NOEL CASUMPANG, RUBY SANGA-MIRANDA AND
SAN JUAN DE DIOS HOSPITAL, Petitioners, v.
NELSON CORTEJO, Respondent.
[G.R. No. 171217]
DRA. RUBY SANGA-MIRANDA, Petitioner, v.
NELSON CORTEJO, Respondent.
[G.R. No. 171228]
SAN JUAN DE DIOS HOSPITAL, Petitioner, v.
NELSON CORTEJO, Respondent.
DECISION
BRION, J.:
We resolve the three (3) consolidated petitions for
review on certiorari1 involving medical negligence,
commonly assailing the October 29, 2004 decision2
and the January 12, 2006 resolution3 of the Court
of Appeals (CA) in CA-G.R. CV No. 56400. This CA
decision affirmed en toto the ruling of the Regional
Trial Court (RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent)
damages in the total amount of P595,000.00, for
the wrongful death of his son allegedly due to the
medical negligence of the petitioning doctors and
the hospital.
Factual Antecedents
The common factual antecedents are briefly
summarized below.
On April 22, 1988, at about 11:30 in the morning,
Mrs. Jesusa Cortejo brought her 11-year old son,
Edmer Cortejo (Edmer), to the Emergency Room of
the San Juan de Dios Hospital (SJDH) because of
difficulty in breathing, chest pain, stomach pain,
and fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended
to and examined Edmer. In her testimony, Mrs.
Cortejo narrated that in the morning of April 20,
1988, Edmer had developed a slight fever that
lasted for one day; a few hours upon discovery, she
brought Edmer to their family doctor; and two
hours after administering medications, Edmer's
fever had subsided.5
After taking Edmer's medical history, Dr. Livelo
took his vital signs, body temperature, and blood
pressure.6 Based on these initial examinations and
the chest x-ray test that followed, Dr. Livelo
diagnosed Edmer with "bronchopneumonia."7
Edmer's blood was also taken for testing, typing,
and for purposes of administering antibiotics.
Afterwards, Dr. Livelo gave Edmer an antibiotic
medication to lessen his fever and to loosen his
phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She
used her Fortune Care card and was referred to an
accredited Fortune Care coordinator, who was then
out of town. She was thereafter assigned to Dr.
Noel Casumpang (Dr. Casumpang), a pediatrician
also accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr.
Casumpang for the first time examined Edmer in
his room. Using only a stethoscope, he confirmed
the initial diagnosis of "Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining
doubts on the doctor's diagnosis. She immediately
advised Dr. Casumpang that Edmer had a high
fever, and had no colds or cough 10 but Dr.
Casumpang merely told her that her son's
"bloodpressure is just being active,"11 and remarked
that "that's the usual bronchopneumonia, no colds,
no phlegm."12
Dr. Casumpang next visited and examined Edmer at
9:00 in the morning the following day. 13 Still
suspicious about his son's illness, Mrs. Cortejo
again called Dr. Casumpang's attention and stated
that Edmer had a fever, throat irritation, as well as
chest and stomach pain. Mrs. Cortejo also alerted
Dr. Casumpang about the traces of blood in
Edmer's sputum. Despite these pieces of
information, however, Dr. Casumpang simply
nodded, inquired if Edmer has an asthma, and
reassured Mrs. Cortejo that Edmer's illness is
bronchopneumonia.14
1

At around 11:30 in the morning of April 23, 1988,
Edmer vomited "phlegm with blood streak"15
prompting the respondent (Edmer's father) to
request for a doctor at the nurses' station.16
Forty-five minutes later, Dr. Ruby Sanga-Miranda
(Dr. Miranda), one of the resident physicians of
SJDH, arrived. She claimed that although aware
that Edmer had vomited "phlegm with blood
streak," she failed to examine the blood specimen
because the respondent washed it away. She then
advised the respondent to preserve the specimen
for examination.
Thereafter, Dr. Miranda conducted a physical
check-up covering Edmer's head, eyes, nose,
throat, lungs, skin and abdomen; and found that
Edmer had a low-grade non-continuing fever, and
rashes that were not typical of dengue fever. 17 Her
medical findings state:
the patient's rapid breathing and then
the lung showed sibilant and the
patient's nose is flaring which is a sign
that the patient is in respiratory
distress; the abdomen has negative
finding; the patient has low grade fever
and not continuing; and the rashes in
the patient's skin were not "Herman's
Rash" and not typical of dengue
fever.18
At 3:00 in the afternoon, Edmer once again
vomited blood. Upon seeing Dr. Miranda, the
respondent showed her Edmer's blood specimen,
and reported that Edmer had complained of severe
stomach pain and difficulty in moving his right leg.19
Dr. Miranda then examined Edmer's "sputum with
blood" and noted that he was bleeding. Suspecting
that he could be afflicted with dengue, she inserted
a plastic tube in his nose, drained the liquid from
his stomach with ice cold normal saline solution,
and gave an instruction not to pull out the tube, or
give the patient any oral medication.
Dr. Miranda thereafter conducted a tourniquet
test, which turned out to be negative. 20 She
likewise ordered the monitoring of the patient's
blood pressure and some blood tests. Edmer's
blood pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Miranda called up Dr.
Casumpang at his clinic and told him about Edmer's
condition.22 Upon being informed, Dr. Casumpang
ordered several procedures done including:
hematocrit, hemoglobin, blood typing, blood
transfusion and tourniquet tests.
The blood test results came at about 6:00 in the
evening.
Dr. Miranda advised Edmer's parents that the
blood test results showed that Edmer was suffering
from "Dengue Hemorrhagic Fever." One hour later,
Dr. Casumpang arrived at Edmer's room and he
recommended his transfer to the Intensive Care
Unit (ICU), to which the respondent consented.
Since the ICU was then full, Dr. Casumpang
suggested to the respondent that they hire a
private nurse. The respondent, however, insisted
on transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr.
Casumpang, for the last time, checked Edmer's
condition, found that his blood pressure was
stable, and noted that he was "comfortable." The
respondent requested for an ambulance but he
was informed that the driver was nowhere to be
found. This prompted him to hire a private
ambulance that cost him P600.00.23
At 12:00 midnight, Edmer, accompanied by his
parents and by Dr. Casumpang, was transferred to
Makati Medical Center.
Dr. Casumpang immediately gave the attending
physician the patient's clinical history and
laboratory exam results. Upon examination, the
attending physician diagnosed "Dengue Fever
Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24,
1988.24 His Death Certificate indicated the cause of
2
death as "Hypovolemic Shock/hemorrhagic shock;"
"Dengue Hemorrhagic Fever Stage IV."
Believing that Edmer's death was caused by the
negligent and erroneous diagnosis of his doctors,
the respondent instituted an action for damages
against SJDH, and its attending physicians: Dr.
Casumpang and Dr. Miranda (collectively referred
to as the "petitioners") before the RTC of Makati
City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in
favor of the respondent, and awarded actual and
moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were
negligent, the RTC found untenable the petitioning
doctors' contention that Edmer's initial symptoms
did not indicate dengue fever. It faulted them for
heavily relying on the chest x-ray result and for not
considering the other manifestations that Edmer's
parents had relayed. It held that in diagnosing and
treating an illness, the physician's conduct should
be judged not only by what he/she saw and knew,
but also by what he/she could have reasonably
seen and known. It also observed that based on
Edmer's signs and symptoms, his medical history
and physical examination, and also the information
that the petitioning doctors gathered from his
family members, dengue fever was a reasonably
foreseeable illness; yet, the petitioning doctors
failed to take a second look, much less, consider
these indicators of dengue.
The trial court also found that aside from their self-
serving testimonies, the petitioning doctors did not
present other evidence to prove that they
exercised the proper medical attention in
diagnosing and treating the patient, leading it to
conclude that they were guilty of negligence.
The RTC also held SJDH solidarity liable with the
petitioning doctors for damages based on the
following findings of facts: first, Dr. Casumpang, as
consultant, is an ostensible agent of SJDH because
before the hospital engaged his medical services, it
scrutinized and determined his fitness,
qualifications, and competence as a medical
practitioner; and second, Dr. Miranda, as resident
physician, is an employee of SJDH because like Dr.
Casumpang, the hospital, through its screening
committee, scrutinized and determined her
qualifications, fitness, and competence before
engaging her services; the hospital also exercised
control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby
rendered in favor of the plaintiff and
against the defendants, ordering the
latter to pay solidarity and severally
plaintiff the following:
�� �(1) Moral damages in the
amount of P500,000.00;
�� �(2) Costs of burial and
funeral in the amount of P45,000.00;
�� �(3) Attorney's fees of
P50,000.00; and
�� �(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA
affirmed en toto the RTC's ruling, finding that SJDH
and its attending physicians failed to exercise the
minimum medical care, attention, and treatment
expected of an ordinary doctor under like
circumstances.
The CA found the petitioning doctors' failure to
read even the most basic signs of "dengue fever"
expected of an ordinary doctor as medical
negligence. The CA also considered the petitioning
doctors' testimonies as self-serving, noting that
they presented no other evidence to prove that
3
they exercised due diligence in diagnosing Edmer's
illness.
The CA likewise found Dr. Rodolfo Jaudian's (Dr.
Jaudian) testimony admissible. It gave credence to
his opinion26 that: (1) given the exhibited symptoms
of the patient, dengue fever should definitely be
considered, and bronchopneumonia could be
reasonably ruled out; and (2) dengue fever could
have been detected earlier than 7:30 in the evening
of April 23, 1988 because the symptoms were
already evident; and agreed with the RTC that the
petitioning doctors should not have solely relied on
the chest-x-ray result, as it was not conclusive.
On SJDH's solidary liability, the CA ruled that the
hospital's liability is based on Article 2180 of the
Civil Code. The CA opined that the control which
the hospital exercises over its consultants, the
hospital's power to hire and terminate their
services, all fulfill the employer-employee
relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce
evidence showing that it exercised the diligence of
a good father of a family in the hiring and the
supervision of its physicians.
The petitioners separately moved to reconsider the
CA decision, but the CA denied their motion in its
resolution of January 12, 2006; hence, the present
consolidated petitions pursuant to Rule 45 of the
Rules of Court.
The Petitions
I. Dr. Casumpang's Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient
medical treatment and care to the best of his
abilities, and within the proper standard of care
required from physicians under similar
circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-
ray result.
Dr. Casumpang also contends that dengue fever
occurs only after several days of confinement. He
alleged that when he had suspected that Edmer
might be suffering from dengue fever, he
immediately attended and treated him.
Dr. Casumpang likewise raised serious doubjs on
Dr. Jaudian's credibility, arguing that the CA erred
in appreciating his testimony as an expert witness
since he lacked the necessary training, skills, and
experience as a specialist in dengue fever cases.
II. Dr. Miranda's Position (G.R. No. 171217)
In her petition, Dr. Miranda faults the CA for
holding her responsible for Edmer's wrong
diagnosis, stressing that the function of making the
diagnosis and undertaking the medical treatment
devolved upon Dr. Casumpang, the doctor assigned
to Edmer, and who confirmed
"bronchopneumonia."
Dr. Miranda also alleged that she exercised
prudence in performing her duties as a physician,
underscoring that it was her professional
intervention that led to the correct diagnosis of
"Dengue Hemorrhagic Fever." Furthermore,
Edmer's Complete Blood Count (CBC) showed
leukopenia and an increase in balance as shown by
the differential count, demonstrating that Edmer's
infection, more or less, is of bacterial and not viral
in nature.
Dr. Miranda as well argued that there is no causal
relation between the alleged erroneous diagnosis
and medication for "Bronchopneumonia," and
Edmer's death due to "Dengue Hemorrhagic
Fever."
Lastly, she claimed that Dr. Jaudian is not a
qualified expert witness since he never presented
any evidence of formal residency training and
fellowship status in Pediatrics.
III. SJDH's Position (G.R. No. 171228)
4
SJDH, on the other hand, disclaims liability by
asserting that Dr. Casumpang and Dr. Miranda are
mere independent contractors and "consultants"
(not employees) of the hospital. SJDH alleges that
since it did not exercise control or supervision over
the consultants' exercise of medical profession,
there is no employer-employee relationship
between them, and consequently, Article 2180 of
the Civil Code does not apply.
SJDH likewise anchored the absence of, employer-
employee relationship on the following
circumstances: (1) SJDH does not hire consultants;
it only grants them privileges to admit patients in
the hospital through accreditation; (2) SJDH does
not pay the consultants wages similar to an
ordinary employee; (3) the consultants earn their
own professional fees directly from their patients;
SJDH does not fire or terminate their services; and
(4) SJDH does not control or interfere with the
manner and the means the consultants use in the
treatment of their patients. It merely provides
them with adequate space in exchange for rental
payment.
Furthermore, SJDH claims that the CA erroneously
applied the control test when it treated the
hospital's practice of accrediting consultants as an
exercise of control. It explained that the control
contemplated by law is that which the employer
exercises over the: (i) end result; and the (ii)
manner and means to be used to reach this end,
and not any kind of control, however significant, in
accrediting the consultants.
SJDH moreover contends that even if the
petitioning doctors are considered employees and
not merely consultants of the hospital, SJDH cannot
still be held solidarity liable under Article 2180 of
the Civil Code because it observed the diligence of
a good father of a family in their selection and
supervision as shown by the following: (1) the
adequate measures that the hospital undertakes to
ascertain the petitioning doctors' qualifications and
medical competence; and (2) the documentary
evidence that the petitioning doctors presented to
prove their competence in the field of pediatrics.27
SJDH likewise faults the CA for ruling that the
petitioning doctors are its agents, claiming that this
theory, aside from being inconsistent with the CA's
finding of employment relationship, is unfounded
because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and
second, as a medical institution, SJDH cannot
practice medicine, much more, extend its
personality to physicians to practice medicine on
its behalf.
Lastly, SJDH maintains that the petitioning doctors
arrived at an intelligently deduced and correct
diagnosis. It claimed that based on Edmer's signs
and symptoms at the time of admission (i.e., one
day fever,28bacterial infection,29 and lack of
hemorrhagic manifestations30), there was no
reasonable indication yet that he was suffering
from dengue fever, and accordingly, their failure to
diagnose dengue fever, does not constitute
negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the
issues the petitioners raised are mainly factual in
nature, which a petition for review on certiorari
under Rule 45 of the Rules of Court does not allow.
In any case, he contends that the petitioning
doctors were negligent in conducting their medical
examination and diagnosis based on the following:
(1) the petitioning doctors failed to timely diagnose
Edmer's correct illness due to their non-observance
of the proper and acceptable standard of medical
examination; (2) the petitioning doctors' medical
examination was not comprehensive, as they were
always in a rush; and (3) the petitioning doctors
employed a guessing game in diagnosing
bronchopneumonia.
The respondent also alleges that there is a causal
connection between the petitioning doctors'
negligence and Edmer's untimely death, warranting
the claim for damages.
5
The respondent, too, asserted that SJDH is also
negligent because it was not equipped with proper
paging system, has no bronchoscope, and its
doctors are not proportionate to the number of its
patients. He also pointed out that out of the seven
resident physicians in the hospital, only two
resident physicians were doing rounds at the time
of his son's confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had
committed "inexcusable lack of precaution"
in diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is
solidarity liable with the petitioning doctors;
3. Whether or not there is a causal connection
between the petitioners' negligent
act/omission and the patient's resulting
death; and
4. Whether or not the lower courts erred in
considering Dr. Rodolfo Tabangcora Jaudian
as an expert witness.
Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari under Rule 45 of
the Rules of Court is Limited to Questions of Law.
The settled rule is that the Court's jurisdiction in a
petition for review on certiorari under Rule 45 of
the Rules of Court is limited only to the review of
pure questions of law. It is not the Court's function
to inquire on the veracity of the appellate court's
factual findings and conclusions; this Court is not a
trier of facts.31
A question of law arises when there is doubt as to
what the law is on a certain state of facts, while
there is a question of fact when the doubt arises as
to the truth or falsity of the alleged facts.32
These consolidated petitions before us involve
mixed questions of fact and law. As a rule, we do
not resolve questions of fact. However, in
determining the legal question of whether the
respondent is entitled to claim damages under
Article 2176 of the Civil Code for the petitioners'
alleged medical malpractice, the determination of
the factual issues - i.e., whether the petitioning
doctors were grossly negligent in diagnosing the
patient's illness, whether there is causal relation
between the petitioners' act/omission and the
patient's resulting death, and whether Dr. Jaudian
is qualified as an expert witness - must necessarily
be resolved. We resolve these factual questions
solely for the purpose of determining the legal
issues raised.
Medical Malpractice Suit as a Specialized Area of
Tort Law
The claim for damages is based on the petitioning
doctors' negligence in diagnosing and treating the
deceased Edmer, the child of the respondent. It is a
medical malpractice suit, an action available to
victims to redress a wrong committed by medical
professionals who caused bodily harm to, or the
death of, a patient.33 As the term is used, the suit is
brought whenever a medical practitioner or health
care provider fails to meet the standards
demanded by his profession, or deviates from this
standard, and causes injury to the patient.
To successfully pursue a medical malpractice suit,
the plaintiff (in this case, the deceased patient's
heir) must prove that the doctor either failed to do
what a reasonably prudent doctor would have
done, or did what a reasonably prudent doctor
would not have done; and the act or omission had
caused injury to the patient.34 The patient's heir/s
bears the burden of proving his/her cause of
action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty;
(2) breach; (3) injury; and (4) proximate causation.
6
Duty refers to the standard of behavior that
imposes restrictions on one's conduct. 35 It requires
proof of professional relationship between the
physician and the patient. Without the professional
relationship, a physician owes no duty to the
patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a
patient engages the services of a physician, 36 and
the latter accepts or agrees to provide care to the
patient.37 The establishment of this relationship is
consensual,38 and the acceptance by the physician
essential. The mere fact that an individual
approaches a physician and seeks diagnosis, advice
or treatment does not create the duty of care
unless the physician agrees.39
The consent needed to create the relationship does
not always need to be express. 40 In the absence of
an express agreement, a physician-patient
relationship may be implied from the physician's
affirmative action to diagnose and/or treat a
patient, or in his participation in such diagnosis
and/or treatment.41 The usual illustration would be
the case of a patient who goes to a hospital or a
clinic, and is examined and treated by the doctor.
In this case, we can infer, based on the established
and customary practice in the medical community
that a patient-physician relationship exists.
Once a physician-patient relationship is
established, the legal duty of care follows. The
doctor accordingly becomes duty-bound to use at
least the same standard of care that a reasonably
competent doctor would use to treat a medical
condition under similar circumstances.
Breach of duty occurs when the doctor fails to
comply with, or improperly performs his duties
under professional standards. This determination is
both factual and legal, and is specific to each
individual case.42
If the patient, as a result of the breach of duty, is
injured in body or in health, actionable malpractice
is committed, entitling the patient to damages.43
To successfully claim damages, the patient must
lastly prove the causal relation between the
negligence and the injury. This connection must be
direct, natural, and should be unbroken by any
intervening efficient causes. In other words, the
negligence must be the proximate cause of the
injury.44 The injury or damage is proximately
caused by the physician's negligence when it
appears, based on the evidence and the expert
testimony, that the negligence played an integral
part in causing the injury or damage, and that the
injury or damage was either a direct result, or a
reasonably probable consequence of the
physician's negligence.45
a. The Relationship Between Dr. Casumpang and
Edmer
In the present case, the physician-patient
relationship between Dr. Casumpang and Edmer
was created when the latter's parents sought the
medical services of Dr. Casumpang, and the latter
knowingly accepted Edmer as a patient. Dr.
Casumpang's acceptance is implied from his
affirmative examination, diagnosis and treatment
of Edmer. On the other hand, Edmer's parents, on
their son's behalf, manifested their consent by
availing of the benefits of their health care plan,
and by accepting the hospital's assigned doctor
without objections.
b. The Relationship Between Dr. Miranda and
Edmer
With respect to Dr. Miranda, her professional
relationship with Edmer arose when she assumed
the obligation to provide resident supervision over
the latter. As second year resident doctor tasked to
do rounds and assist other physicians, Dr. Miranda
is deemed to have agreed to the creation of
physician-patient relationship with the hospital's
patients when she participated in the diagnosis and
prescribed a course of treatment for Edmer.
The undisputed evidence shows that Dr. Miranda
examined Edmer twice (at around 12:00 and 3:30
in the afternoon of April 23, 1988), and in both
7
instances, she prescribed treatment and
participated in the diagnosis of Edmer's medical
condition. Her affirmative acts amounted to her
acceptance of the physician-patient relationship,
and incidentally, the legal duty of care that went
with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court
found the doctors who merely passed by and were
requested to attend to the patient, liable for
medical malpractice. It held that a physician-
patient relationship was established when they
examined the patient, and later assured the
mother that everything was fine.
In the US case of Mead v. Legacy Health System,47
the Court also considered the rendering of an
opinion in the course of the patient's care as the
doctor's assent to the physician-patient
relationship. It ruled that the relationship was
formed because of the doctor's affirmative action.
Likewise, in Wax v. Johnson,48 the court found that
a physician-patient relationship was formed
between a physician who "contracts, agrees,
undertakes, or otherwise assumes" the obligation
to provide resident supervision at a teaching
hospital, and the patient with whom the doctor
had no direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning
doctors met the required standard of care involves
a question of mixed fact and law; it is factual as
medical negligence cases are highly technical in
nature, requiring the presentation of expert
witnesses to provide guidance to the court on
matters clearly falling within the domain of medical
science, and legal, insofar as the Court, after
evaluating the expert testimonies, and guided by
medical literature, learned treatises, and its fund of
common knowledge, ultimately determines
whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Miranda
committed a breach of duty is to be measured by
the yardstick of professional standards observed by
the other members of the medical profession in
good standing under similar circumstances. 49 It is in
this aspect of medical malpractice that expert
testimony is essential to establish not only the
professional standards observed in the medical
community, but also that the physician's conduct in
the treatment of care falls below such standard.50
In the present case, expert testimony is crucial in
determining first, the standard medical
examinations, tests, and procedures that the
attending physicians should have undertaken in the
diagnosis and treatment of dengue fever; and
second, the dengue fever signs and symptoms that
the attending physicians should have noticed and
considered.
Both the RTC and the CA relied largely on Dr.
Jaudian's expert testimony on dengue diagnosis
and management to support their finding that the
petitioning doctors were guilty of breach of duty of
care.
Dr. Jaudian testified that Edmer's rapid breathing,
chest and stomach pain, fever, and the presence of
blood in his saliva are classic symptoms of dengue
fever. According to him, if the patient was admitted
for chest pain, abdominal pain, and difficulty in
breathing coupled with fever, dengue fever should
definitely be considered;51 if the patient spits coffee
ground with the presence of blood, and the
patient's platelet count drops to 47,000, it
becomes a clear case of dengue fever, and
bronchopneumonia can be reasonably ruled out.52
Furthermore, the standard of care according to Dr.
Jaudian is to administer oxygen inhalation,
analgesic, and fluid infusion or dextrose.53 If the
patient had twice vomited fresh blood and
thrombocytopenia has already occurred, the
doctor should order blood transfusion, monitoring
of the patient every 30 minutes, hemostatic to stop
bleeding, and oxygen if there is difficulty in
breathing.54
8
We find that Dr. Casumpang, as Edmer's attending
physician, did not act according to these standards
and, hence, was guilty of breach of duty. We do not
find Dr. Miranda liable for the reasons discussed
below.
Dr. Casumpang's Negligence
a. Negligence in the Diagnosis
At the trial, Dr. Casumpang declared that a doctor's
impression regarding a patient's illness is 90%
based on the physical examination, the information
given by the patient or the latter's parents, and the
patient's medical history.55 He testified that he did
not consider either dengue fever or dengue
hemorrhagic fever because the patient's history
showed that Edmer had low breath and voluntary
submission, and that he was up and about playing
basketball.56 He based his diagnosis of
bronchopneumonia on the following observations:
"difficulty in breathing, clearing run nostril, harsh
breath sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpang's first
and second visits to Edmer, he already had
knowledge of Edmer's laboratory test result (CBC),
medical history, and symptoms (i.e., fever, rashes,
rapid breathing, chest and stomach pain, throat
irritation, difficulty in breathing, and traces of
blood in the sputum). However, these information
did not lead Dr. Casumpang to the possibility that
Edmer could be suffering from either dengue fever,
or dengue hemorrhagic fever, as he clung to his
diagnosis of broncho pneumonia. This means that
given the symptoms exhibited, Dr. Casumpang
already ruled out the possibility of other diseases
like dengue.
bronchopneumonia, he did not seem to have
considered the patient's other manifestations in
ruling out dengue fever or dengue hemorrhagic
fever.58 To our mind, Dr. Casumpang selectively
appreciated some, and not all of the symptoms;
worse, he casually ignored the pieces of
information that could have been material in
detecting dengue fever. This is evident from the
testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the
what did he do, if any?
A: He examined my son by using stethoscope and afte
me that my son was suffering from broncho pneumo
Q: After he confirmed that your son was suffering bron
did you say if any?
A: Again, I told Dr. Casumpang, how come it was bron
my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your stat
xxxx
A: And then, Dr. Casumpang answered "THAT'S T
PNEUMONIA, NO COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room

A: He stayed for a minute or 2.

In other words, it was lost on Dr. Casumpang that
the characteristic symptoms of dengue (as Dr.
Jaudian testified) are: patient's rapid breathing;
chest and stomach pain; fever; and the presence of xxxx
blood in his saliva. All these manifestations were
present and known to Dr. Casumpang at the time
of his first and second visits to Edmer. While he Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m
noted some of these symptoms in confirming
9
 you tell him, if any? sputum. Neither did Dr. Casumpang order
confirmatory tests to confirm the source of
bleeding. The Physician's Progress Notes59 stated:
"Blood streaks on phlegm can be due to bronchial
xxxx irritation or congestion" which clearly showed that
Dr. Casumpang merely assumed, without
confirmatory physical examination, that
A: I told Dr. Casumpang... After examining my son usingbronchopneumonia
stethoscope andcaused the bleeding.
nothing more, I told Dr. Casumpang about the traces of blood in my son's
Dr. Jaudian
sputum and I told him what is all about and he has throat likewise opined that Dr. Casumpang's
irritation.
medical examination was not comprehensive
enough to reasonably lead to a correct diagnosis. 60
Q: What did he tell you? Dr. Casumpang only used a stethoscope in coming
A: up with
He just nodded his head but he did not take the initiative the diagnosis
of looking at the that Edmer was suffering
throat of my son. from bronchopneumonia; he never confirmed this
finding with the use of a bronchoscope.
Q: So what happened after that? Furthermore, Dr. Casumpang based his diagnosis
largely on the chest x-ray result that is generally
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
inconclusive. 61

Q: So what did Dr. Casumpang do after you have narratedSignificantly, it was only at around 5:00 in the
all these complaints
of your son? afternoon of April 23, 1988 (after Edmer's third
episode of bleeding) that Dr. Casumpang ordered
A: Nothing. He also noticed the rapid breathing of mythe sonconduct
and my of sonhematocrit,
was hemoglobin, blood
typing, blood
almost moving because of rapid breathing and he is swaying in the bed. transfusion and tourniquet tests.
These tests came too late, as proven by: (1) the
blood test results that came at about 6:00 in the
Q: Do you know what action was taken by Dr. Casumpang when confirming
evening, you told himthat Edmer's illness had
that your son is experiencing a rapid breathing? developed to "Dengue Hemorrhagic Fever" and (2)
Dr. Jaudian's testimony that "dengue fever could
A: No action. He just asked me if my son has an asthmahave
but Ibeen detected earlier than 7:30 in the evening
said none.
of April 23, 1988 because the symptoms were
already evident."62
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
In Spouses Flores v. Spouses Pineda,63 a case
involving a medical malpractice suit, the Court
A: More or less two (2) minutes then I followed himruled up tothat
the the
doorpetitioner
and I doctors were negligent
repeated about the fever of my son. because they failed to immediately order tests to
Q: confirm
What did he tell you, if any, regarding that information you the
gavepatient's
him thatillness. Despite the doctors'
your son had a fever? suspicion that the patient could be suffering from
diabetes, the former still proceeded to the D&C
A: He said, that is broncho pneumonia, It's only beingoperation.
active now.In[ that case, expert testimony showed
supplied] that tests should have been ordered immediately
We also find it strange why Dr. Casumpang did not on admission to the hospital in view of the
even bother to check Edmer's throat despite symptoms presented. The Court held:
knowing that as early as 9:00 in the morning of When a patient exhibits symptoms
April 23, 1988, Edmer had blood streaks in his typical of a particular disease, these
10
 symptoms should, at the very least,
alert the physician of the possibility
that the patient may be afflicted with
the suspected disease.
The Court also ruled that reasonable prudence
would have shown that diabetes and its
complications were foreseeable harm. However,
the petitioner doctors failed to take this into
consideration and proceeded with the D&C
operation. Thus, the Court ruled that they failed to
comply with their duty to observe the standard of
care to be given to hyperglycemic/diabetic
patients.
Similarly, in Jarcia,64 involving the negligence of the
doctors in failing to exercise reasonable prudence
in ascertaining the extent of the patient's injuries,
this Court declared that:
In failing to perform an extensive
medical examination to determine the
extent of Roy Jr.'s injuries, Dr. Jarcia
and Dr. Bastan were remiss of their
duties as members of the medical
profession. Assuming for the sake of
argument that they did not have the
capacity to make such thorough
evaluation at that stage, they should
have referred the patient to another
doctor with sufficient training and
experience instead of assuring him and
his mother that everything was all
right. [Emphasis supplied]
Even assuming that Edmer's symptoms completely
coincided with the diagnosis of bronchopneumonia
(so that this diagnosis could not be considered
"wrong"), we still find Dr. Casumpang guilty of
negligence.
First, we emphasize that we do not decide the
correctness of a doctor's diagnosis, or the accuracy
of the medical findings and treatment. Our duty in
medical malpractice cases is to decide - based on
the evidence adduced and expert opinion presented
- whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by
itself medical malpractice.65 Physicians are
generally not liable for damages resulting from a
bona fide error of judgment. Nonetheless, when
the physician's erroneous diagnosis was the result
of negligent conduct (e.g., neglect of medical
history, failure to order the appropriate tests,
failure to recognize symptoms), it becomes an
evidence of medical malpractice.
Third, we also note that medicine is not an exact
science;66 and doctors, or even specialists, are not
expected to give a 100% accurate diagnosis in
treating patients who come to their clinic for
consultations. Error is possible as the exercise of
judgment is called for in considering and reading
the exhibited symptoms, the results of tests, and in
arriving at definitive conclusions. But in doing all
these, the doctor must have acted according to
acceptable medical practice standards.
In the present case, evidence on record established
that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively
appreciated some and not all of the symptoms
presented, and failed to promptly conduct the
appropriate tests to confirm his findings. In sum,
Dr. Casumpang failed to timely detect dengue
fever, which failure, especially when reasonable
prudence would have shown that indications of
dengue were evident and/or foreseeable,
constitutes negligence.
a. Negligence in the Treatment and Management
of Dengue
Apart from failing to promptly detect dengue fever,
Dr. Casumpang also failed to promptly undertake
the proper medical management needed for this
disease.
As Dr. Jaudian opined, the standard medical
procedure once the patient had exhibited the
classic symptoms of dengue fever should have
been: oxygen inhalation, use of analgesic, and
infusion of fluids or dextrose;67 and once the patient
had twice vomited fresh blood, the doctor should
have ordered: blood transfusion, monitoring of the
patient every 30 minutes, hemostatic to stop
11
bleeding, and oxygen if there is difficulty in A: In the evening of April 23, 1988,1 stayed in the hosp
breathing.68 by the pediatric resident on duty at around 11:15 i
blood pressure of the patient went down to .60 palp
Dr. Casumpang failed to measure up to these
standards. The evidence strongly suggests that he
ordered a transfusion of platelet concentrate Q: What did you do upon receipt of that information?
instead of blood transfusion. The tourniquet test
was only conducted after Edmer's second episode A: I immediately went up to the room of the patient a
of bleeding, and the medical management (as fluid from the present fluid which was D5 0.3 sodiu
reflected in the records) did not include antibiotic ringers solution.
therapy and complete physical examination.
Q: You mean to say you increased the dengue [sic]
Dr. Casumpang's testimony states: fluid?
Q: Now, after entertaining - After considering that the patient Edmer Cortero
was already suffering from dengue hemorrhagic fever, A: whatWedidchanged
you do,theif IV fluid because lactated ringers wa
any? the volume and to bring back the blood pressure,
pressure. [Emphasis supplied]
A: We ordered close monitoring of the blood pressure, the cardiac rate and
respiratory rate of the patient. Although Dr. Casumpang presented the
testimonies of Dr. Rodolfo Jagonap and Dr.
Q: Now, was your instructions carried on?
Ellewelyn Pasion (Dr. Pasion), Personnel Officer and
A: Yes, sir. Medical Director of SJDH, respectively as well as
the testimonies of Dr. Livelo and Dr. Reyes (the
Q: What was the blood pressure of the patient? radiologist who read Edmer's chest x-ray result),
these witnesses failed to dispute the standard of
A: During those times, the blood pressure of the patient was even normal
action that Dr. Jaudian established in his expert
during those times.
opinion. We cannot consider them expert
Q: How about the respiratory rate? witnesses either for the sole reason that they did
not testify on the standard of care in dengue
A: The respiratory rate was fast because the patient cases.
in the69 beginning since
admission had difficulty in breathing.
On the whole, after examining the totality of the
Q: Then, after that, what did you do with the patient? Doctor?
adduced evidence, we find that the lower courts
correctly did not rely on Dr. Casumpang's claim
A: We transfused platelet concentrate and at the samethattime,heweexercised
monitor [prudence and due diligence in
the patient. handling Edmer's case. Aside from being self-
serving, his claim is not supported by competent
Q: Then, who monitor [sic] the patient? evidence. As the lower courts did, we rely on the
uncontroverted fact that he failed, as a medical
A: The pediatric resident on duty at that time.
professional, to observe the most prudent medical
Q: Now, what happened after that? procedure under the circumstances in diagnosing
and treating Edmer.
Q: While monitoring the patient, all his vital signs were ________; his blood
pressure was normal so we continued with the supportive management
Dr. Miranda at for Negligence
is Not Liable
that time.
In considering the case of Dr. Miranda, the junior
Q: Now, after that? resident physician who was on-duty at the time of
12
Edmer's confinement, we see the need to draw
distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the
attending physician, and that of Dr. Miranda.
In his testimony, Dr. Pasion declared that resident
applicants are generally doctors of medicine
licensed to practice in the Philippines and who
would like to pursue a particular specialty.70 They
are usually the front line doctors responsible for
the first contact with the patient. During the scope
of the residency program,71 resident physicians (or
"residents")72 function under the supervision of
attending physicians73 or of the hospital's teaching
staff. Under this arrangement, residents operate
merely as subordinates who usually defer to the
attending physician on the decision to be made and
on the action to be taken.
The attending physician, on the other hand, is
primarily responsible for managing the resident's
exercise of duties. While attending and resident
physicians share the collective responsibility to
deliver safe and appropriate care to the patients,74
it is the attending physician who assumes the
principal responsibility of patient care. 75 Because
he/she exercises a supervisory role over the
resident, and is ultimately responsible for the
diagnosis and treatment of the patient, the
standards applicable to and the liability of the
resident for medical malpractice is theoretically
less than that of the attending physician. These
relative burdens and distinctions, however, do not
translate to immunity from the legal duty of care
for residents,76 or from the responsibility arising
from their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held
that the applicable standard of care in medical
malpractice cases involving first-year residents was
that of a reasonably prudent physician and not that
of interns. According to Jenkins:
It is clear that the standard of care
required of physicians is not an
individualized one but of physicians in
general in the community. In order to
establish medical malpractice, it must
be shown by a preponderance of the
evidence that a physician did some
particular thing or things that a
physician or surgeon of ordinary skill,
care and diligence would not have
done under like or similar conditions or
circumstances, or that he failed or
omitted to do some particular thing or
things that a physician or surgeon of
ordinary skill, care and diligence would
have done under like or similar
conditions or circumstances, and that
the inquiry complained of was the
direct result of such doing or failing to
do such thing or things.
We note that the standard of
instruction given by the court was
indeed a proper one. It clearly
informed the jury that the medical
care required is that of reasonably
careful physicians or hospital
emergency room operators, not of
interns or residents. [Emphasis
supplied]
A decade later, Centman v. Cobb,78 affirmed the
Jenkins ruling and held that interns and first-year
residents are "practitioners of medicine required to
exercise the same standard of care applicable to
physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year
resident practices under a temporary medical
permit, he/she impliedly contracts that he/she has
the reasonable and ordinary qualifications of her
profession and that he/she will exercise reasonable
skill, diligence, and care in treating the patient.
We find that Dr. Miranda was not independently
negligent. Although she had greater patient
exposure, and was' subject to the same standard of
care applicable to attending physicians, we believe
that a finding of negligence should also depend on
several competing factors, among them, her
authority to make her own diagnosis, the degree of
supervision of the attending physician over her, and
the shared responsibility between her and the
attending physicians.
13
In this case, before Dr. Miranda attended to Edmer,
both Dr. Livelo and Dr. Casumpang had diagnosed Q: Now, from you knowledge, what does that indicate
Edmer with bronchopneumonia. In her testimony, phlegm and blood streak?
Dr. Miranda admitted that she had been briefed
about Edmer's condition, his medical history, and A: If a patient cocked [sic] out phlegm then the speci
initial diagnosis;79 and based on these pieces of from the lung alone.82 [Emphasis supplied]
information, she confirmed the, finding of
bronchopneumonia.

Dr. Miranda likewise duly reported to Dr. xxxx

Casumpang, who admitted receiving updates
regarding Edmer's condition.80 There is also
evidence supporting Dr. Miranda's claim that she
TSN, June 17, 1993:
extended diligent care to Edmer. In fact, when she
suspected - during Edmer's second episode of
bleeding - that Edmer could be suffering from
dengue fever, she wasted no time in conducting Q: Now, in the first meeting you had, when that was
the necessary tests, and promptly notified Dr. father that Edmer Cortejo had coughed out blood, w
Casumpang about the incident. Indubitably, her you take?
medical assistance led to the finding of dengue
fever. A: I examined the patient and I thought that, that coug
product of broncho pneumonia.
We note however, that during Edmer's second
episode of bleeding,81 Dr. Miranda failed to
immediately examine and note the cause of the xxxx
blood specimen. Like Dr. Casumpang, she merely
assumed that the blood in Edmer's phlegm was
caused by bronchopneumonia. Her testimony Q: So what examination did you specifically conduct to
states: internal bleeding?
TSN, June 8, 1993:
A: At that time I did not do anything to determine th
the blood because I presumed that it was a muc
broncho pneumonia, And besides the patient did no
Q: Let us get this clear, you said that the father told you theofpatient cocked
any other illness at that time.[83
[sic] out phlegm.

A: With blood streak.

Based on her statements we find that Dr. Miranda
Q: Now, you stated specimen, were you not able to examinewas nottheentirely
specimen?
faultless. Nevertheless, her failure
to discern the import of Edmer's second bleeding
does not necessarily amount to negligence as the
A: No, sir, I did not because according to the father he wash [
respondent himself admitted that Dr. Miranda
failed to examine the blood specimen because he
washed it away. In addition, considering the
diagnosis previously made by two doctors, and the
xxxx uncontroverted fact that the burden of final
diagnosis pertains to the attending physician (in
14
this case, Dr. Casumpang), we believe that Dr.
Miranda's error was merely an honest mistake of
judgment influenced in no small measure by her
status in the hospital hierarchy; hence, she should
not be held liable for medical negligence.
Dr. Jaudian 's Professional Competence and
Credibility
One of the critical issues the petitioners raised in
the proceedings before the lower court and before
this Court was Dr. Jaudian's competence and
credibility as an expert witness. The petitioners
tried to discredit his expert testimony on the
ground that he lacked the proper training and
fellowship status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter
for the trial court to decide upon in the exercise of
its discretion. The test of qualification is necessarily
a relative one, depending upon the subject matter
of the investigation, and the fitness of the expert
witness.84 In our jurisdiction, the criterion remains
to be the expert witness' special knowledge
experience and practical training that qualify
him/her to explain highly technical medical matters
to the Court.
�
In Ramos v. Court of Appeals,85 the Court found the
expert witness, who is a pulmonologist, not
qualified to testify on the field of anesthesiology.
Similarly, in Cereno v. Court of Appeals,86 a 2012
case involving medical negligence, the Court
excluded the testimony of an expert witness whose
specialty was anesthesiology, and concluded that
an anesthesiologist cannot be considered an expert
in the field of surgery or even in surgical practices
and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert
witness was admittedly not a pediatrician but a
practicing physician who specializes in pathology. 87
He likewise does not possess any formal residency
training in pediatrics. Nonetheless, both the lower
courts found his knowledge acquired through study
and practical experience sufficient to advance an
expert opinion on dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that
the Court primarily based the witnesses'
disqualification to testify as an expert on their
incapacity to shed light on the standard of care
that must be observed by the defendant-physicians.
That the expert witnesses' specialties do not match
the physicians' practice area only constituted, at
most, one of the considerations that should not be
taken out of context. After all, the sole function of
a medical expert witness, regardless of his/her
specialty, is to afford assistance to the courts on
medical matters, and to explain the medical facts in
issue.
Furthermore, there was no reasonable indication in
Ramos and Cereno that the expert witnesses
possess a sufficient familiarity with the standard of
care applicable to the physicians' specialties.
US jurisprudence on medical malpractice
demonstrated the trial courts' wide latitude of
discretion in allowing a specialist from another field
to testify against a defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found
competent to give expert testimony regarding a
gynecologist's standard of pre-surgical care. In that
case, the court held that since negligence was not
predicated on the gynecologist's negligent
performance of the operation, but primarily on the
claim that the pre-operative histories and physicals
were inadequate, the neurosurgeon was
competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic
surgeon to testify against a neurologist in a medical
malpractice action. The court considered that the
orthopedic surgeon's opinion on the "immediate
need for decompression" need not come from a
specialist in neurosurgery. The court held that:
It is well established that "the
testimony of a qualified medical doctor
15
 cannot be excluded simply because he
is not a specialist x x x." The matter of
"x x x training and specialization of the
witness goes to the weight rather than
admissibility x x x."
xxxx
It did not appear to the court that a
medical doctor had to be a specialist in
neurosurgery to express the opinions
permitted to be expressed by plaintiffs'
doctors, e.g., the immediate need for a
decompression in the light of certain
neurological deficits in a post-
laminectomy patient. As stated above,
there was no issue as to the proper
execution of the neurosurgery. The
medical testimony supported plaintiffs'
theory of negligence and causation.
(Citations omitted)
In another case,90 the court declared that it is the
specialist's knowledge of the requisite subject
matter, rather than his/her specialty that
determines his/her qualification to testify.
Also in Evans v. Ohanesian,91 the court set a
guideline in qualifying an expert witness:
To qualify a witness as a medical
expert, it must be shown that the
witness (1) has the required
professional knowledge, learning and
skill of the subject under inquiry
sufficient to qualify him to speak with
authority on the subject; and (2) is
familiar with the standard required of
a physician under similar
circumstances; where a witness has
disclosed sufficient knowledge of the
subject to entitle his opinion to go to
the jury, the question of the degree of
his knowledge goes more to the weight
of the evidence than to its
admissibility.
xxxx
Nor is it critical whether a medical
expert is a general practitioner or a
specialist so long as he exhibits
knowledge of the subject. Where a
duly licensed and practicing physician
has gained knowledge of the standard
of care applicable to a specialty in
which he is not directly engaged but as
to which he has an opinion based on
education, experience, observation, or
association wit that specialty, his
opinion is competent. (Emphasis
supplied)
Finally, Brown v. Mladineo92 adhered to the
principle that the witness' familiarity, and not the
classification by title or specialty, which should
control issues regarding the expert witness'
qualifications:
The general rule as to expert testimony
in medical malpractice actions is that
"a specialist in a particular branch
within a profession will not be
required." Most courts allow a doctor
to testify if they are satisfied of his
familiarity with the standards of a
specialty, though he may not practice
the specialty himself. One court
explained that "it is the scope of the
witness' knowledge and not the
artificial classification by title that
should govern the threshold question
of admissibility. (Citations omitted)
Application to the Present Case
In the case and the facts before us, we find that Dr.
Jaudian is competent to testify on the standard of
care in dengue fever cases.
Although he specializes in pathology, it was
established during trial that he had attended not
less than 30 seminars held by the Pediatric Society,
had exposure in pediatrics, had been practicing
medicine for 16 years, and had handled not less
than 50 dengue related cases.
As a licensed medical practitioner specializing in
pathology, who had practical and relevant
16
exposure in pediatrics and dengue related cases,
we are convinced that Dr. Jaudian demonstrated
sufficient familiarity with the standard of care to be
applied in dengue fever cases. Furthermore, we
agree that he possesses knowledge and experience
sufficient to qualify him to speak with authority on
the subject.
The Causation Between Dr. Casumpang's Negligent
Act/Omission, and the Patient's Resulting Death
was Adequately Proven
Dr. Jaudian's testimony strongly suggests that due
to Dr. Casumpang's failure to timely diagnose
Edmer with dengue, the latter was not immediately
given the proper treatment. In fact, even after Dr.
Casumpang had discovered Edmer's real illness, he
still failed to promptly perform the standard
medical procedure. We agree with these findings.
As the respondent had pointed out, dengue fever,
if left untreated, could be a life threatening
disease. As in any fatal diseases, it requires
immediate medical attention.93 With the correct
and timely diagnosis, coupled with the proper
medical management, dengue fever is not a life-
threatening disease and could easily be cured.94
Furthermore, as Dr. Jaudian testified, with
adequate intensive care, the mortality rate of
dengue fever should fall to less than 2%.� Hence,
the survival of the patient is directly related to
early and proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely
diagnose Edmer with dengue fever despite the
presence of its characteristic symptoms; and as a
consequence of the delayed diagnosis, he also
failed to promptly manage Edmer's illness. Had he
immediately conducted confirmatory tests, (i.e.,
tourniquet tests and series of blood tests) and
promptly administered the proper care and
management needed for dengue fever, the risk of
complications or even death, could have been
substantially reduced.
Furthermore, medical literature on dengue shows
that early diagnosis and management of dengue is
critical in reducing the risk of complications and
avoiding further spread of the virus. 96 That Edmer
later died of "Hypovolemic Shock/hemorrhagic
shock," "Dengue Hemorrhagic Fever Stage IV," a
severe and fatal form of dengue fever, established
the causal link between Dr. Casumpang's
negligence and the injury.
Based on these considerations, we rule that the
respondent successfully proved the element of
causation.
Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only
be held vicariously liable for the petitioning
doctors' negligence but also for its own negligence.
He claims that SJDH fell short of its duty of
providing its patients with the necessary facilities
and equipment as shown by the following
circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer's oxygen was removed, the medical sta
provide him with portable oxygen;
(e) when Edmer was about to be transferred to anoth
not ready and had no driver; and
(f) despite Edmer's critical condition, there was no do
17
 As a rule, hospitals are not liable for the negligence
from 5:30 p.m. of April 22, to 9:00 a.m. of April 23, 1988.
of its independent contractors. However, it may be
SJDH on the other hand disclaims liability by found liable if the physician or independent
claiming that the petitioning doctors are not its contractor acts as an ostensible agent of the
employees but are mere consultants and hospital. This exception is also known as the
independent contractors. "doctrine of apparent authority."99

We affirm the hospital's liability not on the basis of The US case of Gilbert v. Sycamore Municipal
Article 2180 of the Civil Code, but on the basis of Hospital100 abrogated the hospitals' immunity to
the doctrine of apparent authority or agency by vicarious liability of independent contractor
estoppel. physicians. In that case, the Illinois Supreme Court
held that under the doctrine of apparent authority,
There is No Employer-Employee Relationship hospitals could be found vicariously liable for the
Between SJDH and the Petitioning Doctors negligence of an independent contractor:
Therefore, we hold that, under the
In determining whether an employer-employee doctrine of apparent authority, a
relationship exists between the parties, the hospital can be held vicariously liable
following elements must be present: (1) selection for the negligent acts of a physician
and engagement of services; (2) payment of wages; providing care at the hospital,
(3) the power to hire and fire; and (4) the power to regardless of whether the physician is
control not only the end to be achieved, but the an independent contractor, unless the
means to be used in reaching such an end.97 patient knows, or should have known,
that the physician is an independent
Control, which is the most crucial among the contractor. The elements of the action
elements, is not present in this case. have been set out as follows:
For a hospital to be liable
Based on the records, no evidence exists showing under the doctrine of
that SJDH exercised any degree of control over the apparent authority, a
means, methods of procedure and manner by plaintiff must show that:
which the petitioning doctors conducted and (1) the hospital, or its
performed their medical profession. SJDH did not agent, acted in a manner
control their diagnosis and treatment. Likewise, no that would lead a
evidence was presented to show that SJDH reasonable person to
monitored, supervised, or directed the petitioning conclude that the
doctors in the treatment and management of individual who was alleged
Edmer's case. In these lights, the petitioning to be negligent was an
doctors were not employees of SJDH, but were employee or agent of the
mere independent contractors. hospital; (2) where the
acts of the agent create
SJDH is Solidarity Liable Based on The Principle of the appearance of
Agency or Doctrine of Apparent Authority authority, the plaintiff
must also prove that the
Despite the absence of employer-employee hospital had knowledge of
relationship between SJDH and the petitioning and acquiesced in them;
doctors, SJDH is not free from liability.98 and (3) the plaintiff acted
in reliance upon the
conduct of the hospital or
18
 its agent, consistent with
ordinary care and
prudence. (Emphasis
supplied)
The doctrine was applied in Nogales v. Capitol
Medical Center101 where this Court, through the
ponencia of Associate Justice Antonio T. Carpio,
discussed the two factors in determining hospital
liability as follows:
The first factor focuses on the
hospital's manifestations and is
sometimes described as an inquiry
whether the hospital acted in a
manner which would lead a reasonable
person to conclude that the individual
who was alleged to be negligent was
an employee or agent of the hospital.
In this regard, the hospital need not
make express representations to the
patient that the treating physician is an
employee of the hospital; rather a
representation may be general and
implied.
xxxx
The second factor focuses on the
patient's reliance. It is sometimes
characterized as an inquiry on whether
the plaintiff acted in reliance upon the
conduct of the hospital or its agent,
consistent with ordinary care and
prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for
the negligent acts of a physician (or an
independent contractor) providing care at the
hospital if the plaintiff can prove these two factors:
first, the hospital's manifestations; and second, the
patient's reliance.
a. Hospital's manifestations
It involves an inquiry on whether the hospital acted
in a manner that would lead a reasonable person
to conclude that the individual alleged to be
negligent was an employee or agent of the
hospital. As pointed out in Nogales, the hospital
need not make express representations to the
patient that the physician or independent
contractor is an employee of the hospital;
representation may be general and implied.102
In Pamperin v. Trinity Memorial Hospital,103
questions were raised on "what acts by the hospital
or its agent are sufficient to lead a reasonable
person to conclude that the individual was an
agent of the hospital." In ruling that the hospital's
manifestations can be proven without the express
representation by the hospital, the court relied on
several cases from other jurisdictions, and held
that:
(1) the hospital, by providing emergency room care a
patients that they were being treated by the hosp
employee, has created the appearance of agency; an
(2) patients entering the hospital through the emergenc
assume that the treating doctors and staff of the hos
behalf.
In this case, the court considered the act of the
hospital of holding itself out as provider of
complete medical care, and considered the hospital
to have impliedly created the appearance of
authority.
b. Patient's reliance
It involves an inquiry on whether the plaintiff acted
in reliance on the conduct of the hospital or its
agent, consistent with ordinary care and
prudence.104
In Pamperin, the court held that the important
consideration in determining the patient's reliance
is: whether the plaintiff is seeking care from the
hospital itself or whether the plaintiff is looking to
the hospital merely as a place for his/her personal
physician to provide medical care.105
Thus, this requirement is deemed satisfied if the
plaintiff can prove that he/she relied upon the
hospital to provide care and treatment, rather than
19
upon a specific physician. In this case, we shall limit
the determination of the hospital's apparent
authority to Dr. Casumpang, in view of our finding
that Dr. Miranda is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent
Authority
SJDH impliedly held out and clothed Dr.
Casumpang with apparent authority leading the
respondent to believe that he is an employee or
agent of the hospital.
Based on the records, the respondent relied on
SJDH rather than upon Dr. Casumpang, to care and
treat his son Edmer. His testimony during trial
showed that he and his wife did not know any
doctors at SJDH; they also did not know that Dr.
Casumpang was an independent contractor. They
brought their son to SJDH for diagnosis because of
their family doctor's referral. The referral did not
specifically point to Dr. Casumpang or even to Dr.
Miranda, but to SJDH.
Significantly, the respondent had relied on SJDH's
representation of Dr. Casumpang's authority. To
recall, when Mrs. Cortejo presented her Fortune
Care card, she was initially referred to the Fortune
Care coordinator, who was then out of town. She
was thereafter referred to Dr. Casumpang, who is
also accredited with Fortune Care. In both
instances, SJDH through its agent failed to advise
Mrs. Cortejo that Dr. Casumpang is an independent
contractor.
We also stress that Mrs. Cortejo's use of health
care plan (Fortune Care) did not affect SJDH's
liability. The only effect of the availment of her
Fortune Care card benefits is that her choice of
physician is limited only to physicians who are
accredited with Fortune Care. Thus, her use of
health care plan in this case only limited the choice
of doctors (or coverage of services, amount etc.)
and not the liability of doctors or the hospital.
WHEREFORE, premises considered, this Court
PARTLY GRANTS the consolidated petitions. The
Court finds Dr. Noel Casumpang and San Juan de
Dios Hospital solidarity liable for negligent medical
practice. We SET ASIDE the finding of liability as to
Dr. Ruby Sanga-Miranda. The amounts of
P45,000.00 as actual damages and P500,000.00 as
moral damages should each earn legal interest at
the rate of six percent (6%) per annum computed
from the date of the judgment of the trial court.
The Court AFFIRMS the rest of the Decision dated
October 29, 2004 and the Resolution dated January
12, 2006 in CA-G.R. CV No. 56400.

Mrs. Cortejo accepted Dr. Casumpang's services on

the reasonable belief that such were being
provided by SJDH or its employees, agents, or
servants. By referring Dr. Casumpang to care and
treat for Edmer, SJDH impliedly held out Dr.
Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical
staff. SJDH cannot now disclaim liability since there
is no showing that Mrs. Cortejo or the respondent
knew, or should have known, that Dr. Casumpang
is only an independent contractor of the hospital.
In this case, estoppel has already set in.
20
LEONILA GARCIA-RUEDA, petitioner,
vs.
WILFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO
L. APORTADERA JR., Honorable CONRADO M.
VASQUEZ, all of the Office of the Ombudsman;
JESUS F. GUERRERO, PORFIRIO MACARAEG, and
GREGORIO A. ARIZALA, all of the Office of the City
Prosecutor, Manila, respondents.
ROMERO, J.:
May this Court review the findings of the Office of
the Ombudsman? The general rule has been
enunciated in Ocampo v. Ombudsman1 which
states:
In the exercise of its investigative power, this Court
has consistently held that courts will not interfere
with the discretion of the fiscal or the Ombudsman
to determine the specificity and adequacy of the
averments of the offense charged. He may dismiss
the complaint forthwith if he finds it to be
insufficient in form and substance or if he
otherwise finds no ground to continue with the
inquiry; or he may proceed with the investigation
of the complaint if, in his view, it is in due and
proper form.
Does the instant case warrant a departure from the
foregoing general rule? When a patient dies soon
after surgery under circumstances which indicate
that the attending surgeon and anaesthesiologist
may have been guilty of negligence but upon their
being charged, a series of nine prosecutors toss the
responsibility of conducting a preliminary
investigation to each other with contradictory
recommendations, "ping-pong" style, perhaps the
distraught widow is not to be blamed if she finally
decides to accuse the City Prosecutors at the end
of the line for partiality under the Anti-Graft and
Corrupt Practices Act. Nor may she be entirely
faulted for finally filing a petition before this Court
against the Ombudsman for grave abuse of
discretion in dismissing her complaint against said
City Prosecutors on the ground of lack of evidence.
Much as we sympathize with the bereaved widow,
however, this Court is of the opinion that the
general rule still finds application in instant case. In
other words, the respondent Ombudsman did not
commit grave abuse of discretion in deciding
against filing the necessary information against
public respondents of the Office of the City
Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila
Garcia-Rueda, underwent surgical operation at the
UST hospital for the removal of a stone blocking his
ureter. He was attended by Dr. Domingo Antonio,
Jr. who was the surgeon, while Dr. Erlinda Balatbat-
Reyes was the anaesthesiologist. Six hours after the
surgery, however, Florencio died of complications
of "unknown cause," according to officials of the
UST Hospital.2
Not satisfied with the findings of the hospital,
petitioner requested the National Bureau of
Investigation (NBI) to conduct an autopsy on her
husband's body. Consequently, the NBI ruled that
Florencio's death was due to lack of care by the
attending physician in administering anaesthesia.
Pursuant to its findings, the NBI recommended that
Dr. Domingo Antonio and Dr. Erlinda Balatbat-
Reyes be charged for Homicide through Reckless
Imprudence before the Office of the City
Prosecutor.
During the preliminary investigation, what
transpired was a confounding series of events
which we shall try to disentangle. The case was
initially assigned to Prosecutor Antonio M. Israel,
who had to inhibit himself because he was related
to the counsel of one of the doctors. As a result,
the case was re-raffled to Prosecutor Norberto G.
Leono who was, however, disqualified on motion
of the petitioner since he disregarded prevailing
laws and jurisprudence regarding preliminary
investigation. The case was then referred to
Prosecutor Ramon O. Carisma, who issued a
resolution recommending that only Dr. Reyes be
held criminally liable and that the complaint
against Dr. Antonio be dismissed.
The case took another perplexing turn when
Assistant City Prosecutor Josefina Santos Sioson, in
the "interest of justice and peace of mind of the
parties," recommended that the case be re-raffled
on the ground that Prosecutor Carisma was partial
to the petitioner. Thus, the case was transferred to
Prosecutor Leoncia R. Dimagiba, where a volte face
occurred again with the endorsement that the
21
complaint against Dr. Reyes be dismissed and
instead, a corresponding information be filed
against Dr. Antonio. Petitioner filed a motion for
reconsideration, questioning the findings of
Prosecutor Dimagiba.
Pending the resolution of petitioner's motion for
reconsideration regarding Prosecutor Dimagiba's
resolution, the investigative "pingpong" continued
when the case was again assigned to another
prosecutor, Eudoxia T. Gualberto, who
recommended that Dr. Reyes be included in the
criminal information of Homicide through Reckless
Imprudence. While the recommendation of
Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A.
Arizala, who resolved to exonerate Dr. Reyes from
any wrongdoing, a resolution which was approved
by both City Prosecutor Porfirio G. Macaraeg and
City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically
for violation of Section 3(e) of Republic Act No.
30193 against Prosecutors Guerrero, Macaraeg, and
Arizala for manifest partiality in favor of Dr. Reyes
before the Office of the Ombudsman. However, on
July 11, 1994, the Ombudsman issued the assailed
resolution dismissing the complaint for lack of
evidence.
In fine, petitioner assails the exercise of the
discretionary power of the Ombudsman to review
the recommendations of the government
prosecutors and to approve and disapprove the
same. Petitioner faults the Ombudsman for,
allegedly in grave abuse of discretion, refusing to
find that there exists probable cause to hold public
respondent City Prosecutors liable for violation of
Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the
Ombudsman have generally been categorized into
the following: investigatory powers, prosecutory
power, public assistance function, authority to
inquire and obtain information, and function to
adopt, institute and implement preventive
measures.4
As protector of the people, the Office of the
Ombudsman has the power, function and duty "to
act promptly on complaints filed in any form or
manner against public officials" and "to investigate
any act or omission of any public official when such
act or omission appears to be illegal, unjust,
improper or inefficient."5
While the Ombudsman has the full discretion to
determine whether or not a criminal case should
be filed, this Court is not precluded from reviewing
the Ombudsman's action when there is an abuse of
discretion, in which case Rule 65 of the Rules of
Court may exceptionally be invoked pursuant to
Section I, Article VIII of the 1987 Constitution.6
In this regard, "grave abuse of discretion" has been
defined as "where a power is exercised in an
arbitrary or despotic manner by reason of passion
or personal hostility so patent and gross as to
amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in
contemplation of law.7
From a procedural standpoint, it is certainly odd
why the successive transfers from one prosecutor
to another were not sufficiently explained in the
Resolution of the Ombudsman. Being the proper
investigating authority with respect to misfeasance,
non-feasance and malfeasance of public officials,
the Ombudsmans should have been more vigilant
and assiduous in determining the reasons behind
the "buckpassing" to ensure that no irregularity
took place.
Whether such transfers were due to any outside
pressure or ulterior motive is a matter of evidence.
One would have expected the Ombudsman,
however, to inquire into what could hardly qualify
as "standard operating procedure," given the
surrounding circumstances of the case.
While it is true that a preliminary investigation is
essentially inquisitorial, and is often the only means
to discover who may be charged with a crime, its
function is merely to determine the existence of
probable cause.8 Probable cause has been defined
as "the existence of such fact and circumstances as
would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the
prosecution, that the person charged was guilty of
the crime for which he was prosecuted."9
"Probable cause is a reasonable ground of
presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary
22
caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so." The
term does not mean actual and positive cause nor
does it import absolute certainty. It is merely based
on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into
whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the
act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support
of the charge. 10
In the instant case, no less than the NBI
pronounced after conducting an autopsy that there
was indeed negligence on the part of the attending
physicians in administering the anaesthesia. 11 The
fact of want of competence or diligence is
evidentiary in nature, the veracity of which can
best be passed upon after a full-blown trial for it is
virtually impossible to ascertain the merits of a
medical negligence case without extensive
investigation, research, evaluation and
consultations with medical experts. Clearly, the City
Prosecutors are not in a competent position to pass
judgment on such a technical matter, especially
when there are conflicting evidence and findings.
The bases of a party's accusation and defenses are
better ventilated at the trial proper than at the
preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has
been called medical malpractice or, more
appropriately, medical negligence, is that type of
claim which a victim has available to him or her to
redress a wrong committed by a medical
professional which has caused bodily harm.
In order to successfully pursue such a claim, a
patient must prove that a health care provider, in
most cases a physician, either failed to do
something which a reasonably prudent health care
provider would have done, or that he or she did
something that a reasonably prudent provider
would not have done; and that that failure or
action caused injury to the patient. 12
Hence, there are four elements involved in medical
negligence cases: duty, breach, injury and
proximate causation.
Evidently, when the victim employed the services
of Dr. Antonio and Dr. Reyes, a physician-patient
relationship was created. In accepting the case, Dr.
Antonio and Dr. Reyes in effect represented that,
having the needed training and skill possessed by
physicians and surgeons practicing in the same
field, they will employ such training, care and skill
in the treatment of their patients. 13 They have a
duty to use at least the same level of care that any
other reasonably competent doctor would use to
treat a condition under the same circumstances.
The breach of these professional duties of skill and
care, or their improper performance, by a physician
surgeon whereby the patient is injured in body or
in health, constitutes actionable malpractice. 14
Consequently, in the event that any injury results
to the patient from want of due care or skill during
the operation, the surgeons may be held
answerable in damages for negligence. 15
Moreover, in malpractice or negligence cases
involving the administration of anaesthesia, the
necessity of expert testimony and the availability of
the charge of res ipsa loquitur to the plaintiff; have
been applied in actions against anaesthesiologists
to hold the defendant liable for the death or injury
of a patient under excessive or improper
anaesthesia. 16 Essentially, it requires two-pronged
evidence: evidence as to the recognized standards
of the medical community in the particular kind of
case, and a showing that the physician in question
negligently departed from this standard in his
treatment. 17
Another element in medical negligence cases is
causation which is divided into two inquiries:
whether the doctor's actions in fact caused the
harm to the patient and whether these were the
proximate cause of the patient's
18
injury. Indeed here, a causal connection is
discernible from the occurrence of the victim's
death after the negligent act of the
anaesthesiologist in administering the anesthesia, a
fact which, if confirmed, should warrant the filing
of the appropriate criminal case. To be sure, the
allegation of negligence is not entirely baseless.
Moreover, the NBI deduced that the attending
surgeons did not conduct the necessary interview
of the patient prior to the operation. It appears
23
that the cause of the death of the victim could have appeal to the Secretary of Justice except as
been averted had the proper drug been applied to otherwise provided in Section 4 hereof.
cope with the symptoms of malignant What action may the Secretary of Justice take on
hyperthermia. Also, we cannot ignore the fact that the appeal? Section 9 of Order No. 223 states: "The
an antidote was readily available to counteract Secretary of Justice may reverse, affirm or modify
whatever deleterious effect the anaesthesia might the appealed resolution." On the other hand, "He
produce. 19 Why these precautionary measures may motu proprio or on motion of the appellee,
were disregarded must be sufficiently explained. dismiss outright the appeal on specified grounds."
22
The City Prosecutors were charged with violating
Section 3(e) of the Anti-Graft and Corrupt Practices In exercising his discretion under the
Act which requires the following facts: circumstances, the Ombudsman acted within his
1. The accused is a public officer discharging power and authority in dismissing the complaint
administrative or official functions or private against the Prosecutors and this Court will not
persons charged in conspiracy with them; interfere with the same.
2. The public officer committed the prohibited act WHEREFORE, in view of the foregoing, the instant
during the performance of his official duty or in petition is DISMISSED, without prejudice to the
relation to his public position; filing of an appeal by the petitioner with the
3. The public officer acted with manifest partiality, Secretary of Justice assailing the dismissal of her
evident bad faith or gross, inexcusable negligence; criminal complaint by the respondent City
and Prosecutors. No costs.
4. His action caused undue injury to the SO ORDERED.
Government or any private party, or gave any party
any unwarranted benefit, advantage or preference
to such parties. 20
Why did the complainant, petitioner in instant
case, elect to charge respondents under the above
law?
While a party who feels himself aggrieved is at
liberty to choose the appropriate "weapon from
the armory," it is with no little surprise that this
Court views the choice made by the complainant
widow.
To our mind, the better and more logical remedy
under the circumstances would have been to
appeal the resolution of the City Prosecutors
dismissing the criminal complaint to the Secretary
of Justice under the Department of Justice's Order
No. 223, 21 otherwise known as the "1993 Revised
Rules on Appeals From Resolutions In Preliminary
Investigations/Reinvestigations," as amended by
Department Order No. 359, Section 1 of which
provides:
Sec. 1. What May Be Appealed. — Only resolutions
of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing
a criminal complaint may be the subject of an

24
PETER PAUL PATRICK LUCAS, FATIMA GLADYS
LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS,
Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule
45 of the Revised Rules of Court, petitioners Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail
Lucas and Gillian Lucas seek the reversal of the 27
September 2006 Decision2 and 3 July 2007
Resolution,3 both of the Court of Appeals in CA-G.R.
CV No. 68666, entitled "Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian
Lucas v. Prospero Ma. C. Tuaño."
In the questioned decision and resolution, the
Court of Appeals affirmed the 14 July 2000 Decision
of the Regional Trial Court (RTC), Branch 150,
Makati City, dismissing the complaint filed by
petitioners in a civil case entitled, "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas v. Prospero Ma. C. Tuaño,"
docketed as Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul
Patrick Lucas (Peter) contracted "sore eyes" in his
right eye.
On 2 September 1988, complaining of a red right
eye and swollen eyelid, Peter made use of his
health care insurance issued by Philamcare Health
Systems, Inc. (Philamcare), for a possible consult.
The Philamcare Coordinator, Dr. Edwin Oca, M.D.,
referred Peter to respondent, Dr. Prospero Ma. C.
Tuaño, M.D. (Dr. Tuaño), an ophthalmologist at St.
Luke’s Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated
that it had been nine (9) days since the problem
with his right eye began; and that he was already
taking Maxitrol to address the problem in his eye.
According to Dr. Tuaño, he performed "ocular
routine examination" on Peter’s eyes, wherein: (1)
a gross examination of Peter’s eyes and their
surrounding area was made; (2) Peter’s visual
acuity were taken; (3) Peter’s eyes were palpated
to check the intraocular pressure of each; (4) the
motility of Peter’s eyes was observed; and (5) the
ophthalmoscopy4 on Peter’s eyes was used. On
that particular consultation, Dr. Tuaño diagnosed
that Peter was suffering from conjunctivitis 5 or
"sore eyes." Dr. Tuaño then prescribed Spersacet-
C6 eye drops for Peter and told the latter to return
for follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9
September 1988. Upon examination, Dr. Tuaño
told Peter that the "sore eyes" in the latter’s right
eye had already cleared up and he could
discontinue the Spersacet-C. However, the same
eye developed Epidemic Kerato Conjunctivitis
(EKC),7 a viral infection. To address the new
problem with Peter’s right eye, Dr. Tuaño
prescribed to the former a steroid-based eye drop
called Maxitrol,8 a dosage of six (6) drops per day.9
To recall, Peter had already been using Maxitrol
prior to his consult with Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a
follow-up consultation. After examining both of
Peter’s eyes, Dr. Tuaño instructed the former to
taper down10 the dosage of Maxitrol, because the
EKC in his right eye had already resolved. Dr. Tuaño
specifically cautioned Peter that, being a steroid,
Maxitrol had to be withdrawn gradually; otherwise,
the EKC might recur.11
Complaining of feeling as if there was something in
his eyes, Peter returned to Dr. Tuaño for another
check-up on 6 October 1988. Dr. Tuaño examined
Peter’s eyes and found that the right eye had once
more developed EKC. So, Dr. Tuaño instructed
Peter to resume the use of Maxitrol at six (6) drops
per day.
On his way home, Peter was unable to get a hold of
Maxitrol, as it was out of stock. Consequently,
Peter was told by Dr. Tuano to take, instead,
Blephamide12 another steroid-based medication,
but with a lower concentration, as substitute for
the unavailable Maxitrol, to be used three (3) times
a day for five (5) days; two (2) times a day for five
(5) days; and then just once a day.13
Several days later, on 18 October 1988, Peter went
to see Dr. Tuaño at his clinic, alleging severe eye
pain, feeling as if his eyes were about to "pop-out,"
a headache and blurred vision. Dr. Tuaño examined
Peter’s eyes and discovered that the EKC was again
25
present in his right eye. As a result, Dr. Tuaño told
Peter to resume the maximum dosage of
Blephamide.
Dr. Tuaño saw Peter once more at the former’s
clinic on 4 November 1988. Dr. Tuaño’s
examination showed that only the periphery of
Peter’s right eye was positive for EKC; hence, Dr.
Tuaño prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas
(Fatima), Peter’s spouse, read the accompanying
literature of Maxitrol and found therein the
following warning against the prolonged use of
such steroids:
WARNING:
Prolonged use may result in glaucoma, with
damage to the optic nerve, defects in visual acuity
and fields of vision, and posterior, subcapsular
cataract formation. Prolonged use may suppress
the host response and thus increase the hazard of
secondary ocular infractions, in those diseases
causing thinning of the cornea or sclera,
perforations have been known to occur with the
use of topical steroids. In acute purulent conditions
of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10
days or longer, intraocular pressure should be
routinely monitored even though it may be difficult
in children and uncooperative patients.
Employment of steroid medication in the
treatment of herpes simplex requires great
caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-
infective combination drugs which can be
attributed to the steroid component, the anti-
infective component, or the combination. Exact
incidence figures are not available since no
denominator of treated patients is available.
Reactions occurring most often from the presence
of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid
component in decreasing order to frequency are
elevation of intra-ocular pressure (IOP) with
possible development of glaucoma, infrequent
optic nerve damage; posterior subcapsular cataract
formation; and delayed wound healing.
Secondary infection: The development of
secondary has occurred after use of combination
containing steroids and antimicrobials. Fungal
infections of the correa are particularly prone to
develop coincidentally with long-term applications
of steroid. The possibility of fungal invasion must
be considered in any persistent corneal ulceration
where steroid treatment has been used.
Secondary bacterial ocular infection following
suppression of host responses also occurs.
On 26 November 1988, Peter returned to Dr.
Tuaño’s clinic, complaining of "feeling worse." 14 It
appeared that the EKC had spread to the whole of
Peter’s right eye yet again. Thus, Dr. Tuaño
instructed Peter to resume the use of Maxitrol.
Petitioners averred that Peter already made
mention to Dr. Tuaño during said visit of the above-
quoted warning against the prolonged use of
steroids, but Dr. Tuaño supposedly brushed aside
Peter’s concern as mere paranoia, even assuring
him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26
November 1988 visit to Dr. Tuaño, Peter continued
to suffer pain in his right eye, which seemed to
"progress," with the ache intensifying and
becoming more frequent.
Upon waking in the morning of 13 December 1988,
Peter had no vision in his right eye. Fatima
observed that Peter’s right eye appeared to be
bloody and swollen.15 Thus, spouses Peter and
Fatima rushed to the clinic of Dr. Tuaño. Peter
reported to Dr. Tuaño that he had been suffering
from constant headache in the afternoon and
blurring of vision.
Upon examination, Dr. Tuaño noted the hardness
of Peter’s right eye. With the use of a tonometer 16
to verify the exact intraocular pressure17 (IOP) of
Peter’s eyes, Dr. Tuaño discovered that the tension
in Peter’s right eye was 39.0 Hg, while that of his
left was 17.0 Hg.18 Since the tension in Peter’s right
eye was way over the normal IOP, which merely
ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño
ordered20 him to immediately discontinue the use
of Maxitrol and prescribed to the latter Diamox21
and Normoglaucon, instead.22 Dr. Tuaño also
required Peter to go for daily check-up in order for
26
the former to closely monitor the pressure of the
latter’s eyes.
On 15 December 1988, the tonometer reading of
Peter’s right eye yielded a high normal level, i.e.,
21.0 Hg. Hence, Dr. Tuaño told Peter to continue
using Diamox and Normoglaucon. But upon Peter’s
complaint of "stomach pains and tingling sensation
in his fingers,"23 Dr. Tuaño discontinued Peter’s use
of Diamox.24
Peter went to see another ophthalmologist, Dr.
Ramon T. Batungbacal (Dr. Batungbacal), on 21
December 1988, who allegedly conducted a
complete ophthalmological examination of Peter’s
eyes. Dr. Batungbacal’s diagnosis was Glaucoma25
O.D.26 He recommended Laser Trabeculoplasty27 for
Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December
1988,28 the tonometer measured the IOP of Peter’s
right eye to be 41.0 Hg, 29 again, way above normal.
Dr. Tuaño addressed the problem by advising Peter
to resume taking Diamox along with
Normoglaucon.
During the Christmas holidays, Peter supposedly
stayed in bed most of the time and was not able to
celebrate the season with his family because of the
debilitating effects of Diamox.30
On 28 December 1988, during one of Peter’s
regular follow-ups with Dr. Tuaño, the doctor
conducted another ocular routine examination of
Peter’s eyes. Dr. Tuaño noted the recurrence of
EKC in Peter’s right eye. Considering, however, that
the IOP of Peter’s right eye was still quite high at
41.0 Hg, Dr. Tuaño was at a loss as to how to
balance the treatment of Peter’s EKC vis-à-vis the
presence of glaucoma in the same eye. Dr. Tuaño,
thus, referred Peter to Dr. Manuel B. Agulto, M.D.
(Dr. Agulto), another ophthalmologist specializing
in the treatment of glaucoma.31 Dr. Tuaño’s letter
of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation &
possible management. I initially saw him Sept. 2,
1988 because of conjunctivitis. The latter resolved
and he developed EKC for which I gave Maxitrol.
The EKC was recurrent after stopping steroid drops.
Around 1 month of steroid treatment, he noted
blurring of vision & pain on the R. however, I
continued the steroids for the sake of the EKC. A
month ago, I noted iris atrophy, so I took the IOP
and it was definitely elevated. I stopped the
steroids immediately and has (sic) been treating
him medically.
It seems that the IOP can be controlled only with
oral Diamox, and at the moment, the EKC has
recurred and I’m in a fix whether to resume the
steroid or not considering that the IOP is still
uncontrolled.32
On 29 December 1988, Peter went to see Dr.
Agulto at the latter’s clinic. Several tests were
conducted thereat to evaluate the extent of Peter’s
condition. Dr. Agulto wrote Dr. Tuaño a letter
containing the following findings and
recommendations:
Thanks for sending Peter Lucas. On examination
conducted vision was 20/25 R and 20/20L. Tension
curve 19 R and 15 L at 1210 H while on
Normoglaucon BID OD & Diamox ½ tab every 6h
po.
Slit lamp evaluation33 disclosed subepithelial
corneal defect outer OD. There was circumferential
peripheral iris atrophy, OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R
and 0.6 L with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles
both eyes with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained
significant glaucoma damage. I suggest that we do
a baseline visual fields and push medication to
lowest possible levels. If I may suggest further, I
think we should prescribe Timolol37 BID38 OD in lieu
of Normoglaucon. If the IOP is still inadequate, we
may try D’epifrin39 BID OD (despite low PAS). I’m in
favor of retaining Diamox or similar CAI.40
If fields show further loss in say – 3 mos. then we
should consider trabeculoplasty.
I trust that this approach will prove reasonable for
you and Peter.41
Peter went to see Dr. Tuaño on 31 December 1988,
bearing Dr. Agulto’s aforementioned letter. Though
Peter’s right and left eyes then had normal IOP of
21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still
gave him a prescription for Timolol B.I.D. so Peter
could immediately start using said medication.
Regrettably, Timolol B.I.D. was out of stock, so Dr.
27
Tuaño instructed Peter to just continue using
Diamox and Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of
Peter’s right eye remained elevated at 21.0 Hg, 42 as
he had been without Diamox for the past three (3)
days.
On 4 January 1989, Dr. Tuaño conducted a visual
field study43 of Peter’s eyes, which revealed that
the latter had tubular vision44 in his right eye, while
that of his left eye remained normal. Dr. Tuaño
directed Peter to religiously use the Diamox and
Normoglaucon, as the tension of the latter’s right
eye went up even further to 41.0 Hg in just a
matter of two (2) days, in the meantime that
Timolol B.I.D. and D’epifrin were still not available
in the market. Again, Dr. Tuaño advised Peter to
come for regular check-up so his IOP could be
monitored.
Obediently, Peter went to see Dr. Tuaño on the
7th, 13th, 16th and 20th of January 1989 for check-
up and IOP monitoring.
In the interregnum, however, Peter was prodded
by his friends to seek a second medical opinion. On
13 January 1989, Peter consulted Dr. Jaime Lapuz,
M.D. (Dr. Lapuz), an ophthalmologist, who, in turn,
referred Peter to Dr. Mario V. Aquino, M.D. (Dr.
Aquino), another ophthalmologist who specializes
in the treatment of glaucoma and who could
undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino
conducted an extensive evaluation of Peter’s eyes,
the said doctor informed Peter that his eyes were
relatively normal, though the right one sometimes
manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuaño’s diagnosis of
tubular vision in Peter’s right eye. Petitioners
claimed that Dr. Aquino essentially told Peter that
the latter’s condition would require lifetime
medication and follow-ups.
In May 1990 and June 1991, Peter underwent two
(2) procedures of laser trabeculoplasty to attempt
to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma 45 and
blaming Dr. Tuaño for the same, Peter, joined by:
(1) Fatima, his spouse46; (2) Abbeygail, his natural
child47; and (3) Gillian, his legitimate child 48 with
Fatima, instituted on 1 September 1992, a civil
complaint for damages against Dr. Tuaño, before
the RTC, Branch 150, Quezon City. The case was
docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred
that as the "direct consequence of [Peter’s]
prolonged use of Maxitrol, [he] suffered from
steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation
of the intra-ocular pressure of [Peter’s right eye]
caused the impairment of his vision which
impairment is not curable and may even lead to
total blindness."49
Petitioners additionally alleged that the visual
impairment of Peter’s right eye caused him and his
family so much grief. Because of his present
condition, Peter now needed close medical
supervision forever; he had already undergone two
(2) laser surgeries, with the possibility that more
surgeries were still needed in the future; his career
in sports casting had suffered and was continuing
to suffer;50 his anticipated income had been greatly
reduced as a result of his "limited" capacity; he
continually suffered from "headaches, nausea,
dizziness, heart palpitations, rashes, chronic
rhinitis, sinusitis,"51 etc.; Peter’s relationships with
his spouse and children continued to be strained,
as his condition made him highly irritable and
sensitive; his mobility and social life had suffered;
his spouse, Fatima, became the breadwinner in the
family;52 and his two children had been deprived of
the opportunity for a better life and educational
prospects. Collectively, petitioners lived in constant
fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for
their supposed pain and suffering, which were
ultimately brought about by Dr. Tuaño’s grossly
negligent conduct in prescribing to Peter the
medicine Maxitrol for a period of three (3) months,
without monitoring Peter’s IOP, as required in
cases of prolonged use of said medicine, and
notwithstanding Peter’s constant complaint of
intense eye pain while using the same. Petitioners
particularly prayed that Dr. Tuaño be adjudged
liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter
Lucas as and by way of compensation for his
impaired vision.
28
2. The amount of ₱300,000.00 to spouses Lucas as
and by way of actual damages plus such additional
amounts that may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of
moral damages.
4. The amount of ₱500,000.00 as and by way of
exemplary damages.
5. The amount of ₱200,000.00 as and by way of
attorney’s fees plus costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño
asserted that the "treatment made by [him] more
than three years ago has no causal connection to
[Peter’s] present glaucoma or condition." 55 Dr.
Tuaño explained that "[d]rug-induced glaucoma is
temporary and curable, steroids have the side
effect of increasing intraocular pressure. Steroids
are prescribed to treat Epidemic Kerato
Conjunctivitis or EKC which is an infiltration of the
cornea as a result of conjunctivitis or sore eyes." 56
Dr. Tuaño also clarified that (1) "[c]ontrary to
[petitioners’] fallacious claim, [he] did NOT
continually prescribe the drug Maxitrol which
contained steroids for any prolonged period" 57 and
"[t]he truth was the Maxitrol was discontinued x x x
as soon as EKC disappeared and was resumed only
when EKC reappeared"58; (2) the entire time he was
treating Peter, he "continually monitored the
intraocular pressure of [Peter’s eyes] by palpating
the eyes and by putting pressure on the eyeballs,"
and no hardening of the same could be detected,
which meant that there was no increase in the
tension or IOP, a possible side reaction to the use
of steroid medications; and (3) it was only on 13
December 1988 that Peter complained of a
headache and blurred vision in his right eye, and
upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the
right eye had an elevated value.
But granting for the sake of argument that the
"steroid treatment of [Peter’s] EKC caused the
steroid induced glaucoma,"59 Dr. Tuaño argued
that:
[S]uch condition, i.e., elevated intraocular pressure,
is temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure
automatically is reduced. Thus, [Peter’s] glaucoma
can only be due to other causes not attributable to
steroids, certainly not attributable to [his]
treatment of more than three years ago x x x.
From a medical point of view, as revealed by more
current examination of [Peter], the latter’s
glaucoma can only be long standing glaucoma,
open angle glaucoma, because of the large C:D
ratio. The steroids provoked the latest glaucoma to
be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence,
the steroid treatment was in fact beneficial to
[Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of
the same.60
In a Decision dated 14 July 2000, the RTC dismissed
Civil Case No. 92-2482 "for insufficiency of
evidence."61 The decretal part of said Decision
reads:
Wherefore, premises considered, the instant
complaint is dismissed for insufficiency of evidence.
The counter claim (sic) is likewise dismissed in the
absence of bad faith or malice on the part of
plaintiff in filing the suit.62
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuaño was
negligent in his treatment of Peter’s condition. In
particular, the record of the case was bereft of any
evidence to establish that the steroid medication
and its dosage, as prescribed by Dr. Tuaño, caused
Peter’s glaucoma. The trial court reasoned that the
"recognized standards of the medical community
has not been established in this case, much less has
causation been established to render [Tuaño]
liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of
a medical practitioner against which Peter Paul’s
treatment by defendant can be compared with.
They did not present any medical expert or even a
medical doctor to convince and expertly explain to
the court the established norm or duty required of
a physician treating a patient, or whether the non
taking (sic) by Dr. Tuaño of Peter Paul’s pressure a
deviation from the norm or his non-discovery of
the glaucoma in the course of treatment
constitutes negligence. It is important and
indispensable to establish such a standard because
once it is established, a medical practitioner who
departed thereof breaches his duty and commits
29
negligence rendering him liable. Without such
testimony or enlightenment from an expert, the
court is at a loss as to what is then the established
norm of duty of a physician against which
defendant’s conduct can be compared with to
determine negligence.64
The RTC added that in the absence of "any medical
evidence to the contrary, this court cannot accept
[petitioners’] claim that the use of steroid is the
proximate cause of the damage sustained by
[Peter’s] eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s
medical opinion that "Peter Paul must have been
suffering from normal tension glaucoma, meaning,
optic nerve damage was happening but no
elevation of the eye pressure is manifested, that
the steroid treatment actually unmasked the
condition that resulted in the earlier treatment of
the glaucoma. There is nothing in the record to
contradict such testimony. In fact, plaintiff’s Exhibit
‘S’ even tends to support them."
Undaunted, petitioners appealed the foregoing RTC
decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals
rendered a decision in CA-G.R. CV No. 68666
denying petitioners’ recourse and affirming the
appealed RTC Decision. The fallo of the judgment
of the appellate court states:
WHEREFORE, the Decision appealed from is
AFFIRMED.66
The Court of Appeals faulted petitioners because
they –
[D]id not present any medical expert to testify that
Dr. Tuano’s prescription of Maxitrol and
Blephamide for the treatment of EKC on Peter’s
right eye was not proper and that his palpation of
Peter’s right eye was not enough to detect adverse
reaction to steroid. Peter testified that Dr. Manuel
Agulto told him that he should not have used
steroid for the treatment of EKC or that he should
have used it only for two (2) weeks, as EKC is only a
viral infection which will cure by itself. However,
Dr. Agulto was not presented by [petitioners] as a
witness to confirm what he allegedly told Peter
and, therefore, the latter’s testimony is hearsay.
Under Rule 130, Section 36 of the Rules of Court, a
witness can testify only to those facts which he
knows of his own personal knowledge, x x x.
Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great
weight to Dr. Tuaño’s medical judgment,
specifically the latter’s explanation that:
[W]hen a doctor sees a patient, he cannot
determine whether or not the latter would react
adversely to the use of steroids, that it was only on
December 13, 1989, when Peter complained for
the first time of headache and blurred vision that
he observed that the pressure of the eye of Peter
was elevated, and it was only then that he
suspected that Peter belongs to the 5% of the
population who reacts adversely to steroids.68
Petitioners’ Motion for Reconsideration was denied
by the Court of Appeals in a Resolution dated 3 July
2007.
Hence, this Petition for Review on Certiorari under
Rule 45 of the Revised Rules of Court premised on
the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED
GRAVE REVERSIBLE ERROR IN
AFFIRMING THE DECISION OF THE
TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT
ON THE GROUND OF INSUFFICIENCY
OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED
GRAVE REVERSIBLE ERROR IN
DISMISSING THE PETITIONERS’
COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND
THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO
PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE
RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED
GRAVE REVERSIBLE ERROR IN NOT
FINDING THE RESPONDENT LIABLE TO
THE PETITIONERS’ FOR ACTUAL,
30
 MORAL AND EXEMPLARY DAMAGES,
ASIDE FROM ATTORNEY’S FEES, COSTS
OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.69
A reading of the afore-quoted reversible errors
supposedly committed by the Court of Appeals in
its Decision and Resolution would reveal that
petitioners are fundamentally assailing the finding
of the Court of Appeals that the evidence on record
is insufficient to establish petitioners’ entitlement
to any kind of damage. Therefore, it could be said
that the sole issue for our resolution in the Petition
at bar is whether the Court of Appeals committed
reversible error in affirming the judgment of the
RTC that petitioners failed to prove, by
preponderance of evidence, their claim for
damages against Dr. Tuaño.
Evidently, said issue constitutes a question of fact,
as we are asked to revisit anew the factual findings
of the Court of Appeals, as well as of the RTC. In
effect, petitioners would have us sift through the
evidence on record and pass upon whether there is
sufficient basis to establish Dr. Tuaño’s negligence
in his treatment of Peter’s eye condition. This
question clearly involves a factual inquiry, the
determination of which is not within the ambit of
this Court’s power of review under Rule 45 of the
1997 Rules Civil Procedure, as amended.70
Elementary is the principle that this Court is not a
trier of facts; only errors of law are generally
reviewed in petitions for review on certiorari
criticizing decisions of the Court of Appeals.
Questions of fact are not entertained.71
Nonetheless, the general rule that only questions
of law may be raised on appeal in a petition for
review under Rule 45 of the Rules of Court admits
of certain exceptions, including the circumstance
when the finding of fact of the Court of Appeals is
premised on the supposed absence of evidence,
but is contradicted by the evidence on record.
Although petitioners may not explicitly invoke said
exception, it may be gleaned from their allegations
and arguments in the instant Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings
of the Honorable Court of Appeals, [they] were
more than able to establish that: Dr. Tuaño ignored
the standard medical procedure for
ophthalmologists, administered medication with
recklessness, and exhibited an absence of
competence and skills expected from him."72
Petitioners reject the necessity of presenting
expert and/or medical testimony to establish (1)
the standard of care respecting the treatment of
the disorder affecting Peter’s eye; and (2) whether
or not negligence attended Dr. Tuaño’s treatment
of Peter, because, in their words –
That Dr. Tuaño was grossly negligent in the
treatment of Peter’s simple eye ailment is a simple
case of cause and effect. With mere documentary
evidence and based on the facts presented by the
petitioners, respondent can readily be held liable
for damages even without any expert testimony. In
any case, however, and contrary to the finding of
the trial court and the Court of Appeals, there was
a medical expert presented by the petitioner
showing the recklessness committed by [Dr. Tuaño]
– Dr. Tuaño himself. [Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient
evidence to establish his gross negligence that
ultimately caused the impairment of the vision of
Peter’s right eye,73 i.e., that "[d]espite [Dr. Tuaño’s]
knowledge that 5% of the population reacts
adversely to Maxitrol, [he] had no qualms
whatsoever in prescribing said steroid to Peter
without first determining whether or not the (sic)
Peter belongs to the 5%."74
We are not convinced. The judgments of both the
Court of Appeals and the RTC are in accord with
the evidence on record, and we are accordingly
bound by the findings of fact made therein.
Petitioners’ position, in sum, is that Peter’s
glaucoma is the direct result of Dr. Tuaño’s
negligence in his improper administration of the
drug Maxitrol; "thus, [the latter] should be liable
for all the damages suffered and to be suffered by
[petitioners]."75 Clearly, the present controversy is
a classic illustration of a medical negligence case
against a physician based on the latter’s
professional negligence. In this type of suit, the
patient or his heirs, in order to prevail, is required
to prove by preponderance of evidence that the
physician failed to exercise that degree of skill,
care, and learning possessed by other persons in
the same profession; and that as a proximate result
31
of such failure, the patient or his heirs suffered
damages.
For lack of a specific law geared towards the type
of negligence committed by members of the
medical profession, such claim for damages is
almost always anchored on the alleged violation of
Article 2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim.
But just like any other proceeding for damages,
four essential (4) elements i.e., (1) duty; (2) breach;
(3) injury; and (4) proximate causation,76 must be
established by the plaintiff/s. All the four (4)
elements must co-exist in order to find the
physician negligent and, thus, liable for damages.
When a patient engages the services of a physician,
a physician-patient relationship is generated. And
in accepting a case, the physician, for all intents
and purposes, represents that he has the needed
training and skill possessed by physicians and
surgeons practicing in the same field; and that he
will employ such training, care, and skill in the
treatment of the patient.77 Thus, in treating his
patient, a physician is under a duty to [the former]
to exercise that degree of care, skill and diligence
which physicians in the same general
neighborhood and in the same general line of
practice ordinarily possess and exercise in like
cases.78 Stated otherwise, the physician has the
duty to use at least the same level of care that any
other reasonably competent physician would use
to treat the condition under similar circumstances.
This standard level of care, skill and diligence is a
matter best addressed by expert medical
testimony, because the standard of care in a
medical malpractice case is a matter peculiarly
within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence,
or the improper performance of such duty, by the
attending physician when the patient is injured in
body or in health [and this] constitutes the
actionable malpractice.80 Proof of such breach must
likewise rest upon the testimony of an expert
witness that the treatment accorded to the patient
failed to meet the standard level of care, skill and
diligence which physicians in the same general
neighborhood and in the same general line of
practice ordinarily possess and exercise in like
cases.
Even so, proof of breach of duty on the part of the
attending physician is insufficient, for there must
be a causal connection between said breach and
the resulting injury sustained by the patient. Put in
another way, in order that there may be a recovery
for an injury, it must be shown that the "injury for
which recovery is sought must be the legitimate
consequence of the wrong done; the connection
between the negligence and the injury must be a
direct and natural sequence of events, unbroken by
intervening efficient causes";81 that is, the
negligence must be the proximate cause of the
injury. And the proximate cause of an injury is that
cause, which, in the natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred.82
Just as with the elements of duty and breach of the
same, in order to establish the proximate cause [of
the injury] by a preponderance of the evidence in a
medical malpractice action, [the patient] must
similarly use expert testimony, because the
question of whether the alleged professional
negligence caused [the patient’s] injury is generally
one for specialized expert knowledge beyond the
ken of the average layperson; using the specialized
knowledge and training of his field, the expert’s
role is to present to the [court] a realistic
assessment of the likelihood that [the physician’s]
alleged negligence caused [the patient’s] injury.83
From the foregoing, it is apparent that medical
negligence cases are best proved by opinions of
expert witnesses belonging in the same general
neighborhood and in the same general line of
practice as defendant physician or surgeon. The
deference of courts to the expert opinion of
qualified physicians [or surgeons] stems from the
32
former’s realization that the latter possess unusual
technical skills which laymen in most instances are
incapable of intelligently evaluating;84 hence, the
indispensability of expert testimonies.
In the case at bar, there is no question that a
physician-patient relationship developed between
Dr. Tuaño and Peter when Peter went to see the
doctor on 2 September 1988, seeking a consult for
the treatment of his sore eyes. Admittedly, Dr.
Tuaño, an ophthalmologist, prescribed Maxitrol
when Peter developed and had recurrent EKC.
Maxitrol or neomycin/polymyxin B subject of pecuniary reparation.
sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in
sterile form for topical application.85 It is the drug
which petitioners claim to have caused Peter’s
glaucoma.
However, as correctly pointed out by the Court of
Appeals, "[t]he onus probandi was on the patient
to establish before the trial court that the
physicians ignored standard medical procedure,
prescribed and administered medication with
recklessness and exhibited an absence of the
competence and skills expected of general
practitioners similarly situated."86 Unfortunately, in
this case, there was absolute failure on the part of
petitioners to present any expert testimony to
establish: (1) the standard of care to be
implemented by competent physicians in treating
the same condition as Peter’s under similar
circumstances; (2) that, in his treatment of Peter,
Dr. Tuaño failed in his duty to exercise said
standard of care that any other competent
physician would use in treating the same condition
as Peter’s under similar circumstances; and (3) that
the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuaño. Petitioners’ failure to
prove the first element alone is already fatal to
their cause.
Petitioners maintain that Dr. Tuaño failed to follow
in Peter’s case the required procedure for the
prolonged use of Maxitrol. But what is actually the
required procedure in situations such as in the case
at bar? To be precise, what is the standard
operating procedure when ophthalmologists
prescribe steroid medications which, admittedly,
carry some modicum of risk?
Absent a definitive standard of care or diligence
required of Dr. Tuaño under the circumstances, we
have no means to determine whether he was able
to comply with the same in his diagnosis and
treatment of Peter. This Court has no yardstick
upon which to evaluate or weigh the attendant
facts of this case to be able to state with
confidence that the acts complained of, indeed,
constituted negligence and, thus, should be the
Petitioners assert that prior to prescribing Maxitrol,
Dr. Tuaño should have determined first whether
Peter was a "steroid responder."87 Yet again,
petitioners did not present any convincing proof
that such determination is actually part of the
standard operating procedure which
ophthalmologists should unerringly follow prior to
prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain
that what is only required of ophthalmologists, in
cases such as Peter’s, is the conduct of standard
tests/procedures known as "ocular routine
examination,"88 composed of five (5)
tests/procedures – specifically, gross examination
of the eyes and the surrounding area; taking of the
visual acuity of the patient; checking the
intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on
the patient’s eye – and he did all those
tests/procedures every time Peter went to see him
for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaño’s assertion
that when a doctor sees a patient, he cannot
determine immediately whether the latter would
react adversely to the use of steroids; all the doctor
can do is map out a course of treatment recognized
as correct by the standards of the medical
profession. It must be remembered that a
physician is not an insurer of the good result of
treatment. The mere fact that the patient does not
get well or that a bad result occurs does not in
itself indicate failure to exercise due care.89 The
result is not determinative of the performance [of
the physician] and he is not required to be
infallible.90
33
Moreover, that Dr. Tuaño saw it fit to prescribe
Maxitrol to Peter was justified by the fact that the
latter was already using the same medication when
he first came to see Dr. Tuaño on 2 September
1988 and had exhibited no previous untoward
reaction to that particular drug. 91
Also, Dr. Tuaño categorically denied petitioners’
claim that he never monitored the tension of
Peter’s eyes while the latter was on Maxitrol. Dr.
Tuaño testified that he palpated Peter’s eyes every
time the latter came for a check-up as part of the
doctor’s ocular routine examination, a fact which
petitioners failed to rebut. Dr. Tuaño’s regular
conduct of examinations and tests to ascertain the
state of Peter’s eyes negate the very basis of
petitioners’ complaint for damages. As to whether
Dr. Tuaño’s actuations conformed to the standard
of care and diligence required in like
circumstances, it is presumed to have so
conformed in the absence of evidence to the
contrary.
Even if we are to assume that Dr. Tuaño committed
negligent acts in his treatment of Peter’s condition,
the causal connection between Dr. Tuaño’s
supposed negligence and Peter’s injury still needed
to be established. The critical and clinching factor
in a medical negligence case is proof of the causal
connection between the negligence which the
evidence established and the plaintiff’s injuries. 92
The plaintiff must plead and prove not only that he
has been injured and defendant has been at fault,
but also that the defendant’s fault caused the
injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation
must be proven within a reasonable medical
probability based upon competent expert
testimony.93
The causation between the physician’s negligence
and the patient’s injury may only be established by
the presentation of proof that Peter’s glaucoma
would not have occurred but for Dr. Tuaño’s
supposed negligent conduct. Once more,
petitioners failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol
involves the risk of increasing a patient’s IOP. In
fact, this was the reason why he made it a point to
palpate Peter’s eyes every time the latter went to
see him -- so he could monitor the tension of
Peter’s eyes. But to say that said medication
conclusively caused Peter’s glaucoma is purely
speculative. Peter was diagnosed with open-angle
glaucoma. This kind of glaucoma is characterized
by an almost complete absence of symptoms and a
chronic, insidious course.94 In open-angle
glaucoma, halos around lights and blurring of vision
do not occur unless there has been a sudden
increase in the intraocular vision.95 Visual acuity
remains good until late in the course of the
disease.96 Hence, Dr. Tuaño claims that Peter’s
glaucoma "can only be long standing x x x because
of the large C:D97 ratio," and that "[t]he steroids
provoked the latest glaucoma to be revealed
earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid
application."
Who between petitioners and Dr. Tuaño is in a
better position to determine and evaluate the
necessity of using Maxitrol to cure Peter’s EKC vis-
à-vis the attendant risks of using the same?
That Dr. Tuaño has the necessary training and skill
to practice his chosen field is beyond cavil.
Petitioners do not dispute Dr. Tuaño’s
qualifications – that he has been a physician for
close to a decade and a half at the time Peter first
came to see him; that he has had various medical
training; that he has authored numerous papers in
the field of ophthalmology, here and abroad; that
he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching
posts (at the time of the filing of the present
complaint, he was the Chair of the Department of
Ophthalmology and an Associate Professor at the
University of the Philippines-Philippine General
Hospital and St. Luke’s Medical Center,
respectively); and that he held an assortment of
positions in numerous medical organizations like
the Philippine Medical Association, Philippine
Academy of Ophthalmology, Philippine Board of
Ophthalmology, Philippine Society of Ophthalmic
Plastic and Reconstructive Surgery, Philippine
Journal of Ophthalmology, Association of Philippine
Ophthalmology Professors, et al.
It must be remembered that when the
qualifications of a physician are admitted, as in the
34
instant case, there is an inevitable presumption
that in proper cases, he takes the necessary
precaution and employs the best of his knowledge
and skill in attending to his clients, unless the
contrary is sufficiently established.98 In making the
judgment call of treating Peter’s EKC with Maxitrol,
Dr. Tuaño took the necessary precaution by
palpating Peter’s eyes to monitor their IOP every
time the latter went for a check-up, and he
employed the best of his knowledge and skill
earned from years of training and practice.
In contrast, without supporting expert medical
opinions, petitioners’ bare assertions of negligence
on Dr. Tuaño’s part, which resulted in Peter’s
glaucoma, deserve scant credit.
Our disposition of the present controversy might
have been vastly different had petitioners
presented a medical expert to establish their
theory respecting Dr. Tuaño’s so-called negligence.
In fact, the record of the case reveals that
petitioners’ counsel recognized the necessity of
presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr.
Aquino would be presented. Alas, no follow-
through on said undertaking was made.1avvphi1
The plaintiff in a civil case has the burden of proof
as he alleges the affirmative of the issue. However,
in the course of trial in a civil case, once plaintiff
makes out a prima facie case in his favor, the duty
or the burden of evidence shifts to defendant to
controvert plaintiff’s prima facie case; otherwise, a
verdict must be returned in favor of plaintiff. 99 The
party having the burden of proof must establish his
case by a preponderance of evidence.100 The
concept of "preponderance of evidence" refers to
evidence which is of greater weight or more
convincing than that which is offered in opposition
to it;101 in the last analysis, it means probability of
truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered
in opposition thereto.102 Rule 133, Section 1 of the
Revised Rules of Court provides the guidelines for
determining preponderance of evidence, thus:
In civil cases, the party having the burden of proof
must establish his case by a preponderance of
evidence. In determining where the preponderance
or superior weight of evidence on the issues
involved lies the court may consider all the facts
and circumstances of the case, the witnesses’
manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they
testify, the probability or improbability of their
testimony, their interest or want of interest, and
also their personal credibility so far as the same
legitimately appear upon the trial. The court may
also consider the number of witnesses, though the
preponderance is not necessarily with the greater
number.
Herein, the burden of proof was clearly upon
petitioners, as plaintiffs in the lower court, to
establish their case by a preponderance of
evidence showing a reasonable connection
between Dr. Tuaño’s alleged breach of duty and
the damage sustained by Peter’s right eye. This,
they did not do. In reality, petitioners’ complaint
for damages is merely anchored on a statement in
the literature of Maxitrol identifying the risks of its
use, and the purported comment of Dr. Agulto –
another doctor not presented as witness before
the RTC – concerning the prolonged use of Maxitrol
for the treatment of EKC.
It seems basic that what constitutes proper medical
treatment is a medical question that should have
been presented to experts. If no standard is
established through expert medical witnesses, then
courts have no standard by which to gauge the
basic issue of breach thereof by the physician or
surgeon. The RTC and Court of Appeals, and even
this Court, could not be expected to determine on
its own what medical technique should have been
utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be
dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño
liable for any medical negligence or malpractice
where there is no evidence, in the nature of expert
testimony, to establish that in treating Peter, Dr.
Tuaño failed to exercise reasonable care, diligence
and skill generally required in medical practice. Dr.
Tuaño’s testimony, that his treatment of Peter
conformed in all respects to standard medical
practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals
35
correctly held that they had no basis at all to rule
that petitioners were deserving of the various
damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant
petition is DENIED for lack of merit. The assailed
Decision dated 27 September 2006 and Resolution
dated 3 July 2007, both of the Court of Appeals in
CA-G.R. CV No. 68666, are hereby AFFIRMED. No
cost.

36
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 3 of the
Court of Appeals, dated 29 May 1995, which
overturned the decision 4 of the Regional Trial
Court, dated 30 January 1992, finding private
respondents liable for damages arising from
negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting
in her comatose condition.
The antecedent facts as summarized by the trial
court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of
June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10). Except for
occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her
gall bladder (TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three
children whose names are 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,
37
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
38
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,
5
p. 6).
Thus, on 8 January 1986, petitioners filed a civil
case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents
alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as
to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz
and Dr. Mariano Gavino to prove that the 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.
39
Furthermore, the defendants should have
rescheduled the operation to a later date. This,
they should have done, if defendants acted with
due care and prudence as the patient's case was an
elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing,
judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the former
the following sums of money, to wit:
1) 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. 9
Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration
contending that the period to file the appropriate
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
40
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:
I a copy of the decision of the appellate court was
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, 12 private respondents contend that the
petition should not be given due course since the
motion for reconsideration of the petitioners on
the decision of the Court of Appeals was validly
dismissed by the appellate court for having been
filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the
reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the
decision of the Court of Appeals was not sent to
then counsel on record of petitioners, the Coronel
Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by
petitioner Rogelio Ramos on 9 June 1995 wherein
he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications
received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the
counsel on record. Thus, no copy of the decision of
the 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
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. 13 Where the thing
which caused the injury complained of is shown to
be under the management of the defendant or his
servants and the accident is such as in ordinary
course of things does not happen if those who have
its 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
41
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. 15 It
is grounded in the superior logic of ordinary human
experience and on the basis of such experience or
common knowledge, negligence may be deduced
from the mere occurrence of the accident itself. 16
Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur
is not a rule of substantive law and, as such, does
not create or constitute an independent or
separate ground of liability. 17 Instead, it is
considered as merely evidentiary or in the nature
of a procedural rule. 18 It is regarded as a mode of
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. 19 In other words, mere invocation and
application of the doctrine does not dispense with
the requirement of proof of negligence. It is simply
a step in the process of such proof, permitting the
plaintiff to present along with the proof of the
accident, enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place
on the defendant the burden of going forward with
the proof. 20 Still, before resort to the doctrine may
be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
21
In the above requisites, the fundamental element
is the "control of instrumentality" which caused the
damage. 22 Such element of control must be shown
to be within the dominion of the defendant. In
order to have the benefit of the rule, a plaintiff, in
addition to proving injury or damage, must show a
situation where it is applicable, and must establish
that the essential elements of the doctrine were
present in a particular incident. 23
Medical malpractice 24 cases do not escape the
application of this doctrine. Thus, res ipsa loquitur
has been applied when the circumstances
attendant upon the harm are themselves of such a
character as to justify an inference of negligence as
the cause of that harm. 25 The application of res
ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to
determine whether a certain set of circumstances
does, as a matter of law, permit a given inference.
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. 27 The reason is that the
general rule on the necessity of expert testimony
applies only to such matters clearly within the
domain of medical science, and not to matters that
are within the common knowledge of mankind
which may be testified to by anyone familiar with
the facts. 28 Ordinarily, only physicians and
surgeons of skill and experience are competent to
testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill
and care. However, testimony as to the statements
and acts of physicians and surgeons, external
appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find
a physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony,
where the court from its fund of common
knowledge can determine the proper standard of
care. 30 Where common knowledge and experience
teach that a resulting injury would not have
occurred to the patient if due care had been
exercised, an inference of negligence may be
42
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. 31 When the
doctrine is appropriate, all that the patient must do
is prove a nexus between the particular act or
omission complained of and the injury sustained
while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort
to res ipsa loquitur is allowed because there is no
other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a
foreign object in the body of the patient after an
operation, 32 injuries sustained on a healthy part of
the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the
body when another part was intended, 34 knocking
out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, 35 and loss
of an eye while the patient plaintiff was under the
influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res
ipsa loquitur has been measurably enlarged, it does
not automatically apply to all cases of medical
negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty
of the ascribed negligence. Res ipsa loquitur is not a
rigid or ordinary doctrine to be perfunctorily used
but a rule to be cautiously applied, depending upon
the circumstances of each case. It is generally
restricted to situations in malpractice cases where
a layman is able to say, as a matter of common
knowledge and observation, that the consequences
of professional care were not as such as would
ordinarily have followed if due care had been
exercised. 37 A distinction must be made between
the failure to secure results, and the occurrence of
something more unusual and not ordinarily found
if the service or treatment rendered followed the
usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of
res ipsa loquitur can have no application in a suit
against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. 38
The physician or surgeon is not required at his peril
to explain why any particular diagnosis was not
correct, or why any particular scientific treatment
did not produce the desired result. 39 Thus, res ipsa
loquitur is not available in a malpractice suit if the
only showing is that the desired result of an
operation or treatment was not accomplished. 40
The real question, therefore, is whether or not in
the process of the operation any extraordinary
incident or unusual event outside of the routine
performance occurred which is beyond the regular
scope of customary professional activity in such
operations, which, if unexplained would
themselves reasonably speak to the average man
as the negligent cause or causes of the untoward
consequence. 41 If there was such extraneous
interventions, the doctrine of res ipsa loquitur may
be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if
he could. 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, 43 where the Kansas Supreme 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
43
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
44
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 45 of the
patient and thus, cannot be said to be covering her
negligence with falsehood. The appellate court
likewise opined that private respondents were able
to show that the brain damage 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.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki
ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan,"
what did you notice on 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.
xxx xxx xxx
45
Q: Do you know the reason why the patient was
placed in that trendelenburg position?
A: As far as I know, when a patient is in that
position, there is a decrease of blood supply to the
brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean
Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is 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. 48 This
is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is
not required. It is the accepted rule that expert
testimony is not necessary for the proof of
negligence in 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. 49 We take judicial notice of the fact
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. 50 Reviewing witness Cruz' statements, 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?
46
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) 52 making it harder to locate
and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was
indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to
make a thorough assessment of 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. 53 It includes taking
the patient's medical history, review of current
drug therapy, physical examination and
interpretation of laboratory data. 54 The physical
examination performed by the anesthesiologist is
directed primarily toward the central nervous
system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the 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. 56
Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult
should be studied. 57 Where the need arises, as
when initial assessment indicates possible
problems (such as the alleged short neck and
protruding teeth 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
47
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 59 mediated by her
allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they
presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine,
who advanced private respondents' theory that the
oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable
drug reaction to the short-acting barbiturate. We
find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply
because 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
48
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 62 regarding
expert witnesses states:
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. 63 Clearly, Dr.
Jamora does not qualify as an expert witness based
on the above standard since he lacks the necessary
knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field,
private respondents' intentionally avoided
providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents' theory, that
Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response,
has no support in evidence. No evidence of stridor,
skin reactions, or wheezing — some of the more
common accompanying signs of an allergic reaction
— appears on record. No laboratory data were
ever presented to the court.
In any case, private respondents themselves admit
that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts
were to accept private respondents' hypothesis
without supporting medical proof, and against the
weight of available evidence, then every anesthetic
accident 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.
64
An injury or damage is proximately caused by an
act or a failure to act, whenever it appears from
the evidence in the case, that the act or omission
played a substantial part in bringing about or
actually causing the injury or damage; and that the
injury or damage was either a direct result or a
reasonably probable consequence of the act or
omission. 65 It is the dominant, moving or
producing cause.
Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably
the proximate cause which triggered the chain of
events leading to 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
49
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. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only
after he noticed that the nailbeds of Erlinda were
already blue. 67 However, private respondents
contend that a second intubation was executed on
Erlinda and this one was successfully done. We do
not think so. No evidence exists on record, beyond
private respondents' bare claims, which supports
the contention that the second intubation was
successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In
fact, cyanosis was again observed immediately
after the second intubation. Proceeding from this
event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was
accomplished. Even granting that the tube was
successfully inserted during the second attempt, it
was obviously too late. As aptly explained by the
trial court, Erlinda already suffered brain damage
as a result of the inadequate oxygenation of her
brain for about four to five minutes. 68
The above conclusion is not without basis.
Scientific studies point out that intubation
problems are responsible for one-third (1/3) of
deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent
(98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough
evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent
Dra. Gutierrez failed to observe the proper pre-
operative protocol which could have prevented this
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. 71 In other
words, an experienced anesthesiologist,
adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going
around the short neck and protruding teeth. 72
Having failed to observe 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," 73 it is the surgeon's responsibility to see to it
that those under him perform their task in the
proper manner. Respondent Dr. Hosaka's
negligence can be found in his failure to exercise
the proper authority (as the "captain" of 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," 74 who 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.
50
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. 75 This is particularly true
with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to
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. 77 Such responsibility ceases when
the persons or entity concerned prove that they
have observed the diligence of a good father of the
family to prevent damage. 78 In other words, while
the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden
shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they
observed the diligence of a good father of a family
to prevent damage.
In the instant case, respondent hospital, apart from
a general denial of its responsibility over
respondent physicians, failed to adduce evidence
showing that it exercised the diligence of a good
father of a family in the hiring and 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 79 of
the Civil Code.
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
51
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. 80 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
52
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, 82 this Court was
confronted with a situation where the injury
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.
xxx xxx xxx
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the
lower limb. The sensory functions 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. 84 The
husband and the children, all petitioners in this
case, will have to live with the day to day
uncertainty of the patient's illness, knowing any
hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care
of petitioner, altering their long term goals to take
into account their life with a comatose patient.
They, not the respondents, are charged with the
moral responsibility of the care of the victim. The
family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an
award of P2,000,000.00 in moral damages would
be appropriate.
53
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.

54
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
55
trial court’s decision and directed petitioners to
pay their "unpaid medical bills" to private
respondents.
Petitioners filed with this Court a petition for
review on certiorari. The private respondents were
then required to submit their respective comments
thereon. On December 29, 1999, this Court
promulgated the decision which private
respondents now seek to be reconsidered. The
dispositive portion of said Decision states:
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified
so as to award in favor of petitioners, and solidarily
against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of
the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3)
P1,500,000.00 as temperate damages; 4)
P100,000.00 each exemplary damages and
attorney’s fees; and 5) the costs of the suit.2
In his Motion for Reconsideration, private
respondent Dr. Hosaka submits the following as
grounds therefor:
I SEVERAL FACTUAL CIRCUMSTANCES WHICH
THE HONORABLE SUPREME COURT COMMITTED
REVERSIBLE ERROR WHEN IT HELD RESPONDENT
DR. HOSAKA LIABLE ON THE BASIS OF THE
"CAPTAIN-OF-THE-SHIP" DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN
HOLDING RESPONDENT DR. HOSAKA LIABLE
DESPITE THE FACT THAT NO NEGLIGENCE CAN BE
ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT
RESPONDENT DR. HOSAKA IS LIABLE, THE
HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY
EXCESSIVE AND WITHOUT LEGAL BASIS.3
Private respondent Dr. Gutierrez, for her part,
avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY OVERLOOKED THE FACT THAT THE
COURT OF 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
RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE
INADVERTENTLY DISREGARDED THE EXPERT
TESTIMONY OF DR. JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY AWARDED DAMAGES TO
PETITIONERS DESPITE THE FACT THAT THERE WAS
NO NEGLIGENCE ON THE PART OF RESPONDENT
DOCTOR.4
Private respondent De Los Santos Medical Center
likewise moves for reconsideration on the
following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE
COURSE TO THE INSTANT PETITION AS THE
DECISION OF THE HONORABLE COURT OF APPEALS
HAD ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN
FINDING THAT AN EMPLOYER-EMPLOYEE
[RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE
56
LOS SANTOS MEDICAL CENTER AND DRS. ORLINO
HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN
FINDING THAT RESPONDENT DE LOS SANTOS
MEDICAL CENTER IS SOLIDARILY LIABLE WITH
RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN
INCREASING THE AWARD OF DAMAGES IN FAVOR
OF PETITIONERS.5
In the Resolution of February 21, 2000, this Court
denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then
filed their respective second motions for
reconsideration. The Philippine College of Surgeons
filed its Petition-in-Intervention contending in the
main that this Court erred in holding private
respondent Dr. Hosaka liable under the captain of
the ship doctrine. According to the intervenor, said
doctrine had long been abandoned in the United
States in recognition of the developments in
modern medical and hospital practice.6 The Court
noted these pleadings in the Resolution of July 17,
2000.7
On March 19, 2001, the Court heard the oral
arguments of the parties, including the intervenor.
Also present during the hearing were the amicii
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
Philippine Charity Sweepstakes, former Director of
the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay,
President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair
for Research, Department of Anesthesiology,
College of Medicine-Philippine General Hospital,
University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics,
Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of
the Philippines.
The Court enumerated the issues to be resolved in
this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA
(SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE;
AND
3. WHETHER OR NOT THE HOSPITAL (DELOS
SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT
OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.8
We shall first resolve the issue pertaining to private
respondent Dr. Gutierrez. She maintains that the
Court erred in finding her negligent and in holding
that it was the faulty intubation which was the
proximate cause of Erlinda’s comatose condition.
The following objective facts allegedly negate a
finding of negligence on her part: 1) That the
outcome of the procedure was a comatose patient
and not a dead one; 2) That the patient had a
cardiac arrest; and 3) That the patient was revived
from that cardiac arrest.9 In effect, Dr. Gutierrez
insists that, contrary to the finding of this Court,
the intubation she performed on Erlinda was
successful.
Unfortunately, Dr. Gutierrez’ claim of lack of
negligence on her part is belied by the records of
the case. It has been sufficiently established that
she failed to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards
are:
x x x What are the standards of care that an
anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of
the patient for surgery and this is a pre-operative
evaluation because the anesthesiologist is
responsible for determining the medical status of
the patient, developing the anesthesia plan and
acquainting the patient or the responsible adult
particularly if we are referring with the patient or
to adult patient who may not have, who may have
some mental handicaps of the proposed plans. We
do pre-operative evaluation because this provides
for an opportunity for us to establish identification
and personal acquaintance with the patient. It also
makes us have an opportunity to alleviate anxiety,
explain techniques and risks to the patient, given
the patient the choice and establishing consent to
proceed with the plan. And lastly, once this has
been agreed upon by all parties concerned the
57
ordering of pre-operative medications. And
following this line at the end of the evaluation we
usually come up on writing, documentation is very
important as far as when we train an
anesthesiologist we always emphasize this because
we need records for our protection, well, records.
And it entails having brief summary of patient
history and physical findings pertinent to
anesthesia, plan, organize as a problem list, the
plan anesthesia technique, the plan post operative,
pain management if appropriate, special issues for
this particular patient. There are needs for special
care after surgery and if it so it must be written
down there and a request must be made known to
proper authorities that such and such care is
necessary. And the request for medical evaluation
if there is an indication. When we ask for a cardio-
pulmonary clearance it is not in fact to tell them if
this patient is going to be fit for anesthesia, the
decision to give anesthesia rests on the
anesthesiologist. What we ask them is actually to
give us the functional capacity of certain systems
which maybe affected by the anesthetic agent or
the technique that we are going to use. But the
burden of responsibility in terms of selection of
agent and how to administer it rest on the
anesthesiologist.10
The conduct of a preanesthetic/preoperative
evaluation prior to an operation, whether elective
or emergency, cannot be dispensed with.11 Such
evaluation is necessary for the formulation of a
plan of anesthesia care suited to the needs of the
patient concerned.
Pre-evaluation for anesthesia involves taking the
patient’s medical history, reviewing his current
drug therapy, conducting physical examination,
interpreting laboratory data, and determining the
appropriate prescription of preoperative
medications as necessary to the conduct of
anesthesia.12
Physical examination of the patient entails not only
evaluating the patient’s central nervous system,
cardiovascular system and lungs but also the upper
airway. Examination of the upper airway would in
turn include an analysis of the patient’s cervical
spine mobility, temporomandibular mobility,
prominent central incisors, deceased or artificial
teeth, ability to visualize uvula and the thyromental
distance.13
Nonetheless, Dr. Gutierrez omitted to perform a
thorough preoperative evaluation on Erlinda. As
she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour
before the scheduled operation. She auscultated 14
the patient’s heart and lungs and checked the
latter’s blood pressure to determine if Erlinda was
indeed fit for operation.15 However, she did not
proceed to examine the patient’s airway. Had she
been able to check petitioner Erlinda’s airway prior
to the operation, Dr. Gutierrez would most
probably not have experienced difficulty in
intubating the former, and thus the resultant injury
could have been avoided. As we have stated in our
Decision:
In the case at bar, respondent Dra. Gutierrez
admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985.
Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by
her. Until 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:
58
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). 18 In
the Decision, we explained why we found Dr.
Gutierrez’ theory unacceptable. In the first place,
Dr. Eduardo Jamora, the witness who was
presented to support her (Dr. Gutierrez) theory,
was a pulmonologist. Thus, he could not be
considered an authority on anesthesia practice and
procedure and their complications.19
Secondly, there was no evidence on record to
support the theory that Erlinda developed an
allergic reaction to pentothal. Dr. Camagay
enlightened the Court as to the manifestations of
an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In
medical terminology an allergic reaction is
something which is not usual response and it is
further qualified by the release of a hormone called
histamine and histamine has an effect on all the
organs of the body generally release because the
substance that entered the body reacts with the
particular cell, the mass cell, and the mass cell
secretes this histamine. In a way it is some form of
response to take away that which is not mine,
which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects
as you will see you will have redness, if you have an
allergy you will have tearing of the eyes, you will
have swelling, very crucial swelling sometimes of
the larynges which is your voice box main airway,
that swelling may be enough to obstruct the entry
of air to the trachea and you could also have
contraction, constriction of the smaller airways
beyond the trachea, you see you have the trachea
this way, we brought some visual aids but
unfortunately we do not have a projector. And
then you have the smaller airways, the bronchi and
then eventually into the mass of the lungs you have
the bronchus. The difference is that these tubes
have also in their walls muscles and this particular
kind of muscles is smooth muscle so, when
histamine is released they close up like this and
that phenomenon is known as bronco spasm.
However, the effects of histamine also on blood
vessels are different. They dilate blood vessel open
up and the patient or whoever has this histamine
release has hypertension or low blood pressure to
a point that the patient may have decrease blood
supply to the brain and may collapse so, you may
have people who have this.20
These symptoms of an allergic reaction were not
shown to have been extant in 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
59
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
60
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.
61
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. 24 Cruz, Erlinda’s
sister-in-law, was with her inside the operating
room. Moreover, being a nurse and Dean of the
Capitol Medical Center School of Nursing at that,
she is not entirely ignorant of anesthetic
procedure. Cruz narrated that she heard Dr.
Gutierrez remark, "Ang hirap ma-intubate nito,
mali yata ang pagkakapasok. O lumalaki ang
tiyan." She observed that the nailbeds of Erlinda
became bluish and thereafter Erlinda was placed in
trendelenburg position.25 Cruz further averred that
she noticed that the abdomen of Erlinda became
distended.26
The cyanosis (bluish discoloration of the skin or
mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and
enlargement of the stomach of Erlinda 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
62
respondents Dr. Gutierrez and Dr. Hosaka.27 In Voss
vs. Bridwell,28 which involved a patient who
suffered brain damage due to the wrongful
administration of anesthesia, and even before the
scheduled mastoid operation could be performed,
the Kansas Supreme Court applied the doctrine of
res ipsa loquitur, reasoning that the injury to the
patient therein was one which does not ordinarily
take place in the absence of negligence in the
administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court
went on to say that "[o]rdinarily a person being put
under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in
the absence of negligence. Upon these facts and
under these circumstances, a layman would be
able to say, as a matter of common knowledge and
observation, that the consequences of professional
treatment were not as such as would ordinarily
have followed if due care had been exercised." 29
Considering the application of the doctrine of res
ipsa loquitur, the testimony of Cruz was properly
given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the
Court erred in finding him negligent as a surgeon
by applying the Captain-of-the-Ship doctrine. 30 Dr.
Hosaka argues that the trend in United States
jurisprudence has been to reject said doctrine in
light of the developments in medical practice. He
points out that anesthesiology and surgery are two
distinct and specialized fields in medicine and as a
surgeon, he is not deemed to have control over the
acts of Dr. Gutierrez. As anesthesiologist, Dr.
Gutierrez is a specialist in her field and has
acquired skills and knowledge in the course of her
training which Dr. Hosaka, as a surgeon, does not
possess.31 He states further that current American
jurisprudence on the matter recognizes that the
trend towards specialization in medicine has
created situations where surgeons do not always
have the right to control all personnel within the
operating room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh
General Hospital,34 which involved a suit filed by a
patient who lost his voice due to the wrongful
insertion of the endotracheal tube preparatory to
the administration of anesthesia in connection with
the laparotomy to be conducted on him. The
patient sued both the anesthesiologist and the
surgeon for the injury suffered by him. The
Supreme Court of Appeals of West Virginia held
that the surgeon could not be held liable for the
loss of the patient’s voice, considering that the
surgeon did not have a hand in the intubation of
the patient. The court rejected the application of
the "Captain-of-the-Ship Doctrine," citing the fact
that the field of medicine has become specialized
such that surgeons can no longer be deemed as
having control over the other personnel in the
operating room. It held that "[a]n assignment of
liability based on actual control more realistically
reflects the actual relationship which exists in a
modern operating room."35 Hence, only the
anesthesiologist who inserted the endotracheal
tube into the patient’s throat was held liable for
the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to
do away with the Captain-of-the-Ship doctrine
does not mean that this Court will ipso facto follow
said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine.
From the facts on record it can be logically inferred
that Dr. Hosaka exercised a certain degree of, at
the very least, supervision over the procedure then
being performed on Erlinda.
First, it was Dr. Hosaka who recommended to
petitioners the services of Dr. Gutierrez. In effect,
he represented to petitioners that Dr. Gutierrez
possessed the necessary competence and skills.
Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr.
Gutierrez to administer the anesthesia on his
patient.36
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
63
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 necessary39 in the course of the
treatment. The duties of Dr. Hosaka and those of
Dr. Gutierrez in the treatment of petitioner Erlinda
are therefore not as clear-cut as respondents claim
them to be. On the contrary, it is quite apparent
that they have a common responsibility to treat the
patient, which responsibility necessitates that they
call each other’s attention to the condition of the
patient while the other physician is performing the
necessary medical procedures.
It is equally important to point out that Dr. Hosaka
was remiss in his duty of attending to petitioner
Erlinda promptly, for he arrived more than three
(3) hours late for the scheduled operation. The
cholecystectomy was set for June 17, 1985 at 9:00
a.m., but he arrived at DLSMC only at around 12:10
p.m. In reckless disregard for his patient’s well
being, Dr. Hosaka scheduled two procedures on the
same day, just thirty minutes apart from each
other, at different hospitals. Thus, when the first
procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept
in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda’s
scheduled operation subjected her to continued
starvation and consequently, to the risk of
acidosis,40 or the condition of decreased alkalinity
of the blood and tissues, marked by sickly sweet
breath, headache, nausea and vomiting, and visual
disturbances.41 The long period that Dr. Hosaka
made Erlinda wait for him certainly aggravated the
anxiety that she must have been feeling at the
time. It could be safely said that her anxiety
adversely affected the administration of anesthesia
on her. As explained by Dr. Camagay, the patient’s
anxiety usually causes the outpouring of adrenaline
which in turn results in high blood pressure or
disturbances in the heart rhythm:
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 x42
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:
64
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon
contributed to the aggravation of the anxiety of the
patient?
DR. CAMAGAY:
That this operation did not take place as scheduled
is already a source of anxiety and most operating
tables are very narrow and that patients are usually
at risk of falling on the floor so there are restraints
that are placed on them and they are never, never
left alone in the operating room by themselves
specially if they are already pre-medicated because
they may not be aware of some of their movement
that they make which would contribute to their
injury.
CHIEF JUSTICE:
In other words due diligence would require a
surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very
late for the scheduled operation of petitioner
Erlinda is violative, not only of his duty as a
physician "to serve the interest of his patients with
the greatest solicitude, giving them always his best
talent and skill,"44 but also of Article 19 of the Civil
Code which requires a person, in the performance
of his duties, to act with justice and give everyone
his due.
Anent private respondent 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 Code45 since there exists an employer-
employee relationship between private respondent
DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and
exercise real control over their attending and
visiting "consultant" staff. While "consultants" are
not, technically employees, x x x the control
exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the
exception of the payment of wages. In assessing
whether such a relationship in fact exists, the
control test is determining. x x x46
DLSMC however contends that applying the four-
fold test in determining whether such a
relationship exists between it and the respondent
doctors, the inescapable conclusion is that DLSMC
cannot be considered an employer of the
respondent doctors.
It has been consistently held that in determining
whether an employer-employee relationship exists
between the parties, the following elements must
be present: (1) selection and engagement of
services; (2) payment of wages; (3) the power to
hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used
in reaching such an end.47
DLSMC maintains that first, a hospital does not hire
or engage the services of a consultant, but rather,
accredits the latter and grants him or her the
privilege of maintaining a clinic and/or admitting
patients in the hospital upon a showing by the
consultant that he or she possesses the necessary
qualifications, such as accreditation by the
appropriate board (diplomate), evidence of
fellowship and references.48 Second, it is not the
hospital but the patient who pays the consultant’s
fee for services rendered by the latter.49 Third, a
hospital does not dismiss a consultant; instead, the
latter may lose his or her accreditation or privileges
granted by the hospital.50 Lastly, DLSMC argues that
when a doctor refers a patient for admission in a
hospital, it is the doctor who prescribes the
treatment to be given to said patient. The
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
65
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
52
recommendation. Similarly, in cases where a
disciplinary action is lodged against a consultant,
the same is initiated by the department to whom
the consultant concerned belongs and filed with
the Ethics Committee consisting of the department
specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of
said committee.
Neither is there any showing that it is DLSMC which
pays any of its consultants for medical services
rendered by the latter to their respective patients.
Moreover, the contract between the consultant in
respondent hospital and his patient is separate and
distinct from the contract between respondent
hospital and said patient. The first has for its object
the rendition of medical services by the consultant
to the patient, while the second concerns the
provision by the hospital of facilities and services
by its staff such as nurses and laboratory personnel
necessary for the proper treatment of the patient.
Further, no evidence was adduced to show that the
injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide
for hospital facilities and staff necessary for her
treatment.
For these reasons, we reverse the finding of liability
on the part of DLSMC for the injury suffered by
petitioner Erlinda.
Finally, the Court also deems it necessary to modify
the award of damages to petitioners in view of the
supervening event of petitioner Erlinda’s death. In
the assailed Decision, the Court awarded actual
damages of One Million Three Hundred Fifty Two
Thousand Pesos (P1,352,000.00) to cover the
expenses for petitioner Erlinda’s treatment and
care from the date of promulgation of the Decision
up to the time the patient expires or survives. 53 In
addition thereto, the Court awarded temperate
damages of One Million Five Hundred Thousand
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.
66
As it would not be equitable—and certainly not in Erlinda on June 17, 1985 and are ordered to pay
the best interests of the administration of justice— petitioners—
for the victim in such cases to constantly come (a) P1,352,000.00 as actual damages;
before the courts and invoke their aid in seeking (b) P2,000,000.00 as moral damages;
adjustments to the compensatory damages (c) P100,000.00 as exemplary damages;
previously awarded—temperate damages are (d) P100,000.00 as attorney’s fees; and
appropriate. The amount given as temperate (e) the costs of the suit.
damages, though to a certain extent speculative, SO ORDERED.
should take into account the cost of proper care.
In the instant case, petitioners were able to provide
only home-based nursing care for a comatose
patient who has remained in that condition for
over a decade. Having premised our award for
compensatory damages on the amount provided
by petitioners at the onset of litigation, it would be
now much more in step with the interests of justice
if the value awarded for temperate damages would
allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in
such care. They should not be compelled by dire
circumstances to provide substandard care at
home without the aid of professionals, for anything
less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in
temperate damages would therefore be
reasonable.54
However, subsequent to the promulgation of the
Decision, the Court was informed by petitioner
Rogelio that petitioner Erlinda died on August 3,
1999.55 In view of this supervening event, the
award of temperate damages in addition to the
actual or compensatory damages would no longer
be justified since the actual damages awarded in
the Decision are sufficient 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
67
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children
MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE AGANA,
Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA,
Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s
most important and delicate endeavors, must
assume the grave responsibility of pursuing it with
appropriate care. The care and service dispensed
through this high trust, however technical, complex
and esoteric its character may be, must meet
standards of responsibility commensurate with the
undertaking to preserve and protect the health,
and indeed, the very lives of those placed in the
hospital’s keeping.1
Assailed in these three consolidated petitions for
review on certiorari is the Court of Appeals’
Decision2 dated September 6, 1996 in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198 affirming with
modification the Decision3 dated March 17, 1993 of
the Regional Trial Court (RTC), Branch 96, Quezon
City in Civil Case No. Q-43322 and nullifying its
Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to
the Medical City General Hospital (Medical City
Hospital) because of difficulty of bowel movement
and bloody anal discharge. After a series of medical
examinations, Dr. Miguel Ampil, petitioner in G.R.
No. 127590, diagnosed her to be suffering from
"cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the
medical staff4 of the Medical City Hospital,
performed an anterior resection surgery on
Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary,
necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of Natividad’s
husband, Enrique Agana, to permit Dr. Juan
Fuentes, respondent in G.R. No. 126467, to
perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy,
Dr. Ampil took over, completed the operation and
closed the incision.
However, the operation appeared to be flawed. In
the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these
remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to
no avail continue for closure."
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including
the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told
her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she
consult an oncologist to examine the cancerous
nodes which were not removed during the
operation.
On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
treatment. After four months of consultations and
laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to
return to the Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where
he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her
that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead,
the pains intensified, prompting Natividad to seek
68
treatment at the Polymedic General Hospital.
While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object in
her vagina -- a foul-smelling gauze measuring 1.5
inches in width which badly infected her vaginal
vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was
needed to remedy the damage. Thus, in October
1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband
filed with the RTC, Branch 96, Quezon City a
complaint for damages against the Professional
Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as
Civil Case No. Q-43322. They alleged that the latter
are liable for negligence for leaving two pieces of
gauze inside Natividad’s body and malpractice for
concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC
Board of Medicine heard the case only with respect
to Dr. Fuentes because it failed to acquire
jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the
above cases, Natividad died and was duly
substituted by her above-named children (the
Aganas).
On March 17, 1993, the RTC rendered its Decision
in favor of the Aganas, finding PSI, Dr. Ampil and
Dr. Fuentes liable for negligence and malpractice,
the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the
plaintiffs ordering the defendants PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
FUENTES to pay to the plaintiffs, jointly and
severally, except in respect of the award for
exemplary damages and the interest thereon which
are the liabilities of defendants Dr. Ampil and Dr.
Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total
of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the
United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs
and their physician daughter;
c. The total sum of P45,802.50, representing the
cost of hospitalization at Polymedic Hospital,
medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint
until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil
interposed an appeal to the Court of Appeals,
docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with
the RTC a motion for a partial execution of its
Decision, which was granted in an Order dated May
11, 1993. Thereafter, the sheriff levied upon certain
properties of Dr. Ampil and sold them for
P451,275.00 and delivered the amount to the
Aganas.
Following their receipt of the money, the Aganas
entered into an agreement with PSI and Dr.
Fuentes to indefinitely suspend any further
execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an
alias writ of execution against the properties of PSI
and Dr. Fuentes. On September 21, 1993, the RTC
granted the motion and issued the corresponding
writ, prompting Dr. Fuentes to file with the Court
of Appeals a petition for certiorari and prohibition,
with prayer for preliminary injunction, docketed as
CA-G.R. SP No. 32198. During its pendency, the
Court of Appeals issued a Resolution5 dated
October 29, 1993 granting Dr. Fuentes’ prayer for
injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of
Medicine rendered its Decision6 in Administrative
Case No. 1690 dismissing the case against Dr.
Fuentes. The Board held that the prosecution failed
to show that Dr. Fuentes was the one who left the
69
two pieces of gauze inside Natividad’s body; and
that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals
rendered its Decision jointly disposing of CA-G.R.
CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the
case against defendant-appellant Dr. Juan Fuentes
is hereby DISMISSED, and with the pronouncement
that defendant-appellant Dr. Miguel Ampil is liable
to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay
or had paid to the plaintiffs-appellees, the decision
appealed from is hereby AFFIRMED and the instant
appeal DISMISSED.
Concomitant with the above, the petition for
certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-G.R. SP
No. 32198 is hereby GRANTED and the challenged
order of the respondent judge dated September
21, 1993, as well as the alias writ of execution
issued pursuant thereto are hereby NULLIFIED and
SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction
issued by this Court on November 29, 1993 is
hereby cancelled.
Costs against defendants-appellants Dr. Miguel
Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration,
but it was denied in a Resolution7 dated December
19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that
the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is
not its employee; (2) it is solidarily liable with Dr.
Ampil; and (3) it is not entitled to its counterclaim
against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or
independent contractor. As such, he alone should
answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the
Court of Appeals erred in finding that Dr. Fuentes is
not guilty of negligence or medical malpractice,
invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie
proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that
the Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he
left the two pieces of gauze in Natividad’s vagina.
He pointed to other probable causes, such as: (1) it
was Dr. Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses’ failure to
properly count the gauzes used during surgery; and
(3) the medical intervention of the American
doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first,
whether the Court of Appeals erred in holding Dr.
Ampil liable for negligence and malpractice;
second, whether the Court of Appeals erred in
absolving Dr. Fuentes of any liability; and third,
whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr.
Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears
the Court’s attention to other possible causes of
Natividad’s detriment. He argues that the Court
should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in
Natividad’s body after performing hysterectomy;
second, the attending nurses erred in counting the
gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and
without basis. Records show that he did not
present any evidence to prove that the American
doctors were the ones who put or left the gauzes in
Natividad’s body. Neither did he submit evidence
to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the
alleged negligence of Dr. Fuentes, we are mindful
that Dr. Ampil examined his (Dr. Fuentes’) work
and found it in order.
The glaring truth is that all the major
circumstances, taken together, as specified by the
Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
70
First, it is not disputed that the surgeons used
gauzes as sponges to control the bleeding of the
patient during the surgical operation.
Second, immediately after the operation, the
nurses who assisted in the surgery noted in their
report that the ‘sponge count (was) lacking 2’; that
such anomaly was ‘announced to surgeon’ and that
a ‘search was done but to no avail’ prompting Dr.
Ampil to ‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were
extracted from the same spot of the body of Mrs.
Agana where the surgery was performed.
An operation requiring the placing of sponges in
the incision is not complete until the sponges are
properly removed, and it is settled that the leaving
of sponges or other foreign substances in the
wound after the incision has been closed is at least
prima facie negligence by the operating surgeon. 8
To put it simply, such act is considered so
inconsistent with due care as to raise an inference
of negligence. There are even legions of authorities
to the effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that
there are times when danger to a patient’s life
precludes a surgeon from further searching missing
sponges or foreign objects left in the body. But this
does not leave him free from any obligation. Even if
it has been shown that a surgeon was required by
the urgent necessities of the case to leave a sponge
in his patient’s abdomen, because of the dangers
attendant upon delay, still, it is his legal duty to so
inform his patient within a reasonable time
thereafter by advising her of what he had been
compelled to do. This is in order that she might
seek relief from the effects of the foreign object
left in her body as her condition might permit. The
ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patient’s
body that should be removed as part of the
operation, he thereby leaves his operation
uncompleted and creates a new condition which
imposes upon him the legal duty of calling the new
condition to his patient’s attention, and
endeavoring with the means he has at hand to
minimize and avoid untoward results likely to
ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the
missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was
the ordinary consequence of her operation. Had he
been more candid, Natividad could have taken the
immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind,
what was initially an act of negligence by Dr. Ampil
has ripened into a deliberate wrongful act of
deceiving his patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove
that a health care provider either failed to do
something which a reasonably prudent health care
provider would have done, or that he did
something that a reasonably prudent provider
would not have done; and that failure or action
caused injury to the patient.11 Simply put, the
elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the
duty to remove all foreign objects, such as gauzes,
from Natividad’s body before closure of the
incision. When he failed to do so, it was his duty to
inform Natividad about it. Dr. Ampil breached both
duties. Such breach caused injury to Natividad,
necessitating her further examination by American
doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s
injury could be traced from his act of closing the
incision despite the information given by the
attending nurses that two pieces of gauze were still
missing. That they were later on extracted from
Natividad’s vagina established the causal link
between Dr. Ampil’s negligence and the injury. And
what further aggravated such injury was his
deliberate concealment of the missing gauzes from
the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court
of the case against Dr. Fuentes on the ground that
it is contrary to the doctrine of res ipsa loquitur.
According to them, the fact that the two pieces of
71
gauze were left inside Natividad’s body is a prima
facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks
for itself." It is the rule that the fact of the
occurrence 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.13 Stated
differently, where the thing which caused the
injury, without the fault of the injured, is under the
exclusive control of the defendant and the injury is
such that it should not have occurred if he, having
such control used proper care, it affords reasonable
evidence, in the absence of explanation that the
injury arose from the defendant’s want of care, and
the burden of proof is shifted to him to establish
that he has observed due care and diligence.14
From the foregoing statements of the rule, the
requisites for the applicability of the doctrine of res
ipsa loquitur are: (1) the occurrence of an injury;
(2) the thing which caused the injury was under the
control and management of the defendant; (3) the
occurrence was such that in the ordinary course of
things, would not have happened if those who had
control or management used proper care; and (4)
the absence of explanation by the defendant. Of
the foregoing requisites, the most instrumental is
the "control and management of the thing which
caused the injury."15
We find the element of "control and management
of the thing which caused the injury" to be
wanting. Hence, the doctrine of res ipsa loquitur
will not lie.
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He
requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread
to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his
work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil
then resumed operating on Natividad. He was
about to finish the procedure when the attending
nurses informed him that two pieces of gauze were
missing. A "diligent search" was conducted, but the
misplaced gauzes were not found. Dr. Ampil then
directed that the incision be closed. During this
entire period, Dr. Fuentes was no longer in the
operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the
surgery room and all personnel connected with the
operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In
other words, he was the "Captain of the Ship." That
he discharged such role is evident from his
following conduct: (1) calling Dr. Fuentes to
perform a hysterectomy; (2) examining the work of
Dr. Fuentes and finding it in order; (3) granting Dr.
Fuentes’ permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act
of ordering the closure of the incision
notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividad’s
body. Clearly, the control and management of the
thing which caused the injury was in the hands of
Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of
liability, being a mere evidentiary rule.17 In other
words, mere invocation and application of the
doctrine does not dispense with the requirement
of proof of negligence. Here, the negligence was
proven to have been committed by Dr. Ampil and
not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr.
Ampil
The third issue necessitates a glimpse at the
historical development of hospitals and the
resulting theories concerning their liability for the
negligence of physicians.
Until the mid-nineteenth century, hospitals were
generally charitable institutions, providing medical
services to the lowest classes of society, without
regard for a patient’s ability to pay.18 Those who
could afford medical treatment were usually
treated at home by their doctors.19 However, the
days of house calls and philanthropic health care
72
are over. The modern health care industry
continues to distance itself from its charitable past
and has experienced a significant conversion from
a not-for-profit health care to for-profit hospital
businesses. Consequently, significant changes in
health law have accompanied the business-related
changes in the hospital industry. One important
legal change is an increase in hospital liability for
medical malpractice. Many courts now allow claims
for hospital vicarious liability under the theories of
respondeat superior, apparent authority,
ostensible authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability
for negligent acts is Article 2176 of the Civil Code,
which reads:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
A derivative of this provision is Article 2180, the
rule governing vicarious liability under the doctrine
of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176
is demandable not only for one’s own acts or
omissions, but also for those of persons for whom
one is responsible.
x x x x x
x view. The "Schloendorff doctrine" regards a
The owners and managers of an establishment or
enterprise are likewise responsible for damages
caused by their employees in the service of the
branches in which the latter are employed or on
the occasion of their functions.
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks even
though the former are not engaged in any business
or industry.
x x x x hospitals are increasingly taking active role in
x x
The responsibility treated of in this article shall
cease when the persons herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage.
A prominent civilist commented that professionals
engaged by an employer, such as physicians,
dentists, and pharmacists, are not "employees"
under this article because the manner in which
they perform their work is not within the control of
the latter (employer). In other words, professionals
are considered personally liable for the fault or
negligence they commit in the discharge of their
duties, and their employer cannot be held liable for
such fault or negligence. In the context of the
present case, "a hospital cannot be held liable for
the fault or negligence of a physician or surgeon in
the treatment or operation of patients."21
The foregoing view is grounded on the traditional
notion that the professional status and the very
nature of the physician’s calling preclude him from
being classed as an agent or employee of a
hospital, whenever he acts in a professional
capacity.22 It has been said that medical practice
strictly involves highly developed and specialized
knowledge,23 such that physicians are generally
free to exercise their own skill and judgment in
rendering medical services sans interference. 24
Hence, when a doctor practices medicine in a
hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the
patient and his actions are of his own
responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this
physician, even if employed by a hospital, as an
independent contractor because of the skill he
exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt
from the application of the respondeat superior
principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in
medical care. Courts came to realize that modern
supplying and regulating medical care to patients.
No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and
operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals
73
deviated from the Schloendorff doctrine, noting
that modern hospitals actually do far more than
provide facilities for treatment. Rather, they
regularly employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative and
manual workers. They charge patients for medical
care and treatment, even collecting for such
services through legal action, if necessary. The
court then concluded that there is no reason to
exempt hospitals from the universal rule of
respondeat superior.
In our shores, the nature of the relationship
between the hospital and the physicians is
rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals 28 that
for purposes of apportioning responsibility in
medical negligence cases, an employer-employee
relationship in effect exists between hospitals and
their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital
in this particular incident. The unique practice
(among private hospitals) of filling up specialist
staff with attending and visiting "consultants," who
are allegedly not hospital employees, presents
problems in apportioning responsibility for
negligence in medical malpractice cases. However,
the difficulty is more apparent than real.
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in
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. x x x.
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, 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. 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. "
But the Ramos pronouncement is not our only
basis in sustaining PSI’s liability. Its liability is also
anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of
corporate negligence which have gained
acceptance in the determination of a hospital’s
liability for negligent acts of health professionals.
The present case serves as a perfect platform to
test the applicability of these doctrines, thus,
enriching our jurisprudence.
Apparent authority, or what is sometimes referred
to as the "holding
out" theory, or doctrine of ostensible agency or
agency by estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result of the
reality of a contractual relationship, but rather
because of the actions of a principal or an
employer in somehow misleading the public into
believing that the relationship or the authority
exists.30 The concept is essentially one of estoppel
and has been explained in this manner:
74
"The principal is bound by the acts of his agent with
the apparent authority which he knowingly permits
the agent to assume, or which he holds the agent
out to the public as possessing. The question in
every case is whether the principal has by his
voluntary act placed the agent in such a situation
that a person of ordinary prudence, conversant
with business usages and the nature of the
particular business, is justified in presuming that
such agent has authority to perform the particular
act in question.31
The applicability of apparent authority in the field
of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc. 32
There, it was explicitly stated that "there does not
appear to be any rational basis for excluding the
concept of apparent authority from the field of
hospital liability." Thus, in cases where it can be
shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee
and that a patient has accepted treatment from
that physician in the reasonable belief that it is
being rendered in behalf of the hospital, then the
hospital will be liable for the physician’s
negligence.
Our jurisdiction recognizes the concept of an
agency by implication or estoppel. Article 1869 of
the Civil Code reads:
ART. 1869. Agency may be express, or implied from
the acts of the principal, from his silence or lack of
action, or his failure to repudiate the agency,
knowing that another person is acting on his behalf
without authority.
In this case, PSI publicly displays in the lobby of the
Medical City Hospital the names and specializations
of the physicians associated or accredited by it,
including those of Dr. Ampil and Dr. Fuentes. We
concur with the Court of Appeals’ conclusion that it
"is now estopped from passing all the blame to the
physicians whose names it proudly paraded in the
public directory leading the public to believe that it
vouched for their skill and competence." Indeed,
PSI’s act is tantamount to holding out to the public
that Medical City Hospital, through its accredited
physicians, offers quality health care services. By
accrediting Dr. Ampil and Dr. Fuentes and publicly
advertising their qualifications, the hospital created
the impression that they were its agents,
authorized to perform medical or surgical services
for its patients. As expected, these patients,
Natividad being one of them, accepted the services
on the reasonable belief that such were being
rendered by the hospital or its employees, agents,
or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life
of the patient, he ought not be burdened with the
defense of absence of employer-employee
relationship between the hospital and the
independent physician whose name and
competence are certainly certified to the general
public by the hospital’s act of listing him and his
specialty in its lobby directory, as in the case
herein. The high costs of today’s medical and
health care should at least exact on the hospital
greater, if not broader, legal responsibility for the
conduct of treatment and surgery within its facility
by its accredited physician or surgeon, regardless
of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy
to discern. Corporate entities, like PSI, are capable
of acting only through other individuals, such as
physicians. If these accredited physicians do their
job well, the hospital succeeds in its mission of
offering quality medical services and thus profits
financially. Logically, where negligence mars the
quality of its services, the hospital should not be
allowed to escape liability for the acts of its
ostensible agents.
We now proceed to the doctrine of corporate
negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-
43332 for negligence and malpractice is that PSI as
owner, operator and manager of Medical City
Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its
nursing staff, resident doctors, and medical interns
who assisted Drs. Ampil and Fuentes in the
performance of their duties as surgeons."34
Premised on the doctrine of corporate negligence,
the trial court held that PSI is directly liable for such
breach of duty.
We agree with the trial court.
75
Recent years have seen the doctrine of corporate
negligence as the judicial answer to the problem of
allocating hospital’s liability for the negligent acts
of health practitioners, absent facts to support the
application of respondeat superior or apparent
authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern
times, the duty of providing quality medical service
is no longer the sole prerogative and responsibility
of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize
a highly professional medical staff whose
competence and performance need to be
monitored by the hospitals commensurate with
their inherent responsibility to provide quality
medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of
Illinois held that "the jury could have found a
hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the
patient; failing to require a consultation with or
examination by members of the hospital staff; and
failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions
held that a hospital’s corporate negligence extends
to permitting a physician known to be incompetent
to practice at the hospital.37 With the passage of
time, more duties were expected from hospitals,
among them: (1) the use of reasonable care in the
maintenance of safe and adequate facilities and
equipment; (2) the selection and retention of
competent physicians; (3) the overseeing or
supervision of all persons who practice medicine
within its walls; and (4) the formulation, adoption
and enforcement of adequate rules and policies
that ensure quality care for its patients. 38 Thus, in
Tucson Medical Center, Inc. v. Misevich, 39 it was
held that a hospital, following the doctrine of
corporate responsibility, has the duty to see that it
meets the standards of responsibilities for the care
of patients. Such duty includes the proper
supervision of the members of its medical staff.
And in Bost v. Riley,40 the court concluded that a
patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure
him. The hospital accordingly has the duty to make
a reasonable effort to monitor and oversee the
treatment prescribed and administered by the
physicians practicing in its premises.
In the present case, it was duly established that PSI
operates the Medical City Hospital for the purpose
and under the concept of providing comprehensive
medical services to the public. Accordingly, it has
the duty to exercise reasonable care to protect
from harm all patients admitted into its facility for
medical treatment. Unfortunately, PSI failed to
perform such duty. The findings of the trial court
are convincing, thus:
x x x PSI’s liability is traceable to its failure to
conduct an investigation of the matter reported in
the nota bene of the count nurse. Such failure
established PSI’s part in the dark conspiracy of
silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if
not for the benefit of the patient to whom the duty
is primarily owed, then in the interest of arriving at
the truth. The Court cannot accept that the medical
and the healing professions, through their
members like defendant surgeons, and their
institutions like PSI’s hospital facility, can callously
turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or
failing to investigate a report of such seriousness as
the one in Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes
operated on Natividad with the assistance of the
Medical City Hospital’s staff, composed of resident
doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of
the hospital, has actual or constructive knowledge
of the procedures carried out, particularly the
report of the attending nurses that the two pieces
of gauze were missing. In Fridena v. Evans, 41 it was
held that a corporation is bound by the knowledge
acquired by or notice given to its agents or officers
within the scope of their authority and in reference
to a matter to which their authority extends. This
means that the knowledge of any of the staff of
Medical City Hospital constitutes knowledge of PSI.
Now, the failure of PSI, despite the attending
nurses’ report, to investigate and inform Natividad
regarding the missing gauzes amounts to callous
76
negligence. Not only did PSI breach its duties to
oversee or supervise all persons who practice
medicine within its walls, it also failed to take an
active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the
Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the
Supreme Court of Arizona held:
x x x In recent years, however, the duty of care
owed to the patient by the hospital has expanded.
The emerging trend is to hold the hospital
responsible where the hospital has failed to
monitor and review medical services being
provided within its walls. See Kahn Hospital
Malpractice Prevention, 27 De Paul . Rev. 23
(1977).
Among the cases indicative of the ‘emerging trend’
is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d
335 (1972). In Purcell, the hospital argued that it
could not be held liable for the malpractice of a
medical practitioner because he was an
independent contractor within the hospital. The
Court of Appeals pointed out that the hospital had
created a professional staff whose competence and
performance was to be monitored and reviewed by
the governing body of the hospital, and the court
held that a hospital would be negligent where it
had knowledge or reason to believe that a doctor
using the facilities was employing a method of
treatment or care which fell below the recognized
standard of care.
Subsequent to the Purcell decision, the Arizona
Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of
medical care furnished to patients within its walls
and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P.
2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has
the duty of supervising the competence of the
doctors on its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead
that the operation was performed at the hospital
with its knowledge, aid, and assistance, and that
the negligence of the defendants was the
proximate cause of the patient’s injuries. We find
that such general allegations of negligence, along
with the evidence produced at the trial of this case,
are sufficient to support the hospital’s liability
based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily
liable with Dr. Ampil for damages, let it be
emphasized that PSI, apart from a general denial of
its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good
father of a family in the accreditation and
supervision of the latter. In neglecting to offer such
proof, PSI failed to discharge its burden under the
last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with
Dr. Ampil. Moreover, as we have discussed, PSI is
also directly liable to the Aganas.
One final word. Once a physician undertakes the
treatment and care of a patient, the law imposes
on him certain obligations. In order to escape
liability, he must possess that reasonable degree of
learning, skill and experience required by his
profession. At the same time, he must apply
reasonable care and diligence in the exercise of his
skill and the application of his knowledge, and
exert his best judgment.
WHEREFORE, we DENY all the petitions and
AFFIRM the challenged Decision of the Court of
Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP
No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
77
PROFESSIONAL SERVICES, INC., petitioner,
vs.
THE COURT OF APPEALS and NATIVIDAD and
ENRIQUE AGANA, respondents,
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 126467 February 11, 2008
NATIVIDAD (Substituted by her children
MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE AGANA,
petitioners,
vs.
THE COURT OF APPEALS and JUAN FUENTES,
respondents,
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 127590 February 11, 2008
MIGUEL AMPIL, petitioner,
vs.
THE COURT OF APPEALS and NATIVIDAD AGANA
and ENRIQUE AGANA, respondents.
RESOLUTION
SANDOVAL-GUTIERREZ, J.:
As the hospital industry changes, so must the laws
and jurisprudence governing hospital liability. The
immunity from medical malpractice traditionally
accorded to hospitals has to be eroded if we are to
balance the interest of the patients and hospitals
under the present setting.
Before this Court is a motion for reconsideration
filed by Professional Services, Inc. (PSI), petitioner
in G.R. No. 126297, assailing the Court’s First
Division Decision dated January 31, 2007, finding
PSI and Dr. Miguel Ampil, petitioner in G.R. No.
127590, jointly and severally liable for medical
negligence.
A brief revisit of the antecedent facts is imperative.
On April 4, 1984, Natividad Agana was admitted at
the Medical City General Hospital (Medical City)
because of difficulty of bowel movement and
bloody anal discharge. Dr. Ampil diagnosed her to
be suffering from "cancer of the sigmoid." Thus, on
April 11, 1984, Dr. Ampil, assisted by the medical
staff1 of Medical City, performed an anterior
resection surgery upon her. During the surgery, he
found that the malignancy in her sigmoid area had
spread to her left ovary, necessitating the removal
of certain portions of it. Thus, Dr. Ampil obtained
the consent of Atty. Enrique Agana, Natividad’s
husband, to permit Dr. Juan Fuentes, respondent in
G.R. No. 126467, to perform hysterectomy upon
Natividad.
Dr. Fuentes performed and completed the
hysterectomy. Afterwards, Dr. Ampil took over,
completed the operation and closed the incision.
However, the operation appeared to be flawed. In
the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these
remarks:
sponge count lacking 2
announced to surgeon searched done (sic) but to
no avail continue for closure.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told
her that the pain was the natural consequence of
the surgical operation performed upon her. Dr.
Ampil recommended that Natividad consult an
oncologist to treat the cancerous nodes which
were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
treatment. After four (4) months of consultations
and laboratory examinations, Natividad was told
that she was free of cancer. Hence, she was
advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two (2)
weeks thereafter, her daughter found a piece of
gauze protruding from her vagina. Dr. Ampil was
immediately informed. He proceeded to
Natividad’s house where he managed to extract by
hand a piece of gauze measuring 1.5 inches in
width. Dr. Ampil then assured Natividad that the
pains would soon vanish.
Despite Dr. Ampil’s assurance, the pains
intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined
thereat, Dr. Ramon Gutierrez detected the
presence of a foreign object in her vagina -- a foul-
smelling gauze measuring 1.5 inches in width. The
gauze had badly infected her vaginal vault. A recto-
vaginal fistula had formed in her reproductive
organ which forced stool to excrete through the
vagina. Another surgical operation was needed to
78
remedy the situation. Thus, in October 1984,
Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband
filed with the Regional Trial Court, Branch 96,
Quezon City a complaint for damages against PSI
(owner of Medical City), Dr. Ampil and Dr. Fuentes.
On February 16, 1986, pending the outcome of the
above case, Natividad died. She was duly
substituted by her above-named children (the
Aganas).
On March 17, 1993, the trial court rendered
judgment in favor of spouses Agana finding PSI, Dr.
Ampil and Dr. Fuentes jointly and severally liable.
On appeal, the Court of Appeals, in its Decision
dated September 6, 1996, affirmed the assailed
judgment with modification in the sense that the
complaint against Dr. Fuentes was dismissed.
PSI, Dr. Ampil and the Aganas filed with this Court
separate petitions for review on certiorari. On
January 31, 2007, the Court, through its First
Division, rendered a Decision holding that PSI is
jointly and severally liable with Dr. Ampil for the
following reasons: first, there is an employer-
employee relationship between Medical City and
Dr. Ampil. The Court relied on Ramos v. Court of
Appeals,2 holding that for the purpose of
apportioning responsibility in medical negligence
cases, an employer-employee relationship in effect
exists between hospitals and their attending and
visiting physicians; second, PSI’s act of publicly
displaying in the lobby of the Medical City the
names and specializations of its accredited
physicians, including Dr. Ampil, estopped it from
denying the existence of an employer-employee
relationship between them under the doctrine of
ostensible agency or agency by estoppel; and third,
PSI’s failure to supervise Dr. Ampil and its resident
physicians and nurses and to take an active step in
order to remedy their negligence rendered it
directly liable under the doctrine of corporate
negligence.
In its motion for reconsideration, PSI contends that
the Court erred in finding it liable under Article
2180 of the Civil Code, there being no employer-
employee relationship between it and its
consultant, Dr. Ampil. PSI stressed that the Court’s
Decision in Ramos holding that "an employer-
employee relationship in effect exists between
hospitals and their attending and visiting physicians
for the purpose of apportioning responsibility" had
been reversed in a subsequent Resolution. 3
Further, PSI argues that the doctrine of ostensible
agency or agency by estoppel cannot apply
because spouses Agana failed to establish one
requisite of the doctrine, i.e., that Natividad relied
on the representation of the hospital in engaging
the services of Dr. Ampil. And lastly, PSI maintains
that the doctrine of corporate negligence is
misplaced because the proximate cause of
Natividad’s injury was Dr. Ampil’s negligence.
The motion lacks merit.
As earlier mentioned, the First Division, in its
assailed Decision, ruled that an employer-
employee relationship "in effect" exists between
the Medical City and Dr. Ampil. Consequently, both
are jointly and severally liable to the Aganas. This
ruling proceeds from the following ratiocination in
Ramos:
We now discuss the responsibility of the hospital in
this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with
attending and visiting "consultants," who are
allegedly not hospital employees, presents
problems in apportioning 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.
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,
79
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.
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
partia ptetas.
Clearly, in Ramos, the Court considered the
peculiar relationship between a hospital and its
consultants on the bases of certain factors. One
such factor is the "control test" wherein the
hospital exercises control in the hiring and firing of
consultants, like Dr. Ampil, and in the conduct of
their work.
Actually, contrary to PSI’s contention, the Court did
not reverse its ruling in Ramos. What it clarified
was that the De Los Santos Medical Clinic did not
exercise control over its consultant, hence, there is
no employer-employee relationship between
them. Thus, despite the granting of the said
hospital’s motion for reconsideration, the doctrine
in Ramos stays, i.e., for the purpose of allocating
responsibility in medical negligence cases, an
employer-employee relationship exists between
hospitals and their consultants.
In the instant cases, PSI merely offered a general
denial of responsibility, maintaining that
consultants, like Dr. Ampil, are "independent
contractors," not employees of the hospital. Even
assuming that Dr. Ampil is not an employee of
Medical City, but an independent contractor, still
the said hospital is liable to the Aganas.
In Nograles, et al. v. Capitol Medical Center, et al.,4
through Mr. Justice Antonio T. Carpio, the Court
held:
The question now is whether CMC is automatically
exempt from liability considering that Dr. Estrada is
an independent contractor-physician.
In general, a hospital is not liable for the negligence
of an independent contractor-physician. There is,
however, an exception to this principle. The
hospital may be liable if the physician is the
"ostensible" agent of the hospital. (Jones v.
Philpott, 702 F. Supp. 1210 [1988]) This exception is
also known as the "doctrine of apparent authority."
(Sometimes referred to as the apparent or
ostensible agency theory. [King v. Mitchell, 31
A.D.3rd 958, 819 N.Y. S.2d 169 (2006)].
xxx
The doctrine of apparent authority essentially
involves two factors to determine the liability of an
independent contractor-physician.
The first factor focuses on the hospital’s
manifestations and is sometimes described as an
inquiry whether the hospital acted in a manner
which would lead a reasonable person to conclude
that the individual who was alleged to be negligent
was an employee or agent of the hospital. (Diggs v.
Novant Health, Inc., 628 S.E.2d 851 (2006) citing
Hylton v. Koontz, 138 N.C. App. 629 (2000). In this
regard, the hospital need not make express
80
representations to the patient that the treating
physician is an employee of the hospital; rather a
representation may be general and implied. (Id.)
The doctrine of apparent authority is a specie of
the doctrine of estoppel. Article 1431 of the Civil
Code provides that "[t]hrough estoppel, an
admission or representation is rendered conclusive
upon the person making it, and cannot be denied
or disproved as against the person relying
thereon." Estoppel rests on this rule: "Whether a
party has, by his own declaration, act, or omission,
intentionally and deliberately led another to
believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of
such declaration, act or omission, be permitted to
falsify it. (De Castro v. Ginete, 137 Phil. 453 [1969],
citing Sec. 3, par. A, Rule 131 of the Rules of Court.
See also King v. Mitchell, 31 A.D.3rd 958, 819
N.Y.S.2d 169 [2006]).
xxx
The second factor focuses on the patient’s reliance.
It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Diggs v. Novant
Health, Inc.)
PSI argues that the doctrine of apparent authority
cannot apply to these cases because spouses
Agana failed to establish proof of their reliance on
the representation of Medical City that Dr. Ampil is
its employee.
The argument lacks merit.
Atty. Agana categorically testified that one of the
reasons why he chose Dr. Ampil was that he knew
him to be a staff member of Medical City, a
prominent and known hospital.
Q Will you tell us what transpired in your visit to
Dr. Ampil?
A Well, I saw Dr. Ampil at the Medical City, I
know him to be a staff member there, and I told
him about the case of my wife and he asked me to
bring my wife over so she could be examined. Prior
to that, I have known Dr. Ampil, first, he was
staying in front of our house, he was a neighbor,
second, my daughter was his student in the
University of the East School of Medicine at Ramon
Magsaysay; and when my daughter opted to
establish a hospital or a clinic, Dr. Ampil was one of
our consultants on how to establish that hospital.
And from there, I have known that he was a
specialist when it comes to that illness.
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was
your reason for choosing to contact Dr. Ampil in
connection with your wife’s illness?
A First, before that, I have known him to be a
specialist on that part of the body as a surgeon;
second, I have known him to be a staff member of
the Medical City which is a prominent and known
hospital. And third, because he is a neighbor, I
expect more than the usual medical service to be
given to us, than his ordinary patients.5
Clearly, PSI is estopped from passing the blame
solely to Dr. Ampil. Its act of displaying his name
and those of the other physicians in the public
directory at the lobby of the hospital amounts to
holding out to the public that it offers quality
medical service through the listed physicians. This
justifies Atty. Agana’s belief that Dr. Ampil was a
member of the hospital’s staff. It must be stressed
that under the doctrine of apparent authority, the
question in every case is whether the principal has
by his voluntary act placed the agent in such a
situation that a person of ordinary prudence,
conversant with business usages and the nature of
the particular business, is justified in presuming
that such agent has authority to perform the
particular act in question.6 In these cases, the
circumstances yield a positive answer to the
question.
The challenged Decision also anchors its ruling on
the doctrine of corporate responsibility. 7 The duty
of providing quality medical service is no longer the
sole prerogative and responsibility of the physician.
This is because the modern hospital now tends to
organize a highly-professional medical staff whose
competence and performance need also to be
monitored by the hospital commensurate with its
inherent responsibility to provide quality medical
care.8 Such responsibility includes the proper
supervision of the members of its medical staff.
Accordingly, the hospital has the duty to make a
reasonable effort to monitor and oversee the
81
treatment prescribed and administered by the
physicians practicing in its premises.
Unfortunately, PSI had been remiss in its duty. It
did not conduct an immediate investigation on the
reported missing gauzes to the great prejudice and
agony of its patient. Dr. Jocson, a member of PSI’s
medical staff, who testified on whether the hospital
conducted an investigation, was evasive, thus:
Q We go back to the operative technique, this
was signed by Dr. Puruganan, was this submitted to
the hospital?
A Yes, sir, this was submitted to the hospital with
the record of the patient.
Q Was the hospital immediately informed about
the missing sponges?
A That is the duty of the surgeon, sir.
Q As a witness to an untoward incident in the
operating room, was it not your obligation, Dr., to
also report to the hospital because you are under
the control and direction of the hospital?
A The hospital already had the record of the two
OS missing, sir.
Q If you place yourself in the position of the
hospital, how will you recover.
A You do not answer my question with another
question.
Q Did the hospital do anything about the missing
gauzes?
A The hospital left it up to the surgeon who was
doing the operation, sir.
Q Did the hospital investigate the surgeon who
did the operation?
A I am not in the position to answer that, sir.
Q You never did hear the hospital investigating
the doctors involved in this case of those missing
sponges, or did you hear something?
xxxxxx
A I think we already made a report by just saying
that two sponges were missing, it is up to the
hospital to make the move.
Atty. Agana
Precisely, I am asking you if the hospital did a
move, if the hospital did a move.
A I cannot answer that.
Court
By that answer, would you mean to tell the Court
that you were aware if there was such a move
done by the hospital?
A I cannot answer that, your honor, because I did
not have any more follow-up of the case that
happened until now.9
The above testimony obviously shows Dr. Jocson’s
lack of concern for the patients. Such conduct is
reflective of the hospital’s manner of supervision.
Not only did PSI breach its duty to oversee or
supervise all persons who practice medicine within
its walls, it also failed to take an active step in fixing
the negligence committed. This renders PSI, not
only vicariously liable for the negligence of Dr.
Ampil under Article 2180 of the Civil Code, but also
directly liable for its own negligence under Article
2176.
Moreover, there is merit in the trial court’s finding
that the failure of PSI to conduct an investigation
"established PSI’s part in the dark conspiracy of
silence and concealment about the gauzes." The
following testimony of Atty. Agana supports such
findings, thus:
Q You said you relied on the promise of Dr. Ampil
and despite the promise you were not able to
obtain the said record. Did you go back to the
record custodian?
A I did not because I was talking to Dr. Ampil. He
promised me.
Q After your talk to Dr. Ampil, you went to the
record custodian?
A I went to the record custodian to get the
clinical record of my wife, and I was given a portion
of the records consisting of the findings, among
them, the entries of the dates, but not the
operating procedure and operative report.10
In sum, we find no merit in the motion for
reconsideration.
WHEREFORE, we DENY PSI’s motion for
reconsideration with finality.
82
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
THE COURT OF APPEALS and NATIVIDAD and
ENRIQUE AGANA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 126467
NATIVIDAD [substituted by her children Marcelino
Agana III, Enrique Agana, Jr., Emma Agana-Andaya,
Jesus Agana and Raymund Agana] and ENRIQUE
AGANA, Petitioners,
vs.
THE COURT OF APPEALS and JUAN FUENTES,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 127590
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
RESOLUTION
CORONA, J.:
With prior leave of court,1 petitioner Professional
Services, Inc. (PSI) filed a second motion for
reconsideration2 urging referral thereof to the
Court en banc and seeking modification of the
decision dated January 31, 2007 and resolution
dated February 11, 2008 which affirmed its
vicarious and direct liability for damages to
respondents Enrique Agana and the heirs of
Natividad Agana (Aganas).
Manila Medical Services, Inc. (MMSI), 3 Asian
Hospital, Inc. (AHI),4 and Private Hospital
Association of the Philippines (PHAP) 5 all sought to
intervene in these cases invoking the common
ground that, unless modified, the assailed decision
and resolution will jeopardize the financial viability
of private hospitals and jack up the cost of health
care.
The Special First Division of the Court granted the
motions for intervention of MMSI, AHI and PHAP
(hereafter intervenors),6 and referred en consulta
to the Court en banc the motion for prior leave of
court and the second motion for reconsideration of
PSI.7
Due to paramount public interest, the Court en
banc accepted the referral8 and heard the parties
on oral arguments on one particular issue: whether
a hospital may be held liable for the negligence of
physicians-consultants allowed to practice in its
premises.9
To recall the salient facts, PSI, together with Dr.
Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr.
Fuentes), was impleaded by Enrique Agana and
Natividad Agana (later substituted by her heirs), in
a complaint10 for damages filed in the Regional Trial
Court (RTC) of Quezon City, Branch 96, for the
injuries suffered by Natividad when Dr. Ampil and
Dr. Fuentes neglected to remove from her body
two gauzes11 which were used in the surgery they
performed on her on April 11, 1984 at the Medical
City General Hospital. PSI was impleaded as owner,
operator and manager of the hospital.
In a decision12 dated March 17, 1993, the RTC held
PSI solidarily liable with Dr. Ampil and Dr. Fuentes
for damages.13 On appeal, the Court of Appeals
(CA), absolved Dr. Fuentes but affirmed the liability
of Dr. Ampil and PSI, subject to the right of PSI to
claim reimbursement from Dr. Ampil.141avvphi1
On petition for review, this Court, in its January 31,
2007 decision, affirmed the CA decision.15 PSI filed
a motion for reconsideration16 but the Court denied
it in a resolution dated February 11, 2008.17
The Court premised the direct liability of PSI to the
Aganas on the following facts and law:
First, there existed between PSI and Dr. Ampil an
employer-employee relationship as contemplated
in the December 29, 1999 decision in Ramos v.
Court of Appeals18 that "for purposes of allocating
responsibility in medical negligence cases, an
employer-employee relationship exists between
hospitals and their consultants."19 Although the
Court in Ramos later issued a Resolution dated
April 11, 200220 reversing its earlier finding on the
existence of an employment relationship between
hospital and doctor, a similar reversal was not
warranted in the present case because the defense
raised by PSI consisted of a mere general denial of
control or responsibility over the actions of Dr.
Ampil.21
Second, by accrediting Dr. Ampil and advertising his
qualifications, PSI created the public impression
that he was its agent.22 Enrique testified that it was
on account of Dr. Ampil's accreditation with PSI
that he conferred with said doctor about his wife's
(Natividad's) condition.23 After his meeting with Dr.
83
Ampil, Enrique asked Natividad to personally
consult Dr. Ampil.24 In effect, when Enrigue and
Natividad engaged the services of Dr. Ampil, at the
back of their minds was that the latter was a staff
member of a prestigious hospital. Thus, under the
doctrine of apparent authority applied in Nogales,
et al. v. Capitol Medical Center, et al.,25 PSI was
liable for the negligence of Dr. Ampil.
Finally, as owner and operator of Medical City
General Hospital, PSI was bound by its duty to
provide comprehensive medical services to
Natividad Agana, to exercise reasonable care to
protect her from harm,26 to oversee or supervise all
persons who practiced medicine within its walls,
and to take active steps in fixing any form of
negligence committed within its premises.27 PSI
committed a serious breach of its corporate duty
when it failed to conduct an immediate
investigation into the reported missing gauzes.28
PSI is now asking this Court to reconsider the
foregoing rulings for these reasons:
I between private hospitals and consultants will
The declaration in the 31 January 2007
Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs.
Court of Appeals (G.R. No. 134354,
December 29, 1999) that "an
employer-employee relations exists
between hospital and their
consultants" stays should be set aside
for being inconsistent with or contrary
to the import of the resolution
granting the hospital's motion for
reconsideration in Ramos vs. Court of
Appeals (G.R. No. 134354, April 11,
2002), which is applicable to PSI since
the Aganas failed to prove an
employer-employee relationship
between PSI and Dr. Ampil and PSI
proved that it has no control over Dr.
Ampil. In fact, the trial court has found
that there is no employer-employee
relationship in this case and that the
doctor's are independent contractors.
II
Respondents Aganas engaged Dr.
Miguel Ampil as their doctor and did
not primarily and specifically look to
the Medical City Hospital (PSI) for
medical care and support; otherwise
stated, respondents Aganas did not
select Medical City Hospital (PSI) to
provide medical care because of any
apparent authority of Dr. Miguel Ampil
as its agent since the latter was chosen
primarily and specifically based on his
qualifications and being friend and
neighbor.
III
PSI cannot be liable under doctrine of
corporate negligence since the
proximate cause of Mrs. Agana's injury
was the negligence of Dr. Ampil, which
is an element of the principle of
corporate negligence.29
In their respective memoranda, intervenors raise
parallel arguments that the Court's ruling on the
existence of an employer-employee relationship
force a drastic and complex alteration in the long-
established and currently prevailing relationships
among patient, physician and hospital, with
burdensome operational and financial
consequences and adverse effects on all three
parties.30
The Aganas comment that the arguments of PSI
need no longer be entertained for they have all
been traversed in the assailed decision and
resolution.31
After gathering its thoughts on the issues, this
Court holds that PSI is liable to the Aganas, not
under the principle of respondeat superior for lack
of evidence of an employment relationship with Dr.
Ampil but under the principle of ostensible agency
for the negligence of Dr. Ampil and, pro hac vice,
under the principle of corporate negligence for its
failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity
cannot practice medicine,32 in reality it utilizes
doctors, surgeons and medical practitioners in the
conduct of its business of facilitating medical and
surgical treatment.33 Within that reality, three legal
relationships crisscross: (1) between the hospital
and the doctor practicing within its premises; (2)
84
between the hospital and the patient being treated
or examined within its premises and (3) between
the patient and the doctor. The exact nature of
each relationship determines the basis and extent
of the liability of the hospital for the negligence of
the doctor.
Where an employment relationship exists, the
hospital may be held vicariously liable under Article
217634 in relation to Article 218035 of the Civil Code
or the principle of respondeat superior. Even when
no employment relationship exists but it is shown
that the hospital holds out to the patient that the
doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation to
Article 143136 and Article 186937 of the Civil Code or
the principle of apparent authority.38 Moreover,
regardless of its relationship with the doctor, the
hospital may be held directly liable to the patient
for its own negligence or failure to follow
established standard of conduct to which it should
conform as a corporation.39
This Court still employs the "control test" to
determine the existence of an employer-employee
relationship between hospital and doctor. In
Calamba Medical Center, Inc. v. National Labor
Relations Commission, et al.40 it held:
Under the "control test", an employment
relationship exists between a physician and a
hospital if the hospital controls both the means and
the details of the process by which the physician is
to accomplish his task.
xxx xxx xxx
As priorly stated, private respondents maintained
specific work-schedules, as determined by
petitioner through its medical director, which
consisted of 24-hour shifts totaling forty-eight
hours each week and which were strictly to be
observed under pain of administrative sanctions.
That petitioner exercised control over respondents
gains light from the undisputed fact that in the
emergency room, the operating room, or any
department or ward for that matter, respondents'
work is monitored through its nursing supervisors,
charge nurses and orderlies. Without the approval
or consent of petitioner or its medical director, no
operations can be undertaken in those areas. For
control test to apply, it is not essential for the
employer to actually supervise the performance of
duties of the employee, it being enough that it has
the right to wield the power. (emphasis supplied)
Even in its December 29, 1999 decision 41 and April
11, 2002 resolution42 in Ramos, the Court found the
control test decisive.
In the present case, it appears to have escaped the
Court's attention that both the RTC and the CA
found no employment relationship between PSI
and Dr. Ampil, and that the Aganas did not
question such finding. In its March 17, 1993
decision, the RTC found "that defendant doctors
were not employees of PSI in its hospital, they
being merely consultants without any employer-
employee relationship and in the capacity of
independent contractors."43 The Aganas never
questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the
RTC decision but only on the issues of negligence,
agency and corporate liability. In its September 6,
1996 decision, the CA mistakenly referred to PSI
and Dr. Ampil as employer-employee, but it was
clear in its discussion on the matter that it viewed
their relationship as one of mere apparent
agency.45
The Aganas appealed from the CA decision, but
only to question the exoneration of Dr. Fuentes.46
PSI also appealed from the CA decision, and it was
then that the issue of employment, though long
settled, was unwittingly resurrected.
In fine, as there was no dispute over the RTC
finding that PSI and Dr. Ampil had no employer-
employee relationship, such finding became final
and conclusive even to this Court. 47 There was no
reason for PSI to have raised it as an issue in its
petition. Thus, whatever discussion on the matter
that may have ensued was purely academic.
Nonetheless, to allay the anxiety of the
intervenors, the Court holds that, in this particular
instance, the concurrent finding of the RTC and the
CA that PSI was not the employer of Dr. Ampil is
correct. Control as a determinative factor in testing
the employer-employee relationship between
doctor and hospital under which the hospital could
be held vicariously liable to a patient in medical
negligence cases is a requisite fact to be
established by preponderance of evidence. Here,
85
there was insufficient evidence that PSI exercised
the power of control or wielded such power over
the means and the details of the specific process by
which Dr. Ampil applied his skills in the treatment
of Natividad. Consequently, PSI cannot be held
vicariously liable for the negligence of Dr. Ampil
under the principle of respondeat superior.
There is, however, ample evidence that the
hospital (PSI) held out to the patient (Natividad) 48
that the doctor (Dr. Ampil) was its agent. Present
are the two factors that determine apparent
authority: first, the hospital's implied manifestation
to the patient which led the latter to conclude that
the doctor was the hospital's agent; and second,
the patient’s reliance upon the conduct of the
hospital and the doctor, consistent with ordinary
care and prudence.49
Enrique testified that on April 2, 1984, he consulted
Dr. Ampil regarding the condition of his wife; that
after the meeting and as advised by Dr. Ampil, he
"asked [his] wife to go to Medical City to be
examined by [Dr. Ampil]"; and that the next day,
April 3, he told his daughter to take her mother to
Dr. Ampil.50 This timeline indicates that it was
Enrique who actually made the decision on whom
Natividad should consult and where, and that the
latter merely acceded to it. It explains the
testimony of Natividad that she consulted Dr.
Ampil at the instigation of her daughter.51
Moreover, when asked what impelled him to
choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was
your reason for choosing Dr. Ampil to contact with
in connection with your wife's illness?
A. First, before that, I have known him to be a
specialist on that part of the body as a surgeon,
second, I have known him to be a staff member of
the Medical City which is a prominent and known
hospital. And third, because he is a neighbor, I
expect more than the usual medical service to be
given to us, than his ordinary patients. 52 (emphasis
supplied)
Clearly, the decision made by Enrique for Natividad
to consult Dr. Ampil was significantly influenced by
the impression that Dr. Ampil was a staff member
of Medical City General Hospital, and that said
hospital was well known and prominent. Enrique
looked upon Dr. Ampil not as independent of but
as integrally related to Medical City.
PSI's acts tended to confirm and reinforce, rather
than negate, Enrique's view. It is of record that PSI
required a "consent for hospital care"53 to be
signed preparatory to the surgery of Natividad. The
form reads:
Permission is hereby given to the medical, nursing
and laboratory staff of the Medical City General
Hospital to perform such diagnostic procedures
and to administer such medications and
treatments as may be deemed necessary or
advisable by the physicians of this hospital for and
during the confinement of xxx. (emphasis supplied)
By such statement, PSI virtually reinforced the
public impression that Dr. Ampil was a physician of
its hospital, rather than one independently
practicing in it; that the medications and
treatments he prescribed were necessary and
desirable; and that the hospital staff was prepared
to carry them out.1avvphi1
PSI pointed out in its memorandum that Dr. Ampil's
hospital affiliation was not the exclusive basis of
the Aganas’ decision to have Natividad treated in
Medical City General Hospital, meaning that, had
Dr. Ampil been affiliated with another hospital, he
would still have been chosen by the Aganas as
Natividad's surgeon.54
The Court cannot speculate on what could have
been behind the Aganas’ decision but would rather
adhere strictly to the fact that, under the
circumstances at that time, Enrique decided to
consult Dr. Ampil for he believed him to be a staff
member of a prominent and known hospital. After
his meeting with Dr. Ampil, Enrique advised his
wife Natividad to go to the Medical City General
Hospital to be examined by said doctor, and the
hospital acted in a way that fortified Enrique's
belief.
This Court must therefore maintain the ruling that
PSI is vicariously liable for the negligence of Dr.
Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that
PSI made the following admission in its Motion for
Reconsideration:
86
51. Clearly, not being an agent or employee of
petitioner PSI, PSI [sic] is not liable for Dr. Ampil's
acts during the operation. Considering further that
Dr. Ampil was personally engaged as a doctor by
Mrs. Agana, it is incumbent upon Dr. Ampil, as
"Captain of the Ship", and as the Agana's doctor to
advise her on what to do with her situation vis-a-vis
the two missing gauzes. In addition to noting the
missing gauzes, regular check-ups were made and
no signs of complications were exhibited during her
stay at the hospital, which could have alerted
petitioner PSI's hospital to render and provide
post-operation services to and tread on Dr. Ampil's
role as the doctor of Mrs. Agana. The absence of
negligence of PSI from the patient's admission up
to her discharge is borne by the finding of facts in
this case. Likewise evident therefrom is the
absence of any complaint from Mrs. Agana after
her discharge from the hospital which had she
brought to the hospital's attention, could have
alerted petitioner PSI to act accordingly and bring
the matter to Dr. Ampil's attention. But this was
not the case. Ms. Agana complained ONLY to Drs.
Ampil and Fuentes, not the hospital. How then
could PSI possibly do something to fix the
negligence committed by Dr. Ampil when it was not
informed about it at all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had
Natividad Agana "informed the hospital of her
discomfort and pain, the hospital would have been
obliged to act on it."56
The significance of the foregoing statements is
critical.
First, they constitute judicial admission by PSI that
while it had no power to control the means or
method by which Dr. Ampil conducted the surgery
on Natividad Agana, it had the power to review or
cause the review of what may have irregularly
transpired within its walls strictly for the purpose
of determining whether some form of negligence
may have attended any procedure done inside its
premises, with the ultimate end of protecting its
patients.
Second, it is a judicial admission that, by virtue of
the nature of its business as well as its
prominence57 in the hospital industry, it assumed a
duty to "tread on" the "captain of the ship" role of
any doctor rendering services within its premises
for the purpose of ensuring the safety of the
patients availing themselves of its services and
facilities.
Third, by such admission, PSI defined the standards
of its corporate conduct under the circumstances
of this case, specifically: (a) that it had a corporate
duty to Natividad even after her operation to
ensure her safety as a patient; (b) that its corporate
duty was not limited to having its nursing staff note
or record the two missing gauzes and (c) that its
corporate duty extended to determining Dr.
Ampil's role in it, bringing the matter to his
attention, and correcting his negligence.
And finally, by such admission, PSI barred itself
from arguing in its second motion for
reconsideration that the concept of corporate
responsibility was not yet in existence at the time
Natividad underwent treatment;58 and that if it had
any corporate responsibility, the same was limited
to reporting the missing gauzes and did not include
"taking an active step in fixing the negligence
committed."59 An admission made in the pleading
cannot be controverted by the party making such
admission and is conclusive as to him, and all
proofs submitted by him contrary thereto or
inconsistent therewith should be ignored, whether
or not objection is interposed by a party.60
Given the standard of conduct that PSI defined for
itself, the next relevant inquiry is whether the
hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty
on the ground that Dr. Ampil assumed the personal
responsibility of informing Natividad about the two
missing gauzes.61 Dr. Ricardo Jocson, who was part
of the group of doctors that attended to Natividad,
testified that toward the end of the surgery, their
group talked about the missing gauzes but Dr.
Ampil assured them that he would personally
notify the patient about it.62 Furthermore, PSI
claimed that there was no reason for it to act on
the report on the two missing gauzes because
Natividad Agana showed no signs of complications.
She did not even inform the hospital about her
discomfort.63
The excuses proffered by PSI are totally
unacceptable.
87
To begin with, PSI could not simply wave off the
problem and nonchalantly delegate to Dr. Ampil
the duty to review what transpired during the
operation. The purpose of such review would have
been to pinpoint when, how and by whom two
surgical gauzes were mislaid so that necessary
remedial measures could be taken to avert any
jeopardy to Natividad’s recovery. Certainly, PSI
could not have expected that purpose to be
achieved by merely hoping that the person likely to
have mislaid the gauzes might be able to retrace
his own steps. By its own standard of corporate
conduct, PSI's duty to initiate the review was non-
delegable.
While Dr. Ampil may have had the primary
responsibility of notifying Natividad about the
missing gauzes, PSI imposed upon itself the
separate and independent responsibility of
initiating the inquiry into the missing gauzes. The
purpose of the first would have been to apprise
Natividad of what transpired during her surgery,
while the purpose of the second would have been
to pinpoint any lapse in procedure that led to the
gauze count discrepancy, so as to prevent a
recurrence thereof and to determine corrective
measures that would ensure the safety of
Natividad. That Dr. Ampil negligently failed to
notify Natividad did not release PSI from its self-
imposed separate responsibility.
Corollary to its non-delegable undertaking to
review potential incidents of negligence committed
within its premises, PSI had the duty to take notice
of medical records prepared by its own staff and
submitted to its custody, especially when these
bear earmarks of a surgery gone awry. Thus, the
record taken during the operation of Natividad
which reported a gauze count discrepancy should
have given PSI sufficient reason to initiate a review.
It should not have waited for Natividad to
complain.
As it happened, PSI took no heed of the record of
operation and consequently did not initiate a
review of what transpired during Natividad’s
operation. Rather, it shirked its responsibility and
passed it on to others – to Dr. Ampil whom it
expected to inform Natividad, and to Natividad
herself to complain before it took any meaningful
step. By its inaction, therefore, PSI failed its own
standard of hospital care. It committed corporate
negligence.
It should be borne in mind that the corporate
negligence ascribed to PSI is different from the
medical negligence attributed to Dr. Ampil. The
duties of the hospital are distinct from those of the
doctor-consultant practicing within its premises in
relation to the patient; hence, the failure of PSI to
fulfill its duties as a hospital corporation gave rise
to a direct liability to the Aganas distinct from that
of Dr. Ampil.
All this notwithstanding, we make it clear that PSI’s
hospital liability based on ostensible agency and
corporate negligence applies only to this case, pro
hac vice. It is not intended to set a precedent and
should not serve as a basis to hold hospitals liable
for every form of negligence of their doctors-
consultants under any and all circumstances. The
ruling is unique to this case, for the liability of PSI
arose from an implied agency with Dr. Ampil and
an admitted corporate duty to Natividad.64
Other circumstances peculiar to this case warrant
this ruling,65 not the least of which being that the
agony wrought upon the Aganas has gone on for 26
long years, with Natividad coming to the end of her
days racked in pain and agony. Such wretchedness
could have been avoided had PSI simply done what
was logical: heed the report of a guaze count
discrepancy, initiate a review of what went wrong
and take corrective measures to ensure the safety
of Nativad. Rather, for 26 years, PSI hemmed and
hawed at every turn, disowning any such
responsibility to its patient. Meanwhile, the options
left to the Aganas have all but dwindled, for the
status of Dr. Ampil can no longer be ascertained.66
Therefore, taking all the equities of this case into
consideration, this Court believes ₱15 million
would be a fair and reasonable liability of PSI,
subject to 12% p.a. interest from the finality of this
resolution to full satisfaction.
WHEREFORE, the second motion for
reconsideration is DENIED and the motions for
intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice
to pay Natividad (substituted by her children
Marcelino Agana III, Enrique Agana, Jr., Emma
88
Agana-Andaya, Jesus Agana and Raymund Agana)
and Enrique Agana the total amount of ₱15 million,
subject to 12% p.a. interest from the finality of this
resolution to full satisfaction.
No further pleadings by any party shall be
entertained in this case.
Let the long-delayed entry of judgment be made in
this case upon receipt by all concerned parties of
this resolution.
SO ORDERED.
RENATO C. CORONA
Associate Justice

89
ROGELIO P. NOGALES, for himself and on behalf of
the minors, ROGER ANTHONY, ANGELICA, NANCY,
and MICHAEL CHRISTOPHER, all surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL
ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998
Decision2 and 21 March 2000 Resolution3 of the
Court of Appeals in CA-G.R. CV No. 45641. The
Court of Appeals affirmed in toto the 22 November
1993 Decision4 of the Regional Trial Court of
Manila, Branch 33, finding Dr. Oscar Estrada solely
liable for damages for the death of his patient,
Corazon Nogales, while absolving the remaining
respondents of any liability. The Court of Appeals
denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales
("Corazon"), who was then 37 years old, was under
the exclusive prenatal care of Dr. Oscar Estrada
("Dr. Estrada") beginning on her fourth month of
pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr.
Estrada noted an increase in her blood pressure
and development of leg edema5 indicating
preeclampsia,6 which is a dangerous complication
of pregnancy.7
Around midnight of 25 May 1976, Corazon started
to experience mild labor pains prompting Corazon
and Rogelio Nogales ("Spouses Nogales") to see Dr.
Estrada at his home. After examining Corazon, Dr.
Estrada advised her immediate admission to the
Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30
a.m. at the CMC after the staff nurse noted the
written admission request8 of Dr. Estrada. Upon
Corazon's admission at the CMC, Rogelio Nogales
("Rogelio") executed and signed the "Consent on
Admission and Agreement"9 and "Admission
Agreement."10 Corazon was then brought to the
labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident
physician of CMC, conducted an internal
examination of Corazon. Dr. Uy then called up Dr.
Estrada to notify him of her findings.
Based on the Doctor's Order Sheet, 11 around 3:00
a.m., Dr. Estrada ordered for 10 mg. of valium to be
administered immediately by intramuscular
injection. Dr. Estrada later ordered the start of
intravenous administration of syntocinon admixed
with dextrose, 5%, in lactated Ringers' solution, at
the rate of eight to ten micro-drops per minute.
According to the Nurse's Observation Notes, 12 Dr.
Joel Enriquez ("Dr. Enriquez"), an anesthesiologist
at CMC, was notified at 4:15 a.m. of Corazon's
admission. Subsequently, when asked if he needed
the services of an anesthesiologist, Dr. Estrada
refused. Despite Dr. Estrada's refusal, Dr. Enriquez
stayed to observe Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery
Room No. 1 of the CMC. At 6:10 a.m., Corazon's
bag of water ruptured spontaneously. At 6:12 a.m.,
Corazon's cervix was fully dilated. At 6:13 a.m.,
Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of
ten grams of magnesium sulfate. However, Dr. Ely
Villaflor ("Dr. Villaflor"), who was assisting Dr.
Estrada, administered only 2.5 grams of
magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor,
applied low forceps to extract Corazon's baby. In
the process, a 1.0 x 2.5 cm. piece of cervical tissue
was allegedly torn. The baby came out in an apnic,
cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and
resuscitated by Dr. Enriquez and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate
vaginal bleeding which rapidly became profuse.
Corazon's blood pressure dropped from 130/80 to
60/40 within five minutes. There was continuous
profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle
as a side drip to the ongoing intravenous injection
of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and
cross matching with bottled blood. It took
90
approximately 30 minutes for the CMC laboratory,
headed by Dr. Perpetua Lacson ("Dr. Lacson"), to
comply with Dr. Estrada's order and deliver the
blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"),
head of the Obstetrics-Gynecology Department of
the CMC, was apprised of Corazon's condition by
telephone. Upon being informed that Corazon was
bleeding profusely, Dr. Espinola ordered immediate
hysterectomy. Rogelio was made to sign a
"Consent to Operation."13
Due to the inclement weather then, Dr. Espinola,
who was fetched from his residence by an
ambulance, arrived at the CMC about an hour later
or at 9:00 a.m. He examined the patient and
ordered some resuscitative measures to be
administered. Despite Dr. Espinola's efforts,
Corazon died at 9:15 a.m. The cause of death was
"hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for
damages15 with the Regional Trial Court16 of Manila
against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr.
Enriquez, Dr. Lacson, Dr. Espinola, and a certain
Nurse J. Dumlao for the death of Corazon.
Petitioners mainly contended that defendant
physicians and CMC personnel were negligent in
the treatment and management of Corazon's
condition. Petitioners charged CMC with
negligence in the selection and supervision of
defendant physicians and hospital staff.
For failing to file their answer to the complaint
despite service of summons, the trial court
declared Dr. Estrada, Dr. Enriquez, and Nurse
Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr.
Espinola, and Dr. Lacson filed their respective
answers denying and opposing the allegations in
the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court
rendered judgment on 22 November 1993 finding
Dr. Estrada solely liable for damages. The trial court
ruled as follows:
The victim was under his pre-natal care,
apparently, his fault began from his incorrect and
inadequate management and lack of treatment of
the pre-eclamptic condition of his patient. It is not
disputed that he misapplied the forceps in causing
the delivery because it resulted in a large cervical
tear which had caused the profuse bleeding which
he also failed to control with the application of
inadequate injection of magnesium sulfate by his
assistant Dra. Ely Villaflor. Dr. Estrada even failed to
notice the erroneous administration by nurse
Dumlao of hemacel by way of side drip, instead of
direct intravenous injection, and his failure to
consult a senior obstetrician at an early stage of
the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa
Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola,
nurse J. Dumlao and CMC, the Court finds no legal
justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking
orders from Dr. Estrada, the principal physician of
Corazon Nogales. She can only make suggestions in
the manner the patient maybe treated but she
cannot impose her will as to do so would be to
substitute her good judgment to that of Dr.
Estrada. If she failed to correctly diagnose the true
cause of the bleeding which in this case appears to
be a cervical laceration, it cannot be safely
concluded by the Court that Dra. Villaflor had the
correct diagnosis and she failed to inform Dr.
Estrada. No evidence was introduced to show that
indeed Dra. Villaflor had discovered that there was
laceration at the cervical area of the patient's
internal organ.
On the part of nurse Dumlao, there is no showing
that when she administered the hemacel as a side
drip, she did it on her own. If the correct procedure
was directly thru the veins, it could only be because
this was what was probably the orders of Dr.
Estrada.
While the evidence of the plaintiffs shows that Dr.
Noe Espinola, who was the Chief of the
Department of Obstetrics and Gynecology who
attended to the patient Mrs. Nogales, it was only at
9:00 a.m. That he was able to reach the hospital
because of typhoon Didang (Exhibit 2). While he
was able to give prescription in the manner
Corazon Nogales may be treated, the prescription
was based on the information given to him by
phone and he acted on the basis of facts as
presented to him, believing in good faith that such
is the correct remedy. He was not with Dr. Estrada
when the patient was brought to the hospital at
91
2:30 o'clock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00
o'clock a.m. are certainly the errors of Dr. Estrada
and cannot be the mistake of Dr. Noe Espinola. His
failure to come to the hospital on time was due to
fortuitous event.
On the part of Dr. Joel Enriquez, while he was
present in the delivery room, it is not incumbent
upon him to call the attention of Dr. Estrada, Dra.
Villaflor and also of Nurse Dumlao on the alleged
errors committed by them. Besides, as
anesthesiologist, he has no authority to control the
actuations of Dr. Estrada and Dra. Villaflor. For the
Court to assume that there were errors being
committed in the presence of Dr. Enriquez would
be to dwell on conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is
a hematologist and in-charge of the blood bank of
the CMC. The Court cannot accept the theory of
the plaintiffs that there was delay in delivering the
blood needed by the patient. It was testified, that
in order that this blood will be made available, a
laboratory test has to be conducted to determine
the type of blood, cross matching and other
matters consistent with medical science so, the
lapse of 30 minutes maybe considered a
reasonable time to do all of these things, and not a
delay as the plaintiffs would want the Court to
believe.
Admittedly, Dra. Rosa Uy is a resident physician of
the Capitol Medical Center. She was sued because
of her alleged failure to notice the incompetence
and negligence of Dr. Estrada. However, there is no
evidence to support such theory. No evidence was
adduced to show that Dra. Rosa Uy as a resident
physician of Capitol Medical Center, had
knowledge of the mismanagement of the patient
Corazon Nogales, and that notwithstanding such
knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed
that defendant CMC did not have any hand or
participation in the selection or hiring of Dr.
Estrada or his assistant Dra. Ely Villaflor as
attending physician[s] of the deceased. In other
words, the two (2) doctors were not employees of
the hospital and therefore the hospital did not
have control over their professional conduct. When
Mrs. Nogales was brought to the hospital, it was an
emergency case and defendant CMC had no choice
but to admit her. Such being the case, there is
therefore no legal ground to apply the provisions of
Article 2176 and 2180 of the New Civil Code
referring to the vicarious liability of an employer
for the negligence of its employees. If ever in this
case there is fault or negligence in the treatment of
the deceased on the part of the attending
physicians who were employed by the family of the
deceased, such civil liability should be borne by the
attending physicians under the principle of
"respondeat superior".
WHEREFORE, premises considered, judgment is
hereby rendered finding defendant Dr. Estrada of
Number 13 Pitimini St. San Francisco del Monte,
Quezon City civilly liable to pay plaintiffs: 1) By way
of actual damages in the amount of P105,000.00;
2) By way of moral damages in the amount of
P700,000.00; 3) Attorney's fees in the amount of
P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to
support its [sic] allegations against the other
defendants, the complaint is hereby ordered
dismissed. While the Court looks with disfavor the
filing of the present complaint against the other
defendants by the herein plaintiffs, as in a way it
has caused them personal inconvenience and slight
damage on their name and reputation, the Court
cannot accepts [sic] however, the theory of the
remaining defendants that plaintiffs were
motivated in bad faith in the filing of this
complaint. For this reason defendants'
counterclaims are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision.
Petitioners claimed that aside from Dr. Estrada, the
remaining respondents should be held equally
liable for negligence. Petitioners pointed out the
extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed
the decision of the trial court.19 Petitioners filed a
motion for reconsideration which the Court of
Appeals denied in its Resolution of 21 March
2000.20
Hence, this petition.
92
Meanwhile, petitioners filed a Manifestation dated
12 April 200221 stating that respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao "need no longer be notified of the petition
because they are absolutely not involved in the
issue raised before the [Court], regarding the
liability of [CMC]."22 Petitioners stressed that the
subject matter of this petition is the liability of CMC
for the negligence of Dr. Estrada.23
The Court issued a Resolution dated 9 September
200224 dispensing with the requirement to submit
the correct and present addresses of respondents
Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao. The Court stated that with the filing of
petitioners' Manifestation, it should be understood
that they are claiming only against respondents
CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have
filed their respective comments. Petitioners are
foregoing further claims against respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao.
The Court noted that Dr. Estrada did not appeal the
decision of the Court of Appeals affirming the
decision of the Regional Trial Court. Accordingly,
the decision of the Court of Appeals, affirming the
trial court's judgment, is already final as against Dr.
Oscar Estrada.
Petitioners filed a motion for reconsideration25 of
the Court's 9 September 2002 Resolution claiming
that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao
were notified of the petition at their counsels' last
known addresses. Petitioners reiterated their
imputation of negligence on these respondents.
The Court denied petitioners' Motion for
Reconsideration in its 18 February 2004
Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of
Appeals upheld the trial court's ruling. The Court of
Appeals rejected petitioners' view that the doctrine
in Darling v. Charleston Community Memorial
Hospital27 applies to this case. According to the
Court of Appeals, the present case differs from the
Darling case since Dr. Estrada is an independent
contractor-physician whereas the Darling case
involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals
further held that the mere fact that a hospital
permitted a physician to practice medicine and use
its facilities is not sufficient to render the hospital
liable for the physician's negligence.28 A hospital is
not responsible for the negligence of a physician
who is an independent contractor.29
The Court of Appeals found the cases of Davidson
v. Conole30 and Campbell v. Emma Laing Stevens
Hospital31 applicable to this case. Quoting
Campbell, the Court of Appeals stated that where
there is no proof that defendant physician was an
employee of defendant hospital or that defendant
hospital had reason to know that any acts of
malpractice would take place, defendant hospital
could not be held liable for its failure to intervene
in the relationship of physician-patient between
defendant physician and plaintiff.
On the liability of the other respondents, the Court
of Appeals applied the "borrowed servant"
doctrine considering that Dr. Estrada was an
independent contractor who was merely exercising
hospital privileges. This doctrine provides that once
the surgeon enters the operating room and takes
charge of the proceedings, the acts or omissions of
operating room personnel, and any negligence
associated with such acts or omissions, are
imputable to the surgeon.32 While the assisting
physicians and nurses may be employed by the
hospital, or engaged by the patient, they normally
become the temporary servants or agents of the
surgeon in charge while the operation is in
progress, and liability may be imposed upon the
surgeon for their negligent acts under the doctrine
of respondeat superior.33
The Court of Appeals concluded that since Rogelio
engaged Dr. Estrada as the attending physician of
his wife, any liability for malpractice must be Dr.
Estrada's sole responsibility.
While it found the amount of damages fair and
reasonable, the Court of Appeals held that no
interest could be imposed on unliquidated claims
or damages.
The Issue
Basically, the issue in this case is whether CMC is
vicariously liable for the negligence of Dr. Estrada.
The resolution of this issue rests, on the other
93
hand, on the ascertainment of the relationship
between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of
liability of the other respondents is inevitable to
finally and completely dispose of the present
controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment
and management of Corazon's condition which
ultimately resulted in Corazon's death is no longer
in issue. Dr. Estrada did not appeal the decision of
the Court of Appeals which affirmed the ruling of
the trial court finding Dr. Estrada solely liable for
damages. Accordingly, the finding of the trial court
on Dr. Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable
for Dr. Estrada's negligence based on Article 2180
in relation to Article 2176 of the Civil Code. These
provisions pertinently state:
Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
xxxx
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks, even
though the former are not engaged in any business
or industry.
xxxx
The responsibility treated of in this article shall
cease when the persons herein mentioned prove
that they observed all the diligence of a good
father of a family to prevent damage.
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
Similarly, in the United States, a hospital which is
the employer, master, or principal of a physician
employee, servant, or agent, may be held liable for
the physician's negligence under the doctrine of
respondeat superior.34
In the present case, petitioners maintain that CMC,
in allowing Dr. Estrada to practice and admit
patients at CMC, should be liable for Dr. Estrada's
malpractice. Rogelio claims that he knew Dr.
Estrada as an accredited physician of CMC, though
he discovered later that Dr. Estrada was not a
salaried employee of the CMC.35 Rogelio further
claims that he was dealing with CMC, whose
primary concern was the treatment and
management of his wife's condition. Dr. Estrada
just happened to be the specific person he talked
to representing CMC.36 Moreover, the fact that
CMC made Rogelio sign a Consent on Admission
and Admission Agreement37 and a Consent to
Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a
member of its medical staff.
On the other hand, CMC disclaims liability by
asserting that Dr. Estrada was a mere visiting
physician and that it admitted Corazon because her
physical condition then was classified an
emergency obstetrics case.38
CMC alleges that Dr. Estrada is an independent
contractor "for whose actuations CMC would be a
total stranger." CMC maintains that it had no
control or supervision over Dr. Estrada in the
exercise of his medical profession.
The Court had the occasion to determine the
relationship between a hospital and a consultant or
visiting physician and the liability of such hospital
for that physician's negligence in Ramos v. Court of
Appeals,39 to wit:
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in
the conduct of their work within the hospital
premises. Doctors who apply for "consultant" slots,
visiting or attending, are required to submit proof
of completion of residency, their educational
qualifications; generally, evidence of accreditation
by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These
requirements are carefully scrutinized by members
of the hospital administration or by a review
committee set up by the hospital who either accept
94
or reject the application. This is particularly true
with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to
attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and
perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
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.
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. x x x40 (Emphasis supplied)
While the Court in Ramos did not expound on the
control test, such test essentially determines
whether an employment relationship exists
between a physician and a hospital based on the
exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must
have the right to control both the means and the
details of the process by which the employee (or
the physician) is to accomplish his task.41
After a thorough examination of the voluminous
records of this case, the Court finds no single
evidence pointing to CMC's exercise of control over
Dr. Estrada's treatment and management of
Corazon's condition. It is undisputed that
throughout Corazon's pregnancy, she was under
the exclusive prenatal care of Dr. Estrada. At the
time of Corazon's admission at CMC and during her
delivery, it was Dr. Estrada, assisted by Dr. Villaflor,
who attended to Corazon. There was no showing
that CMC had a part in diagnosing Corazon's
condition. While Dr. Estrada enjoyed staff
privileges at CMC, such fact alone did not make
him an employee of CMC.42 CMC merely allowed
Dr. Estrada to use its facilities 43 when Corazon was
about to give birth, which CMC considered an
emergency. Considering these circumstances, Dr.
Estrada is not an employee of CMC, but an
independent contractor.
The question now is whether CMC is automatically
exempt from liability considering that Dr. Estrada is
an independent contractor-physician.
In general, a hospital is not liable for the negligence
of an independent contractor-physician. There is,
however, an exception to this principle. The
hospital may be liable if the physician is the
"ostensible" agent of the hospital.44 This exception
is also known as the "doctrine of apparent
authority."45 In Gilbert v. Sycamore Municipal
Hospital,46 the Illinois Supreme Court explained the
doctrine of apparent authority in this wise:
[U]nder the doctrine of apparent authority a
hospital can be held vicariously liable for the
negligent acts of a physician providing care at the
hospital, regardless of whether the physician is an
independent contractor, unless the patient knows,
or should have known, that the physician is an
95
independent contractor. The elements of the
action have been set out as follows:
"For a hospital to be liable under the doctrine of
apparent authority, a plaintiff must show that: (1)
the hospital, or its agent, acted in a manner that
would lead a reasonable person to conclude that
the individual who was alleged to be negligent was
an employee or agent of the hospital; (2) where
the acts of the agent create the appearance of
authority, the plaintiff must also prove that the
hospital had knowledge of and acquiesced in them;
and (3) the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with
ordinary care and prudence."
The element of "holding out" on the part of the
hospital does not require an express
representation by the hospital that the person
alleged to be negligent is an employee. Rather, the
element is satisfied if the hospital holds itself out as
a provider of emergency room care without
informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of
the plaintiff is satisfied if the plaintiff relies upon
the hospital to provide complete emergency room
care, rather than upon a specific physician.
The doctrine of apparent authority essentially
involves two factors to determine the liability of an
independent-contractor physician.
The first factor focuses on the hospital's
manifestations and is sometimes described as an
inquiry whether the hospital acted in a manner
which would lead a reasonable person to conclude
that the individual who was alleged to be negligent
was an employee or agent of the hospital.47 In this
regard, the hospital need not make express
representations to the patient that the treating
physician is an employee of the hospital; rather a
representation may be general and implied.48
The doctrine of apparent authority is a species of
the doctrine of estoppel. Article 1431 of the Civil
Code provides that "[t]hrough estoppel, an
admission or representation is rendered conclusive
upon the person making it, and cannot be denied
or disproved as against the person relying
thereon." Estoppel rests on this rule: "Whenever a
party has, by his own declaration, act, or omission,
intentionally and deliberately led another to
believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of
such declaration, act or omission, be permitted to
falsify it."49
In the instant case, CMC impliedly held out Dr.
Estrada as a member of its medical staff. Through
CMC's acts, CMC clothed Dr. Estrada with apparent
authority thereby leading the Spouses Nogales to
believe that Dr. Estrada was an employee or agent
of CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada.
CMC extended its medical staff and facilities to Dr.
Estrada. Upon Dr. Estrada's request for Corazon's
admission, CMC, through its personnel, readily
accommodated Corazon and updated Dr. Estrada
of her condition.
Second, CMC made Rogelio sign consent forms
printed on CMC letterhead. Prior to Corazon's
admission and supposed hysterectomy, CMC asked
Rogelio to sign release forms, the contents of
which reinforced Rogelio's belief that Dr. Estrada
was a member of CMC's medical staff. 50 The
Consent on Admission and Agreement explicitly
provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974
M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/
guardian/or person in custody of Ma. Corazon, and
representing his/her family, of my own volition and
free will, do consent and submit said Ma. Corazon
to Dr. Oscar Estrada (hereinafter referred to as
Physician) for cure, treatment, retreatment, or
emergency measures, that the Physician,
personally or by and through the Capitol Medical
Center and/or its staff, may use, adapt, or employ
such means, forms or methods of cure, treatment,
retreatment, or emergency measures as he may
see best and most expedient; that Ma. Corazon and
I will comply with any and all rules, regulations,
directions, and instructions of the Physician, the
Capitol Medical Center and/or its staff; and, that I
will not hold liable or responsible and hereby waive
and forever discharge and hold free the Physician,
the Capitol Medical Center and/or its staff, from
any and all claims of whatever kind of nature,
96
arising from directly or indirectly, or by reason of
said cure, treatment, or retreatment, or emergency
measures or intervention of said physician, the
Capitol Medical Center and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads,
thus:
I, ROGELIO NOGALES, x x x, of my own volition and
free will, do consent and submit said CORAZON
NOGALES to Hysterectomy, by the Surgical Staff
and Anesthesiologists of Capitol Medical Center
and/or whatever succeeding operations,
treatment, or emergency measures as may be
necessary and most expedient; and, that I will not
hold liable or responsible and hereby waive and
forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical
Center and/or its staff, from any and all claims of
whatever kind of nature, arising from directly or
indirectly, or by reason of said operation or
operations, treatment, or emergency measures, or
intervention of the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center
and/or its staff.52 (Emphasis supplied)
Without any indication in these consent forms that
Dr. Estrada was an independent contractor-
physician, the Spouses Nogales could not have
known that Dr. Estrada was an independent
contractor. Significantly, no one from CMC
informed the Spouses Nogales that Dr. Estrada was
an independent contractor. On the contrary, Dr.
Atencio, who was then a member of CMC Board of
Directors, testified that Dr. Estrada was part of
CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse
vaginal bleeding to Dr. Espinola, who was then the
Head of the Obstetrics and Gynecology
Department of CMC, gave the impression that Dr.
Estrada as a member of CMC's medical staff was
collaborating with other CMC-employed specialists
in treating Corazon.
The second factor focuses on the patient's reliance.
It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with
ordinary care and prudence.54
The records show that the Spouses Nogales relied
upon a perceived employment relationship with
CMC in accepting Dr. Estrada's services. Rogelio
testified that he and his wife specifically chose Dr.
Estrada to handle Corazon's delivery not only
because of their friend's recommendation, but
more importantly because of Dr. Estrada's
"connection with a reputable hospital, the
[CMC]."55 In other words, Dr. Estrada's relationship
with CMC played a significant role in the Spouses
Nogales' decision in accepting Dr. Estrada's services
as the obstetrician-gynecologist for Corazon's
delivery. Moreover, as earlier stated, there is no
showing that before and during Corazon's
confinement at CMC, the Spouses Nogales knew or
should have known that Dr. Estrada was not an
employee of CMC.
Further, the Spouses Nogales looked to CMC to
provide the best medical care and support services
for Corazon's delivery. The Court notes that prior to
Corazon's fourth pregnancy, she used to give birth
inside a clinic. Considering Corazon's age then, the
Spouses Nogales decided to have their fourth child
delivered at CMC, which Rogelio regarded one of
the best hospitals at the time.56 This is precisely
because the Spouses Nogales feared that Corazon
might experience complications during her delivery
which would be better addressed and treated in a
modern and big hospital such as CMC. Moreover,
Rogelio's consent in Corazon's hysterectomy to be
performed by a different physician, namely Dr.
Espinola, is a clear indication of Rogelio's
confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to
[Corazon] its facilities" is untenable. The Court
cannot close its eyes to the reality that hospitals,
such as CMC, are in the business of treatment. In
this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in
Diggs v. Novant Health, Inc.,57 to wit:
"The conception that the hospital does not
undertake to treat the patient, does not undertake
to act through its doctors and nurses, but
undertakes instead simply to procure them to act
upon their own responsibility, no longer reflects
the fact. Present day hospitals, as their manner of
operation plainly demonstrates, do far more than
97
furnish facilities for treatment. They regularly
employ on a salary basis a large staff of physicians,
nurses and internes [sic], as well as administrative
and manual workers, and they charge patients for
medical care and treatment, collecting for such
services, if necessary, by legal action. Certainly, the
person who avails himself of 'hospital facilities'
expects that the hospital will attempt to cure him,
not that its nurses or other employees will act on
their own responsibility." x x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that
petitioners are estopped from claiming damages
based on the Consent on Admission and Consent to
Operation. Both release forms consist of two parts.
The first part gave CMC permission to administer to
Corazon any form of recognized medical treatment
which the CMC medical staff deemed advisable.
The second part of the documents, which may
properly be described as the releasing part,
releases CMC and its employees "from any and all
claims" arising from or by reason of the treatment
and operation.
The documents do not expressly release CMC from
liability for injury to Corazon due to negligence
during her treatment or operation. Neither do the
consent forms expressly exempt CMC from liability
for Corazon's death due to negligence during such
treatment or operation. Such release forms, being
in the nature of contracts of adhesion, are
construed strictly against hospitals. Besides, a
blanket release in favor of hospitals "from any and
all claims," which includes claims due to bad faith
or gross negligence, would be contrary to public
policy and thus void.
Even simple negligence is not subject to blanket
release in favor of establishments like hospitals but
may only mitigate liability depending on the
circumstances.58 When a person needing urgent
medical attention rushes to a hospital, he cannot
bargain on equal footing with the hospital on the
terms of admission and operation. Such a person is
literally at the mercy of the hospital. There can be
no clearer example of a contract of adhesion than
one arising from such a dire situation. Thus, the
release forms of CMC cannot relieve CMC from
liability for the negligent medical treatment of
Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9
September 200259 Resolution that the filing of
petitioners' Manifestation confined petitioners'
claim only against CMC, Dr. Espinola, Dr. Lacson,
and Dr. Uy, who have filed their comments, the
Court deems it proper to resolve the individual
liability of the remaining respondents to put an end
finally to this more than two-decade old
controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to
diagnose the cause of Corazon's bleeding and to
suggest the correct remedy to Dr. Estrada. 60
Petitioners assert that it was Dr. Villaflor's duty to
correct the error of Nurse Dumlao in the
administration of hemacel.
The Court is not persuaded. Dr. Villaflor admitted
administering a lower dosage of magnesium
sulfate. However, this was after informing Dr.
Estrada that Corazon was no longer in convulsion
and that her blood pressure went down to a
dangerous level.61 At that moment, Dr. Estrada
instructed Dr. Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5 grams. Since
petitioners did not dispute Dr. Villaflor's allegation,
Dr. Villaflor's defense remains uncontroverted. Dr.
Villaflor's act of administering a lower dosage of
magnesium sulfate was not out of her own volition
or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her
failure (1) to call the attention of Dr. Estrada on the
incorrect dosage of magnesium sulfate
administered by Dr. Villaflor; (2) to take corrective
measures; and (3) to correct Nurse Dumlao's wrong
method of hemacel administration.
The Court believes Dr. Uy's claim that as a second
year resident physician then at CMC, she was
merely authorized to take the clinical history and
physical examination of Corazon.62 However, that
routine internal examination did not ipso facto
make Dr. Uy liable for the errors committed by Dr.
Estrada. Further, petitioners' imputation of
negligence rests on their baseless assumption that
Dr. Uy was present at the delivery room. Nothing
shows that Dr. Uy participated in delivering
98
Corazon's baby. Further, it is unexpected from Dr.
Uy, a mere resident physician at that time, to call
the attention of a more experienced specialist, if
ever she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not
calling the attention of Dr. Estrada, Dr. Villaflor, and
Nurse Dumlao about their errors.63 Petitioners
insist that Dr. Enriquez should have taken, or at
least suggested, corrective measures to rectify such
errors.
The Court is not convinced. Dr. Enriquez is an
anesthesiologist whose field of expertise is
definitely not obstetrics and gynecology. As such,
Dr. Enriquez was not expected to correct Dr.
Estrada's errors. Besides, there was no evidence of
Dr. Enriquez's knowledge of any error committed
by Dr. Estrada and his failure to act upon such
observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her
purported delay in the delivery of blood Corazon
needed.64 Petitioners claim that Dr. Lacson was
remiss in her duty of supervising the blood bank
staff.
As found by the trial court, there was no
unreasonable delay in the delivery of blood from
the time of the request until the transfusion to
Corazon. Dr. Lacson competently explained the
procedure before blood could be given to the
patient.65 Taking into account the bleeding time,
clotting time and cross-matching, Dr. Lacson stated
that it would take approximately 45-60 minutes
before blood could be ready for transfusion.66
Further, no evidence exists that Dr. Lacson
neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have
ordered immediate hysterectomy without
determining the underlying cause of Corazon's
bleeding. Dr. Espinola should have first considered
the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of
believing outright Dr. Estrada's diagnosis that the
cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was
based on the information he received by phone is
not negligence. The Court agrees with the trial
court's observation that Dr. Espinola, upon hearing
such information about Corazon's condition,
believed in good faith that hysterectomy was the
correct remedy. At any rate, the hysterectomy did
not push through because upon Dr. Espinola's
arrival, it was already too late. At the time, Corazon
was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of
Appeals, Fourth Circuit, held that to recover, a
patient complaining of injuries allegedly resulting
when the nurse negligently injected medicine to
him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted
a lack of reasonable and ordinary care; (2) the
nurse injected medicine intravenously; and (3) such
injection was the proximate cause of his injury.
In the present case, there is no evidence of Nurse
Dumlao's alleged failure to follow Dr. Estrada's
specific instructions. Even assuming Nurse Dumlao
defied Dr. Estrada's order, there is no showing that
side-drip administration of hemacel proximately
caused Corazon's death. No evidence linking
Corazon's death and the alleged wrongful hemacel
administration was introduced. Therefore, there is
no basis to hold Nurse Dumlao liable for
negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and
allowed under Article 2211 of the Civil Code, which
states that in crimes and quasi-delicts, interest as a
part of the damages may, in a proper case, be
adjudicated in the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the
petition. The Court finds respondent Capitol
Medical Center vicariously liable for the negligence
of Dr. Oscar Estrada. The amounts of P105,000 as
actual damages and P700,000 as moral damages
should each earn legal interest at the rate of six
percent (6%) per annum computed from the date
of the judgment of the trial court. The Court affirms
the rest of the Decision dated 6 February 1998 and
Resolution dated 21 March 2000 of the Court of
Appeals in CA-G.R. CV No. 45641.
SO ORDERED.
99
FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE,
respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court filed
by Dr. Fe Cayao-Lasam (petitioner) seeking to annul
the Decision1 dated July 4, 2003 of the Court of
Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months
pregnant Editha Ramolete (Editha) was brought to
the Lorma Medical Center (LMC) in San Fernando,
La Union due to vaginal bleeding. Upon advice of
petitioner relayed via telephone, Editha was
admitted to the LMC on the same day. A pelvic
sonogram2 was then conducted on Editha revealing
the fetus’ weak cardiac pulsation.3 The following
day, Editha’s repeat pelvic sonogram4 showed that
aside from the fetus’ weak cardiac pulsation, no
fetal movement was also appreciated. Due to
persistent and profuse vaginal bleeding, petitioner
advised Editha to undergo a Dilatation and
Curettage Procedure (D&C) or "raspa."
On July 30, 1994, petitioner performed the D&C
procedure. Editha was discharged from the hospital
the following day.
On September 16, 1994, Editha was once again
brought at the LMC, as she was suffering from
vomiting and severe abdominal pains. Editha was
attended by Dr. Beatriz de la Cruz, Dr. Victor B.
Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly
informed Editha that there was a dead fetus in the
latter’s womb. After, Editha underwent
laparotomy,5 she was found to have a massive
intra-abdominal hemorrhage and a ruptured
uterus. Thus, Editha had to undergo a procedure
for hysterectomy6 and as a result, she has no more
chance to bear a child.
On November 7, 1994, Editha and her husband
Claro Ramolete (respondents) filed a Complaint7 for
Gross Negligence and Malpractice against
petitioner before the Professional Regulations
Commission (PRC).
Respondents alleged that Editha’s hysterectomy
was caused by petitioner’s unmitigated negligence
and professional incompetence in conducting the
D&C procedure and the petitioner’s failure to
remove the fetus inside Editha’s womb.8 Among
the alleged acts of negligence were: first,
petitioner’s failure to check up, visit or administer
medication on Editha during her first day of
confinement at the LMC;9 second, petitioner
recommended that a D&C procedure be performed
on Editha without conducting any internal
examination prior to the procedure;10 third,
petitioner immediately suggested a D&C procedure
instead of closely monitoring the state of
pregnancy of Editha.11
In her Answer,12 petitioner denied the allegations
of negligence and incompetence with the following
explanations: upon Editha’s confirmation that she
would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the
arrival of Editha and ordered through the
telephone the medicines Editha needed to take,
which the nurses carried out; petitioner visited
Editha on the morning of July 28, 1994 during her
rounds; on July 29, 1994, she performed an
internal examination on Editha and she discovered
that the latter’s cervix was already open, thus,
petitioner discussed the possible D&C procedure,
should the bleeding become more profuse; on July
30 1994, she conducted another internal
examination on Editha, which revealed that the
latter’s cervix was still open; Editha persistently
complained of her vaginal bleeding and her passing
out of some meaty mass in the process of urination
and bowel movement; thus, petitioner advised
Editha to undergo D&C procedure which the
respondents consented to; petitioner was very
vocal in the operating room about not being able
to see an abortus;13 taking the words of Editha to
mean that she was passing out some meaty mass
and clotted blood, she assumed that the abortus
must have been expelled in the process of
bleeding; it was Editha who insisted that she
wanted to be discharged; petitioner agreed, but
she advised Editha to return for check-up on
August 5, 1994, which the latter failed to do.
100
Petitioner contended that it was Editha’s gross
negligence and/or omission in insisting to be
discharged on July 31, 1994 against doctor’s advice
and her unjustified failure to return for check-up as
directed by petitioner that contributed to her life-
threatening condition on September 16, 1994; that
Editha’s hysterectomy was brought about by her
very abnormal pregnancy known as placenta
increta, which was an extremely rare and very
unusual case of abdominal placental implantation.
Petitioner argued that whether or not a D&C
procedure was done by her or any other doctor,
there would be no difference at all because at any
stage of gestation before term, the uterus would
rupture just the same.
On March 4, 1999, the Board of Medicine (the
Board) of the PRC rendered a Decision, 14
exonerating petitioner from the charges filed
against her. The Board held:
Based on the findings of the doctors who
conducted the laparotomy on Editha, hers is a case
of Ectopic Pregnancy Interstitial. This type of
ectopic pregnancy is one that is being protected by
the uterine muscles and manifestations may take
later than four (4) months and only attributes to
two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma
Medical Center on July 28, 1994 due to vaginal
bleeding, an ultra-sound was performed upon her
and the result of the Sonogram Test reveals a
morbid fetus but did not specify where the fetus
was located. Obstetricians will assume that the
pregnancy is within the uterus unless so specified
by the Sonologist who conducted the ultra-sound.
Respondent (Dr. Lasam) cannot be faulted if she
was not able to determine that complainant Editha
is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that
her cervix is already open and so as to stop the
profuse bleeding. Simple curettage cannot remove
a fetus if the patient is having an ectopic
pregnancy, since ectopic pregnancy is pregnancy
conceived outside the uterus and curettage is done
only within the uterus. Therefore, a more extensive
operation needed in this case of pregnancy in order
to remove the fetus.15
Feeling aggrieved, respondents went to the PRC on
appeal. On November 22, 2000, the PRC rendered
a Decision16 reversing the findings of the Board and
revoking petitioner’s authority or license to
practice her profession as a physician.17
Petitioner brought the matter to the CA in a
Petition for Review under Rule 43 of the Rules of
Court. Petitioner also dubbed her petition as one
for certiorari18 under Rule 65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that
the Petition for Review under Rule 43 of the Rules
of Court was an improper remedy, as the
enumeration of the quasi-judicial agencies in Rule
43 is exclusive.19 PRC is not among the quasi-
judicial bodies whose judgment or final orders are
subject of a petition for review to the CA, thus, the
petition for review of the PRC Decision, filed at the
CA, was improper. The CA further held that should
the petition be treated as a petition for certiorari
under Rule 65, the same would still be dismissed
for being improper and premature. Citing Section
2620 of Republic Act (R.A.) No. 2382 or the Medical
Act of 1959, the CA held that the plain, speedy and
adequate remedy under the ordinary course of law
which petitioner should have availed herself of was
to appeal to the Office of the President.21
Hence, herein petition, assailing the decision of the
CA on the following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION
OF LAW IN HOLDING THAT THE PROFESSIONAL
REGULATION[S] COMMISSION (PRC) WAS
EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES
CONTEMPLATED UNDER RULE 43 OF THE RULES OF
CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS
EXCLUDED FROM THE PURVIEW OF RULE 43 OF
THE RULES OF CIVIL PROCEDURE, THE PETITIONER
WAS NOT PRECLUDED FROM FILING A PETITION
FOR CERTIORARI WHERE THE DECISION WAS ALSO
ISSUED IN EXCESS OF OR WITHOUT JURISDICTION,
OR WHERE THE DECISION WAS A PATENT NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT
ALLOWED BY LAW TO APPEAL FROM THE DECISION
OF THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF DISCRETION IN DENYING FOR IMPROPER
101
FORUM THE PETITION FOR REVIEW/PETITION FOR
CERTIORARI WITHOUT GOING OVER THE MERITS
OF THE GROUNDS RELIED UPON BY THE
PETITIONER;
5. PRC’S GRAVE OMISSION TO AFFORD HEREIN
PETITONER A CHANCE TO BE HEARD ON APPEAL IS
A CLEAR VIOLATION OF HER CONSTITUTIONAL
RIGHT TO DUE PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR,
PRC COMMITTED GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN
ACCEPTING AND CONSIDERING THE
MEMORANDUM ON APPEAL WITHOUT PROOF OF
SERVICE TO HEREIN PETITIONER, AND IN
VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND
REGULATIONS GOVERNING THE REGULATION AND
PRACTICE OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION
IN REVOKING PETITIONER’S LICENSE TO PRACTICE
MEDICINE WITHOUT AN EXPERT TESTIMONY TO
SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETE’S INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF
DISCRETION IN TOTALLY DISREGARDING THE
FINDING OF THE BOARD OF MEDICINE, WHICH HAD
THE NECESSARY COMPETENCE AND EXPERTISE TO
ESTABLISH THE CAUSE OF RESPONDENT EDITHA’S
INJURY, AS WELL AS THE TESTIMONY OF THE
EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION
IN MAKING CONCLUSIONS OF FACTS THAT WERE
NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE
ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow
complainants to appeal to the PRC from the
decision of the Board. She invokes Article IV,
Section 35 of the Rules and Regulations Governing
the Regulation and Practice of Professionals, which
provides:
Sec. 35. The respondent may appeal the decision of
the Board within thirty days from receipt thereof to
the Commission whose decision shall be final.
Complainant, when allowed by law, may interpose
an appeal from the Decision of the Board within
the same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the
above law indicates that while the respondent, as a
matter of right, may appeal the Decision of the
Board to the Commission, the complainant may
interpose an appeal from the decision of the Board
only when so allowed by law.23 Petitioner cited
Section 26 of Republic Act No. 2382 or "The
Medical Act of 1959," to wit:
Section 26. Appeal from judgment. The decision of
the Board of Medical Examiners (now Medical
Board) shall automatically become final thirty days
after the date of its promulgation unless the
respondent, during the same period, has appealed
to the Commissioner of Civil Service (now
Professional Regulations Commission) and later to
the Office of the President of the Philippines. If the
final decision is not satisfactory, the respondent
may ask for a review of the case, or may file in
court a petition for certiorari.
Petitioner posits that the reason why the Medical
Act of 1959 allows only the respondent in an
administrative case to file an appeal with the
Commission while the complainant is not allowed
to do so is double jeopardy. Petitioner is of the
belief that the revocation of license to practice a
profession is penal in nature.24
The Court does not agree.
For one, the principle of double jeopardy finds no
application in administrative cases. Double
jeopardy attaches only: (1) upon a valid indictment;
(2) before a competent court; (3) after
arraignment; (4) when a valid plea has been
entered; and (5) when the defendant was acquitted
or convicted, or the case was dismissed or
otherwise terminated without the express consent
of the accused.25 These elements were not present
in the proceedings before the Board of Medicine,
as the proceedings involved in the instant case
were administrative and not criminal in nature. The
Court has already held that double jeopardy does
not lie in administrative cases.26
Moreover, Section 35 of the Rules and Regulations
Governing the Regulation and Practice of
Professionals cited by petitioner was subsequently
amended to read:
Sec. 35. The complainant/respondent may appeal
the order, the resolution or the decision of the
102
Board within thirty (30) days from receipt thereof
to the Commission whose decision shall be final
and executory. Interlocutory order shall not be
appealable to the Commission. (Amended by Res.
174, Series of 1990).27 (Emphasis supplied)
Whatever doubt was created by the previous
provision was settled with said amendment. It is
axiomatic that the right to appeal is not a natural
right or a part of due process, but a mere statutory
privilege that may be exercised only in the manner
prescribed by law.28 In this case, the clear intent of
the amendment is to render the right to appeal
from a decision of the Board available to both
complainants and respondents.
Such conclusion is bolstered by the fact that in
2006, the PRC issued Resolution No. 06-342(A), or
the New Rules of Procedure in Administrative
Investigations in the Professional Regulations
Commission and the Professional Regulatory
Boards, which provides for the method of appeal,
to wit:
Sec. 1. Appeal; Period Non-Extendible.- The
decision, order or resolution of the Board shall be
final and executory after the lapse of fifteen (15)
days from receipt of the decision, order or
resolution without an appeal being perfected or
taken by either the respondent or the complainant.
A party aggrieved by the decision, order or
resolution may file a notice of appeal from the
decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt
thereof, and serving upon the adverse party a
notice of appeal together with the appellant’s brief
or memorandum on appeal, and paying the appeal
and legal research fees. x x x29
The above-stated provision does not qualify
whether only the complainant or respondent may
file an appeal; rather, the new rules provide that "a
party aggrieved" may file a notice of appeal. Thus,
either the complainant or the respondent who has
been aggrieved by the decision, order or resolution
of the Board may appeal to the Commission. It is an
elementary rule that when the law speaks in clear
and categorical language, there is no need, in the
absence of legislative intent to the contrary, for
any interpretation.30 Words and phrases used in
the statute should be given their plain, ordinary,
and common usage or meaning.31
Petitioner also submits that appeals from the
decisions of the PRC should be with the CA, as Rule
4332 of the Rules of Court was precisely formulated
and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies. 33
Petitioner further contends that a quasi-judicial
body is not excluded from the purview of Rule 43
just because it is not mentioned therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals
from judgments or final orders of the Court of Tax
Appeals, and from awards, judgments, final orders
or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil
Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission,
Office of the President, Land Registration
Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks
and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law. (Emphasis
supplied)
Indeed, the PRC is not expressly mentioned as one
of the agencies which are expressly enumerated
under Section 1, Rule 43 of the Rules of Court.
However, its absence from the enumeration does
not, by this fact alone, imply its exclusion from the
coverage of said Rule.35 The Rule expressly provides
that it should be applied to appeals from awards,
judgments final orders or resolutions of any quasi-
judicial agency in the exercise of its quasi-judicial
functions. The phrase "among these agencies"
confirms that the enumeration made in the Rule is
not exclusive to the agencies therein listed.36
103
Specifically, the Court, in Yang v. Court of Appeals,37
ruled that Batas Pambansa (B.P.) Blg. 12938
conferred upon the CA exclusive appellate
jurisdiction over appeals from decisions of the PRC.
The Court held:
The law has since been changed, however, at least
in the matter of the particular court to which
appeals from the Commission should be taken. On
August 14, 1981, Batas Pambansa Bilang 129
became effective and in its Section 29, conferred
on the Court of Appeals "exclusive appellate
jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial
Courts and quasi-judicial agencies,
instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of the
Supreme Court. x x x." In virtue of BP 129, appeals
from the Professional Regulations Commission are
now exclusively cognizable by the Court of
Appeals.39 (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the
precursor of the present Rules of Civil Procedure,40
lodged with the CA such jurisdiction over the
appeals of decisions made by the PRC.
Anent the substantive merits of the case, petitioner
questions the PRC decision for being without an
expert testimony to support its conclusion and to
establish the cause of Editha’s injury. Petitioner
avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as
to the cause of the injury.41
Medical malpractice is a particular form of
negligence which consists in the failure of a
physician or surgeon to apply to his practice of
medicine that degree of care and skill which is
ordinarily employed by the profession generally,
under similar conditions, and in like surrounding
circumstances.42 In order to successfully pursue
such a claim, a patient must prove that the
physician or surgeon either failed to do something
which a reasonably prudent physician or surgeon
would not have done, and that the failure or action
caused injury to the patient.43
There are four elements involved in medical
negligence cases: duty, breach, injury and
proximate causation.44
A physician-patient relationship was created when
Editha employed the services of the petitioner. As
Editha’s physician, petitioner was duty-bound to
use at least the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances.45 The
breach of these professional duties of skill and
care, or their improper performance by a physician
surgeon, whereby the patient is injured in body or
in health, constitutes actionable malpractice. 46 As
to this aspect of medical malpractice, the
determination of the reasonable level of care and
the breach thereof, expert testimony is essential.47
Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been
recognized that expert testimony is usually
necessary to support the conclusion as to
causation.48
In the present case, respondents did not present
any expert testimony to support their claim that
petitioner failed to do something which a
reasonably prudent physician or surgeon would
have done.
Petitioner, on the other hand, presented the
testimony of Dr. Augusto M. Manalo, who was
clearly an expert on the subject.
Generally, to qualify as an expert witness, one
must have acquired special knowledge of the
subject matter about which he or she is to testify,
either by the study of recognized authorities on the
subject or by practical experience.49
Dr. Manalo specializes in gynecology and
obstetrics, authored and co-authored various
publications on the subject, and is a professor at
the University of the Philippines. 50 According to
him, his diagnosis of Editha’s case was "Ectopic
Pregnancy Interstitial (also referred to as Cornual),
Ruptured."51 In stating that the D&C procedure was
not the proximate cause of the rupture of Editha’s
uterus resulting in her hysterectomy, Dr. Manalo
testified as follows:
Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter.
The complainant had testified here that the D&C
was the proximate cause of the rupture of the
uterus. The condition which she found herself in on
104
the second admission. Will you please tell us
whether that is true or not?
A: Yah, I do not think so for two reasons. One, as
I have said earlier, the instrument cannot reach the
site of the pregnancy, for it to further push the
pregnancy outside the uterus. And, No. 2, I was
thinking a while ago about another reason- well,
why I don’t think so, because it is the triggering
factor for the rupture, it could have–the rupture
could have occurred much earlier, right after the
D&C or a few days after the D&C.
Q: In this particular case, doctor, the rupture
occurred to have happened minutes prior to the
hysterectomy or right upon admission on
September 15, 1994 which is about 1 ½ months
after the patient was discharged, after the D&C was
conducted. Would you tell us whether there is any
relation at all of the D&C and the rupture in this
particular instance?
A: I don’t think so for the two reasons that I have
just mentioned- that it would not be possible for
the instrument to reach the site of pregnancy. And,
No. 2, if it is because of the D&C that rupture could
have occurred earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness
and the reasons given by him, it is evident that the
D&C procedure was not the proximate cause of the
rupture of Editha’s uterus.
During his cross-examination, Dr. Manalo testified
on how he would have addressed Editha’s
condition should he be placed in a similar
circumstance as the petitioner. He stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you
consider that you have done a good, correct and
ideal dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets
well. Because even after the procedure, even after
the procedure you may feel that you have scraped
everything, the patient stops bleeding, she feels
well, I think you should still have some
reservations, and wait a little more time.
Q: If you were the OB-Gyne who performed the
procedure on patient Editha Ramolete, would it be
your standard practice to check the fetal parts or
fetal tissues that were allegedly removed?
A: From what I have removed, yes. But in this
particular case, I think it was assumed that it was
part of the meaty mass which was expelled at the
time she was urinating and flushed in the toilet. So
there’s no way.
Q: There was [sic] some portions of the fetal
parts that were removed?
A: No, it was described as scanty scraping if I
remember it right–scanty.
Q: And you would not mind checking those scant
or those little parts that were removed?
A: Well, the fact that it was described means, I
assume that it was checked, ‘no. It was described
as scanty and the color also, I think was described.
Because it would be very unusual, even improbable
that it would not be examined, because when you
scrape, the specimens are right there before your
eyes. It’s in front of you. You can touch it. In fact,
some of them will stick to the instrument and
therefore to peel it off from the instrument, you
have to touch them. So, automatically they are
examined closely.
Q: As a matter of fact, doctor, you also give
telephone orders to your patients through
telephone?
A: Yes, yes, we do that, especially here in Manila
because you know, sometimes a doctor can also be
tied-up somewhere and if you have to wait until he
arrive at a certain place before you give the order,
then it would be a lot of time wasted. Because if
you know your patient, if you have handled your
patient, some of the symptoms you can interpret
that comes with practice. And, I see no reason for
not allowing telephone orders unless it is the first
time that you will be encountering the patient.
That you have no idea what the problem is.
Q: But, doctor, do you discharge patients without
seeing them?
A: Sometimes yes, depending on how familiar I
am with the patient. We are on the question of
telephone orders. I am not saying that that is the
idle [sic] thing to do, but I think the reality of
present day practice somehow justifies telephone
orders. I have patients whom I have justified and
then all of a sudden, late in the afternoon or late in
the evening, would suddenly call they have decided
that they will go home inasmuch as they
105
anticipated that I will discharge them the following
day. So, I just call and ask our resident on duty or
the nurse to allow them to go because I have seen
that patient and I think I have full grasp of her
problems. So, that’s when I make this telephone
orders. And, of course before giving that order I ask
about how she feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the
D&C procedure was conducted in accordance with
the standard practice, with the same level of care
that any reasonably competent doctor would use
to treat a condition under the same circumstances,
and that there was nothing irregular in the way the
petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often
brought as a civil action for damages under Article
217654 of the Civil Code. The defenses in an action
for damages, provided for under Article 2179 of the
Civil Code are:
Art. 2179. When the plaintiff’s own negligence was
the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence
was only contributory, the immediate and
proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the
damages to be awarded.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have
occurred.55 An injury or damage is proximately
caused by an act or a failure to act, whenever it
appears from the evidence in the case that the act
or omission played a substantial part in bringing
about or actually causing the injury or damage; and
that the injury or damage was either a direct result
or a reasonably probable consequence of the act or
omission.56
In the present case, the Court notes the findings of
the Board of Medicine:
When complainant was discharged on July 31,
1994, herein respondent advised her to return on
August 4, 1994 or four (4) days after the D&C. This
advise was clear in complainant’s Discharge Sheet.
However, complainant failed to do so. This being
the case, the chain of continuity as required in
order that the doctrine of proximate cause can be
validly invoked was interrupted. Had she returned,
the respondent could have examined her
thoroughly.57 x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated
further that assuming that there was in fact a
misdiagnosis, the same would have been rectified if
Editha followed the petitioner’s order to return for
a check-up on August 4, 1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist has
been misled (justifiably) up to thus point that there
would have been ample opportunity to rectify the
misdiagnosis, had the patient returned, as
instructed for her follow-up evaluation. It was one
and a half months later that the patient sought
consultation with another doctor. The continued
growth of an ectopic pregnancy, until its eventual
rupture, is a dynamic process. Much change in
physical findings could be expected in 1 ½ months,
including the emergence of suggestive ones.58
It is undisputed that Editha did not return for a
follow-up evaluation, in defiance of the petitioner’s
advise. Editha omitted the diligence required by
the circumstances which could have avoided the
injury. The omission in not returning for a follow-
up evaluation played a substantial part in bringing
about Editha’s own injury. Had Editha returned,
petitioner could have conducted the proper
medical tests and procedure necessary to
determine Editha’s health condition and applied
the corresponding treatment which could have
prevented the rupture of Editha’s uterus. The D&C
procedure having been conducted in accordance
with the standard medical practice, it is clear that
Editha’s omission was the proximate cause of her
own injury and not merely a contributory
negligence on her part.
Contributory negligence is the act or omission
amounting to want of ordinary care on the part of
the person injured, which, concurring with the
defendant’s negligence, is the proximate cause of
the injury.59 Difficulty seems to be apprehended in
deciding which acts of the injured party shall be
considered immediate causes of the accident. 60
Where the immediate cause of an accident
resulting in an injury is the plaintiff’s own act,
which contributed to the principal occurrence as
106
one of its determining factors, he cannot recover Constitution, which could have served as basis for
damages for the injury.61 Again, based on the the nullification of the proceedings in the appeal.
evidence presented in the present case under The same holds true in the case at bar. The Court
review, in which no negligence can be attributed to finds that the failure of the respondents to furnish
the petitioner, the immediate cause of the accident the petitioner a copy of the Memorandum of
resulting in Editha’s injury was her own omission Appeal submitted to the PRC constitutes a violation
when she did not return for a follow-up check up, of due process. Thus, the proceedings before the
in defiance of petitioner’s orders. The immediate PRC were null and void.
cause of Editha’s injury was her own act; thus, she All told, doctors are protected by a special rule of
cannot recover damages from the injury. law. They are not guarantors of care. They are not
Lastly, petitioner asserts that her right to due insurers against mishaps or unusual
68
process was violated because she was never consequences specially so if the patient herself
informed by either respondents or by the PRC that did not exercise the proper diligence required to
an appeal was pending before the PRC. 62 Petitioner avoid the injury.
claims that a verification with the records section WHEREFORE, the petition is GRANTED. The assailed
of the PRC revealed that on April 15, 1999, Decision of the Court of Appeals dated July 4, 2003
respondents filed a Memorandum on Appeal in CA-GR SP No. 62206 is hereby REVERSED and SET
before the PRC, which did not attach the actual ASIDE. The Decision of the Board of Medicine dated
registry receipt but was merely indicated therein.63 March 4, 1999 exonerating petitioner is AFFIRMED.
Respondents, on the other hand avers that if the No pronouncement as to costs.
original registry receipt was not attached to the SO ORDERED.
Memorandum on Appeal, PRC would not have
entertained the appeal or accepted such pleading
for lack of notice or proof of service on the other
party.64 Also, the registry receipt could not be
appended to the copy furnished to petitioner’s
former counsel, because the registry receipt was
already appended to the original copy of the
Memorandum of Appeal filed with PRC.65
It is a well-settled rule that when service of notice
is an issue, the rule is that the person alleging that
the notice was served must prove the fact of
service. The burden of proving notice rests upon
the party asserting its existence.66 In the present
case, respondents did not present any proof that
petitioner was served a copy of the Memorandum
on Appeal. Thus, respondents were not able to
satisfy the burden of proving that they had in fact
informed the petitioner of the appeal proceedings
before the PRC.
In EDI-Staffbuilders International, Inc. v. National
Labor Relations Commission,67 in which the
National Labor Relations Commission failed to
order the private respondent to furnish the
petitioner a copy of the Appeal Memorandum, the
Court held that said failure deprived the petitioner
of procedural due process guaranteed by the
107
G.R. No. 130547 October 3, 2000
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and
minors LLOYD and KRISTINE, all surnamed REYES,
represented by their mother, LEAH ALESNA REYES,
petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE
PALACIO, DR. MARVIE BLANES, and DR. MARLYN
RICO, respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision 1 of the
Court of Appeals in CA-G.R. CV No. 36551 affirming
the decision of the Regional Trial Court, Branch IX,
Cebu City which dismissed a complaint for damages
filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late
Jorge Reyes. The other petitioners, namely, Rose
Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his
death on January 8, 1987, Jorge had been suffering
from a recurring fever with chills. After he failed to
get relief from some home medication he was
taking, which consisted of analgesic, antipyretic,
and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to
by respondent Dr. Marlyn Rico, resident physician
and admitting physician on duty, who gave Jorge a
physical examination and took his medical history.
She noted that at the time of his admission, Jorge
was conscious, ambulatory, oriented, coherent,
and with respiratory distress.2 Typhoid fever was
then prevalent in the locality, as the clinic had been
getting from 15 to 20 cases of typhoid per month. 3
Suspecting that Jorge could be suffering from this
disease, Dr. Rico ordered a Widal Test, a standard
test for typhoid fever, to be performed on Jorge.
Blood count, routine urinalysis, stool examination,
and malarial smear were also made.4 After about
an hour, the medical technician submitted the
results of the test from which Dr. Rico concluded
that Jorge was positive for typhoid fever. As her
shift was only up to 5:00 p.m., Dr. Rico indorsed
Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six
in the evening. She also took Jorge’s history and
gave him a physical examination. Like Dr. Rico, her
impression was that Jorge had typhoid fever.
Antibiotics being the accepted treatment for
typhoid fever, she ordered that a compatibility test
with the antibiotic chloromycetin be done on Jorge.
Said test was administered by nurse Josephine
Pagente who also gave the patient a dose of
triglobe. As she did not observe any adverse
reaction by the patient to chloromycetin, Dr.
Blanes ordered the first five hundred milligrams of
said antibiotic to be administered on Jorge at
around 9:00 p.m. A second dose was administered
on Jorge about three hours later just before
midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes
was called as Jorge’s temperature rose to 41°C. The
patient also experienced chills and exhibited
respiratory distress, nausea, vomiting, and
convulsions. Dr. Blanes put him under oxygen, used
a suction machine, and administered
hydrocortisone, temporarily easing the patient’s
convulsions. When he regained consciousness, the
patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest
pains in the past. Jorge replied he did not. 5 After
about 15 minutes, however, Jorge again started to
vomit, showed restlessness, and his convulsions
returned. Dr. Blanes re-applied the emergency
measures taken before and, in addition, valium was
administered. Jorge, however, did not respond to
the treatment and slipped into cyanosis, a bluish or
purplish discoloration of the skin or mucous
membrane due to deficient oxygenation of the
blood. At around 2:00 a.m., Jorge died. He was
forty years old. The cause of his death was
"Ventricular Arrythemia Secondary to Hyperpyrexia
and typhoid fever."
On June 3, 1987, petitioners filed before the
Regional Trial Court of Cebu City a complaint 6 for
damages against respondents Sisters of Mercy,
Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn
Rico, and nurse Josephine Pagente. On September
24, 1987, petitioners amended their complaint to
implead respondent Mercy Community Clinic as
additional defendant and to drop the name of
108
Josephine Pagente as defendant since she was no
longer connected with respondent hospital. Their
principal contention was that Jorge did not die of
typhoid fever.7 Instead, his death was due to the
wrongful administration of chloromycetin. They
contended that had respondent doctors exercised
due care and diligence, they would not have
recommended and rushed the performance of the
Widal Test, hastily concluded that Jorge was
suffering from typhoid fever, and administered
chloromycetin without first conducting sufficient
tests on the patient’s compatibility with said drug.
They charged respondent clinic and its directress,
Sister Rose Palacio, with negligence in failing to
provide adequate facilities and in hiring negligent
doctors and nurses.8
Respondents denied the charges. During the pre-
trial conference, the parties agreed to limit the
issues on the following: (1) whether the death of
Jorge Reyes was due to or caused by the
negligence, carelessness, imprudence, and lack of
skill or foresight on the part of defendants; (2)
whether respondent Mercy Community Clinic was
negligent in the hiring of its employees; and (3)
whether either party was entitled to damages. The
case was then heard by the trial court during
which, in addition to the testimonies of the parties,
the testimonies of doctors as expert witnesses
were presented.
Petitioners offered the testimony of Dr. Apolinar
Vacalares, Chief Pathologist at the Northern
Mindanao Training Hospital, Cagayan de Oro City.
On January 9, 1987, Dr. Vacalares performed an
autopsy on Jorge Reyes to determine the cause of
his death. However, he did not open the skull to
examine the brain. His findings9 showed that the
gastro-intestinal tract was normal and without any
ulceration or enlargement of the nodules. Dr.
Vacalares testified that Jorge did not die of typhoid
fever. He also stated that he had not seen a patient
die of typhoid fever within five days from the onset
of the disease.
For their part, respondents offered the testimonies
of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr.
Gotiong is a diplomate in internal medicine whose
expertise is microbiology and infectious diseases.
He is also a consultant at the Cebu City Medical
Center and an associate professor of medicine at
the South Western University College of Medicine
in Cebu City. He had treated over a thousand cases
of typhoid patients. According to Dr. Gotiong, the
patient’s history and positive Widal Test results
ratio of 1:320 would make him suspect that the
patient had typhoid fever. As to Dr. Vacalares’
observation regarding the absence of ulceration in
Jorge’s gastro-intestinal tract, Dr. Gotiong said that
such hyperplasia in the intestines of a typhoid
victim may be microscopic. He noted that since the
toxic effect of typhoid fever may lead to meningitis,
Dr. Vacalares’ autopsy should have included an
examination of the brain.10
The other doctor presented was Dr. Ibarra Panopio,
a member of the American Board of Pathology,
examiner of the Philippine Board of Pathology from
1978 to 1991, fellow of the Philippine Society of
Pathologist, associate professor of the Cebu
Institute of Medicine, and chief pathologist of the
Andres Soriano Jr. Memorial Hospital in Toledo
City. Dr. Panopio stated that although he was
partial to the use of the culture test for its greater
reliability in the diagnosis of typhoid fever, the
Widal Test may also be used. Like Dr. Gotiong, he
agreed that the 1:320 ratio in Jorge’s case was
already the maximum by which a conclusion of
typhoid fever may be made. No additional
information may be deduced from a higher
dilution.11 He said that Dr. Vacalares’ autopsy on
Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its
decision absolving respondents from the charges of
negligence and dismissing petitioners’ action for
damages. The trial court likewise dismissed
respondents’ counterclaim, holding that, in seeking
damages from respondents, petitioners were
impelled by the honest belief that Jorge’s death
was due to the latter’s negligence.
Petitioners brought the matter to the Court of
Appeals. On July 31, 1997, the Court of Appeals
affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of
errors:
I. THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR WHEN IT RULED
109
THAT THE DOCTRINE OF RES IPSA LOQUITUR IS
NOT APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR WHEN IT MADE
AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF
MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED WHEN IT RULED FOR A LESSER STANDARD
OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL
PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D]
NO DOCTOR’S NEGLIGENCE IN THE TREATMENT OF
JORGE REYES.
Petitioner’s action is for medical malpractice. This
is a particular form of negligence which consists in
the failure of a physician or surgeon to apply to his
practice of medicine that degree of care and skill
which is ordinarily employed by the profession
generally, under similar conditions, and in like
surrounding circumstances.12 In order to
successfully pursue such a claim, a patient must
prove that the physician or surgeon either failed to
do something which a reasonably prudent
physician or surgeon would have done, or that he
or she did something that a reasonably prudent
physician or surgeon would not have done, and
that the failure or action caused injury to the
patient.13 There are thus four elements involved in
medical negligence cases, namely: duty, breach,
injury, and proximate causation.
In the present case, there is no doubt that a
physician-patient relationship existed between
respondent doctors and Jorge Reyes. Respondents
were thus duty-bound to use at least the same
level of care that any reasonably competent doctor
would use to treat a condition under the same
circumstances. It is breach of this duty which
constitutes actionable malpractice.14 As to this
aspect of medical malpractice, the determination
of the reasonable level of care and the breach
thereof, expert testimony is essential. Inasmuch as
the causes of the injuries involved in malpractice
actions are determinable only in the light of
scientific knowledge, it has been recognized that
expert testimony is usually necessary to support
the conclusion as to causation.15
Res Ipsa Loquitur
There is a case when expert testimony may be
dispensed with, and that is under the doctrine of
res ipsa loquitur. As held in Ramos v. Court of
Appeals:16
Although generally, expert medical testimony is
relied upon in malpractice suits to 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 loquitor is availed by
the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides
the proof of negligence. The reason is that the
general rule on the necessity of expert testimony
applies only to such matters clearly within the
domain of medical science, and not to matters that
are within the common knowledge of mankind
which may be testified to by anyone familiar with
the facts. Ordinarily, only physicians and surgeons
of skill and experience are competent to testify as
to whether a patient has been treated or operated
upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts
of physicians and surgeons, external appearances,
and manifest conditions which are observable by
any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a
physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony,
where the court from its fund of common
knowledge can determine the proper standard of
care. Where common knowledge and experience
teach that a resulting injury would not have
occurred to the patient if due care had been
exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine
of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what
occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do
is prove a nexus between the particular act or
omission complained of and the injury sustained
while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort
to res ipsa loquitor is allowed because there is no
other way, under usual and ordinary conditions, by
110
which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a
foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of
the body which was not under, or in the area, of
treatment, removal of the wrong part of the body
when another part was intended, knocking out a
tooth while a patient’s jaw was under anesthetic
for the removal of his tonsils, and loss of an eye
while the patient was under the influence of
anesthetic, during or following an operation for
appendicitis, among others.17
Petitioners asserted in the Court of Appeals that
the doctrine of res ipsa loquitur applies to the
present case because Jorge Reyes was merely
experiencing fever and chills for five days and was
fully conscious, coherent, and ambulant when he
went to the hospital. Yet, he died after only ten
hours from the time of his admission.
This contention was rejected by the appellate
court.
Petitioners now contend that all requisites for the
application of res ipsa loquitur were present,
namely: (1) the accident was of a kind which does
not ordinarily occur unless someone is negligent;
(2) the instrumentality or agency which caused the
injury was under the exclusive control of the
person in charge; and (3) the injury suffered must
not have been due to any voluntary action or
contribution of the person injured.18
The contention is without merit. We agree with the
ruling of the Court of Appeals. In the Ramos case,
the question was whether a surgeon, an
anesthesiologist, and a hospital should be made
liable for the comatose condition of a patient
scheduled for cholecystectomy.19 In that case, the
patient was given anesthesia prior to her
operation. Noting that the patient was
neurologically sound at the time of her operation,
the Court applied the doctrine of res ipsa loquitur
as mental brain damage does not normally occur in
a gallblader operation in the absence of negligence
of the anesthesiologist. Taking judicial notice that
anesthesia procedures had become so common
that even an ordinary person could tell if it was
administered properly, we allowed the testimony
of a witness who was not an expert. In this case,
while it is true that the patient died just a few
hours after professional medical assistance was
rendered, there is really nothing unusual or
extraordinary about his death. Prior to his
admission, the patient already had recurring fevers
and chills for five days unrelieved by the analgesic,
antipyretic, and antibiotics given him by his wife.
This shows that he had been suffering from a
serious illness and professional medical help came
too late for him.
Respondents alleged failure to observe due care
was not immediately apparent to a layman so as to
justify application of res ipsa loquitur. The question
required expert opinion on the alleged breach by
respondents of the standard of care required by
the circumstances. Furthermore, on the issue of
the correctness of her diagnosis, no presumption of
negligence can be applied to Dr. Marlyn Rico.As
held in Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the
circumstances of each case. It is generally
restricted to situations in malpractice cases where
a layman is able to say, as a matter of common
knowledge and observation, that the consequences
of professional care were not as such as would
ordinarily have followed if due care had been
exercised. A distinction must be made between the
failure to secure results, and the occurrence of
something more unusual and not ordinarily found
if the service or treatment rendered followed the
usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of
res ipsa loquitur can have no application in a suit
against a physician or a surgeon which involves the
merits of a diagnosis or of a scientific treatment.
The physician or surgeon is not required at his peril
to explain why any particular diagnosis was not
correct, or why any particular scientific treatment
did not produce the desired result.20
Specific Acts of Negligence
We turn to the question whether petitioners have
established specific acts of negligence allegedly
committed by respondent doctors.
111
Petitioners contend that: (1) Dr. Marlyn Rico hastily
and erroneously relied upon the Widal test,
diagnosed Jorge’s illness as typhoid fever, and
immediately prescribed the administration of the
antibiotic chloromycetin;21 and (2) Dr. Marvie
Blanes erred in ordering the administration of the
second dose of 500 milligrams of chloromycetin
barely three hours after the first was given.22
Petitioners presented the testimony of Dr. Apolinar
Vacalares, Chief Pathologist of the Northern
Mindanao Training Hospital, Cagayan de Oro City,
who performed an autopsy on the body of Jorge
Reyes. Dr. Vacalares testified that, based on his
findings during the autopsy, Jorge Reyes did not die
of typhoid fever but of shock undetermined, which
could be due to allergic reaction or chloromycetin
overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar
Vacalares as an expert witness, we do not find him
to be so as he is not a specialist on infectious
diseases like typhoid fever. Furthermore, although
he may have had extensive experience in
performing autopsies, he admitted that he had yet
to do one on the body of a typhoid victim at the
time he conducted the postmortem on Jorge
Reyes. It is also plain from his testimony that he
has treated only about three cases of typhoid
fever. Thus, he testified that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you
have never seen a patient who died of typhoid
fever?
A In autopsy. But, that was when I was a resident
physician yet.
Q But you have not performed an autopsy of a
patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a
patient who died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen
while you were in the general practice of
medicine?
A In our case we had no widal test that time so we
cannot consider that the typhoid fever is like this
and like that. And the widal test does not specify
the time of the typhoid fever.
Q The question is: how many typhoid fever cases
had you seen in your general practice regardless of
the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn
Rico erred in her diagnosis. Both lower courts were
therefore correct in discarding his testimony, which
is really inadmissible.
In Ramos, the defendants presented the testimony
of a pulmonologist to prove that brain injury was
due to oxygen deprivation after the patient had
bronchospasms24 triggered by her allergic response
to a drug,25 and not due to faulty intubation by the
anesthesiologist. As the issue was whether the
intubation was properly performed by an
anesthesiologist, we rejected the opinion of the
pulmonologist on the ground that he was not: (1)
an anesthesiologist who could enlighten the court
about anesthesia practice, procedure, and their
complications; nor (2) an allergologist who could
properly advance expert opinion on allergic
mediated processes; nor (3) a pharmacologist who
could explain the pharmacologic and toxic effects
of the drug allegedly responsible for the
bronchospasms.
Second. On the other hand, the two doctors
presented by respondents clearly were experts on
the subject. They vouched for the correctness of
Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a
diplomate whose specialization is infectious
diseases and microbiology and an associate
professor at the Southwestern University College of
Medicine and the Gullas College of Medicine,
testified that he has already treated over a
thousand cases of typhoid fever.26 According to
him, when a case of typhoid fever is suspected, the
Widal test is normally used,27 and if the 1:320
results of the Widal test on Jorge Reyes had been
presented to him along with the patient’s history,
his impression would also be that the patient was
suffering from typhoid fever.28 As to the treatment
of the disease, he stated that chloromycetin was
the drug of choice.29 He also explained that despite
112
the measures taken by respondent doctors and the
intravenous administration of two doses of
chloromycetin, complications of the disease could
not be discounted. His testimony is as follows:30
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is
to 320, what treatment if any would be given?
A If those are the findings that would be presented
to me, the first thing I would consider would be
typhoid fever.
Q And presently what are the treatments
commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you
have administered chloramphenical about 3 1/2
hours later, the patient associated with chills,
temperature - 41oC, what could possibly come to
your mind?
A Well, when it is change in the clinical finding, you
have to think of complication.
Q And what will you consider on the complication
of typhoid?
A One must first understand that typhoid fever is
toximia. The problem is complications are caused
by toxins produced by the bacteria . . . whether you
have suffered complications to think of -- heart
toxic myocardities; then you can consider a toxic
meningitis and other complications and
perforations and bleeding in the ilium.
Q Even that 40-year old married patient who
received medication of chloromycetin of 500
milligrams intravenous, after the skin test, and
received a second dose of chloromycetin of 500
miligrams, 3 hours later, the patient developed
chills . . . rise in temperature to 41oC, and then
about 40 minutes later the temperature rose to
100oF, cardiac rate of 150 per minute who
appeared to be coherent, restless, nauseating, with
seizures: what significance could you attach to
these clinical changes?
A I would then think of toxemia, which was toxic
meningitis and probably a toxic meningitis because
of the high cardiac rate.
Q Even if the same patient who, after having given
intramuscular valium, became conscious and
coherent about 20 minutes later, have seizure and
cyanosis and rolling of eyeballs and vomitting . . .
and death: what significance would you attach to
this development?
A We are probably dealing with typhoid to
meningitis.
Q In such case, Doctor, what finding if any could
you expect on the post-mortem examination?
A No, the finding would be more on the meninges
or covering of the brain.
Q And in order to see those changes would it
require opening the skull?
A Yes.
As regards Dr. Vacalares’ finding during the
autopsy that the deceased’s gastro-intestinal tract
was normal, Dr. Rico explained that, while
hyperplasia31 in the payer’s patches or layers of the
small intestines is present in typhoid fever, the
same may not always be grossly visible and a
microscope was needed to see the texture of the
cells.32
Respondents also presented the testimony of Dr.
Ibarra T. Panopio who is a member of the
Philippine and American Board of Pathology, an
examiner of the Philippine Board of Pathology, and
chief pathologist at the MetroCebu Community
Hospital, Perpetual Succor Hospital, and the Andres
Soriano Jr. Memorial Medical Center. He stated
that, as a clinical pathologist, he recognized that
the Widal test is used for typhoid patients,
although he did not encourage its use because a
single test would only give a presumption
necessitating that the test be repeated, becoming
more conclusive at the second and third weeks of
the disease.33 He corroborated Dr. Gotiong’s
testimony that the danger with typhoid fever is
really the possible complications which could
develop like perforation, hemorrhage, as well as
liver and cerebral complications.34 As regards the
1:320 results of the Widal test on Jorge Reyes, Dr.
Panopio stated that no additional information
could be obtained from a higher ratio.35 He also
agreed with Dr. Gotiong that hyperplasia in the
payer’s patches may be microscopic.36
Indeed, the standard contemplated is not what is
actually the average merit among all known
practitioners from the best to the worst and from
the most to the least experienced, but the
reasonable average merit among the ordinarily
113
good physicians.37 Here, Dr. Marlyn Rico did not
depart from the reasonable standard
recommended by the experts as she in fact
observed the due care required under the
circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for
typhoid fever and, in the present case, greater
accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The
results of the Widal test and the patient’s history of
fever with chills for five days, taken with the fact
that typhoid fever was then prevalent as indicated
by the fact that the clinic had been getting about
15 to 20 typhoid cases a month, were sufficient to
give upon any doctor of reasonable skill the
impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the
administration of the drug chloromycetin, the drug
of choice for typhoid fever. The burden of proving
that Jorge Reyes was suffering from any other
illness rested with the petitioners. As they failed to
present expert opinion on this, preponderant
evidence to support their contention is clearly
absent.
Third. Petitioners contend that respondent Dr.
Marvie Blanes, who took over from Dr. Rico, was
negligent in ordering the intravenous
administration of two doses of 500 milligrams of
chloromycetin at an interval of less than three
hours. Petitioners claim that Jorge Reyes died of
anaphylactic shock38 or possibly from overdose as
the second dose should have been administered
five to six hours after the first, per instruction of Dr.
Marlyn Rico. As held by the Court of Appeals,
however:
That chloromycetin was likewise a proper
prescription is best established by medical
authority. Wilson, et. al., in Harrison’s Principle of
Internal Medicine, 12th ed. write that
chlorampenicol (which is the generic of
chloromycetin) is the drug of choice for typhoid
fever and that no drug has yet proven better in
promoting a favorable clinical response.
"Chlorampenicol (Chloromycetin) is specifically
indicated for bacterial meningitis, typhoid fever,
rickettsial infections, bacteriodes infections, etc."
(PIMS Annual, 1994, p. 211) The dosage likewise
including the first administration of five hundred
milligrams (500 mg.) at around nine o’clock in the
evening and the second dose at around 11:30 the
same night was still within medically acceptable
limits, since the recommended dose of
chloromycetin is one (1) gram every six (6) hours.
(cf. Pediatric Drug Handbook, 1st Ed., Philippine
Pediatric Society, Committee on Therapeutics and
Toxicology, 1996). The intravenous route is likewise
correct. (Mansser, O’Nick, Pharmacology and
Therapeutics) Even if the test was not administered
by the physician-on-duty, the evidence introduced
that it was Dra. Blanes who interpreted the results
remain uncontroverted. (Decision, pp. 16-17) Once
more, this Court rejects any claim of professional
negligence in this regard.
....
As regards anaphylactic shock, the usual way of
guarding against it prior to the administration of a
drug, is the skin test of which, however, it has been
observed: "Skin testing with haptenic drugs is
generally not reliable. Certain drugs cause
nonspecific histamine release, producing a weal-
and-flare reaction in normal individuals.
Immunologic activation of mast cells requires a
polyvalent allergen, so a negative skin test to a
univalent haptenic drug does not rule out
anaphylactic sensitivity to that drug." (Terr,
"Anaphylaxis and Urticaria" in Basic and Clinical
Immunology, p. 349) What all this means legally is
that even if the deceased suffered from an
anaphylactic shock, this, of itself, would not yet
establish the negligence of the appellee-physicians
for all that the law requires of them is that they
perform the standard tests and perform standard
procedures. The law cannot require them to
predict every possible reaction to all drugs
administered. The onus probandi was on the
appellants to establish, before the trial court, that
the appellee-physicians ignored standard medical
procedure, prescribed and administered
medication with recklessness and exhibited an
absence of the competence and skills expected of
general practitioners similarly situated.39
Fourth. Petitioners correctly observe that the
medical profession is one which, like the business
of a common carrier, is affected with public
114
interest. Moreover, they assert that since the law
imposes upon common carriers the duty of
observing extraordinary diligence in the vigilance
over the goods and for the safety of the
passengers,40 physicians and surgeons should have
the same duty toward their patients. 41 They also
contend that the Court of Appeals erred when it
allegedly assumed that the level of medical
practice is lower in Iligan City, thereby reducing the
standard of care and degree of diligence required
from physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar
to common carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of
their business and for reasons of public policy, are
bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers transported by them, according to the
circumstances of each case. . . .
The practice of medicine is a profession engaged in
only by qualified individuals.1âwphi1 It is a right
earned through years of education, training, and by
first obtaining a license from the state through
professional board examinations. Such license may,
at any time and for cause, be revoked by the
government. In addition to state regulation, the
conduct of doctors is also strictly governed by the
Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon
themselves in recognition and acceptance of their
great responsibility to society. Given these
safeguards, there is no need to expressly require of
doctors the observance of "extraordinary"
diligence. As it is now, the practice of medicine is
already conditioned upon the highest degree of
diligence. And, as we have already noted, the
standard contemplated for doctors is simply the
reasonable average merit among ordinarily good
physicians. That is reasonable diligence for doctors
or, as the Court of Appeals called it, the reasonable
"skill and competence . . . that a physician in the
same or similar locality . . . should apply."
WHEREFORE, the instant petition is DENIED and the
decision of the Court of Appeals is AFFIRMED.

115
116
117