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.

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
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, which
3

overturned the decision   of the Regional Trial Court, dated 30 January 1992, finding private
4

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 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 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 ma-intubate 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 operating room, she saw this anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was placed in a trendelenburg
position — a position where the head of the patient is placed in a position lower than
her feet 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 . . . 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 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 of
6

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
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
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.

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

3) the sum of P800,000.00 by way of moral damages and the further

sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED.  7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate 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 counsel, Atty. Sillano, to replace
9

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 pleading 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 the 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:

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 given due course since the
12

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 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 believed 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 complained of is shown to be
13

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 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.  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 grounded in
15

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.
16

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 of
18

proof, or a mere procedural of 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
19

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
20

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.  21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage.   Such element of control must be shown to be within the dominion of the defendant. In
22

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 application
25

of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does, as a matter of law, permit a given
inference.  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 reason is that the
27

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
28

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
29

loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury
to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care.   Where common knowledge and experience
30

teach that a resulting injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what occurred but
how and why it occurred.   When the doctrine is appropriate, all that the patient must do is prove a
31

nexus between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by
him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation,   injuries sustained on a healthy part of
32

the body which was not under, or in the area, of treatment,   removal of the wrong part of the body
33

when another part was intended,   knocking out a tooth while a patient's jaw was under anesthetic
34

for the removal of his tonsils,   and loss of an eye while the patient plaintiff was under the influence
35

of anesthetic, during or following an operation for appendicitis,   among others.

36

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care
had been
exercised.   A distinction must be made between the failure to secure results, and the occurrence of
37

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
38

peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.   Thus, res ipsa loquitur is not available in a
39

malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished.   The real question, therefore, is whether or not in the process of the operation any
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 of res ipsa loquitur may be
41

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:

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 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 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, 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
Erlinda's 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 to be covering her
45

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 and hospital and absolved them of any
liability towards Erlinda 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 have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden heard some
remarks coming from Dra. Perfecta Gutierrez herself. She was saying
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.

x x x           x x x          x x x

ATTY. PAJARES:

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

A: From Dra. Perfecta Gutierrez.

 x x x           x x x          x x x

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 of the left

hand where I was at.

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

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

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

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

Dr. Calderon.

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

A: Yes sir.

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

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

Q: What happened to the patient?

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

x x x           x x x          x x x

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

x x x           x x x          x x x

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 doctrine of res
48

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 non-technical 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 unnecessary.   We take judicial notice of the fact
49

that anesthesia procedures have become so 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 at 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,
50

we find that the same were delivered in a 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 . . .

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 harder to locate
52

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 Erlinda's 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 taking the patient's medical
53

history, review of current drug therapy, physical examination and interpretation of laboratory
data.   The physical examination performed by the anesthesiologist is directed primarily toward the
54

central nervous system, cardiovascular system, lungs and upper airway.   A thorough analysis of the
55

patient's airway normally involves 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
56

could make tracheal intubation difficult should be studied.   Where the need arises, as when initial
57

assessment 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 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 gain the 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 pre-operative 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 be at the patient's beside to do a proper interview
and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be
used, and their possible 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 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, Thiopental
59

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 respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy,   was due to an unpredictable drug reaction to the short-acting barbiturate. We find
60

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 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. Jamora's 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 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 based on the
63

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 would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to 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, whenever it
64

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
65

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 Erlinda's 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 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 became apparent
66

only after he noticed that the nailbeds of Erlinda were already blue.   However, private respondents
67

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
anesthesia.   Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations
69

may 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 words, an
71

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
72

common medical standards in pre-operative management and 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 that those
73

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 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 Erlinda's cholecystectomy, and was in
fact over three hours late for the latter's operation. Because of this, he had little or no time to 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
74

are allegedly not hospital employees, presents problems in apportioning 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 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

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
77

observed the diligence of a good father of the family to prevent damage.   In other words, while the
78

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 supervision 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 P8000/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. 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 with certainty.   In other words, temperate
80

damages can and should be awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided for. The reason is that
these damages cover two distinct phases.

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

In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be
now much more in step with the interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable.  81

In Valenzuela vs. Court of Appeals,   this Court was confronted with a situation where the injury
82

suffered by the plaintiff would have led to expenses which were difficult to 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 the 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 post-menopausal 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           x x x          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

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 petitioners in
84

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.

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 pre-operative 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.
G.R. No. 124354            April 11, 2002

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

RESOLUTION

KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez
move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them
civilly liable for petitioner Erlinda Ramos’ comatose condition after she delivered herself to them for
their professional care and management.

For better understanding of the issues raised in private respondents’ respective motions, we will
briefly restate the facts of the case as follows:

Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised
to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was
referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical
Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any
anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.

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

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

By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to
pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of
waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or
more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival. While she held
the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez
utter: "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Cruz noticed
a bluish discoloration of Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka
instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon
attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed
in a trendelenburg position – a position where the head of the patient is placed in a position lower
than her feet. At this point, Cruz went out of the operating room to express her concern to petitioner
Rogelio that Erlinda’s operation was not going well.

Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg
position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit
(ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in
the ICU for a month. She was released from the hospital only four months later or on November 15,
1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August
3, 1999.1

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

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

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

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

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD

RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-SHIP"
DOCTRINE.

II

THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA

LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.

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

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

A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED

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

B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED

SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY
CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT
PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER
COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER
RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.

B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY

DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER
HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH

RELIANCE ON THE TESTIMONY OF PETITIONER’S WITNESS HERMINDA CRUZ,
DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH
RENDERS DOUBT ON HER CREDIBILITY

D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT

TESTIMONY OF DR. JAMORA AND DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED

DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE
ON THE PART OF RESPONDENT DOCTOR. 4

Private respondent De Los Santos Medical Center likewise moves for reconsideration on the
following grounds:

THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS
THE DECISION OF THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL
AND EXECUTORY

II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE
[RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND
DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ

III

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS

SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS

IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN

FAVOR OF PETITIONERS. 5

In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for
reconsideration. The Philippine College of Surgeons filed its Petition-in-Intervention contending in
the main that this Court erred in holding private respondent Dr. Hosaka liable under the captain of
the ship doctrine. According to the intervenor, said doctrine had long been abandoned in the United
States in recognition of the developments in modern medical and hospital practice. The Court noted
6 

these pleadings in the Resolution of July 17, 2000. 7

On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor. Also
present during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
Philippine Charity Sweepstakes, former Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of Anesthesiology,
College of Medicine-Philippine General Hospital, University of the Philippines; and Dr. Lydia M.
Egay, Professor and Vice-Chair for Academics, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines.

The Court enumerated the issues to be resolved in this case as follows:

1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR

NEGLIGENCE;

2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE

FOR NEGLIGENCE; AND

3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE

FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT
SURGEON AND ANESTHESIOLOGIST. 8

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the
Court erred in finding her negligent and in holding that it was the faulty intubation which was the
proximate cause of Erlinda’s comatose condition. The following objective facts allegedly negate a
finding of negligence on her part: 1) That the outcome of the procedure was a comatose patient and
not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from
that cardiac arrest. In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the
9 

intubation she performed on Erlinda was successful.

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

x x x What are the standards of care that an anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-
operative evaluation because the anesthesiologist is responsible for determining the medical
status of the patient, developing the anesthesia plan and acquainting the patient or the
responsible adult particularly if we are referring with the patient or to adult patient who may
not have, who may have some mental handicaps of the proposed plans. We do pre-
operative evaluation because this provides for an opportunity for us to establish identification
and personal acquaintance with the patient. It also makes us have an opportunity to alleviate
anxiety, explain techniques and risks to the patient, given the patient the choice and
establishing consent to proceed with the plan. And lastly, once this has been agreed upon by
all parties concerned the ordering of pre-operative medications. And following this line at the
end of the evaluation we usually come up on writing, documentation is very important as far
as when we train an anesthesiologist we always emphasize this because we need records
for our protection, well, records. And it entails having brief summary of patient history and
physical findings pertinent to anesthesia, plan, organize as a problem list, the plan
anesthesia technique, the plan post operative, pain management if appropriate, special
issues for this particular patient. There are needs for special care after surgery and if it so it
must be written down there and a request must be made known to proper authorities that
such and such care is necessary. And the request for medical evaluation if there is an
indication. When we ask for a cardio-pulmonary clearance it is not in fact to tell them if this
patient is going to be fit for anesthesia, the decision to give anesthesia rests on the
anesthesiologist. What we ask them is actually to give us the functional capacity of certain
systems which maybe affected by the anesthetic agent or the technique that we are going to
use. But the burden of responsibility in terms of selection of agent and how to administer it
rest on the anesthesiologist.10

The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or

emergency, cannot be dispensed with. Such evaluation is necessary for the formulation of a plan of
11 

anesthesia care suited to the needs of the patient concerned.

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

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

Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she
herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before
the scheduled operation. She auscultated the patient’s heart and lungs and checked the latter’s
14 

blood pressure to determine if Erlinda was indeed fit for operation. However, she did not proceed to
15 

examine the patient’s airway. Had she been able to check petitioner Erlinda’s airway prior to the
operation, Dr. Gutierrez would most probably not have experienced difficulty in intubating the former,
and thus the resultant injury could have been avoided. As we have stated in our Decision:
 In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time
on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations
with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient
for the first time only an hour before the scheduled operative procedure was, therefore, an
act of exceptional negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the physician’s
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.16

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

CHIEF JUSTICE:

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

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

How do you mean by that, a comatose, a comatose after any other acts were done
by Dr. Gutierrez or comatose before any act was done by her?

ATTY. GANA:

No, we meant comatose as a final outcome of the procedure.

CHIEF JUSTICE:

Meaning to say, the patient became comatose after some intervention, professional
acts have been done by Dr. Gutierrez?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

In other words, the comatose status was a consequence of some acts performed by
D. Gutierrez?

ATTY. GANA:
 It was a consequence of the well, (interrupted)

CHIEF JUSTICE:

An acts performed by her, is that not correct?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

Thank you. 17

What is left to be determined therefore is whether Erlinda’s hapless condition was due to any fault or
negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latter’s care. Dr. Gutierrez
maintains that the bronchospasm and cardiac arrest resulting in the patient’s comatose condition
was brought about by the anaphylactic reaction of the patient to Thiopental Sodium (pentothal). In 18 

the Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the first place, Dr.
Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a
pulmonologist. Thus, he could not be considered an authority on anesthesia practice and procedure
and their complications.19

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

DR. CAMAGAY:

All right, let us qualify an allergic reaction. In medical terminology an allergic reaction
is something which is not usual response and it is further qualified by the release of a
hormone called histamine and histamine has an effect on all the organs of the body
generally release because the substance that entered the body reacts with the
particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is
some form of response to take away that which is not mine, which is not part of the
body. So, histamine has multiple effects on the body. So, one of the effects as you
will see you will have redness, if you have an allergy you will have tearing of the
eyes, you will have swelling, very crucial swelling sometimes of the larynges which is
your voice box main airway, that swelling may be enough to obstruct the entry of air
to the trachea and you could also have contraction, constriction of the smaller
airways beyond the trachea, you see you have the trachea this way, we brought
some visual aids but unfortunately we do not have a projector. And then you have
the smaller airways, the bronchi and then eventually into the mass of the lungs you
have the bronchus. The difference is that these tubes have also in their walls
muscles and this particular kind of muscles is smooth muscle so, when histamine is
released they close up like this and that phenomenon is known as bronco spasm.
However, the effects of histamine also on blood vessels are different. They dilate
blood vessel open up and the patient or whoever has this histamine release has
hypertension or low blood pressure to a point that the patient may have decrease
blood supply to the brain and may collapse so, you may have people who have this. 20
These symptoms of an allergic reaction were not shown to have been extant in Erlinda’s case. As
we held in our Decision, "no evidence of stridor, skin reactions, or wheezing – some of the more
common accompanying signs of an allergic reaction – appears on record. No laboratory data were
ever presented to the court."21

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

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

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

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

12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate &
another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously
given & assisted positive pressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management. 22

From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube.
And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the
tube proved that it was properly placed.

The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr.
Gutierrez’ synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made
only after Erlinda was taken out of the operating room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she
could not account for at least ten (10) minutes of what happened during the administration of
anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and
Dr. Gutierrez is instructive:

DR. ESTRELLA

Q         You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ

Yes.

Q         There were two attempts. In the first attempt was the tube inserted or was the
laryngoscope only inserted, which was inserted?

A         All the laryngoscope.

Q         All the laryngoscope. But if I remember right somewhere in the re-direct, a certain
lawyer, you were asked that you did a first attempt and the question was – did you withdraw
the tube? And you said – you never withdrew the tube, is that right?

A         Yes.

Q         Yes. And so if you never withdrew the tube then there was no, there was no insertion
of the tube during that first attempt. Now, the other thing that we have to settle here is –
when cyanosis occurred, is it recorded in the anesthesia record when the cyanosis, in your
recording when did the cyanosis occur?

A         (sic)

Q         Is it a standard practice of anesthesia that whatever you do during that period or from
the time of induction to the time that you probably get the patient out of the operating room
that every single action that you do is so recorded in your anesthesia record?

A         I was not able to record everything I did not have time anymore because I did that
after the, when the patient was about to leave the operating room. When there was second
cyanosis already that was the (interrupted)

Q         When was the first cyanosis?

A         The first cyanosis when I was (interrupted)

Q         What time, more or less?

A         I think it was 12:15 or 12:16.

Q         Well, if the record will show you started induction at 12:15?

A         Yes, Your Honor.

Q         And the first medication you gave was what?

A         The first medication, no, first the patient was oxygenated for around one to two
minutes.

Q         Yes, so, that is about 12:13?

A         Yes, and then, I asked the resident physician to start giving the pentothal very slowly
and that was around one minute.

Q         So, that is about 12:13 no, 12:15, 12:17?

A         Yes, and then, after one minute another oxygenation was given and after (interrupted)

Q         12:18?

A         Yes, and then after giving the oxygen we start the menorcure which is a relaxant.
After that relaxant (interrupted)

Q         After that relaxant, how long do you wait before you do any manipulation?

A         Usually you wait for two minutes or three minutes.

Q         So, if our estimate of the time is accurate we are now more or less 12:19, is that
right?

A         Maybe.

Q         12:19. And at that time, what would have been done to this patient?

A         After that time you examine the, if there is relaxation of the jaw which you push it
downwards and when I saw that the patient was relax because that monorcure is a relaxant,
you cannot intubate the patient or insert the laryngoscope if it is not keeping him relax. So,
my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly. So,
what I did ask "mahirap ata ito ah." So, I removed the laryngoscope and oxygenated again
the patient.

Q         So, more or less you attempted to do an intubation after the first attempt as you
claimed that it was only the laryngoscope that was inserted.

A         Yes.

Q         And in the second attempt you inserted the laryngoscope and now possible
intubation?

A         Yes.

Q         And at that point, you made a remark, what remark did you make?

A         I said "mahirap ata ito" when the first attempt I did not see the trachea right away.
That was when I (interrupted)

Q         That was the first attempt?

A         Yes.

Q         What about the second attempt?

A         On the second attempt I was able to intubate right away within two to three seconds.

Q         At what point, for purposes of discussion without accepting it, at what point did you
make the comment "na mahirap ata to intubate, mali ata ang pinasukan"

A         I did not say "mali ata ang pinasukan" I never said that.

Q         Well, just for the information of the group here the remarks I am making is based on
the documents that were forwarded to me by the Supreme Court. That is why for purposes of
discussion I am trying to clarify this for the sake of enlightenment. So, at what point did you
ever make that comment?

A         Which one, sir?

Q         The "mahirap intubate ito" assuming that you (interrupted)

A         Iyon lang, that is what I only said "mahirap intubate (interrupted)

Q         At what point?

A         When the first attempt when I inserted the laryngoscope for the first time.

Q         So, when you claim that at the first attempt you inserted the laryngoscope, right?

A         Yes.

Q         But in one of the recordings somewhere at the, somewhere in the transcript of

records that when the lawyer of the other party try to inquire from you during the first attempt
that was the time when "mayroon ba kayong hinugot sa tube, I do not remember the page
now, but it seems to me it is there. So, that it was on the second attempt that (interrupted)

A         I was able to intubate.

Q         And this is more or less about what time 12:21?

A         Maybe, I cannot remember the time, Sir.

Q         Okay, assuming that this was done at 12:21 and looking at the anesthesia records
from 12:20 to 12:30 there was no recording of the vital signs. And can we presume that at
this stage there was already some problems in handling the patient?

A         Not yet.

Q         But why are there no recordings in the anesthesia record?

A         I did not have time.

Q         Ah, you did not have time, why did you not have time?

A         Because it was so fast, I really (at this juncture the witness is laughing)
 Q         No, I am just asking. Remember I am not here not to pin point on anybody I am here
just to more or less clarify certainty more ore less on the record.

A         Yes, Sir.

Q         And so it seems that there were no recording during that span of ten (10) minutes.
From 12:20 to 12:30, and going over your narration, it seems to me that the cyanosis
appeared ten (10) minutes after induction, is that right?

A         Yes.

Q         And that is after induction 12:15 that is 12:25 that was the first cyanosis?

A         Yes.

Q         And that the 12:25 is after the 12:20?

A         We cannot (interrupted)

Q         Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the
record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there
is no recording from 12:20 to 12:30, so, I am just wondering why there were no recordings
during the period and then of course the second cyanosis, after the first cyanosis. I think that
was the time Dr. Hosaka came in?

A         No, the first cyanosis (interrupted). 23

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

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the
Decision, she is competent to testify on matters which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances and manifest conditions
which are observable by any one. Cruz, Erlinda’s sister-in-law, was with her inside the operating
24 

room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that,
she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
remark, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." She
observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in
trendelenburg position. Cruz further averred that she noticed that the abdomen of Erlinda became
25 

distended. 26

The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the
endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently,
oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported
by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a
decrease of blood supply to the patient’s brain. The brain was thus temporarily deprived of oxygen
supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the
administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision,
the instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka. In Voss vs.
27 

Bridwell, which involved a patient who suffered brain damage due to the wrongful administration of
28 

anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas
Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient
therein was one which does not ordinarily take place in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an endotracheal tube. The court
went on to say that "[o]rdinarily a person being put under anesthesia is not rendered decerebrate as
a consequence of administering such anesthesia in the absence of negligence. Upon these facts
and under these circumstances, a layman would be able to say, as a matter of common knowledge
and observation, that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised." Considering the application of the doctrine
29 

of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar.

For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon
by applying the Captain-of-the-Ship doctrine. Dr. Hosaka argues that the trend in United States
30 

jurisprudence has been to reject said doctrine in light of the developments in medical practice. He
points out that anesthesiology and surgery are two distinct and specialized fields in medicine and as
a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has acquired skills and knowledge in the course of her
training which Dr. Hosaka, as a surgeon, does not possess. He states further that current American
31 

jurisprudence on the matter recognizes that the trend towards specialization in medicine has created
situations where surgeons do not always have the right to control all personnel within the operating
room, especially a fellow specialist.
32  33

Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, which involved a suit filed by a
34 

patient who lost his voice due to the wrongful insertion of the endotracheal tube preparatory to the
administration of anesthesia in connection with the laparotomy to be conducted on him. The patient
sued both the anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of
Appeals of West Virginia held that the surgeon could not be held liable for the loss of the patient’s
voice, considering that the surgeon did not have a hand in the intubation of the patient. The court
rejected the application of the "Captain-of-the-Ship Doctrine," citing the fact that the field of medicine
has become specialized such that surgeons can no longer be deemed as having control over the
other personnel in the operating room. It held that "[a]n assignment of liability based on actual
control more realistically reflects the actual relationship which exists in a modern operating
room." Hence, only the anesthesiologist who inserted the endotracheal tube into the patient’s throat
35 

was held liable for the injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine
does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From
the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the
very least, supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he
represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs.
Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a surgery,
he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient. 36

Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when
Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another
anesthesiologist and cardiologist to help resuscitate Erlinda. 37

Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez
worked as a team. Their work cannot be placed in separate watertight compartments because their
duties intersect with each other. 38

While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their
performance of acts within their respective fields of expertise for the treatment of petitioner Erlinda,
and that one does not exercise control over the other, they were certainly not completely
independent of each other so as to absolve one from the negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an
eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the
patient’s nails had become dusky and had to call Dr. Gutierrez’s attention thereto. The Court also
notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also have
to observe the surgeon’s acts during the surgical process and calls the attention of the surgeon
whenever necessary in the course of the treatment. The duties of Dr. Hosaka and those of Dr.
39 

Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim
them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the
patient, which responsibility necessitates that they call each other’s attention to the condition of the
patient while the other physician is performing the necessary medical procedures.

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

The unreasonable delay in petitioner Erlinda’s scheduled operation subjected her to continued
starvation and consequently, to the risk of acidosis, or the condition of decreased alkalinity of the
40 

blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual
disturbances. The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated the
41 

anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely
affected the administration of anesthesia on her. As explained by Dr. Camagay, the patient’s anxiety
usually causes the outpouring of adrenaline which in turn results in high blood pressure or
disturbances in the heart rhythm:

DR. CAMAGAY:

x x x Pre-operative medication has three main functions: One is to alleviate anxiety.

Second is to dry up the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When a patient is anxious
 there is an outpouring of adrenalin which would have adverse effect on the patient.
One of it is high blood pressure, the other is that he opens himself to disturbances in
the heart rhythm, which would have adverse implications. So, we would like to
alleviate patient’s anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going to
open up his body. x x x 42

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His
conduct clearly constituted a breach of his professional duties to Erlinda:

CHIEF JUSTICE:

Two other points. The first, Doctor, you were talking about anxiety, would you
consider a patient's stay on the operating table for three hours sufficient enough to
aggravate or magnify his or her anxiety?

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:

In other words, I understand that in this particular case that was the case, three
hours waiting and the patient was already on the operating table (interrupted)

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:

Would you therefore conclude that the surgeon contributed to the aggravation of the
anxiety of the patient?

DR. CAMAGAY:

That this operation did not take place as scheduled is already a source of anxiety
and most operating tables are very narrow and that patients are usually at risk of
falling on the floor so there are restraints that are placed on them and they are never,
never left alone in the operating room by themselves specially if they are already pre-
medicated because they may not be aware of some of their movement that they
make which would contribute to their injury.

CHIEF JUSTICE:

In other words due diligence would require a surgeon to come on time?

DR. CAMAGAY:

I think it is not even due diligence it is courtesy.

 CHIEF JUSTICE:

Courtesy.

DR. CAMAGAY:

And care.

CHIEF JUSTICE:

Duty as a matter of fact?

DR. CAMAGAY:

Yes, Your Honor. 43

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner
Erlinda is violative, not only of his duty as a physician "to serve the interest of his patients with the
greatest solicitude, giving them always his best talent and skill," but also of Article 19 of the Civil
44 

Code which requires a person, in the performance of his duties, to act with justice and give everyone
his due.

Anent private respondent DLSMC’s liability for the resulting injury to petitioner Erlinda, we held that
respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil
Code since there exists an employer-employee relationship between private respondent DLSMC
45 

and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting "consultant" staff. While "consultants" are not, technically employees, x x x the
control exercised, the hiring and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the control test is determining.
xxx 46

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

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

DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but
rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting
patients in the hospital upon a showing by the consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and
references. Second, it is not the hospital but the patient who pays the consultant’s fee for services
48 

rendered by the latter. Third, a hospital does not dismiss a consultant; instead, the latter may lose
49 

his or her accreditation or privileges granted by the hospital. Lastly, DLSMC argues that when a
50 

doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be
given to said patient. The hospital’s obligation is limited to providing the patient with the preferred
room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment
and facilities necessary for the treatment of the patient, as well as the services of the hospital staff
who perform the ministerial tasks of ensuring that the doctor’s orders are carried out strictly. 51

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

As explained by respondent hospital, that the admission of a physician to membership in DLSMC’s

medical staff as active or visiting consultant is first decided upon by the Credentials Committee
thereof, which is composed of the heads of the various specialty departments such as the
Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the
particular specialty applied for as chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's recommendation. Similarly, in
52 

cases where a disciplinary action is lodged against a consultant, the same is initiated by the
department to whom the consultant concerned belongs and filed with the Ethics Committee
consisting of the department specialty heads. The medical director/hospital administrator merely acts
as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services
rendered by the latter to their respective patients. Moreover, the contract between the consultant in
respondent hospital and his patient is separate and distinct from the contract between respondent
hospital and said patient. The first has for its object the rendition of medical services by the
consultant to the patient, while the second concerns the provision by the hospital of facilities and
services by its staff such as nurses and laboratory personnel necessary for the proper treatment of
the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her
treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by
petitioner Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of
the supervening event of petitioner Erlinda’s death. In the assailed Decision, the Court awarded
actual damages of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover
the expenses for petitioner Erlinda’s treatment and care from the date of promulgation of the
Decision up to the time the patient expires or survives. In addition thereto, the Court awarded
53 

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

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

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

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

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

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner
Rogelio that petitioner Erlinda died on August 3, 1999. In view of this supervening event, the award
55 

of temperate damages in addition to the actual or compensatory damages would no longer be

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

WHEREFORE, the assailed Decision is hereby modified as follows:

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

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

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

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

(c) P100,000.00 as exemplary damages;

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

(e) the costs of the suit.

SO ORDERED.