9 - Ramos Vs CA

Ramos vs.
Court of Appeals
G.R. No. 124354. December 29, 1999. *
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS,
petitioners, vs. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO
HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.
Remedial Law; Pleadings and Practice; When a party is represented by counsel, all notices should
be sent to the party’s lawyer at his given address.—It is elementary that when a party is represented by
counsel, all notices should be sent to the party’s lawyer at his given address. With a few exceptions,
notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be
no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.—Res ipsa loquitur is a Latin
phrase which literally means “the thing or the transaction speaks for itself.” The phrase “res ipsa
loquitur” is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for defendant to meet with an explanation. Where the
thing which caused the injury complained of is shown to be under the management of the defen-
________________
*
FIRST DIVISION.
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DECEMBER 29,
1999
Ramos vs. Court of
Appeals
dant or his servants and the accident is such as in ordinary course of things does not happen if those
who have its management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the defendant’s want of care.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction with the doctrine of
common knowledge.—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 defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
Same; Same; Same; Same; Mere invocation and application of the doctrine does not dispense with
the requirement of proof of negligence; Requisites before resort to the doctrine may be allowed.—Much
has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or
in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience
since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of
negligence. In other words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present 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 going forward with the proof. Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the
absence of someone’s negligence; 2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
586
58 SUPREME
6 COURT REPORTS
ANNOTATED
Ramos vs. Court of
Appeals
Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because the injury itself provides the proof of
negligence.—Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses.
Same; Same; Same; Same; 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.—Despite the
fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to
all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that
he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It
is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were not as such as
would ordinarily have followed if due care had been exercised.
Same; Same; Same; Same; Res ipsa loquitur is not available in a malpractice suit if the only
showing is that the desired result of an operation or treatment was not accomplished.—It must be
conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is
not required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce
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DECEMBER 29,
1999
Ramos vs. Court of
Appeals
the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not accomplished.
Hospitals; Damages; Proximate Cause Defined.—Proximate cause has been defined as that which,
in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. An injury or damage is proximately caused by an act
or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or omission. It is the dominant,
moving or producing cause.
Same; Same; For the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians.—Private hospitals, hire, fire and exercise real control over their attending and visiting
“consultant” staff. While “consultants” are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient’s condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now arises
as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s
condition.
Same; Same; The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code.—The basis for holding an employer solidarily
responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers
a person accountable not only for his own acts but also for those of others based on the former’s
responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or
entity concerned prove that they have observed the diligence of a good father of the family to prevent
damage. In other words, while the burden of proving negligence rests
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58 SUPREME
8 COURT REPORTS
ANNOTATED
Ramos vs. Court of
Appeals
on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.
Same; Same; Amount of damages awarded may be a continuing one where the injury is chronic and
continuing, as when the patient is comatose.—In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with
certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.

Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De los Santos Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for DLSMC.
Antonio H. Abad & Associates for respondent doctors.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and
welfare of their 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
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VOL. 321, DECEMBER 589
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Ramos vs. Court of Appeals
between life and death. 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 hospital should be made liable for the unfortunate comatose condition of a patient scheduled
for cholecystectomy. 2
Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995,
3
which overturned the decision of the Regional Trial Court, dated 30 January 1992, finding
4
private respondents liable for damages arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos resulting 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 of discomfort 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 to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are
________________
1
In the United States alone, a great number of people die every year as a result of medical mishaps. The 13 December 1999
issue of TIME MAGAZINE featured an article on medical negligence entitled “Doctors’ Deadly Mistakes” which is quoted in
part: “It is hardly news that medical professionals make mistakes—even dumb, deadly mistakes. What is shocking is how often it
happens. Depending on which statistics you believe, the number of Americans killed by medical screw-ups is somewhere
between 44,000 and 98,000 every year—the eighth leading cause of death even by the more conservative figure, ahead of car
crashes, breast cancer and AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health
officials had known about the problem for years and hadn’t made a concerted effort to do something about it.”
2
Cholecystectomy is the surgical excision of the gall bladder.
3
CA Rollo, pp. 129-140.
4
Records, pp. 270-279.
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59 SUPREME COURT
0 REPORTS
ANNOTATED
Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional advice.
She was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. “A” and
“C”) which indicated she was fit for surgery.
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 be Hosaka; 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 Capitol Medical 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 Rogelio that
he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was 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 the DLSMC,
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 the operation
by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at
the Capitol Medical Center, was also there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After praying, she was given injections. Her hands
were held by Herminda as they went down from 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, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was
to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as
Dean of the College of Nursing at the Capitol Medical Center who was to provide moral
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support to the patient, to them. Herminda was allowed to stay inside the operating room.
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 Herminda Cruz about the prospect
of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, “Mindy, wala
pa ba ang Doctor”? The former replied, “Huwag kang mag-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 operating room, 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, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was “already dying [and] waiting for the arrival of the
doctor” even as he did his best to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was
inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia
who remarked that he (Dr. Garcia) was also tired of waiting 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 the operation 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 the operating 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 hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan”
(id., p. 17). Because of the 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 hapless Erlinda
even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the oper-
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59 SUPREME COURT
2 REPORTS
ANNOTATED
ating 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 which is 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 x x x happening” (ibid.). Dr. Calderon was then able
to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating room.
When informed by Herminda Cruz that something wrong was happening, 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 trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have happened, 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 to the 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 to P93,542.25
which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in
favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition.
She cannot do anything. She cannot move any part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage 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 been
staying in their residence, still needing constant
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medical attention, with her husband Rogelio incurring 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
cerebral parenchymal damage” (Exh. “G”; see also TSN, December 21, 1989, p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court
6
of Quezon City 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.
Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that
the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlinda’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 of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are
liable to plaintiffs for damages. The defendants were guilty of, at the 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 exercise reasonable care in
not only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost
three (3) hours. For
________________
Id. at 270-275.
5
Docketed as Civil Case No. Q-46885.

6
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59 SUPREME COURT
4 REPORTS
ANNOTATED
after she committed a mistake in intubating [the] patient, the patient’s nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the
patient’s brain. The evidence further shows that the hapless patient suffered brain damage because of the
absence of oxygen in her (patient’s) brain for approximately four 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. Perfecta
Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to provide
the patient a ‘good anesthesiologist,’ and for arriving for the scheduled operation almost three (3) hours
late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the
doctors in their ‘practice of medicine’ in the operating room. Moreover, the hospital is liable for failing
through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted with due
care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her (the patient’s) nailbed turned bluish,
belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as the patient’s case was an
elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the
following sums of money, to wit:
1. 1)the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;
2. 2)the sum of P100,000.00 as reasonable attorney’s fees;
3. 3)the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00
by way of exemplary damages; and,
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29, 1999
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal
portion of the 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. The counterclaim of appellant De
Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the
unpaid hospital bills amounting to P93,542.25, plus legal 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 was mistakenly addressed as “Atty. Rogelio Ramos.” No copy of the decision, however,
was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995. Meanwhile, petitioners engaged the services of another
9
counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate plead-
________________
Records, pp. 276-278.

7
CA Rollo, p. 166.

8
Id. at 145.
9
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59 SUPREME COURT
6 REPORTS
ANNOTATED
ing on the assailed decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-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 Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by 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 Reconsideration, but after considering the
Comment/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 April 1996, 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 petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution 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:
________________
Id. at 195.
10
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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 THE
UNFORTUNATE 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 of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their Comment, private respondents contend that the petition should not be
12
given due course since the motion for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate court 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
for reconsideration is attributable to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9
June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the appellate court was fur-
________________
Rollo, p. 19.
11
Id. at 91-98.
12
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59 SUPREME COURT
8 REPORTS
ANNOTATED
nished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive
period for filing 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 lawyer at his given address. With a few exceptions, notice to a litigant without notice to
his counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be
taken against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the
former should be considered in determining the timeliness of the filing of the present petition.
Based on this, 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 more logical presentation of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means “the thing or the transaction speaks
for itself.” The phrase “res ipsa loquitur” is a maxim for the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of
fact for defendant to meet with an explanation. Where the thing which caused the injury
13
complained of is shown to be under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen if those who have its man-
________________
57B Am Jur 2d, 493 (1989).

13
599
29, 1999
agement or control use proper care, it affords reasonable evidence, in the absence of explanation
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 of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. It is 15
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
16
knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as
such, does not create or constitute an independent or separate ground of liability. Instead, it is
17
considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode
18
of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. In other words, mere
19
invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
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
________________
Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).
14
57B Am Jur 2d, supra note 13 at 499.

15
Ibid.
16
Id. at 502.
17
Ibid.
18
Id.
19
600
60 SUPREME COURT
0 REPORTS
ANNOTATED
of going forward with the proof. Still, before resort to the doctrine may be allowed, the
20
following requisites must be satisfactorily shown:
1. 1.The accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence;
2. 2.It is caused by an instrumentality within the exclusive control of the defendant
or defendants; and
3. 3.The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 21
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
22
defendant. 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. 23
Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa
24
loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm. The 25
application of res ipsa loquitur in medical negligence cases presents a question of law since it is
________________
20
Id. at 503.
21
Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 324 P.2d 501; Lamb
v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P.2d 647.
22
St. John’s Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).
23
57B Am Jur 2d, supra note 13, at 513.
24
It is the type of claim which a victim has available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778 [1997]).
25
Voss vs. Bridwell, supra note 21.
601
29, 1999
a judicial function to determine whether a certain set of circumstances 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 physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. The 27
reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, 28
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
29
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
30
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
________________
Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

26
SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

27
Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P. 237.
28
Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423.
29
SOLIS, supra note 27, at 239.
30
602
60 SUPREME COURT
2 REPORTS
ANNOTATED
occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between
31
the particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations:
leaving of a foreign object in the body of the patient after an operation, injuries sustained on a
32
healthy part of the body which was not under, or in the area, of treatment, removal of the wrong
33
part of the body when another part was intended, knocking out a tooth while a patient’s jaw was
34
under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was
35
under the influence of anesthetic, during or following an operation for appendicitis, among 36
others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to mechanically
shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances of each case. It is generally restricted
to situations in malpractice cases where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of professional care were not as such as
would ordinarily have followed if due care had been exercised. A distinction must
37
________________
Voss vs. Bridwell, supra note 21 at 970-971.

31
Armstrong vs. Wallace, 47 P. 2d 740 (1935).

32
Thomsen vs. Burgeson, 79 P. 2d 136 (1938).

33
Griffin vs. Norman, 192 NYS 322 (1922).

34
Brown vs. Shortilledge, 277 P. 134 (1929).

35
Meadows vs. Patterson, 109 S.W. 2d 417 (1937).

36
Voss vs. Bridwell, supra note 21, at 969.

37
603
29, 1999
be made between the failure to secure results, and the occurrence of something more unusual and
not ordinarily found if the service or treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can
have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to
38
explain why any particular diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if
39
the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any
40
extraordinary incident or unusual event outside of the routine performance occurred which is
beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or
causes of the untoward consequence. If there was such extraneous interventions, the doctrine
41
of res ipsa loquitur may be utilized and the defendant is called upon to explain 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, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme
43
Court in applying the res ipsa loquitur stated:

________________
Id. at 968.
38
Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).

39
Voss vs. Bridwell, supra note 21, at 968.

40
Sanders vs. Smith, 27 So. 2d 889, 893 (1946).

41
Ibid.
42
Voss vs. Bridwell, supra note 21.

43
604
60 SUPREME COURT
4 REPORTS
ANNOTATED
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the operation
was never performed. At the time of submission he was neurologically sound and physically fit in mind
and body, but he suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts and under
these circumstances a layman would be able to say, as a matter of common knowledge and observation,
that the consequences of professional treatment were not as such as would ordinarily have followed if due
care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they 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 of action 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 on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private 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 in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she
________________
Id. at 971.
44
605
29, 1999
went out of the operating room already decerebrate and totally incapacitated. Obviously, brain
damage, which Erlinda sustained, is an injury which does not normally occur in the process of a
gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a
person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, 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 under the influence of
anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application 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 the doctrine is applicable in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light
and scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein,
606
60 SUPREME COURT
6 REPORTS
ANNOTATED
the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses 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 of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation of the patient and thus, cannot be said
45
to be covering her negligence with falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic reaction of the patient to the 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 of petitioners 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 court returned a verdict in favor of respondents physicians
________________
45
It is the method of intubating a patient through the oral cavity. Under this procedure, after the patient has been
preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist inserts an instrument called a
laryngoscope into the patient’s oral pharynx. The patient’s neck is hyperextended, that is, bent back as far as possible so
that the anesthetist can see or “visualize” the patient’s epiglottis and vocal cords. The anesthetist will then thread the
endotracheal tube between the patient’s vocal cords into the trachea, and then hook the tube to the breathing bag and
anesthetic machine.
607
29, 1999
and hospital and absolved them of any liability towards Er-linda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their
negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private respondents’ own testimonies
which are reflected in the transcript of stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne 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’s sister-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 by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent
Your Honor.
COURT:
Witness may answer if
she knows.
A As I have said, I was with
: the patient, I was beside
the stretcher holding the
left hand of the patient
and all of a sudden I
heard some remarks
coming from Dra.
Perfecta
608
60 SUPREME COURT
8 REPORTS
ANNOTATED
Gutierrez herself. She
was saying “Ang hirap
maintubate nito, mali
yata ang pagkakapasok.
O lumalaki ang tiyan.”
xxx
ATTY. PAJARES:
Q: From whom did you
hear those words
“lumalaki ang tiyan?
A: From Dra. Perfecta
Gutierrez.
xxx
Q. After hearing the phrase
“lumalaki ang tiyan,”
what did you notice on
the person of the
patient?
A: I notice (sic) some
bluish discoloration on
the nailbeds ofthe left
hand where I was at.
Q: Where was Dr. Orlino
Ho[s]aka then at that
particulartime?
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 the
patient’s nailbed became
bluish and I saw
thepatient was placed in
trendelenburg position.
xxx
Q: Do you know the reason
why the patient was
placed in that
trendelenburg position?
A: As far as I know, when a
patient is in that
position, there is a
decrease of blood supply
to the brain.
46
xxx
________________
TSN, January 13, 1988, pp. 16-20.

46
609
29, 1999
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 not taught as part
of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz, 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 she conducted 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’s categorical
statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases.47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is
not an anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external appearances,
and manifest conditions which are observable by any one. This is precisely allowed under the
48
doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence in nontechnical
matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony
________________
CA Rollo, pp. 134-135.

47
Stockham vs. Hall, supra note 29.

48
610
61 SUPREME COURT
0 REPORTS
ANNOTATED
unnecessary. We take judicial notice of the fact that anesthesia procedures have become so
49
common, that even an ordinary person can tell if it was administered properly. As such, it would
not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner’s witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
of Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. Reviewing witness Cruz’ statements, we find that the same were delivered in a
50
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to 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 she experienced 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 first
attempt (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 . . .
:
________________
61 Am Jur 2d, 513 (1989).

49
TSN, January 13, 1988, p. 3.

50
611
VOL. 321, 611
DECEMBER
29, 1999
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
encountered hardship 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) making it
52
harder to locate and, since Erlinda is obese 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
no evidence demonstrating that they proceeded to make a thorough assessment of Erlindas
airway, prior to the induction of anesthesia, even if this would mean postponing the procedure.
From their testimonies, it appears 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 to lessen the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the anesthesiologist reviews the patient’s medical
records and visits with the patient, traditionally, the day before elective surgery. It includes
53
taking the patient’s medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. The physical examination performed by the
54
________________
TSN, November 15, 1990, p. 11.

51
TSN, October 9, 1990, p. 13.

52
STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).

53
Ibid.
54
612
61 SUPREME COURT
2 REPORTS
ANNOTATED
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system,
lungs and upper airway. A thorough analysis of the patient’s airway normally involves
55
investigating the following: cervical spine mobility, temporomandibular mobility, prominent

central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance. Thus, physical characteristics of the patient’s upper airway that could make tracheal
56
intubation difficult should be studied. Where the need arises, as when initial assessment
57
indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient’s airway would go a long way towards decreasing patient
morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She
was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for
the first time only an hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physician’s centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around
with the trial court’s ignorance of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency
________________
Id. at 105 (Italics supplied).

55
Id. at 106.
56
Id.
57
613
29, 1999
surgery just so her failure to perform 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 the patient
a day before so you can
introduce yourself to
establish good doctor-
patient relationship and
gainthe trust and
confidence of the patient?
DRA. GUTIERREZ:
A As I said in my previous
: statement, it depends on
the operative procedure of
the anesthesiologist and
in my case, with elective
cases and normal cardio-
pulmonary clearance like
that, I usually don’t do it
except on emergency 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 for the fastidious demands of preoperative procedure so that an anesthesiologist is able
to see the patient only 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 anesthesiologist possesses the luxury of time to make a proper assessment, including
the time to be at the patient’s bedside 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 hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one
day before 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 to make 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
________________
TSN, November 15, 1990, p. 6.

58
614
61 SUPREME COURT
4 REPORTS
ANNOTATED
petitioner only in the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage 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 patient which, in turn, resulted to a wrongful intubation,
we now determine if the faulty intubation is truly the proximate cause of Erlinda’s comatose
condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to
Erlinda’s coma was due to bronchospasm mediated by her allergic response to the drug,
59
Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board
of Internal Medicine, who advanced private re-spondents’ theory that the oxygen deprivation
which led to anoxic encephalopathy, was due to an unpredictable drug reaction to the short-
60
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 he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have
been capable of properly enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora’s testimony as an expert witness
in the anesthetic
________________
Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as in asthma).
59
Permanent damage to the brain caused by inadequate oxygenation.

60
615
29, 1999
practice of Pentothal administration is further supported by his own admission that he formulated
his opinions on the drug not from the practical experience gained by a specialist or expert in the
administration 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 to use
pentothal as a method of
management?
DR. JAMORA:
A We do it in conjunction
: with the anesthesiologist
when they have to
intubate 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
what you have read from
books and not by your
own personal application
of the medicine
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 own
personal experience you
feel that you can testify
on pentothal here with
medical 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 of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamoras field,
the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of
________________
TSN, February 28, 1991, pp. 10-11.

61
616
61 SUPREME COURT
6 REPORTS
ANNOTATED
the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to
Dr. Jamora’s testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence regarding expert witnesses states:
62
Sec. 49. Opinion of expert witness.—The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness
63
based on the above standard since he lacks the necessary knowledge, skill, and training in the
field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong
field, private respondents’ intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents’ theory, that Thiopental Sodium may have produced Erlinda’s
coma by triggering 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 on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents’ hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident
________________
Rule 130, RULES OF COURT.

62
61 Am Jur 2d, supra note 49, 516.

63
617
29, 1999
would be an act of God. Evidently, the Thiopentalallergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to absolve
them of 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 intubation which was the proximate cause of Erlinda’s comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the result would
not have occurred. An injury or damage is proximately caused by an act or a failure to act,
64
whenever it appears from the evidence in the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or omission. It is the
65
dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a
failure. This fact was likewise observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.” Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of
the intended endotracheal
________________
BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

64
Ibid.
65
618
61 SUPREME COURT
8 REPORTS
ANNOTATED
intubation what actually took place was an esophageal intubation. During intubation, such
distention indicates that air has entered the gastrointestinal tract through the esophagus instead of
the lungs through the trachea. Entry into the esophagus would certainly cause some delay in
oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first intubation suggests 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 her lungs
Erlinda showed signs of cyanosis. As stated in the testimony of Dr. Hosaka, the lack of oxygen
66
became apparent only after he noticed that the nailbeds of Erlinda were already blue. However, 67
private respondents contend that a second intubation was executed on Erlinda and this one was
successfully done. We do not think so. No evidence exists on record, beyond private
respondents’ bare claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into the proper orifice of
the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately after the second intubation.
Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that
the second intubation was accomplished. Even granting that the tube was successfully inserted
during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
already suffered brain damage as a result of the inadequate oxygenation of her brain for about
four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated with anes-
________________
66
It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the
blood.
67
TSN, March 27, 1990, p. 22.
68
Records, p. 274.
619
29, 1999
thesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may
69
be anticipated by performing a thorough evaluation of the patient’s airway prior to the

operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-
70
operative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the patient’s neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. In other 71
words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative

evaluation, would have had little difficulty going around the short neck and protruding
teeth. Having failed to observe common medical standards in pre-operative management and
72
intubation, respondent Dra. Gutierrez’ negligence resulted in cerebral anoxia and eventual coma
of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the so-called “captain of the ship,” it is the surgeon’s responsibility to see to it
73
that those under him perform their task in the proper manner. Respondent Dr. Hosaka’s
negligence can be found in his failure to exercise the proper authority (as the “captain” of
________________
FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).

69
Ibid.
70
Id., The book provides a thorough discussion on the management of difficult intubations.
71
Id.
72
Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the
73
crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within
the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who
are under his physical control but also those wherein he has extension of control.
620
62 SUPREME COURT
0 REPORTS
ANNOTATED
the operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent 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 Erlindas cholecystectomy, and was in fact over three hours late for the latter’s operation.
Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his
patient. Thus, he shares equal responsibility for the events which resulted in Erlinda’s condition.
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 not hospital employees, presents problems in apportioning
74
responsibility for negligence in medical malpractice cases. 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 the conduct of their work within the hospital premises. Doctors who apply for
“consultant” slots, visiting or attending, are required to submit proof of completion of residency,
their educational qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject
________________
The term “consultant” is loosely used by hospitals to distinguish their attending and visiting physicians from the
74
residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is
used.
621
29, 1999
the application. This is particularly true with respondent hospital.
75
After a physician is accepted, either as a visiting or attending consultant, he is normally

required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns
and residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physician’s performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting “consultant” staff. While “consultants” are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patient’s condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioner’s condition. 76
________________
These requirements are in fact found in the standard application forms for visiting and attending physicians of
75
respondent hospital.
The hospital’s control over respondent physicians is all the more significant when one considers the fact that it
76
controls every-
622
62 SUPREME COURT
2 REPORTS
ANNOTATED
The basis for holding an employer solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the former’s responsibility under a relationship
of patria potestas. Such responsibility ceases when the persons or entity concerned prove that
77
they have observed the diligence of a good father of the family to prevent damage. In other 78
words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) 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
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervi-
________________
thing which occurs in an operating room, through its nursing supervisors and charge nurses. No operations can be
undertaken without the hospital’s direct or indirect consent.
VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
77
Art. 2180 of the Civil Code provides: The obligation imposed by Article 2176 is demandable not only for one’s own
78
acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor
children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live
in their company.
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.
623
29, 1999
sion of the latter. It failed to adduce evidence with regard to the degree of supervision which 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. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda’s condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on
the testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily liable for damages under Article
2176 of the Civil Code.
79
We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (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 care of the patient estimated at P8,000.00.
At current levels, the P8,000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced 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 in the care of the chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and hypostatic pneumonia.
________________
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
79
damage done.
624
62 SUPREME COURT
4 REPORTS
ANNOTATED
Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to
provide her with the correct daily caloric requirements and vitamin supplements. Furthermore,
she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a
pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory 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 him as 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. Such compensation is referred to as actual
or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into account those situations, as in this
case, where the resulting injury might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made
625
29, 1999
with certainty. In other words, temperate damages can and should be awarded on top of actual or
80
compensatory damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable—and certainly not in the best interests of the administration of
justice—for the victim in such cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously awarded—temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of litigation,
it would be now much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the
82
injury suffered by the plaintiff would have led to expenses which were difficult to
________________
Art. 2224, CIVIL CODE.

80
Should petitioner remain in the same condition for another ten years, the amount awarded in the form of temperate
81
damages would in fact, be inadequate.

253 SCRA 303 (1996).
82
626
62 SUPREME COURT
6 REPORTS
ANNOTATED
estimate because while they would have been a direct result of the injury (amputation), and were
certain to be incurred by the plaintiff, they were likely to arise only 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 of her 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, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all postmenopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic
changes which her body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational therapy. All of these
adjustments, it has been documented, are painful.
x x x.
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 are forever lost.
The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.83
________________
Id. at 327-328.
83
627
29, 1999
The injury suffered by Erlinda as a consequence of private respondents’ negligence is certainly
much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in
a comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband 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 virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioner’s condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim’s actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victim’s condition. The husband and the children, all
84
petitioners in this case, will have to live with the day to day uncertainty of the patient’s illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives around the
nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care
of the victim. The family’s moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award 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 at P100,000.00 are likewise proper.
________________
Id. at 328.
84
628
62 SUPREME COURT
8 REPORTS
ANNOTATED
Our courts face unique difficulty in adjudicating medical negligence cases because physicians
are not insurers of life and, they rarely set out to intentionally cause injury or death to their
patients. However, intent is immaterial in negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the
purpose of preventing complications. A physician’s experience with his patients would
sometimes tempt him to deviate from established community practices, and he may end a
distinguished career using unorthodox methods without incident. However, when failure to
follow established procedure results in the evil precisely sought to be averted by observance of
the procedure and a nexus is made between the deviation and the injury or damage, the physician
would necessarily be called to account for it. In the case at bar, the failure to observe
preoperative assessment protocol which would have influenced the intubation in a salutary way
was fatal to private respondents’ case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages; 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney’s fees; and, 5) the
costs of the suit.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.
Judgment modified.
629
VOL. 321, 629
DECEMBER 29, 1999
Land Bank of the Philippines
vs. Court of Appeals
Note.—Proximate cause is determined on the facts of each case upon mixed considerations of
logic, common sense, policy and precedent. (Philippine Bank of Commerce vs. Court of
Appeals, 269 SCRA 695 [1997])
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Ramos vs.

VOL. 321, 585

VOL. 321, 587

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Docketed as Civil Case No. Q-46885.

Records, pp. 276-278.

CA Rollo, p. 166.

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ,

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

57B Am Jur 2d, 493 (1989).

57B Am Jur 2d, supra note 13 at 499.

following requisites must be satisfactorily shown:

Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

Voss vs. Bridwell, supra note 21 at 970-971.

Armstrong vs. Wallace, 47 P. 2d 740 (1935).

Thomsen vs. Burgeson, 79 P. 2d 136 (1938).

Griffin vs. Norman, 192 NYS 322 (1922).

Brown vs. Shortilledge, 277 P. 134 (1929).

Meadows vs. Patterson, 109 S.W. 2d 417 (1937).

Voss vs. Bridwell, supra note 21, at 969.

Court in applying the res ipsa loquitur stated:

Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).

Voss vs. Bridwell, supra note 21, at 968.

Sanders vs. Smith, 27 So. 2d 889, 893 (1946).

Voss vs. Bridwell, supra note 21.

TSN, January 13, 1988, pp. 16-20.

CA Rollo, pp. 134-135.

Stockham vs. Hall, supra note 29.

61 Am Jur 2d, 513 (1989).

TSN, January 13, 1988, p. 3.

TSN, November 15, 1990, p. 11.

TSN, October 9, 1990, p. 13.

STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).

investigating the following: cervical spine mobility, temporomandibular mobility, prominent

Id. at 105 (Italics supplied).

TSN, November 15, 1990, p. 6.

acting barbiturate. We find the theory of private respondents unacceptable.

Permanent damage to the brain caused by inadequate oxygenation.

TSN, February 28, 1991, pp. 10-11.

Rule 130, RULES OF COURT.

61 Am Jur 2d, supra note 49, 516.

dominant, moving or producing cause.

BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

be anticipated by performing a thorough evaluation of the patient’s airway prior to the

words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative

FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).

After a physician is accepted, either as a visiting or attending consultant, he is normally

Art. 2224, CIVIL CODE.

damages would in fact, be inadequate.

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