

unsuccessful because they could not even locate her vein. Angelica asked for a fruit but

when it was given to her, she only smelled it. At this time, Reynaldo claimed he could

not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and

started removing those gadgets attached to her. At three oclock in the morning of

September 1, a priest came and they prayed before Angelica expired. Petitioner finally

came back and supposedly told respondents that there was malfunction or bogged-down

machine.[37]

By petitioners own account, Angelica was merely irritable that day (August

31). Petitioner noted though that Angelicas skin was indeed sloughing off.[38] She

stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On

September 1, exactly two weeks after being admitted at SLMC for chemotherapy,

Angelica died.[40]The cause of death, according to petitioner, was septicemia, or

overwhelming infection, which caused Angelicas other organs to fail.[41] Petitioner

attributed this to the patients poor defense mechanism brought about by the cancer itself.

[42]

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed

that petitioner acted arrogantly and called him names. He was asked to sign a

promissory note as he did not have cash to pay the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal

Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver,

and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the

Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the

following: (1) there were fluids recovered from the abdominal cavity, which is not

normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was

hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas

adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower

portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5)

kidneys showed appearance of facial shock on account of hemorrhages; and (6)

reddishness on external surface of the spleen. All these were the end result of

hypovolemic shock secondary to multiple organ hemorrhages and disseminated

intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical

agents in the drugs given to the victim, which caused platelet reduction resulting to

bleeding sufficient to cause the victims death. The time lapse for the production of DIC

in the case of Angelica (from the time of diagnosis of sarcoma) was too short,

considering the survival rate of about 3 years. The witness conceded that the victim will

also die of osteosarcoma even with amputation or chemotherapy, but in this case

Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a

pathologist but her statements were based on the opinion of an oncologist whom she had

interviewed. This oncologist supposedly said that if the victim already had DIC prior to

the chemotherapy, the hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain

to the patient or his relatives every known side effect of the procedure or therapeutic

agents to be administered, before securing the consent of the patient or his relatives to

such procedure or therapy. The physician thus bases his assurance to the patient on his

personal assessment of the patients condition and his knowledge of the general effects of

the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that

the patient or relatives must be informed of all known side effects based on studies and

observations, even if such will aggravate the patients condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity,

testified for the defendants. He explained that in case of malignant tumors, there is no

guarantee that the ablation or removal of the amputated part will completely cure the

cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of

modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths

occur from metastasis, or spread of the cancer to other vital organs like the liver, causing

systemic complications. The modes of therapy available are the removal of the primary

source of the cancerous growth and then the residual cancer cells or metastasis should be

treated with chemotherapy. Dr. Tamayo further explained that patients with

osteosarcoma have poor defense mechanism due to the cancer cells in the blood

stream. In the case of Angelica, he had previously explained to her parents that after the

surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells

will hopefully be addressed. He referred the patient to petitioner because he felt that

petitioner is a competent oncologist. Considering that this type of cancer is very

aggressive and will metastasize early, it will cause the demise of the patient should there

be no early intervention (in this case, the patient developed sepsis which caused her

death). Cancer cells in the blood cannot be seen by the naked eye nor detected through

bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child

patients who had osteogenic sarcoma he had handled, he thought that probably all of

them died within six months from amputation because he did not see them anymore after

follow-up; it is either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for

damages as she observed the best known procedures and employed her highest skill and

knowledge in the administration of chemotherapy drugs on Angelica but despite all

efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he

considered petitioner one of the most proficient in the treatment of cancer and that the

patient in this case was afflicted with a very aggressive type of cancer necessitating

chemotherapy as adjuvant treatment. Using the standard of negligence laid down

in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary

precaution against the adverse effect of chemotherapy on the patient, adding that a

wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid

hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial courts finding

that there was no negligence committed by the petitioner in the administration of

chemotherapy treatment to Angelica, found that petitioner as her attending physician

failed to fully explain to the respondents all the known side effects of chemotherapy. The

appellate court stressed that since the respondents have been told of only three side

effects of chemotherapy, they readily consented thereto. Had petitioner made known to

respondents those other side effects which gravely affected their child -- such as carpo-

pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and

eventual death -- respondents could have decided differently or adopted a different

course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attendingphysician recommended that she undergo chemotherapy treatment after surgery in orderto increase her chances of survival. Appellants consented to the chemotherapy treatmentbecause they believed in Dr. Rubi Lis representation that the deceased would have astrong chance of survival after chemotherapy and also because of the representation ofappellee 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 thepremature death of Angelica. The appellants were clearly and totally unaware ofthese other side-effects which manifested only during the chemotherapytreatment. This was shown by the fact that every time a problem would take placeregarding Angelicas condition (like an unexpected side-effect manifesting itself),they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpectedside-effects culminating in the loss of a love[d] one caused the appellants so muchtrouble, pain and suffering.

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

x x x x

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

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

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

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

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the

respondents all the possible side effects of the chemotherapy on their child, and in

holding her liable for actual, moral and exemplary damages and attorneys

fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy

procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including

death, petitioner argues that it was foolhardy to imagine her to be all-

knowing/omnipotent.While the theoretical side effects of chemotherapy were explained

by her to the respondents, as these should be known to a competent doctor, petitioner

cannot possibly predict how a particular patients genetic make-up, state of mind, general

health and body constitution would respond to the treatment. These are obviously

dependent on too many known, unknown and immeasurable variables, thus requiring

that Angelica be, as she was, constantly and closely monitored during the

treatment. Petitioner asserts that she did everything within her professional competence

to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current

position as co-director for clinical affairs of the Medical Oncology, Department of

Medicine of SLMC, petitioner contends that in the absence of any clear showing or

proof, she cannot be charged with negligence in not informing the respondents all the

side effects of chemotherapy or in the pre-treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion

but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding

and death. She explains that the response rate to chemotherapy of patients with

osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner

then points to some probable consequences if Angelica had not undergone

chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment,

the patient might have died the next day because of massive infection, or the cancer cells

might have spread to the brain and brought the patient into a coma, or into the lungs that

the patient could have been hooked to a respirator, or into her kidneys that she would

have to undergo dialysis. Indeed, respondents could have spent as much because of these

complications. The patient would have been deprived of the chance to survive the

ailment, of any hope for life and her quality of life surely compromised. Since she had

not been shown to be at fault, petitioner maintains that the CA erred in holding her liable

for the damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to fully

disclose serious side effects to the parents of the child patient who died while

undergoing chemotherapy, despite the absence of finding that petitioner was negligent in

administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately,

medical negligence, is that type of claim which a victim has available to him or her to

redress a wrong committed by a medical professional which has caused bodily harm. In

order to successfully pursue such a claim, a patient must prove that a health care

provider, in most cases a physician, either failed to do something which a reasonably

prudent health care provider would have done, or that he or she did something that a

reasonably prudent provider would not have done; and that that failure or action caused

injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions of

expert witnesses belonging in the same general neighborhood and in the same general

line of practice as defendant physician or surgeon. The deference of courts to the expert

opinion of qualified physicians stems from the formers realization that the latter possess

unusual technical skills which laymen in most instances are incapable of intelligently

evaluating, hence the indispensability of expert testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the alleged

negligence of petitioner in the administration of chemotherapy drugs to respondents

child was not proven considering that Drs. Vergara and Balmaceda, not being

oncologists or cancer specialists, were not qualified to give expert opinion as to whether

petitioners lack of skill, knowledge and professional competence in failing to observe

the standard of care in her line of practice was the proximate cause of the patients

death. Furthermore, respondents case was not at all helped by the non-production of

medical records by the hospital (only the biopsy result and medical bills were submitted

to the court). Nevertheless, the CA found petitioner liable for her failure to inform the

respondents on all possible side effects of chemotherapy before securing their consent to

the said treatment.

The doctrine of informed consent within the context of physician-patient relationships

goes far back into English common law. As early as 1767, doctors were charged with the

tort of battery (i.e., an unauthorized physical contact with a patient) if they had not

gained the consent of their patients prior to performing a surgery or procedure. In

the United States, the seminal case was Schoendorff v. Society of New York

Hospital[53] which involved unwanted treatment performed by a doctor. Justice

Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent

to any medical procedure or treatment: Every human being of adult years and sound

mind has a right to determine what shall be done with his own body; and a surgeon who

performs an operation without his patients consent, commits an assault, for which he is

liable in damages.[54] From a purely ethical norm, informed consent evolved into a

general principle of law that a physician has a duty to disclose what a reasonably

prudent physician in the medical community in the exercise of reasonable care would

disclose to his patient as to whatever grave risks of injury might be incurred from a

proposed course of treatment, so that a patient, exercising ordinary care for his own

welfare, and faced with a choice of undergoing the proposed treatment, or alternative

treatment, or none at all, may intelligently exercise his judgment by reasonably

balancing the probable risks against the probable benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose

should not be limited to medical usage as to arrogate the decision on revelation to the

physician alone. Thus, respect for the patients right of self-determination on particular

therapy demands a standard set by law for physicians rather than one which physicians

may or may not impose upon themselves.[57] The scope of disclosure is premised on the

fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in

diagnosis and therapy is not the full measure of a physicians responsibility. It is also his

duty to warn of the dangers lurking in the proposed treatment and to impart information

which the patient has every right to expect. Indeed, the patients reliance upon the

physician is a trust of the kind which traditionally has exacted obligations beyond those

associated with armslength transactions.[58] The physician is not expected to give the

patient a short medical education, the disclosure rule only requires of him a reasonable

explanation, which means generally informing the patient in nontechnical terms as to

what is at stake; the therapy alternatives open to him, the goals expectably to be

achieved, and the risks that may ensue from particular treatment or no treatment.[59] As

to the issue of demonstrating what risks are considered material necessitating disclosure,

it was held that experts are unnecessary to a showing of the materiality of a risk to a

patients decision on treatment, or to the reasonably, expectable effect of risk disclosure

on the decision. Such unrevealed risk that should have been made known must further

materialize, for otherwise the omission, however unpardonable, is without legal

consequence.And, as in malpractice actions generally, there must be a causal

relationship between the physicians failure to divulge and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part

of physicians overall obligation to patient, the duty of reasonable disclosure of available

choices with respect to proposed therapy and of dangers inherently and potentially

involved in each. However, the physician is not obliged to discuss relatively minor risks

inherent in common procedures when it is common knowledge that such risks inherent

in procedure of very low incidence. Cited as exceptions to the rule that the patient

should not be denied the opportunity to weigh the risks of surgery or treatment are

emergency cases where it is evident he cannot evaluate data, and where the patient is a

child or incompetent.[62] The court thus concluded that the patients right of self-

decision can only be effectively exercised if the patient possesses adequate information

to enable him in making an intelligent choice. The scope of the physicians

communications to the patient, then must be measured by the patients need, and that

need is whatever information is material to the decision. The test therefore for

determining whether a potential peril must be divulged is its materiality to the patients

decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for

liability of the physician for failure to inform patient, there must be causal relationship

between physicians failure to inform and the injury to patient and such connection arises

only if it is established that, had revelation been made, consent to treatment would not

have been given.

There are four essential elements a plaintiff must prove in a malpractice action based

upon the doctrine of informed consent: (1) the physician had a duty to disclose material

risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and

proximate result of the failure to disclose, the patient consented to treatment she

otherwise would not have consented to; and (4) plaintiff was injured by the proposed

treatment. The gravamen in an informed consent case requires the plaintiff to point to

significant undisclosed information relating to the treatment which would have altered

her decision to undergo it.[64]

Examining the evidence on record, we hold that there was adequate disclosure of

material risks inherent in the chemotherapy procedure performed with the consent of

Angelicas parents. Respondents could not have been unaware in the course of initial

treatment and amputation of Angelicas lower extremity, that her immune system was

already weak on account of the malignant tumor in her knee. When petitioner informed

the respondents beforehand of the side effects of chemotherapy which includes lowered

counts of white and red blood cells, decrease in blood platelets, possible kidney or heart

damage and skin darkening, there is reasonable expectation on the part of the doctor that

the respondents understood very well that the severity of these side effects will not be

the same for all patients undergoing the procedure. In other words, by the nature of the

disease itself, each patients reaction to the chemical agents even with pre-treatment

laboratory tests cannot be precisely determined by the physician. That

death can possibly result from complications of the treatment or the underlying cancer

itself, immediately or sometime after the administration of chemotherapy drugs, is a risk

that cannot be ruled out, as with most other major medical procedures, but such

conclusion can be reasonably drawn from the general side effects of chemotherapy

already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the

variables in the recommended treatment for their daughter afflicted with a life-

threatening illness. On the other hand, it is difficult to give credence to respondents

claim that petitioner told them of 95% chance of recovery for their daughter, as it was

unlikely for doctors like petitioner who were dealing with grave conditions such as

cancer to have falsely assured patients of chemotherapys success rate. Besides, informed

consent laws in other countries generally require only a reasonable explanation of

potential harms, so specific disclosures such as statistical data, may not be legally

necessary.[65]

The element of ethical duty to disclose material risks in the proposed medical treatment

cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a

medical malpractice action based on lack of informed consent, the plaintiff must prove

both the duty and the breach of that duty through expert testimony.[66] Such expert

testimony must show the customary standard of care of physicians in the same practice

as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical

Specialist of the DOHs Operational and Management Services charged with receiving

complaints against hospitals, does not qualify as expert testimony to establish the

standard of care in obtaining consent for chemotherapy treatment. In the absence of

expert testimony in this regard, the Court feels hesitant in defining the scope of

mandatory disclosure in cases of malpractice based on lack of informed consent, much

less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be

an evolving one.

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

evolution. As we progress toward the twenty-first century, we now realize that the legal standardof disclosure is not subject to construction as a categorical imperative. Whateverformulae or processes we adopt are only useful as a foundational starting point; theparticular quality or quantity of disclosure will remain inextricably bound by thefacts of each case. Nevertheless, juries that ultimately determine whether a physicianproperly informed a patient are inevitably guided by what they perceive as the commonexpectation of the medical consumera reasonable person in the patients position whendeciding to accept or reject a recommended medical procedure.[68] (Emphasissupplied.)

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.

THIRD DIVISION MARITER MENDOZA, G.R. No. 197987Petitioner,Present:VELASCO, JR., J., Chairperson,- versus - PERALTA,

ABAD,MENDOZA, and

PERLAS-BERNABE, JJ.ADRIANO CASUMPANG,JENNIFER ADRIANE andJOHN ANDRE, all surnamed Promulgated:

CASUMPANG,Respondents. March 19, 2012

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

DECISION

ABAD, J.: Josephine Casumpang, substituted by her respondent husband Adriano and their childrenJennifer Adriane and John Andre, filed an action for damages against petitioner Dr. Mariter Mendoza in 1993 before the Regional Trial Court (RTC) of Iloilo City. On February 13, 1993 Josephine underwent hysterectomy and myomectomy that Dr. Mendoza performed on her at the Iloilo Doctors Hospital. After her operation, Josephineexperienced recurring fever, nausea, and vomiting. Three months after the operation, shenoticed while taking a bath something protruding from her genital. She tried calling Dr. Mendoza to report it but the latter was unavailable. Josephine instead went to see another physician, Dr. Edna Jamandre-Gumban, who extracted a foul smelling, partially expelled rolled gauze from her cervix.The discovery of the gauze and the illness she went through prompted Josephine to file adamage suit against Dr. Mendoza before the RTC of Iloilo City. Because Josephine died before trial could end, her husband and their children substituted her in the case. She was a housewife and 40 years old when she died. On March 7, 2005 the RTC rendered judgment, finding Dr. Mendoza guilty of neglect that caused Josephines illness and eventual death and ordering her to pay plaintiffs heirs actual damages of P50,000.00, moral damages of P200,000.00, and attorneys fees of P20,000.00 plus costs of suit. On motion for reconsideration, however, the RTC reversed itself and dismissed the complaint in an order dated June 23, 2005. On appeal, the Court of Appeals (CA) rendered a decision on March 18, 2011,[1] reinstating the RTCs original decision. The CA held that Dr. Mendoza committed a breach of her duty as a physician when a gauze remained in her patients body after surgery. The CA denied her motion for reconsideration on July 18, 2011, prompting her to file the present petition. Petitioner claims that no gauze or surgical material was left in Josephines body after her surgery as evidenced by the surgical sponge count in the hospital record.

But she raises at this Courts level a question of fact when parties may raise only questions of law before it in petitions for review on certiorari from the CA. With few exceptions, the factual findings of the latter court are generally binding. None of those exceptions applies to this case.[2] As the RTC pointed out, Josephine did not undergo any other surgical operation. And it would be much unlikely for her or for any woman to inject a roll of gauze into her cervix. As the Court held in Professional Services, Inc. v. Agana:[3]

An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.

The Court notes, however, that neither the CA nor the RTC awarded exemplary damagesagainst Dr. Mendoza when, under Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral damages. Exemplary damages may also be awarded in cases of gross negligence.[4] A surgical operation is the responsibility of the surgeon performing it. He must personally ascertain that the counts of instruments and materials used before the surgery and prior to sewing the patient up have been correctly done. To provide an example to the medical profession and to stress the need for constant vigilance in attending to a patients health, the award of exemplary damages in this case is in order. Further, in view of Josephines death resulting from petitioners negligence, civil indemnity under Article 2206[5] of the Civil Code should be given to respondents as heirs. The amount of P50,000.00 is fixed by prevailing jurisprudence for this kind.[6] The Court also deems it just and equitable under Article 2208 of the Civil Code to increase the award of attorneys fees from P20,000.00 to P50,000.00. WHEREFORE, the Court entirely AFFIRMS the decision of the Court of Appeals dated March 18, 2011 with the MODIFICATION ordering petitioner Mariter Mendoza to pay respondents Adriano, Jennifer Adriane and John Andre, all surnamed Casumpang,an additional P50,000.00 as exemplary damages, additional P30,000.00 as attorneys feesand civil indemnity arising from death in the amount of P50,000.00. SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Baguio City

THIRD DIVISION

G.R. No. 175540 April 7, 2014

DR. FILOTEO A. ALANO, Petitioner, vs.ZENAIDA MAGUD-LOGMAO, Respondent.

D E C I S I O N

PERALTA, J.:

This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that theDecision1of the Court of Appeals (CA), dated March 31, 2006, adjudging petitioner liable for damages, andthe Resolution2dated November 22, 2006, denying petitioner's motion for reconsideration thereof, bereversed and set aside.

The CA's narration of facts is accurate, to wit:

Plaintiff-appellee Zenaida Magud-Logmao is the mother of deceased Arnelito Logmao. Defendant-appellantDr. Filoteo Alano is the Executive Director of the National Kidney Institute (NKI).

At around 9:50 in the evening of March 1, 1988, Arnelito Logmao, then eighteen (18) years old, wasbrought to the East Avenue Medical Center (EAMC) in Quezon City by two sidewalk vendors, who allegedlysaw the former fall from the overpass near the Farmers’ Market in Cubao, Quezon City. The patient’s datasheet identified the patient as Angelito Lugmoso of Boni Avenue, Mandaluyong. However, the clinicalabstract prepared by Dr. Paterno F. Cabrera, the surgical resident on-duty at the Emergency Room ofEAMC, stated that the patient is Angelito [Logmao].

Dr. Cabrera reported that [Logmao] was drowsy with alcoholic breath, was conscious and coherent; that theskull x-ray showed no fracture; that at around 4:00 o’clock in the morning of March 2, 1988, [Logmao]developed generalized seizures and was managed by the neuro-surgery resident on-duty; that thecondition of [Logmao] progressively deteriorated and he was intubated and ambu-bagging support wasprovided; that admission to the Intensive Care Unit (ICU) and mechanical ventilator support becamenecessary, but there was no vacancy at the ICU and all the ventilator units were being used by otherpatients; that a resident physician of NKI, who was rotating at EAMC, suggested that [Logmao] betransferred to NKI; and that after arrangements were made, [Logmao] was transferred to NKI at 10:10 inthe morning.

At the NKI, the name Angelito [Logmao] was recorded as Angelito Lugmoso. Lugmoso was immediatelyattended to and given the necessary medical treatment. As Lugmoso had no relatives around, Jennifer B.Misa, Transplant Coordinator, was asked to locate his family by enlisting police and media assistance. Dr.Enrique T. Ona, Chairman of the Department of Surgery, observed that the severity of the brain injury ofLugmoso manifested symptoms of brain death. He requested the Laboratory Section to conduct a tissuetyping and tissue cross-matching examination, so that should Lugmoso expire despite the necessarymedical care and management and he would be found to be a suitable organ donor and his family wouldconsent to organ donation, the organs thus donated could be detached and transplanted promptly to anycompatible beneficiary.

Jennifer Misa verified on the same day, March 2, 1988, from EAMC the identity of Lugmoso and, upon herrequest, she was furnished by EAMC a copy of the patient’s date sheet which bears the name AngelitoLugmoso, with address at Boni Avenue, Mandaluyong. She then contacted several radio and televisionstations to request for air time for the purpose of locating the family of Angelito Lugmoso of Boni Avenue,Mandaluyong, who was confined at NKI for severe head injury after allegedly falling from the Cubaooverpass, as well as Police Station No. 5, Eastern Police District, whose area of jurisdiction includes BoniAvenue, Mandaluyong, for assistance in locating the relatives of Angelito Lugmoso. Certifications were

issued by Channel 4, ABS-CBN and GMA attesting that the request made by the NKI on March 2, 1988 toair its appeal to locate the family and relatives of Angelito Lugmoso of Boni Avenue, Mandaluyong wasaccommodated. A Certification was likewise issued by Police Station No. 5, Eastern Police District,Mandaluyong attesting to the fact that on March 2, 1988, at about 6:00 p.m., Jennifer Misa requested forassistance to immediately locate the family and relatives of Angelito Lugmoso and that she followed up herrequest until March 9, 1988.

On March 3, 1988, at about 7:00 o’clock in the morning, Dr. Ona was informed that Lugmoso had beenpronounced brain dead by Dr. Abdias V. Aquino, a neurologist, and by Dr. Antonio Rafael, a neurosurgeonand attending physician of Lugmoso, and that a repeat electroencephalogram (EEG) was in progress toconfirm the diagnosis of brain death. Two hours later, Dr. Ona was informed that the EEG recordingexhibited a flat tracing, thereby confirming that Lugmoso was brain dead. Upon learning that Lugmoso wasa suitable organ donor and that some NKI patients awaiting organ donation had blood and tissue typescompatible with Lugmoso, Dr. Ona inquired from Jennifer Misa whether the relatives of Lugmoso had beenlocated so that the necessary consent for organ donation could be obtained. As the extensive search forthe relatives of Lugmoso yielded no positive result and time being of the essence in the success of organtransplantation, Dr. Ona requested Dr. Filoteo A. Alano, Executive Director of NKI, to authorize the removalof specific organs from the body of Lugmoso for transplantation purposes. Dr. Ona likewise instructed Dr.Rose Marie Rosete-Liquete to secure permission for the planned organ retrieval and transplantation fromthe Medico-Legal Office of the National Bureau of Investigation (NBI), on the assumption that the incidentwhich lead to the brain injury and death of Lugmoso was a medico legal case.

On March 3, 1988, Dr. Alano issued to Dr. Ona a Memorandum, which reads as follows:

This is in connection with the use of the human organs or any portion or portions of the human body of thedeceased patient, identified as a certain Mr. Angelito Lugmoso who was brought to the National KidneyInstitute on March 2, 1988 from the East Avenue Medical Center.

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due tocraniocerebral injury. Please make certain that your Department has exerted all reasonable efforts to locatethe relatives or next of kin of the said deceased patient such as appeal through the radios and television aswell as through police and other government agencies and that the NBI [Medico-Legal] Section has beennotified and is aware of the case.

If all the above has been complied with, in accordance with the provisions of Republic Act No. 349 asamended and P.D. 856, permission and/or authority is hereby given to the Department of Surgery toretrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to transplantthe said organs to any compatible patient who maybe in need of said organs to live and survive.

A Certification dated March 10, 1988 was issued by Dr. Maximo Reyes, Medico-Legal Officer of the NBI,stating that he received a telephone call from Dr. Liquete on March 3, 1988 at 9:15 a.m. regarding the caseof Lugmoso, who was declared brain dead; that despite efforts to locate the latter’s relatives, no oneresponded; that Dr. Liquete sought from him a second opinion for organ retrieval for donation purposeseven in the absence of consent from the family of the deceased; and that he verbally agreed to organretrieval.

At 3:45 in the afternoon of March 3, 1988, a medical team, composed of Dr. Enrique Ona, as principalsurgeon, Drs. Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete, Aurea Ambrosio, Ludivino deGuzman, Mary Litonjua, Jaime Velasquez, Ricardo Fernando, and Myrna Mendoza, removed the heart,kidneys, pancreas, liver and spleen of Lugmoso. The medical team then transplanted a kidney and thepancreas of Lugmoso to Lee Tan Hoc and the other kidney of Lugmoso to Alexis Ambustan. The transplantoperation was completed at around 11:00 o’clock in the evening of March 3, 1988.

On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort (CORE) program ofNKI, made arrangements with La Funeraria Oro for the embalmment of the cadaver of Lugmoso good for aperiod of fifteen (15) days to afford NKI more time to continue searching for the relatives of the latter. Onthe same day, Roberto Ortega, Funeral Consultant of La Funeraria Oro, sent a request for autopsy to theNBI. The Autopsy Report and Certification of Post-Mortem Examination issued by the NBI stated that thecause of death of Lugmoso was intracranial hemorrhage secondary to skull fracture.

On March 11, 1988, the NKI issued a press release announcing its successful double organtransplantation. Aida Doromal, a cousin of plaintiff, heard the news aired on television that the donor wasan eighteen (18) year old boy whose remains were at La Funeraria Oro in Quezon City. As the name of thedonor sounded like Arnelito Logmao, Aida informed plaintiff of the news report.

It appears that on March 3, 1988, Arlen Logmao, a brother of Arnelito, who was then a resident of 17-C SanPedro Street, Mandaluyong, reported to Police Station No. 5, Eastern Police District, Mandaluyong that thelatter did not return home after seeing a movie in Cubao, Quezon City, as evidenced by a Certificationissued by said Station; and that the relatives of Arnelito were likewise informed that the latter was missing.Upon receiving the news from Aida, plaintiff and her other children went to La Funeraria Oro, where theysaw Arnelito inside a cheap casket.

On April 29, 1988, plaintiff filed with the court a quo a complaint for damages against Dr. Emmanuel Lenon,Taurean Protectors Agency, represented by its Proprietor, Celso Santiago, National Kidney Institute,represented by its Director, Dr. Filoteo A. Alano, Jennifer Misa, Dr. Maximo Reyes, Dr. Enrique T. Ona, Dr.Manuel Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-Liquete, Dr. Aurea Z. Ambrosio, Dr. Ludivino deGuzman, Dr. Mary Litonjua, Dr. Jaime Velasquez, Dr. Ricardo Fernando, Dr. Myrna Mendoza, Lee Tan Koc,Alexis Ambustan, Dr. Antonio R. Paraiso, La Funeraria Oro, Inc., represented by its President, German E.Ortega, Roberto Ortega alias Bobby Ortega, Dr. Mariano B. Cueva, Jr., John Doe, Peter Doe, and Alex Doein connection with the death of her son Arnelito. Plaintiff alleged that defendants conspired to remove theorgans of Arnelito while the latter was still alive and that they concealed his true identity.

On January 17, 2000, the court a quo rendered judgment finding only Dr. Filoteo Alano liable for damagesto plaintiff and dismissing the complaint against the other defendants for lack of legal basis.3

After finding petitioner liable for a quasi-delict, the Regional Trial Court of Quezon City (RTC) orderedpetitioner to pay respondent P188,740.90 as actual damages; P500,000.00 as moraldamages; P500,000.00 as exemplary damages; P300,000.00 as attorney's fees; and costs of suit.Petitioner appealed to the CA.

On March 31, 2006, the CA issued its Decision, the dispositive portion of which reads as follows:

WHEREFORE, the Decision appealed from is AFFIRMED, with MODIFICATION by DELETING the awardofP188,740.90 as actual damages and REDUCING the award of moral damages to P250,000.00, theaward of exemplary damages to P200,000.00 and the award of attorney's fees to P100,000.00.

SO ORDERED.4

Petitioner then elevated the matter to this Court via a petition for review on certiorari, where the followingissues are presented for resolution:

A. WHETHER THE COURT OF APPEALS DISREGARDED EXISTING JURISPRUDENCEPRONOUNCED BY THIS HONORABLE SUPREME COURT IN HOLDING PETITIONER DR.FILOTEO ALANO LIABLE FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEESDESPITE THE FACT THAT THE ACT OF THE PETITIONER IS NOT THE PROXIMATE CAUSENOR IS THERE ANY FINDING THAT THE ACT OF THE PETITIONER WAS THE PROXIMATECAUSE OF THE INJURY OR DAMAGE ALLEGEDLY SUSTAINED BY RESPONDENT ZENAIDAMAGUD-LOGMAO.

B. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN REFUSING AND/OR FAILING TODECLARE THAT PETITIONER DR. ALANO ACTED IN GOOD FAITH AND PURSUANT TO LAWWHEN HE ISSUED THE AUTHORIZATION TO REMOVE AND RETRIEVE THE ORGANS OFANGELITO LUGMOSO (LATER IDENTIFIED TO BE IN FACT ARNELITO LOGMAO)CONSIDERING THAT NO NEGLIGENCE CAN BE ATTRIBUTED OR IMPUTED ON HIM IN HISPERFORMANCE OF AN ACT MANDATED BY LAW.

C. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AWARDING RESPONDENTZENAIDA MAGUD-LOGMAO MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEESTHAT ARE NOT IN ACCORDANCE WITH AND ARE CONTRARY TO ESTABLISHEDJURISPRUDENCE.5

The first two issues boil down to the question of whether respondent's sufferings were brought about by

petitioner's alleged negligence in granting authorization for the removal or retrieval of the internal organs ofrespondent's son who had been declared brain dead.

Petitioner maintains that when he gave authorization for the removal of some of the internal organs to betransplanted to other patients, he did so in accordance with the letter of the law, Republic Act (R.A.) No.349, as amended by Presidential Decree (P.D.) 856, i.e., giving his subordinates instructions to exert allreasonable efforts to locate the relatives or next of kin of respondent's son. In fact, announcements weremade through radio and television, the assistance of police authorities was sought, and the NBI Medico-Legal Section was notified. Thus, petitioner insists that he should not be held responsible for any damageallegedly suffered by respondent due to the death of her son and the removal of her son’s internal organsfor transplant purposes.

The appellate court affirmed the trial court's finding that there was negligence on petitioner's part when hefailed to ensure that reasonable time had elapsed to locate the relatives of the deceased before giving theauthorization to remove said deceased's internal organs for transplant purposes. However, a closeexamination of the records of this case would reveal that this case falls under one of the exceptions to thegeneral rule that factual findings of the trial court, when affirmed by the appellate court, are binding on thisCourt. There are some important circumstances that the lower courts failed to consider in ascertainingwhether it was the actions of petitioner that brought about the sufferings of respondent.6

The Memorandum dated March 3, 1988 issued by petitioner, stated thus:

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due tocraniocerebral injury. Please make certain that your Department has exerted all reasonable efforts to locatethe relatives or next-of-kin of the said deceased patient, such as appeal through the radios and television,as well as through police and other government agencies and that the NBI [Medico-Legal] Section hasbeen notified and is aware of the case.

If all the above has been complied with, in accordance with the provisions of Republic Act No. 349 asamended and P.D. 856, permission and/or authority is hereby given to the Department of Surgery toretrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to transplantthe said organs to any compatible patient who maybe in need of said organs to live and survive.7

A careful reading of the above shows that petitioner instructed his subordinates to "make certain" that "allreasonable efforts" are exerted to locate the patient's next of kin, even enumerating ways in which toensure that notices of the death of the patient would reach said relatives. It also clearly stated thatpermission or authorization to retrieve and remove the internal organs of the deceased was being givenONLY IF the provisions of the applicable law had been complied with. Such instructions reveal thatpetitioner acted prudently by directing his subordinates to exhaust all reasonable means of locating therelatives of the deceased. He could not have made his directives any clearer. He even specificallymentioned that permission is only being granted IF the Department of Surgery has complied with all therequirements of the law. Verily, petitioner could not have been faulted for having full confidence in the abilityof the doctors in the Department of Surgery to comprehend the instructions, obeying all his directives, andacting only in accordance with the requirements of the law.

Furthermore, as found by the lower courts from the records of the case, the doctors and personnel of NKIdisseminated notices of the death of respondent's son to the media and sought the assistance of theappropriate police authorities as early as March 2, 1988, even before petitioner issued the Memorandum.Prior to performing the procedure for retrieval of the deceased's internal organs, the doctors concernedalso the sought the opinion and approval of the Medico-Legal Officer of the NBI.

Thus, there can be no cavil that petitioner employed reasonable means to disseminate notificationsintended to reach the relatives of the deceased. The only question that remains pertains to the sufficiencyof time allowed for notices to reach the relatives of the deceased.

If respondent failed to immediately receive notice of her son's death because the notices did not properlystate the name or identity of the deceased, fault cannot be laid at petitioner's door. The trial and appellatecourts found that it was the EAMC, who had the opportunity to ascertain the name of the deceased, whorecorded the wrong information regarding the deceased's identity to NKI. The NKI could not have obtainedthe information about his name from the patient, because as found by the lower courts, the deceased was

already unconscious by the time he was brought to the NKI.

Ultimately, it is respondent's failure to adduce adequate evidence that doomed this case. 1âwphi1 As stated inOtero v. Tan,8 "[i]n civil cases, it is a basic rule that the party making allegations has the burden of provingthem by a preponderance of evidence. The parties must rely on the strength of their own evidence and notupon the weakness of the defense offered by their opponent."9 Here, there is to proof that, indeed, theperiod of around 24 hours from the time notices were disseminated, cannot be considered as reasonableunder the circumstances. They failed to present any expert witness to prove that given the medicaltechnology and knowledge at that time in the 1980's, the doctors could or should have waited longer beforeharvesting the internal organs for transplantation.

Verily, the Court cannot, in conscience, agree with the lower court. Finding petitioner liable for damages isimproper. It should be emphasized that the internal organs of the deceased were removed only after hehad been declared brain dead; thus, the emotional pain suffered by respondent due to the death of her soncannot in any way be attributed to petitioner. Neither can the Court find evidence on record to show thatrespondent's emotional suffering at the sight of the pitiful state in which she found her son's lifeless body becategorically attributed to petitioner's conduct.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March 31, 2006, isREVERSED and SET ASIDE. The complaint against petitioner is hereby DISMISSED.

SO ORDERED.

1.