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LEGAL MEDICINE COMPILED CASES

G.R. No. 142625 December 19, 2006

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

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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 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

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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.

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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 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
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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. 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,

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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 Hospital31applicable 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

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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 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

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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 or reject the application. This is particularly true with respondent hospital.

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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 facilities43 when Corazon was about to give birth, which
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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.44This exception is also known as the "doctrine of apparent authority."45 In Gilbert v. Sycamore Municipal Hospital,46the 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 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
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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, 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.

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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 Centerand/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 contractorphysician, 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 obstetriciangynecologist 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
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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 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
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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 twodecade 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 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

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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.64Petitioners 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

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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 andP700,000 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. Quisumbing, J., Chairperson, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

Footnotes
1 2

Under Rule 45 of the Rules of Court.

Penned by Associate Justice Artemio G. Tuquero, with Associate Justices Jorge S. Imperial and Eubulo G. Verzola, concurring. Rollo, pp. 42-48.
3

Penned by Associate Justice Eubulo G. Verzola, with Associate Justices Roberto A. Barrios and Eriberto U. Rosario, Jr., concurring.Id. at 49.
4 5

Penned by Judge Rodolfo G. Palattao.

Edema is the accumulation of excess fluid. It is manifested by the swelling of the extremities. (http://www.preeclampsia.org/symptoms.asp)
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6

A syndrome occurring in late pregnancy marked by an increase in blood pressure, swelling of the ankles by fluid, and the appearance of albumin in the urine, associated with reduced blood flow to the placenta, therefore putting the fetus at risk of death, or stillbirth, and putting the mother at risk of complications from high blood pressure, convulsions (eclampsia), kidney failure, liver failure and death. Treated with drugs to lower the blood pressure and to prevent convulsions, while expediting the delivery of the baby. (http://www.jansen.com.au/Dictionary_PR.html)
7 8 9

Rollo, p. 42. Exh. "A-4," Folder of Exhibits. Exh."A-1," Folder of Exhibits. Exh. "A-2," Folder of Exhibits. Exh. "A-5," Folder of Exhibits. Exh. "A-8," Folder of Exhibits. Exh. "A-20," Folder of Exhibits. Rollo, p. 43. Docketed as Civil Case No. 131873. Then Court of First Instance. Records, pp. 92, 93. Records, pp. 639-644. Rollo, pp. 42-48. Id. at 49. Id. at 237-240. Id. at 238. Id. at 207. Id. at 258.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

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25 26 27 28

Id. at 283-285. Id. at 312. 33 Ill.2d 326, 211 N.E.2d 253 (1965).

Citing Clary v. Hospital Authority of City of Marietta, 106 Ga.App. 134, 126 S.E.2d 470 (1962).
29

Citing Cramer v. Hoffman, 390 F.2d 19, 23 (1968); Holzberg v. Flower and Fifth Ave. Hospitals, 39 A.D.2d 526, 330 N.Y.S.2d 682, 684 (1972); Snelson v. Margaretville Hospital, 49 A.D.2d 991, 374 N.Y.S.2d 579, 581 (1975).
30 31 32 33 34

79 A.D.2d 43, 436 N.Y.S.2d 109 (1981). 118 A.D.2d 988, 499 N.Y.S.2d 993 (1986). Citing Davis v. Glaze, 182 Ga.App. 18, 354 S.E.2d 845, 849 (1987). Citing Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944).

40A Am.Jur.2d Hospitals and Asylums 46, 40A Am.Jur.2d Hospitals and Asylums 44.
35 36 37 38 39 40 41

TSN, 26 July 1984, pp. 31-32 (Rogelio Nogales). Id. at 43-44. TSN, 4 April 1983, pp. 48-49 (Rogelio Nogales). Records, pp. 43-44. 378 Phil. 1198 (1999). Id. at 1240-1241.

See Diggs v. Novant Health, Inc., 628 S.E.2d 851 (2006) citing Hylton v. Koontz, 138 N.C.App.629 (2000).
42 43

See Jones v. Tallahassee Memorial Regional Healthcare, Inc., 923 So.2d 1245 (2006).

See Hale v. Sheikholeslam, 724 F.2d 1205 (1984) where the US Court of Appeals, Fifth Circuit, found the physician an independent contractor since there is no evidence or

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pleading that the doctor received compensation from the hospital or that the hospital exercised any control over his treatment of patients. The doctor was merely allowed to use the facilities of the hospital when, in the doctor's judgment, hospital care was necessary.
44 45

Jones v. Philpott, 702 F.Supp. 1210 (1988).

Sometimes referred to as the apparent, or ostensible, agency theory. (King v. Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d 169 [2006]).
46 47 48 49

156 Ill.2d 511, 622 N.E.2d 788 (1993). Diggs v. Novant Health, Inc., supra note 41. Id.

De Castro v. Ginete, 137 Phil. 453 (1969), citing Sec. 3, par. a, Rule 131 of the Rules of Court. See alsoKing v. Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d 169 (2006) where the New York Supreme Court, Appellate Division, Third Department, stated as follows: As a general proposition, "[a] hospital may not be held for the acts of an anesthetist who was not an employee of the hospital, but one of a group of independent contractors." Vicarious liability for medical malpractice may be imposed, however, under an apparent, or ostensible, agency theory, "or, as it is sometimes called, agency by estoppel or by holding out." "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to act on behalf of the principal." Also, the third party must reasonably rely upon the appearance of authority created by the principal. Finally, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal. (emphasis supplied and internal citations omitted)
50

In Gilbert v. Sycamore Municipal Hospital, supra note 46, cited in York v. RushPresbyterian-St. Luke's Medical Center (222 Ill.2d 147, 854 N.E.2d 635 [2006]), the Illinois Supreme Court made a similar observation, thus: x x x the language employed in the hospital's treatment consent form could have led plaintiff to reasonably believe that he would be treated by physicians and employees of the hospital. We concluded that, upon the record before us, the plaintiff adduced sufficient evidence to create a genuine issue of material fact with respect to the reliance element of the plaintiffs apparent agency claim against the hospital.
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51 52 53 54 55 56 57

Exh."A-1," Folder of Exhibits. Exh. "A-20," Folder of Exhibits. TSN, 17 February 1992, p. 69 (Dr. Franklin Atencio). Diggs v. Novant Health, Inc., supra note 41. TSN, 26 July 1984, pp. 12-13 (Rogelio Nogales). Id. at 37.

Supra note 41, citing Rabon v. Rowan Memorial Hospital, Inc., 269 N.C.1, 152 S.E.2d 485 (1967).
58

Article 1172 of the Civil Code provides:

"Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances."
59 60 61 62 63 64 65 66 67 68

Rollo, p. 258. CA rollo, pp. 78-79. Records, p. 76. Id. at 59. CA rollo, p. 89. Id. at 90. TSN, 11 November 1991, pp. 9-12. Id. at 14. 403 F.2d 366 (1968).

People v. Ocampo, G.R. No. 171731, 11 August 2006, citing People v. Torellos, 448 Phil. 287, 301 (2003). See also People v. Duban, G.R. No. 141217, 26 September 2003, 412 SCRA 131 and People v. De Vera, 371 Phil. 563 (1999).

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EN BANC PROFESSIONAL SERVICES, INC., Petitioner, G.R. No. 126297 Present: PUNO, C.J., CARPIO,

- versus -

CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN,* DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ and MENDOZA, JJ.**

THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents. x-------------------x NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners, versus G.R. No. 126467

THE COURT OF APPEALS and JUAN FUENTES, Respondents.


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x-------------------x MIGUEL AMPIL, Petitioner, - versus NATIVIDAD and ENRIQUE AGANA, Respondents.

G.R. No. 127590

Promulgated: February 2, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RESOLUTION CORONA, J.: With prior leave of court,[1] petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration[2] urging referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and resolution dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana and the heirs of Natividad Agana (Aganas). Manila Medical Services, Inc. (MMSI),[3] Asian Hospital, Inc. (AHI),[4] and Private Hospital Association of the Philippines (PHAP)[5] all sought to intervene in these cases invoking the common ground that, unless modified, the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of health care.

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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 referral[8] 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 complaint[10] for damages filed in the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her body two gauzes[11] which were used in the surgery they performed on her on April 11, 1984 at the Medical City General Hospital. PSI was impleaded as owner, operator and manager of the hospital. In a decision[12] dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for damages.[13] On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to claim reimbursement from Dr. Ampil.[14] On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision.[15] PSI filed a motion for reconsideration[16] but the Court denied it in a resolution dated February 11, 2008.[17] The Court premised the direct liability of PSI to the Aganas on the following facts and law:

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First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals[18] that for purposes of allocating responsibility in medical negligence cases, an employer-employee relationship exists between hospitals and their consultants.[19] Although the Court in Ramos later issued a Resolution dated April 11, 2002[20] reversing its earlier finding on the existence of an employment relationship between hospital and doctor, a similar reversal was not warranted in the present case because the defense raised by PSI consisted of a mere general denial of control or responsibility over the actions of Dr. Ampil.[21] Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that he was its agent.[22] Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with said doctor about his wife's (Natividad's) condition.[23]After his meeting with Dr. Ampil, Enrique asked Natividad to personally consult Dr. Ampil.[24] In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at the back of their minds was that the latter was a staff member of a prestigious hospital. Thus, under the doctrine of apparent authority applied in Nogales, et al. v. Capitol Medical Center, et al.,[25] PSI was liable for the negligence of Dr. Ampil. Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide comprehensive medical services to Natividad Agana, to exercise reasonable care to protect her from harm,[26] to oversee or supervise all persons who practiced medicine within its walls, and to take active steps in fixing any form of negligence committed within its

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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 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 between private hospitals and consultants will force a drastic and complex alteration in the long-established and currently

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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) between the hospital and the patient being treated or examined within its premises and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176[34] in relation to Article 2180[35] of the Civil Code or the principle 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 1431[36] and Article 1869[37] of the Civil Code or the principle of apparent authority.[38] Moreover, regardless of its relationship with the doctor,

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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 employeremployee relationship between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al.[40] it held: Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task. xx xx xx As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its medical director, which consisted of 24hour 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 resolution[42] 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

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doctors were not employees of PSI in its hospital, they being merely consultants without any employer-employee relationship and in the capacity of independent contractors.[43] The Aganas never questioned such finding. PSI, Dr. Ampil and Dr. Fuentes appealed[44] from the RTC decision but only on the issues of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its discussion on the matter that it viewed their relationship as one of mere apparent agency.[45] The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes.[46] PSI also appealed from the CA decision, and it was then that the issue of employment, though long settled, was unwittingly resurrected. In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee relationship, such finding became final and conclusive even to this Court.[47] There was no reason for PSI to have raised it as an issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely academic. Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employer-employee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be

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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 patients 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)

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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 the Medical City General Hospital to perform such diagnostic procedures and administer such medications and treatments as may be deemed necessary advisable by the physicians of this hospital for and during the confinement xxx. (emphasis supplied) of to or of

By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather than one independently practicing in it; that the medications and treatments he prescribed were necessary and desirable; and that the hospital staff was prepared to carry them out. PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas decision to have Natividad treated

in Medical City 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

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to the Medical City GeneralHospital 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: 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

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the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients. Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence[57] in the hospital industry, it assumed a duty to tread on the captain of the ship role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities. Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence. And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept of corporate responsibility was not yet in existence at the time Natividad underwent treatment;[58] and that if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include taking an active step in fixing the negligence committed.[59] An admission made in the pleading cannot be controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or not objection is interposed by a party.[60]

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Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital measured up to it. PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing gauzes.[61] Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it.[62] Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort.[63] The excuses proffered by PSI are totally unacceptable. To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to Natividads 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

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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 Natividads 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 PSIs 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,

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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 P15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED. Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. 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.

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SO ORDERED. RENATO C. CORONA Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

(No Part) LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice


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(On Official Leave) ROBERTO A. ABAD Associate Justice

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MARTIN S. VILLARAMA, JR. Associate Justice

JOSE P. PEREZ Associate Justice

(On leave) Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

* ** [1] [2]

No part. On leave. Rollo (G.R. No. 126297), p. 468. Id., p. 489.

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[3]

p. 512.
[4]

Filed a motion for leave of court to intervene (by way of attached memorandum), id.,

Filed a motion to intervene and for leave to file memorandum-in-intervention, id., p. 534. AHI did not file any memorandum. [5] Filed a motion for intervention (by way of attached brief/memorandum), id., p. 602. [6] Resolution dated June 16, 2008, id., p. 647. [7] Resolution dated June 12, 2008, id., p. 645. [8] Resolution dated August 12, 2008, id., p. 649. [9] As per Advisory dated March 4, 2009. It should be borne in mind that the issues in G.R. No. 126467 on the exculpation of Dr. Juan Fuentes from liability, and in G.R. No. 127590 on the culpability of Dr. Miguel Ampil for negligence and medical malpractice, are deemed finally decided, no motion for reconsideration having been filed by the Heirs of Agana in G.R. No. 126467 nor by Dr. Miguel Ampil in G.R. No. 127467 from the January 31, 2007 Decision of the First Division of the Court. [10] Docketed as Civil Case No. Q-43322, record, p. 6. [11] Also referred to in the records as sponges. [12] Penned by then Presiding Judge and now Associate Justice of the Supreme Court Lucas Bersamin. [13] RTC Decision, record, p. 133. [14] CA decision dated September 6, 1996, penned by then Court of Appeals Associate Justice and later Supreme Court Associate Justice Cancio Garcia (Ret.); CA rollo, pp. 136-137. [15] G.R. Nos. 126297/126467/127590, 31 January 2007, 513 SCRA 478. [16] Rollo, p. 403. [17] G.R. Nos. 126297/126467/127590, 11 February 2008, 544 SCRA 170. [18] G.R. No. 124354, 29 December 1999, 321 SCRA 548. [19] Supra at 15, p. 499. [20] G.R. No. 124354, 11 April 2002, 380 SCRA 467. [21] Supra at 17, p. 179. [22] Supra at 15, p. 502. [23] Supra at 17, p. 181, citing TSN, April 12, 1985, pp. 25-26. [24] Id. [25] G.R. No. 142625, 19 December 2006, 511 SCRA 204. [26] Supra at 15, p. 505. [27] Supra at 17, p. 182. [28] Id. [29] Rollo (G.R. No. 126297), pp. 489-490. [30] Id., pp. 518-527, 605-613. [31] Id., p. 659. [32] Section 8, Republic Act No. 2382 (RA 2382) or The Medical Act of 1959. [33] See Acebedo Optical Co. Inc. v. CA, G.R. No. 100152, 31 March 2000, 314 SCRA 315.

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[34]

[35]

[36]

[37]

[38] [39]

[40] [41] [42] [43]

Article 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. 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. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. 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. Article 1431. Through 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. 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. Nogales v. Capitol Medical Center, et al., supra at 25. Pedro Solis, Medical Jurisprudence (The Practice of Medicine and the Law), Quezon City: R.P. Garcia Publishing Co., 1988, p. 321, citing U.S. district and appellate cases. See also Darling v. Charleston Community Memorial Hospital, 14 A.L.R. 3D 860 (Ill. September 29, 1965). G.R. No. 176484, 25 November 2008, 571 SCRA 585. Supra at 18. Supra at 20. Supra at 13, p. 126.

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[44]

[45] [46] [47] [48] [49]

Dr. Fuentes filed with the CA a petition for certiorari docketed as CA-G.R. SP No. 32198 (CA rollo, p. 1) while Dr. Ampil and PSI jointly filed an appeal docketed as CA-G.R. CV No. 42062 (CA rollo, pp. 40 and 152). Supra at 14, p. 135. Rollo (G.R. No. 126467), p. 8. Elsie Ang v. Dr. Erniefel Grageda, G.R. No. 166239, 8 June 2006, 490 SCRA 424. Through the patient's husband Enrique. Nogales v. Capitol Medical Center, et al., supra at 25. TSN, April 12, 1985, pp. 26-27. Second Motion for Reconsideration, rollo, pp. 495-496. Supra at 50, pp. 25-26. Exh. D-1, Exhibit Folder for Plaintiffs, p. 92. Petitioner's Memorandum with Compliance, pp. 57-58. Motion for Reconsideration, rollo, pp. 429-430. Id., p. 434. PSI has not denied its prominent place in the hospital industry but has in fact asserted such role in its 1967 brochure (Annex K to its Manifestation filed on May 14, 2009). Rollo, p. 505-506. Id., pp. 506-507. Luciano Tan v. Rodil Enterprises, G. R. No. 168071, 18 December 2006, 511 SCRA 162; Heirs of Pedro Clemena Y Zurbano v. Heirs of Irene B. Bien, G.R. No. 155508, 11 September 2006, 501 SCRA 405. Second Motion for Reconsideration, rollo, pp. 502-503. Id., p. 503, citing TSN, February 26, 1987, p. 36. Supra at 55. In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v. Comelec (G.R. No. 164702, March 15, 2006, 484 SCRA 671), a ruling expressly qualified as pro hac vice is limited in application to one particular case only; it cannot be relied upon as a precedent to govern other cases. See Sps. Chua v. Hon. Jacinto Ang, et al., G.R. No. 156164, 4 September 2009. His last pleading was filed on May 13, 2001, rollo (G.R. No. 127590), p. 217.

[50] [51] [52]

[53] [54] [55] [56] [57]

[58] [59] [60]

[61] [62] [63] [64]

[65] [66]

FIRST DIVISION

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[G.R. No. 124354. April 11, 2002]

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA GUTIERREZ, respondents. RESOLUTION KAPUNAN, J.: Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda Ramos comatose condition after she delivered herself to them for their professional care and management. For better understanding of the issues raised in private respondents respective motions, we will briefly restate the facts of the case as follows: Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room. At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation.

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Cruz, who was then still inside the operating room, heard about Dr. Hosakas 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 Erlindas 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 Erlindas operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999.[1] Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial courts 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 attorneys 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

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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 APPEALS 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 PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY

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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 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-inIntervention 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
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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 Erlindas 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 preoperative evaluation because the anesthesiologist is responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and establishing consent to proceed with the plan. And lastly, once this has been agreed upon by all parties concerned the ordering of pre-operative medications. And following this line at the end of the evaluation we usually come up on writing, documentation is very important as far as when we train an anesthesiologist we always emphasize this because we need records for our protection, well, records. And it entails having brief summary of patient history and physical

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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 patients 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 patients 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 patients 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 patients heart and lungs and checked the latters blood pressure to determine if Erlinda was indeed fit for operation.[15]However, she did not proceed to examine the patients airway. Had she been able to check petitioner Erlindas 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 physicians centuries-old Hippocratic
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Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.[16] Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments: CHIEF JUSTICE: Mr. Counsel, you started your argument saying that this involves a comatose patient? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or comatose before any act was done by her? ATTY. GANA: No, we meant comatose as a final outcome of the procedure. CHIEF JUSTICE: Meaning to say, the patient became comatose after some intervention, professional acts have been done by Dr. Gutierrez? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: In other words, the comatose status was a consequence of some acts performed by D. Gutierrez? ATTY. GANA: It was a consequence of the well, (interrupted) CHIEF JUSTICE: An acts performed by her, is that not correct? ATTY. GANA: Yes, Your Honor. CHIEF JUSTICE: Thank you.[17]
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What is left to be determined therefore is whether Erlindas hapless condition was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patients 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 Erlindas case. As we held in our Decision, no evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an allergic reaction appears on record. No laboratory data were ever presented to the court.[21] Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the administration of anesthesia
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when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas 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 You mentioned that there were two (2) attempts in the intubation period?

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DR. GUTIERREZ Yes. Q A Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was inserted? All the laryngoscope. 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? Yes. 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? (sic) 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? I was not able to record everything I did not have time anymore because I did that after the, when the patient was about to leave the operating room. When there was second cyanosis already that was the (interrupted) When was the first cyanosis? The first cyanosis when I was (interrupted) What time, more or less? I think it was 12:15 or 12:16. Well, if the record will show you started induction at 12:15? Yes, Your Honor. And the first medication you gave was what? The first medication, no, first the patient was oxygenated for around one to two minutes. Yes, so, that is about 12:13? Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one minute.

A Q

A Q

Q A Q A Q A Q A Q A

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Q A Q A Q A Q A Q A So, that is about 12:13 no, 12:15, 12:17? Yes, and then, after one minute another oxygenation was given and after (interrupted) 12:18? Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted) After that relaxant, how long do you wait before you do any manipulation? Usually you wait for two minutes or three minutes. So, if our estimate of the time is accurate we are now more or less 12:19, is that right? Maybe. 12:19. And at that time, what would have been done to this patient? 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. 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. Yes. And in the second attempt you inserted the laryngoscope and now possible intubation? Yes. And at that point, you made a remark, what remark did you make? I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I (interrupted) That was the first attempt? Yes. What about the second attempt? On the second attempt I was able to intubate right away within two to three seconds. 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 I did not say mali ata ang pinasukan I never said that.

Q A Q A Q A Q A Q A Q A

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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? Which one, sir? The mahirap intubate ito assuming that you (interrupted) Iyon lang, that is what I only said mahirap intubate (interrupted) At what point? When the first attempt when I inserted the laryngoscope for the first time. So, when you claim that at the first attempt you inserted the laryngoscope, right? Yes. 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) I was able to intubate. And this is more or less about what time 12:21? Maybe, I cannot remember the time, Sir. 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? Not yet. But why are there no recordings in the anesthesia record? I did not have time. Ah, you did not have time, why did you not have time? Because it was so fast, I really (at this juncture the witness is laughing) 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. Yes, Sir.

A Q A Q A Q A Q

A Q A Q

A Q A Q A Q A

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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? Yes. And that is after induction 12:15 that is 12:25 that was the first cyanosis? Yes. And that the 12:25 is after the 12:20? We cannot (interrupted) 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? No, the first cyanosis (interrupted).[23]

A Q A Q A Q

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 Erlindas 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, Erlindas 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 patients brain. The brain was thus temporarily deprived of oxygen supply causing Erlinda to go into coma.

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The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.[27] InVoss 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 patients 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-theShip 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 patients throat was held liable for the injury suffered by the latter. This contention fails to persuade.

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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-ofthe-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda. First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient.[36] Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help resuscitate Erlinda.[37] Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate watertight compartments because their duties intersect with each other.[38] While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of acts within their respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise control over the other, they were certainly not completely independent of each other so as to absolve one from the negligent acts of the other physician. That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the patients nails had become dusky and had to call Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also have to observe the surgeons acts during the surgical process and calls the attention of the surgeon whenever necessary[39] in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-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 others 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 patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other, at

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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 Erlindas 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 patients 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 patients anxiety mainly because he will not be in control of his body there could be adverse results to surgery and he will be opened up; a knife is going to open up his body. x x x[42] Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda: CHIEF JUSTICE: Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his or her anxiety? DR. CAMAGAY: Yes. CHIEF JUSTICE: In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on the operating table (interrupted) DR. CAMAGAY: Yes. CHIEF JUSTICE:

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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 DLSMCs liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code[45] since there exists an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka: In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of

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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 x[46] DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors. It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end.[47] DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and references.[48] Second, it is not the hospital but the patient who pays the consultants 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 hospitals 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 doctors orders are carried out strictly.[51] After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospitals 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 DLSMCs medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation.[52] Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty

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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 Erlindas 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 Erlindas 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 Erlindas injury and the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner: Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.

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As it would not be equitableand certainly not in the best interests of the administration of justicefor the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awardedtemperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care. In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable.[54] However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.[55] In view of this supervening event, the award of temperate damages in addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary damages, attorneys fees and costs of suit should be awarded to petitioners. WHEREFORE, the assailed Decision is hereby modified as follows: (1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985; (2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners (a) (b) (c) (d) (e) P1,352,000.00 as actual damages; P2,000,000.00 as moral damages; P100,000.00 as exemplary damages; P100,000.00 as attorneys fees; and the costs of the suit. SO ORDERED.

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

[1] [2] [3] [4] [5] [6] [7] [8] [9]

See Decision, pp. 2-5. Rollo, p. 217. Id., at 226. Id., at 252-253. Id., at 469. Id., at 440. Id., at 454-455. Resolution, dated March 19, 2001, pp. 1-2; Rollo, pp. 543-544. TSN, March 19, 2001, p. 51. Id., at 182-184. Memorandum of Amicus Curiae Dr. Iluminada M. Camagay, Rollo, p. 620

[10] [11] [12]

Decision, p. 28, Id., at 197, citing Stoelting and Miller, Basics of Anesthesia, p. 103 (1994); Memorandum of Dr. Camagay, Id., at 616.
[13] [14]

Decision, Id.

To auscultate means to listen to the sounds arising within organs as an aid to diagnosis and treatment, the examination being made either by use of the stethoscope or by direct application of the ear to the body. (Websters Third New International Dictionary, p. 145 [1976]).
[15]

Decision, p. 29, Rollo, p. 198; see also Motion for Reconsideration of Dr. Gutierrez, Id., at 266.
[16] [17] [18] [19] [20] [21] [22]

Id., at 28-29; Id., at 197-198. TSN, March 19, 2001, pp. 77-78. Motion for Reconsideration, p. 54; Rollo, p. 305. Decision, p. 31; Id. at 200. TSN, March 19, 2001, pp. 211-212. Decision, p. 34, Rollo, p. 203. Second Motion for Reconsideration, pp. 6-7; Id., at 421-422.

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[23] [24] [25] [26] [27] [28] [29] [30]

TSN, March 19, 2001, pp. 136-144. Decision, p. 25 citing Stockholm v. Hall, 65 P. 348 (1937); Rollo, p.194. Id., at 23-24; Rollo, pp. 192-193. Id., at 4. Decision, p. 20; Id., at 189. 364 P2d 955 (1961). Id., at 971.

The Captain-of-the-Ship Doctrine was discussed in McConnell v. Williams (65 A 2d 243 [1949]), where the Supreme Court of Pennsylvania stated that under this doctrine, a surgeon is likened to a captain of the ship, in that it is his duty to control everything going on in the operating room.
[31] [32] [33] [34] [35] [36] [37] [38]

Motion for Reconsideration of Dr. Hosaka, Rollo, p. 231. Id., at. 229. Id., at 231, citing Thomas vs. Raleigh General Hospital, 358 SE 2d 222 (1987). Supra. Id., at 225. TSN, March 19, 2001, pp. 11-12. Id., at 7. The following exchange between Justice Puno and Dr. Hosakas counsel is instructive: Counsel.

JUSTICE REYNATO S. PUNO: RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: Well, your thesis is that Dr. Hosaka did not have complete control of the anesthesiologist in this case and therefore whatever is the negligent act of the anesthesiologist cannot be attributed to Dr. Hosaka, is that a correct appreciation of your thesis? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO:

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But would you agree that even if Dr. Hosaka did not have that complete control nevertheless he had a degree of supervision over the anesthesiologist? RET. JUSTICE HOFILEA: If Your Honor please, I think that neither the evidence in this case nor the developments in the field of medicine, the usual practice in these days, would lead to that conclusion that he had a degree of supervision over the anesthesiologist. JUSTICE REYNATO S. PUNO: You are saying that the surgeon is completely independent of the anesthesiologist in the discharge of their respective functions and vice versa? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: But the record of the case will show that it was Dr. Hosaka who got the services of Dr. Gutierrez, isnt it? RET. JUSTICE HOFILEA: Yes, Your Honor, when he was given the authority to secure, I understand. JUSTICE REYNATO S. PUNO: And in fact the patient here did not know of any anesthesiologist that is why, she gave the authority to Dr. Hosaka to get the anesthesiologist who will assist him? RET. JUSTICE HOFILEA: That is correct, Your Honor. JUSTICE REYNATO S. PUNO: Now, in the course of the proceedings in the hospital the records would show that it was Dr. Hosaka who observed the dusky nails of the patient? RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: At a certain juncture and this means that cyanosis was setting in, lack of oxygen on the part of the patient? RET. JUSTICE HOFILEA: Yes, Your Honor.

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JUSTICE REYNATO S. PUNO: Now, if the two, Dra. Gutierrez and Dr. Hosaka, are completely independent of each other, why is it that Dr. Hosaka has to call the attention of Dra. Gutierrez on this development about this cyanosis of the patient? RET. JUSTICE HOFILEA: In the first place, Your Honor, I was informed that according to Dr. Hosaka in his testimony, he said that it is his habit to take a look at the hands of the patient while they are undergoing anesthesia and when he noticed the duskiness of the nailbeds he informed Dr. Gutierrez about it. But he left her entirely free to do whatever steps she would like to take, as in this case, I understand that she stopped the administration [of] the anesthesia and (interrupted) JUSTICE REYNATO S. PUNO: Yes, but that does show that the surgeon, Dr. Hosaka should not be completely indifferent to what is happening to the patient while in the hands of the anesthesiologist, isnt it? RET. JUSTICE HOFILEA: In a sense, Your Honor, yes, they coordinate in that sense, Your Honor, but not, I would not say that one is under the control of the other. JUSTICE REYNATO S. PUNO: Yes, not under the control, now, you used the word coordinate, so you are now conceding that there is that degree of supervision on the part of the surgeon over the anesthesiologist, as a matter of defining that degree of supervision, they are not completely independent of each other? RET. JUSTICE HOFILEA: Your Honor, I would not use the word supervision but working together, perhaps is a better term. JUSTICE REYNATO S. PUNO: Working together. RET. JUSTICE HOFILEA: Yes, Your Honor. JUSTICE REYNATO S. PUNO: Which means that somehow their duties intersect with each other? RET. JUSTICE HOFILEA:

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As I said before (interrupted) JUSTICE REYNATO S. PUNO: There is an area where both of them have to work together in order that the life of the patient would be protected? RET. JUSTICE HOFILEA: Yes, Your Honor. As I said before if on the other hand it is the anesthesiologist who notices because he monitors the condition of the patient during the surgery and he calls the attention of the surgeon also. JUSTICE REYNATO S. PUNO: And in accord with the concept of teamwork, is it not true also that it was Dr. Hosaka who called for a second anesthesiologist? RET. JUSTICE HOFILEA: Your Honor, that is not so, Your Honor, I was told that the second anesthesiologist was just nearby and it is their habit to look in some operations taking place. In this particular case the second anesthesiologist was passing by and she noticed that there was some kind of a, not really a commotion but some kind of, increased activity and so she decided to take a look. JUSTICE REYNATO S. PUNO: Who gave the order for Dra.Calderon to help in the intubation of the patient? RET. JUSTICE HOFILEA: I understand, Your Honor that she did it voluntarily, she just happened to pass by. JUSTICE REYNATO S. PUNO: And Dr. Hosaka did not object? RET. JUSTICE HOFILEA: No, Your Honor, because his position is that this is outside of his expertise, Dr. Calderon is also an anesthesiologist so, he just left them alone. JUSTICE REYNATO S. PUNO: How long have Dr. Hosaka and Dr. Gutierrez worked together as a team? RET. JUSTICE HOFILEA: They started their association way back in 1977, Your Honor, at the time of this incident about eight years, Your Honor. JUSTICE REYNATO S. PUNO:

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Would you know how the relationship of Dr. Hosaka and Dr. Gutierrez is defined by any kind of agreement, oral or written, or is it defined by the standard practice of the profession? RET. JUSTICE HOFILEA: I would say it would be in accordance of the standard practice of the profession, Your Honor. There is no particular agreement between them. JUSTICE REYNATO S. PUNO: case? What do you say is the standard practice, how would the practice vary from case to

RET. JUSTICE HOFILEA: I believe, Your Honor, that the, in the first place if the patient would have his own anesthesiologist, would prefer his own anesthesiologist, he can retain the services of another anesthesiologist but of his own but if he does not know of anybody and he asks the surgeon to provide one, then this surgeon can recommend. But I would like to emphasize, Your Honor, that the relationship is between the patient and the anesthesiologist. It is not that the anesthesiologist is the employee of the surgeon. JUSTICE REYNATO S. PUNO: But is there an agreement, expressed or implied, between the two (2), to the effect that, you know the anesthesiologist could say to the surgeon that you have no business interfering with my work as anesthesiologist. Is that how the relationship is defined? RET. JUSTICE HOFILEA: Once the start the (interrupted) JUSTICE REYNATO S. PUNO: Right from the very beginning? RET. JUSTICE HOFILEA: I believe Your Honor that on the matter of retaining the services of the anesthesiologist in the sense that the surgeon reposes confidence on the ability of the anesthesiologist, he hires him if he is authorized, he hires him on behalf of the patient if he is authorized to do that but once they are already performing their own task, then there should be no interference. JUSTICE REYNATO S. PUNO: agree? But the work of the two cannot be separated in watertight compartments, do you

RET. JUSTICE HOFILEA: I agree, Your Honor (TSN, March 19, 2001, pp. 14-23).

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[39] [40] [41] [42] [43] [44]

Id., at 19. Memorandum of Amicus Curiae Dr. Iluminada Camagay, Rollo, p. 616. Websters Third New International Dictionary, p. 17 (1976). TSN, March 19, 2001, pp. 196. Id., at 205-206.

Batiquin vs. Court of Appeals, 258 SCRA 334, 346 (1996); Carillo vs. People, 229 SCRA 386, 396 (1994). Article 2180 states:

[45]

The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.
[46] [47] [48] [49] [50] [51] [52] [53] [54] [55]

Decision, p. 40; Rollo, p. 209. Traders Royal Bank vs. National Labor Relations Commission, 321 SCRA 467 (1999). Motion for Reconsideration of DLSMC, p. 10; Rollo, p. 477. Ibid. Id., at 478. Id., at 480. TSN, March 19, 2001, pp. 113-116. Decision, p. 48, Rollo, p. 217. Id., at 43-45; Id., at 212-214.

See letter dated November 4, 2000 of petitioner Rogelio E. Ramos addressed to Mr. Justice Santiago M. Kapunan, Id., at 489.

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DR. EMMANUEL JARCIA, MARILOU BASTAN,

JR.and DR.

G.R. No. 187926

Petitioners,

Present:

CARPIO,* J., PERALTA,** Acting Chairperson, - versus ABAD, PEREZ,*** and MENDOZA, JJ.

Promulgated: PEOPLE OF THEPHILIPPINES, Respondent. February 15, 2012

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

DECISION

MENDOZA, J.:

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Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This Court, as this case would show, cannot and will not let the act go unpunished.[1] This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision[2] of the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries. THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation(NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which caused her son, Roy Alfonso Santiago(Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victims ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the bone. The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No. 01-196646.

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On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime ofSimple Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads: WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount of 3,850.00 representing medical expenses without subsidiary imprisonment in case of insolvency and to pay the costs. It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension. SO ORDERED.[6] The RTC explained: After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr. However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows. 1. that there is lack of precaution on the part of the offender; and

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

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

Dissatisfied, the petitioners appealed to the CA. As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads: This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the treatment of their patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his

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patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy. We are not convinced. The prosecution is however after the cause which prolonged the pain and suffering ofRoy and not on the failure of the accused-appellants to correctly diagnose the extent of the injury sustained by Roy. For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence,res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the hospital. She testified as follows: Fiscal Formoso: Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or not?

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A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the wounds of my son. And what did she [tell] you? They told me they will call a resident doctor, sir. xxx Q: A: Q: A: Q: A: xxx xxx

Q: A:

Was there a resident doctor [who] came? Yes, Sir. Dra. Bastan arrived. Did you tell her what you want on you to be done? Yes, sir. What did you [tell] her? I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my son was complaining pain from his ankle up to the middle part of the right leg. And what did she tell you? According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over. What did you do or tell her? I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son. So you mean to say there was no treatment made at all? None, sir. xxx xxx xxx

Q: A: Q: A: Q: A:

A:

I just listened to them, sir. And I just asked if I will still return my son. xxx xxx xxx

Q: A: Q:

And you were present when they were called? Yes, sir. And what was discussed then by Sis. Retoria?

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A: When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. 2. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

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

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

Q: A:

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur. 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

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the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order. WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSEDand the assailed decision of the trial court finding accusedappellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is hereby AFFIRMED in toto. SO ORDERED.[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution. Hence, this petition. The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION. 2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR.

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CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF. 3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD. 4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION. 5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH. 6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence. THE COURTS RULING The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the Court is not convinced that the petitioners are

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guilty of criminal negligence complained of. The Court is also of the view that the CA erred in applying the doctrine ofres ipsa loquitur in this particular case. As to the Application of The Doctrine of Res Ipsa Loquitur This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus: The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.[10]

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine, however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facieevidence thereof and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.[11]

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The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.[12] In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed to be undergone by him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was established that they are mere residents of theManila Doctors Hospital at that time who attended to the victim at the emergency room.[13] While it may be true that the circumstances pointed out by the courts below seem doubtless to constitute reckless imprudence on the part of the petitioners, this conclusion is still best achieved, not through the scholarly assumptions of a layman like the patients mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners have exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion. As to Dr. Jarcia and Dr. Bastans negligence The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case. Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.[14] Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.[15]

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The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the damage impending to be caused is not immediate or the danger is not clearly manifest.[16] In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt. The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their diagnosis or appreciation of the condition of the victim at the time they assessed him. Thus: Q: A: Q: A: Q: A: Will you please tell us, for the record, doctor, what is your specialization? At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two (2) years. In June 1998, doctor, what was your position and what was your specialization at that time? Since 1980, I have been specialist in pediatric orthopedic. When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step? As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved leg, I dont know if that is left or right, the involved leg then was swollen and the patient could not walk, so I requested for the x-ray of [the] lower leg. What part of the leg, doctor, did you request to be examined? If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-ray the entire extremity. And what was the result? Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q: A:

Q: A:

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Q: A: Q: A: Q: A: And when you say spiral, doctor, how long was this fracture? When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters. Mid-tibial, will you please point to us, doctor, where the tibial is? (Witness pointing to his lower leg) The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger one is the one that get fractured. And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury? Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine the patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries. And as far as you can recall, Doctor, what was the history of that injury that was told to you? The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident. Who did you interview? The mother. How about the child himself, Alfonso Santiago, Jr.? Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the mother that I interviewed. And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.? No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who were [on] duty at the emergency room. xxxx A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont why they dont Because at that time, I think, it is the decision. Since the x-rays

Q: A: Q: A: Q: A: Q: A:

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xxx Q: A: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist. They are general surgeon residents. You have to man[x] the emergency room, including neurology, orthopedic, general surgery, they see everything at the emergency room. xxxx Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same? I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if we think that the damaged was only the leg. Not the entire body but the entire leg? I think, if my examination requires it, I would. So, you would conduct first an examination? Yes, sir. And do you think that with that examination that you would have conducted you would discover the necessity subjecting the entire foot for x-ray? It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally happens that the actual fractured bone do not get swollen. xxxx Q: A: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told to you is the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray? I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of fracture that the patient sustained would you say the exact mechanism of injury. For example spiral, paikot yung bale nya, so it was possible that the leg was run

A:

Q: A: Q: A: Q: A:

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over, the patient fell, and it got twisted. Thats why the leg seems to be fractured.[17] [Emphases supplied] It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the patients fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications. Any person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt. Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. The Court, nevertheless, finds the petitionerscivilly liable for their failure to sufficiently attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. Taken into account also was the fact that there was no bad faith on their part. Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves from any liability. If this would be so, doctors would have a ready defense should they fail to do their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which the actual, direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s.

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In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with sufficient training and experience instead of assuring him and his mother that everything was all right. This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been settled that issues raised for the first time on appeal cannot be considered because a party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair play, justice and due process.[18] Stated differently, basic considerations of due process dictate that theories, issues and arguments not brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court.[19] Assuming again for the sake of argument that the petitioners may still raise this issue of no physicianpatient relationship, the Court finds and so holds that there was a physician patient relationship in this case. In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances.

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Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER).[21] They obliged and examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physician-patient relationship was established between the petitioners and the patient Roy Jr. To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation than he was already in. What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries. All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show. Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippinesstates: A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable.[22]

Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing complications. In this case, the petitioners failed to observe the most prudent medical procedure under the circumstances to prevent the complications suffered by a child of tender age. As to the Award of Damages

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While no criminal negligence was found in the petitioners failure to administer the necessary medical attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory. It appears undisputed that the amount of 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages. The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of 100,000.00 and 50,000.00, respectively, is proper in this case. It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the award of moral damages is designed to compensate emotional injury suffered, not to impose a penalty on the wrongdoer.[23] The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount. Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good. WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is enteredACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of:

(1) 3,850.00 as actual damages; (2) 100,000.00 as moral damages; (3) 50,000.00 as exemplary damages; and
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(4) Costs of the suit. with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per annum from the finality of judgment until fully paid. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice WE CONCUR:

ANTONIO T. CARPIO Associate Justice

DIOSDADO M. PERALTA Associate Justice Acting Chairperson

ROBERTO A. ABAD Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

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ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

DIOSDADO M. PERALTA Associate Justice Acting Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

Designated as additional member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 1185 dated February 10, 2012. ** Designated as Acting Chairperson, per Special Order No. 1184 dated February 10, 2012. *** Designated as additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special Order No. 1192 dated February 10, 2012. [1] See the case of Dr. Batiquin v. Court of Appeals, 327 Phil. 965 (1996). [2] Rollo, pp. 50-65. Penned by Associate Justice Isaias Dicdican, with Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Marlene Gonzales-Sison, concurring. [3] Id. at 67-68. [4] Id. at 70-79. [5] No first name on record. [6] Rollo, p. 79. [7] Id. at 78. [8] Id. at 58-65. [9] Id. at 20-22.

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[10]

Also quoted in the case of Layugan v. Intermediate Appellate Court, 249 Phil. 363, 377 (1988). [11] Dr. Batiquin v. CA, supra note 1, at 979-980. [12] Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 98 (2000). [13] TSN, September 20, 2004, p. 13. [14] Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 497. [15] Id. at 495. [16] Id. at 497.
[17] [18]

TSN, September 20, 2004, pp. 9-24. Balitaosan v. The Secretary of Education, 457 Phil. 300, 304 (2003). [19] Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001). [20] G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200. [21] TSN, September 20, 2004, p. 13. [22] As quoted in the case of Ruez, Jr. v. Jurado, 513 Phil. 101, 106 (2005). [23] Quezon City Govt. v. Dacara, 499 Phil. 228, 243 (2005). EN BANC DR. RUBI LI, Petitioner, G.R. No. 165279 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,* ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: June 7, 2011

- versus -

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

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Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is the Decision[1] dated June 15, 2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September 5, 1997 of the Regional Trial Court of LegazpiCity, Branch 8 in Civil Case No. 8904. The factual antecedents: On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist. On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said institution indicated the cause of death as Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation.[5] On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows: Immediate cause : a. Osteosarcoma, Status Post AKA

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Antecedent cause : b. (above knee amputation) Underlying cause : c. Status Post Chemotherapy On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness (Magsusuka ng kaunti. Malulugas ang buhok.Manghihina). Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects. In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica. Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was gathered: On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing

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business.[9] Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used. Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long distance.[10] This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by petitioner.[12] On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy. On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function tests.[13] Petitioner proceeded with the chemotherapy by first administering hydration fluids to Angelica.[14] The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied having any participation in administering the said chemotherapy drugs.[20] On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas face.[21] They asked petitioner about it, but she merely quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

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On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her neck, but petitioner dismissed it again as merely the effect of medicines.[24] Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed that Angelica merely complained of nausea and was given ice chips.[25] On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents asked petitioners permission to bring their child home. Later in the evening, Angelica passed black stool and reddish urine.[26] Petitioner countered that there was no record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as naninigas ang kamay at paa). She then requested for a serum calcium determination and stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided.[27] The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging Angelica, petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate problem arises.[28] However, Angelica remained in confinement because while still in the premises of SLMC, her convulsions returned and she also had LBM. Angelica was given oxygen and administration of calcium continued.[29] The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a fever and had difficulty breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a stat dose. She

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further ordered that Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any infection on the childs body.[33] By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were gadgets attached to Angelica at that time.[34] On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening, which petitioner likewise denied. On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may induce further bleeding.[35] She was also transferred to the intensive care unit to avoid infection. The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter could not answer her anymore.[36] At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were down and respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced
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difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three oclock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and supposedly told respondents that there was malfunction or bogged-down machine.[37] By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelicas skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died.[40] The cause of death, according to petitioner, was septicemia, or overwhelming infection, which caused Angelicas other organs to fail.[41] Petitioner attributed this to the patients poor defense mechanism brought about by the cancer itself.[42] While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill.[43] Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services. Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival
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rate of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the hospital staff could have detected it.[44] On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives every known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects based on studies and observations, even if such will aggravate the patients condition.[45] Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them died within six months from amputation because he did not see them anymore after follow-up; it is either they died or had seen another doctor.[46]

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In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid down inPicart v. Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48] Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a different course of action which could have delayed or prevented the early death of their child. The CA thus declared: Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the chemotherapy treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica. The appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelicas condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering.

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On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to their claim for damages. xxxx WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts: 1. 2. 3. 4. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses; Moral damages of P200,000.00; Exemplary damages of P50,000.00; Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.) Petitioner filed a motion for partial reconsideration which the appellate court denied. Hence, this petition. Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica. On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to be allknowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly predict how a particular patients genetic make-up, state of mind, general health and body constitution would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did everything within her professional competence to attend to the medical needs of Angelica.

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Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica. As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her quality of life surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the damages suffered by the respondents.[50] The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment. The petition is meritorious. The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient.[51] This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of

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practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.[52] In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioners lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patients death. Furthermore, respondents case was not at all helped by the non-production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment. The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of battery (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital[53] which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in damages.[54] From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits.[55] Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patients right of self-determination on particular therapy

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demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patients reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions.[58] The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment.[59] As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physicians failure to divulge and damage to the patient.[60] Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physicians overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent.[62] The court thus concluded that the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the patients need, and that need is whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality to the patients decision.[63] Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between

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physicians failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given. There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. The gravamen in an informed consent case requires the plaintiff to point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.[64] Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed. As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapys success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary.[65]

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The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, the plaintiff must prove both the duty and the breach of that duty through expert testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.[67] In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one. As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution. As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumera reasonable person in the patients position when deciding to accept or reject a recommended medical procedure.[68] (Emphasis supplied.)

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WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE. The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD. No costs. SO ORDERED.

MARTIN S. VILLARAMA, JR. Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice

See Dissenting ANTONIO T. CARPIO Associate Justice

OpinionI join the dissent of CONCHITA CARPIO MORALES Associate Justice

J.

Carpio

I join dissent of J. PRESBITERO J. VELASCO, JR. Associate Justice

CarpioI join J. Brions Separate ANTONIO EDUARDO B. NACHURA Associate Justice

Opinion

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I join the separate opinion of Justice BrionIn the result: See Separate Opinion TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION Associate Justice Associate Justice

I join the dissent opinion of Jus. CarpioConcur in the result, and I join the DIOSDADO M. PERALTA Separate Opinion of J. Brion Associate Justice LUCAS P. BERSAMIN Associate Justice

(No Part) MARIANO C. DEL CASTILLO Associate Justice

Please see my concurring opinion ROBERTO A. ABAD Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

I join J. Brion in his concurrence JOSE CATRAL MENDOZA Associate Justice

I dissent. Evidence was I join MARIA LOURDES P. A. SERENO Associate Justice

provided J.

by

the

doctor-petitioner Antonio

herself. Carpio

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CERTIFICATION Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice

* [1]

[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15]

[16]

No part. Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this Court) and concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De Leon. Id. at 65. Id. at 119-162. Penned by Judge Salvador D. Silerio. Records, p. 174. Id. at 175. Id. at 254. Rollo, pp. 80-89. Id. at 95-108. TSN, January 26, 1995, p. 3. TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5. Rollo, p. 35. Id. at 35 and 81. TSN, October 6, 1995, pp. 39-40; rollo, p. 123. Id. at 40. Cisplatin is in a class of drugs known as platinum-containing compounds. It slows or stops the growth of cancer cells inside the body. Source:http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684036.html. (Site visited on August 21, 2010.) Doxorubicin is an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug. It is classified as an anthracycline antibiotic. Source:http://www.chemocare.com/bio/doxorubicin.asp (Site visited on August 21, 2010.)
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[17]

[18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38] [39] [40] [41] [42] [43] [44] [45] [46] [47] [48] [49] [50] [51] [52] [53] [54]

Cosmegen is the trade name for Dactinomycin, an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug classified as an alkylating agent. Source: http://www.chemocare.com/bio/cosmegen.asp (Site visited on August 21, 2010.) TSN, January 27, 1997, p. 9. Rollo, p. 124. TSN, April 22, 1996, pp. 11-12. Rollo, p. 35. Id. at 120. TSN, October 6, 1995, pp. 27-28. TSN, September 19, 1994, p. 18. Par. 11 of Answer, rollo, p. 100. TSN, September 19, 1994, p. 19; paragraph 16 of Complaint, rollo, p. 82. TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14 of Answer, rollo, pp. 100-101. Rollo, p. 101. TSN, September 19, 1994, p. 22. Rollo, p. 36. Id. at 125-126. http://www.rxlist.com/bactrim-drug.htm (Site visited September 2, 2010.) Paragraph 14 of Answer, rollo, pp. 101-102. Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs 15-17 of Answer, pp. 102-103. Paragraph 17 of Answer, rollo, p. 103. Paragraph 23 of Complaint, rollo, p. 83; TSN, September 19, 1994, pp. 24-25. TSN, December 15, 1994, pp. 13-21. Paragraph 17 of Answer, rollo, p. 103. Id. Rollo, p. 37. TSN, October 6, 1995, p. 33. Id. TSN, December 15, 1994, p. 22. TSN, December 14, 1994, pp. 15-38. TSN, April 28, 1995, pp. 23-25. TSN, May 26, 1996, pp. 5, 8-13, 23. 37 Phil. 809 (1918). Rollo, pp. 160-162. Id. at 58-59, 62-63. Id. at 18-23. Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769, 778. Lucas v. Tuao, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v. Court of Appeals, 346 Phil. 872, 884-885 (1997). 105 N.E. 92, 93 (N.Y. 1914). Id.

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[55] [56] [57] [58] [59] [60] [61] [62] [63] [64] [65] [66] [67] [68]

Blacks Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1, 8. 464 F.2d 772 C.A.D.C., 1972. Id. at 784. Id. at 780-782. Id. at 782. Id. at 790, 791-792. 8 Cal.3d 229, 502 P.2d 1 Cal. 1972. Id. Id. Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d 543, 210 Ill.Dec.855, 653 N.E.2d 1317 (1995). Arato v. Avedon, 858 P.2d 598 (Cal. 1993). Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326 (1991). Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d 829 (1987). Informed Consent: From the Ambivalence of Arato to the Thunder of Thor Issues in Law & Medicine, Winter, 1994 by Armand Arabian. Sourced at Internet http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?tag=conten t;col1

SECOND DIVISION DR. MILAGROS L. CANTRE, Petitioner, Present: G.R. No. 160889

QUISUMBING, J., Chairperson, CARPIO, - versus CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

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SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents. April 27, 2007 x ------------------------------------------------x Promulgated:

DECISION QUISUMBING, J.:

For review on certiorari are the Decision[1] dated October 3, 2002 and Resolution[2] dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision[3] dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992. At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Consequently, Nora sufferedhypovolemic shock, resulting in a drop in her blood pressure to 40 over 0. Petitioner and the assisting resident physician performed various medical procedures to stop the bleeding and to restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby.[4] Nora remained unconscious until she recovered.
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While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ) by three and a half (3 ) inches in the inner portion of her left arm, close to the armpit.[5] He asked the nurses what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for investigation.[6] In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.[7] The medico-legal officer later testified that Noras injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn.[8] He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the arm.[9] On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin grafting.[10] Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as well. About a year after, on April 30, 1993, scar revision had to be performed at the same hospital.[11] The surgical operation left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising about onefourth (1/4) of an inch from the surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the hospital.[12]

Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch.

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Thus, on June 21, 1993, respondent spouses filed a complaint[13] for damages against petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and against the defendants, directing the latters, (sic) jointly and severally (a) (b) (c) (d) (e) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages; to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary damages; to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages; to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.[14] Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the trial court decision, thus:

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the following MODIFICATIONS: 1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages;

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2. Deleting the award [of] exemplary damages, attorneys fees and expenses of litigation; Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.; Dismissing the counterclaims of defendants-appellants for lack of merit; and Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

3.

4.

5.

SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning the following as errors and issues: I. WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; II. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; III.

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WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT; IV. WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO; V. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO; VI. WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF; VII. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE; VIII. WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.[16]
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Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists the droplight could not have touched Noras body. She maintains the injury was due to the constant taking of Noras blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic surgery was not intended to restore respondents injury to its original state but rather to prevent further complication.

Respondents, however, counter that the genuineness and due execution of the additional documentary exhibits were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory is highly improbable, being unprecedented in medical history and that the injury was definitely caused by the droplight. At any rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Noras attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether the appellate court committed grave abuse of discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they were formally offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits.

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Petitioners contention that the medico-legal officer who conducted Noras physical examination never saw her original injury before plastic surgery was performed is without basis and contradicted by the records. Records show that the medico-legal officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar revision were performed on Nora on May 22, 1992 and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go? The Hippocratic Oath mandates physicians to give primordial consideration to the wellbeing of their patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused.[17]

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur:

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

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.[18]

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As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the captain of the ship doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeons control.[19]In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioners exclusive control.

Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury.

Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her blood pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this case. Thus, if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must have been done so negligently as to have inflicted a gaping wound on her arm,[20] for which petitioner cannot escape liability under the captain of the ship doctrine.

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Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but rather as a measure to prevent complication does not help her case. It does not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate result of petitioners negligence.

We note, however, that petitioner has served well as Noras obstetrician for her past three successful deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her profession. The fact that petitioner promptly took care of Noras wound before infection and other complications set in is also indicative of petitioners good intentions. We also take note of the fact that Nora was suffering from a critical condition when the injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner. Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the assailed decision and resolution of the Court of Appeals. Further, we

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rule that the Court of Appeals award of Two Hundred Thousand Pesos (P200,000) as moral damages in favor of respondents and against petitioner is just and equitable.[21] WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED. No pronouncement as to costs. SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

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ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

[1]

Rollo, pp. 43-68.

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[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21]

Id. at 40-41. Records, pp. 218-227. TSN, December 5, 1995, pp. 54-55. TSN, June 25, 1996, p. 9. Exhibit A, folder of exhibits, p. 1. TSN, September 16, 1994, p. 6; Exhibit D, folder of exhibits, p. 7. TSN, September 12, 1995, pp. 13-16. Id. at 23. Exhibit L, folder of exhibits, p. 42. TSN, January 31, 1994, pp. 35-36. TSN, April 29, 1994, p. 16; TSN, June 25, 1996, p. 23. Records, pp. 1-6. Id. at 227. Rollo, p. 67. Id. at 169-171. Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584, 628. Id. at 600. BLACKS LAW DICTIONARY 192, (5th ed., 1979). TSN, September 16, 1994, pp. 27-28. See Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236, 240. of the Philippines COURT

Republic SUPREME Manila FIRST DIVISION G.R. No. 194259

March 16, 2011 THE PHILIPPINES, Plaintiff-Appellee,

PEOPLE OF vs. JIMMY ALVERIO, Accused-Appellant. DECISION VELASCO, JR., J.: The Case

This is an appeal from the March 25, 2010 Decision1 of the Court of Appeals (CA) in CA-G.R. CRH.C. No. 00020, which affirmed the August 26, 2004 Decision in Criminal Case No. CB-02-195 of

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the Regional Trial Court (RTC), Branch 37 in Caibiran, Naval, Biliran.2 The RTC convicted accused Jimmy Alverio (Alverio) of rape. The Facts The charge against Alverio stemmed from the following Information: That on or about the 3rd day of June, 2002, at about 2:00 oclock early dawn, more or less, at [PPP],3 Philippines, and within the jurisdiction of this Honorable Court, while [AAA] was on her way to her grandmothers house from the benefit dance, herein accused, a cousin of herein complainant, with lewd designs, and by means of force and intimidation, get hold of her arm and did then and there drag her to the back of the barangay hall, by holding her hair and forcibly laid her to the ground, willfully, unlawfully and feloniously poked her a short bladed weapon known as pisao forcibly took off her pants and panty and succeeded in having carnal knowledge with her against her will to her damage and prejudice. Contrary to law.4 On July 3, 2003, Alverio, with the assistance of his counsel de oficio, was arraigned, and he pleaded "not guilty" to the charge against him. After the pre-trial, trial on the merits ensued. During the trial, the prosecution offered the sole testimony of the private complainant. On the other hand, the defense presented accused Alverio, Henry Toledo (Toledo), and Lily Toledo as its witnesses. The Prosecutions Version of Facts In the afternoon of June 2, 2002, AAA, along with her friends Belen Sabanag (Sabanag) and Aileen Sinangote (Sinangote), went to the house of her grandmother to attend a dance event.5 At around 8:30 in the evening, they proceeded to the dance hall because the dance would start at around 9 oclock.6 During the dance, Sabanag and Sinangote danced with Alverio but AAA did not.7 At 2 oclock in the morning of June 3, 2002, AAA noticed that her friends were no longer at the dance so she decided to go home to her grandmothers house.8 As she was nearing the barangay hall, Alverio suddenly appeared and took hold of AAA. She tried to resist him but he was too strong and he managed to pull her away. AAA started to cry while she was being dragged towards the back of the barangay hall.9 There, Alverio held her hair, undressed her, and started to kiss her.10 AAA kept on resisting and even punched Alverio after he kissed her, at which point, Alverio told her that it was painful and that he might retaliate if she continued.11 This caused AAA to stop resisting and Alverio then proceeded to insert his penis in her vagina repeatedly.12

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After having carnal knowledge with her, Alverio stood up and put on his clothes. He warned AAA that if she told anyone about what happened, he will kill her.13 After threatening her, he left. During this entire incident, Alverio was armed with a knife which he used to poke AAAs side. Dazed, AAA could not muster enough strength to go home. She just sat on the road beside the barangay hall until 5 oclock in the morning when her Uncle Intoy passed by. He brought her home to her parents but she did not tell him anything. Upon reaching home, AAA told her parents about what happened.14 Version of the Defense Alverios defense, on the other hand, was confined to his denial of the accusation and an alibi, to wit: Sometime around 7:30 in the evening of June 2, 2002, Alverio recalled that he was in the barangay chapel with his friend, Toledo, waiting for the dance to begin.15 The dance hall was just adjacent to the barangay chapel. At 8:30 in the evening, the dance started. He danced with some persons whose names he could no longer recall.16 But he categorically remembered that he did not see AAA in the dance area.17 At 12:00 midnight, Alverio and Toledo walked home to Toledos house, where Alverio was staying.18 On their way home, they passed by the barangay hall.19 Upon reaching home, they slept and woke up at 5:30 in the morning of June 3, 2002.20 In his testimony, Alverio admitted that he and AAA are cousins, their mothers being sisters.21 His testimony was corroborated by Toledo22 and Toledos mother, Lily Toledo.23 Ruling of the Trial Court After trial, the RTC convicted Alverio. The dispositive portion of its August 26, 2004 Decision reads: WHEREFORE, premises considered, judgment is hereby rendered finding the accused JIMMY ALVERIO guilty beyond reasonable doubt of the crime of rape. With no aggravating or mitigating circumstance, he is sentenced to the lesser penalty of reclusion perpetua; to indemnify [AAA] Fifty Thousand (P50,000.00) Pesos; and to pay the costs. SO ORDERED.24

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On appeal to the CA, Alverio disputed the trial courts finding of his guilt beyond reasonable doubt of the crime charged. He argued that the presumption of innocence should prevail especially considering that the prosecution only had a single testimony to support the charge of rape. Ruling of the Appellate Court On March 25, 2010, the CA affirmed the judgment of the RTC. The dispositive portion of the CA Decision reads: IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court, Branch 37, Caibiran, Naval, Biliran in Criminal Case No. CB-02-195 convicting the accused-appellant is AFFIRMED with MODIFICATION in that he is also hereby adjudged liable to pay the victim the amount of Php50,000.00 as moral damages. His penalty of reclusion perpetua and the award of civil indemnity of Php50,000.00 stands. Costs against the accused-appellant. SO ORDERED.25 The Issue Alverio now comes before this Court with the lone assignment of error contending that "[t]he trial court gravely erred in finding the accused-appellant guilty beyond reasonable doubt of rape."26 The Courts Ruling We sustain Alverios conviction. In his Brief, Alverio argues that the trial court should have taken the lone testimony of the complainant with caution and that the testimony should have been weighed carefully, taking into consideration the constitutional precept that in all criminal prosecutions, the accused must be presumed innocent unless the contrary is proved. Alverio raises three (3) grounds in support of his argument. First, he assails the trial court for giving credence to the sole testimony of the victim. He claims that the prosecution should have presented other witnesses to corroborate the testimony of the victim. Second, he contends that the medical certificate presented as evidence was not testified to by the signatory himself and should therefore not be considered as corroborative evidence. Lastly, he claims that the trial court gravely erred in convicting him of the crime of rape for failure of the prosecution to prove his guilt beyond reasonable doubt.
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After a careful perusal of the records of this case, however, the Court is satisfied that the prosecutions evidence sufficiently established Alverios guilt with moral certainty. In People v. Malate,27 We reiterated the principles with which courts are guided in determining the guilt or innocence of the accused in rape cases, viz: x x x (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove the charge; (2) considering that, in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence of the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. Moreover, in that same case, this Court held that "in cases involving the prosecution for forcible rape x x x corroboration of the victims testimony is not a necessary condition to a conviction for rape where the victims testimony is credible, or clear and convincing or sufficient to prove the elements of the offense beyond a reasonable doubt."28 As such, appellate courts generally do not disturb the findings of the trial court with regard to the assessment of the credibility of witnesses,29 the reason being that the trial court has the "unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination."30More importantly, courts generally give full credence to the testimony of a complainant for rape, especially one who is only a minor.31 The exceptions to this rule are when the trial courts findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or when the assailed decision is based on a misapprehension of facts.32However, this Court finds none of these exceptions present in the instant case. The victim testified in a steadfast and straightforward manner, to wit: PROS. JOCOBO: Q Now can you tell now [since] there are no more persons around except you and the accused can tell to the Court, or were you able to reach in the house of your lola? A When I was walking I was suddenly held by Jimmy Alverio. Q Where were you already walking did Jimmy Alverio suddenly held you? A Near Brgy.Hall of Brgy.Maurang.

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Q What happened next after you were held by Jimmy Alverio near the brgy. hall of Maurang? A He tried to pull me but then I resisted, and Jimmy insisted by pulling me until I cried. Q Then even if you were already crying what next happened? A He drag me towards the back of the Brgy hall. Q Did you in fact drag to the brgy. hall? A Yes sir. Q While you were at the back of the brgy. hall can you tell this Honorable Court what happened? A [He] held my hair and he tried to undressed me but I resisted. Q Since he tried to undressed [sic] you and you were resisted [sic] was he able or was he successful in undressing you? A Yes sir. Q Despite of your resistance? A Yes sir. Q When you were already undressed what happened, can you tell this to the Honorable Court? A He tried kissed [sic] me several times and I resisted and I boxed him. Q After you have boxed him after kissing you what next happened? A He said that is painful I might retaliate with you. Q After hearing on that what did Jimmy had done to you? A I just cried I did not mind him anymore. Q How about Jimmy what was he doing? A He continued kissing me.

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Q After kissing you what next follow? ATTY. SABANDAL: I would like to request Your Honor that the prosecution would discontinue and encouraging very much because its up to the witness to answer Your Honor the question. Since previously it would [seem] that the witness could be able to answer only after so much question PROS. JOBOCO: Your Honor please according to the circular on examining minors we will to give full support and we to understand the minors especially if victims of minor cases. ATTY. SABANDAL: It was not established that she is a minor, Your Honor. COURT: She is 14 years old. FROM THE COURT: Q Now you said that you were undressed by Jimmy Alverio, do you mean to say that you were already naked when you said undressed? A Yes sir. Q And when Jimmy Alverio kissing you several times were you already naked? A Yes sir. xxxx Q What did Jimmy do more while he was kissing several times and you were naked? COURT INTERPRETER: At this juncture Your Honor the witness is crying. COURT:

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Q And when you were naked was Jimmy also naked? A Yes sir. xxxx Q You were naked and Jimmy Alverio was also naked and Jimmy Alverio was kissing you so many times, what more did Jimmy Alverio do to you? A He inserted his penis. Q What were your position, were you standing, or you were lying down? A Lying position. Q Or something was placed on the ground? A On the ground. COURT: Alright Pros. Joboco you can proceed the continuation of your direct examination. PROS. JOBOCO: Q When you said when Jimmy Alverio was inserted his penis where was inserted? A to my vagina. Q And when Jimmy inserted his penis to your vagina what did you feel? A I felt pain. Q And when you felt pain what did you do? A I kept on crying. PROS. JOBOCO: I think that would be all Your Honor I think the witness already crying. COURT:

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How many times did Jimmy insert his penis to your vagina? A three (3) times. Q After the three (3) times intercourse with you what did Jimmy do to you? A He stood up and he dressed himself and he left me. Q Did he not leave words to you? A He told me that if you will told anybody in your family, your mother and your father I will kill you. Q Was she have arm [sic] at that time of the incident? A Yes sir. Q What arm or firearm or what? A a knife. Q Did he use that in forcing you to do the sexual acts? A Yes sir. Q By what means did he threatened you? A He poke it at my side. Q Now what would you mean, he poke it at my side, what did you do? A I remain there crying.33 It is strikingly clear from the above transcript that AAAs testimony was very coherent and candid. Thus, We find no reason to overturn the findings of the trial court. In addition, Alverio submits that although the medical certificate was presented as evidence, its contents were never testified to by the signatory himself and, as such, cannot be considered as corroborative of the claim of the victim that she was raped. Such argument, however, cannot prosper. Medical evidence is dispensable and merely corroborative in proving the crime of rape. Besides, a medical certificate is not even necessary

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to prove the crime of rape.34 The gravamen of rape is carnal knowledge of a woman through force and intimidation.35 The elements needed to prove the crime of rape under paragraph 1(a) of Article 266-A of the Revised Penal Code are: (1) the offender is a man; (2) the offender had carnal knowledge of a woman; and (3) the act is accomplished by using force or intimidation. All these elements were sufficiently proved by the prosecution. The testimony of AAA overwhelmingly proves that Alverio raped her with the use of force and intimidation. Furthermore, Alverios defense of alibi cannot stand versus the positive identification of AAA. Nothing is more settled in criminal law jurisprudence than the rule that alibi and denial cannot prevail over the positive and categorical testimony and identification of the accused by the complainant.36 Accordingly, We find that the prosecution has discharged its burden of proving the guilt of Alverio beyond reasonable doubt. As to the award of damages, the CA was correct in awarding PhP 50,000 as moral damages without need of proof. However, in line with current jurisprudence,37 an additional award of PhP 30,000 as exemplary damages should likewise be given, as well as interest of six percent (6%) per annum on all damages awarded from the finality of judgment until fully paid. WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00020 finding accused-appellant Jimmy Alverio guilty of the crime charged is AFFIRMED with MODIFICATION. As modified, the ruling of the trial court should read as follows: WHEREFORE, premises considered, judgment is hereby rendered finding the accused JIMMY ALVERIO guilty beyond reasonable doubt of the crime of rape. With no aggravating or mitigating circumstance, he is sentenced to the lesser penalty of reclusion perpetua; to pay [AAA] Fifty Thousand (P50,000.00) Pesos as civil indemnity, Fifty Thousand (P50,000.00) as moral damages and Thirty Thousand (P30,000.00) as exemplary damages with interest of six percent (6%) per annum on all awards of damages from the finality of judgment until fully paid; and to pay the costs. SO ORDERED. PRESBITERO Associate Justice WE CONCUR: J. VELASCO, JR.

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RENATO Chief Chairperson TERESITA J. LEONARDO-DE Associate Justice JOSE Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO Chief Justice C. CORONA C. CORONA Justice

CASTRO MARIANO C. Associate Justice PORTUGAL

DEL

CASTILLO

PEREZ

Footnotes
1

Rollo, pp. 2-10. Penned by Associate Justice Edwin D. Sorongon and concurred in by Associate Justices Edgardo L. Delos Santos and Socorro B. Inting.
2 3

CA rollo, pp. 79-83. Penned by Judge Pepe P. Romael.

Any information to establish or compromise the identity of the victim, as well as those of her immediate family or household members, shall be withheld, and fictitious initials are used, pursuant to Republic Act No. 7610, "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic Act No. 9262, "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes"; Section 40 of A.M. No. 04-10-11-SC, known as the "Rule on Violence Against Women and Their Children," effective November 5, 2004; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
4 5

Records, p. 1. TSN, September 9, 2003, p. 3.

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6 7 8 9

Id. at 5. Id. at 6. Id. at 7. Id. at 8. Id. at 8-9. Id. at 9. Id. at 9-12. Id. at 12. Id. at 13. TSN, February 24, 2004, pp. 7-10. Id. at 10. Id. at 11. Id. at 12. Id. at 15. Id. at 14. Id. at 20. TSN, March 8, 2004, pp. 1-12. TSN, May 4, 2004, pp. 1-9. CA rollo, p. 24. Rollo, p. 11. CA rollo, p. 69. G.R. No. 185724, June 5, 2009, 588 SCRA 817, 825.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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28 29 30 31 32 33 34 35 36 37

Id. People v. Malana, G.R. No. 185716, September 29, 2010. People v. Malate, G.R. No. 185724, June 5, 2009, 588 SCRA 817, 825. People v. Escoton, G.R. No. 183577, February 1, 2010, 611 SCRA 233, 243. People v. Burgos, G.R. No. 117451, September 29, 1997, 279 SCRA 697, 705. TSN, September 9, 2003, pp. 7-13. People v. Cabudbod, G.R No. 176348, April 16, 2009, 585 SCRA 499, 508. People v. Domingo, G.R. No. 177744, November 23, 2007, 538 SCRA 733, 737. People v. Gingos, G.R. No. 176632, September 11, 2007, 532 SCRA 670, 683. People v. Combate, G.R. No. 189301, December 15, 2010. of the Philippines COURT

Republic SUPREME Manila EN BANC

G.R. No. 130612 May 11, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant.

MENDOZA, J.: This case is here on appeal from the decision 1 of the Regional Trial Court of Dagupan City (Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs.

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The facts hark back to the afternoon of October 17, 1996, at around 4 o'clock, when the body of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The child's body bore several stab wounds. Jennifer had been missing since lunch time. The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal walls of the victim's genitalia, although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal expert of the NBI. 2 The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victim's grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and took him to the police station where accused-appellant, upon questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon. 3 On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accused-appellant before the Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victim's genitalia indicated that the child's hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the following information was filed: 4 That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will and consent, and on the same occasion, the said accused with intent to kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple

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stab wounds, which resulted to her death, to the damage and prejudice of her heirs. At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-appellant had raped and killed Jennifer Domantay. Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latter's house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaeb's house, tending to some pigeons in his yard. 5 After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to buy two bottles of gin and a bottle of Sprite. 6 Edward said he joined the group and sat between Daudencio Macasaeb and accused-appellant. 7 Edward said that accused-appellant, who, apparently had one too many then, rolled up his shirt and said: "No diad Antipolo tan L[i]pa et walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody here, and they will cry and cry"). Edward Domantay saw that tucked in the left side of accused-appellant's waistline was a bayonet without a cover handle. 8 It was not the first time that Edward had seen accused-appellant with the knife as the latter usually carried it with him. 9 Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock in the afternoon on October 17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifer's body was later found. Accused-appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl Domantay. 10 Lorenzo Domantay, a relative of the victim, corroborated Jiezl's testimony that accusedappellant had gone to Amparo Domantay's bamboo grove in the afternoon of October 17, 1996. Lorenzo said that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where Jennifer's body was later found. Accused-appellant appeared restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous. 11 Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant was nervous and afraid. Accused-appellant later changed his mind.
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Instead of going to the town proper, he alighted near the Mormon's church, outside Malasiqui. 12 In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay. SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accused-appellant of his constitutional right to remain silent and to have competent and independent counsel, in English, which was later translated into Pangasinense. 13 According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet he used in killing the victim. 14 On cross-examination, Espinoza admitted that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellant's confession reduced in writing. 15 Espinoza's testimony was admitted by the trial court over the objection of the defense. Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer Domantay's case. 16 On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant who was then detained in the municipal jail. He described what transpired during the interview thus: 17 PROS. QUINIT: Q Did you introduce yourself as a media practitioner? A Yes, sir. Q How did you introduce yourself to the accused? A I showed to Bernardino Domantay alias "Junior Otot" my I.D. card and I presented myself as a media practitioner with my tape recorder [in] my hand, sir. Q What was his reaction to your request for an interview? A He was willing to state what had happened, sir.

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Q What are those matters which you brought out in that interview with the accused Bernardino Domantay alias "Junior Otot"? A I asked him what was his purpose for human interest's sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered "yes." That's it. xxx xxx xxx PROS. QUINIT: Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? A I asked him very politely. Q More or less what have you asked him on that particular matter? A I asked "Junior Otot," Bernardino Domantay, "Kung pinagsisisihan mo ba ang iyong ginawa?" "Opo" sabi niya, "Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?", "Ako nga po" The [l]ast part of my interview, "Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong iparating?", "kung gusto nilang makamtan ang hustisya ay tatanggapin ko". That is what he said, and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute, and he used that little girl in his revenge. On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away from the police station. An uncle of the victim was with him and the nearest policemen present were about two to three meters from him, including those who were in the radio room. 18 There was no lawyer present. Before interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to interview accusedappellant. 19 On questioning by the court, Manuel said that it was the first time he had been called to testify regarding an interview he had conducted. 20 As in the case of the testimony of SPO1 Espinoza, the defense objected to the admission of Manuel's testimony, but the lower court allowed it. Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back, 21 the average depth of which was six inches. 22 He opined that the
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wounds were probably caused by a "pointed sharp-edged instrument." 23 He also noted on the aforehead, neck, and breast bone of the victim. 24 As for the results of the genital examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused within 24 hours of her death. He added that the genital area showed signs of inflammation. 25 Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after the latter's body was brought to her parents' house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered by the prosecution. The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegation against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1 o'clock in the afternoon of October 17, 1996, he was bathing his pigs outside in the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio was then having drinks in front of his (Macasaeb's) house. Accused-appellant claimed, however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes. 26 He denied Edward Domantay's claim that he (accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig. 27 Accused-appellant also confirmed that, at about 2 o'clock in the afternoon, he went to Alacan passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victim's parents because of a boundary dispute. 28 With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted anything to the former. 29 As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision reads: 30 WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino Domantay @ "Junior Otot" guilty beyond reasonable doubt with the
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crime of Rape with Homicide defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred Eighty Thousand Pesos (P480,000.00), 31 and to pay the costs. SO ORDERED. In this appeal, accused-appellant alleges that: 32 I THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE BY THE ACCUSED-APPELLANT. II THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III, 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond reasonable doubt. 33 Art. III, 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this section or section 17 hereof shall be inadmissible in evidence. This provision applies to the stage of custodial investigation, that is, "when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect." 34 R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. 35
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Decisions 36 of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17, 1996, 37 he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what transpired during accused-appellant's interrogation: 38 [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of his constitutional right as follows; that he has the right to remain silent; that he has the right to a competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with one, and further informed [him] that all he will say will be reduced into writing and will be used the same in the proceedings of the case, but he told me that he will cooperate even in the absence of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the weapon used [and] where he gave [it] to. But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinoza's testimony on the alleged confession of accused-appellant should have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were, the "fruit of the poisonous tree." As explained in People v. Alicando: 39 . . . According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegal obtained evidence taints all evidence subsequently obtained. We agree with the Solicitor General, however, that accused-appellant's confession to the radio reporter, Celso Manuel, is admissible. In People v. Andan, 40 the accused in a rape with homicide case confessed to the crime during interviews with the media. In holding the confession admissible, despite the fact that the accused gave his answers without the assistance of counsel, this Court said: 41 [A]ppellant's [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself
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with the relation between a private individual and another individual. It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was "tense and intimidating" and was similar to that which prevails in a custodial investigation. 42 We are not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer stayed outside the cell and the only person besides him was an uncle of the victim. Accused-appellant could have refused to be interviewed, but instead, he agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his act. Celso Manuel admitted that there were indeed some police officers around because about two to three meters from the jail were the police station and the radio room. 43 We do not think the presence of the police officers exerted any undue pressure or influence on accused-appellant and coerced him into giving his confession. Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to ask the police reporter (Manuel) to try to elicit some incriminating information from the accused." 44 This is pure conjecture. Although he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose was to elicit incriminating information from accused-appellant. To the contrary, the media are known to take an opposite stance against the government by exposing official wrongdoings. Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under circumstances where it is apparent that accused-appellant confessed to the killing our of fear. As already stated, the interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to the police. Accused-appellant's extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in material points with his confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo grove where the child's body was found. Rule 133 of the Revised Rules on Evidence provides: 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence ofcorpus delicti.

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4. Evidence necessary in treason cases. No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court. Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who were playing about eight to ten meters from Amparo Domantay's grove, where the crime took place, having heard any commotion. 45 The contention has no merit. Accused-appellant could have covered the young child's mouth to prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side of the victim's forehead, which he said could have been caused by a hard blunt instrument or by impact as her head hit the ground.46 The blow could have rendered her unconscious, thus precluding her from shouting or crying. Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim, at around 2 o'clock in the afternoon on October 17, 1996. Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time. These witnesses, however, did not testify concerning what they saw exactly the same time. What they told the court was what they had seen "at around" 2 o'clock in the afternoon. There could have been a between difference in time, however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw accused-appellant near the place where the victim's body was later found. Far from contradicting each other, these witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant going toward the bamboo grove followed by the victim "at around" 2 o'clock in the afternoon on October 17, 1996, Lorenzo said he had seen accused-appellant near the bamboo grove "at around" that time. He described accusedappellant as nervous and worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testified falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only 10 years old. For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides: Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without the attendance of any of the circumstances enumerated in the next preceding article [murder], shall be deemed guilty of homicide and be punished by reclusion temporal.

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The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46" in height. 47 It is clear then that she could not have put up much of a defense against accused-appellant's assault, the latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior strength: accused-appellant had a weapon, while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds are located at the back of Jennifer's body. But we think the lower court erred in finding that the killing was committed with cruelty. 48 The trial court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a test for determining whether there was circumstance. 49 "The rest . . . is whether the accused deliberately and sadistically augmented the victim's suffering thus . . . there must be proof that the victim was made to agonize before the [the accused] rendered the blow which snuffed out [her] life." 50 In this case, there is no such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victim's back could have caused her death as they penetrated her heart, lungs and liver, kidney and intestines. 51 Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art. 335. of the Revised Penal Code, as amended, in part provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprive of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman. 52 For this purpose, it is enough if there was even the slightest contact of the male sex organ with the labia of the victim's genitalia. 53 However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonill's report on the genital examination he had performed on the deceased reads: 54 GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The surrounding genital area shows signs of inflammation.

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xxx xxx xxx REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a hard, rigid instrument. Hymenal laceration is not necessary to prove rape; 55 neither does its presence prove its commission. As held inPeople v. Ulili, 56 a medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physician's finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established. 57 This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the male sex organ 58 or may arise from other causes. 59 Dr. Bandonill himself admitted this. He testified that the right side of the victim's hymen had been completely lacerated while the surrounding genital area showed signs of inflammation.60 He opined that the laceration had been inflicted within 24 hours of the victim's death and that the inflammation was due to a trauma in that area. 61 When asked by the private prosecutor whether the lacerations of the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when questioned by the defense that the lacerations could have been caused by something blunt other than the male organ. Thus, he testified: 62 PROS. F. QUINIT: Q Now, what might have caused the complete laceration of the right side of the hymen,doctor? A Well, sir, if you look at my report there is a remark and it says there; findings at the genital area indicated the probability of penetration of that area by a hard rigid instrument. Q Could it have been caused by a human organ? AIf the human male organ is erect, fully erect and hard then it is possible, sir. xxx xxx xxx ATTY. VALDEZ: Q In your remarks; finding at the genital area indicates the probability of penetration of that area by a hard rigid

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instrument, this may have also been caused by a dagger used in the killing of Jennifer Domantay is that correct? A Well, sir when I say hard rigid instrument it should not be sharp pointed and share rigid, it should be a hard bl[u]nt instrument. Q Do you consider a bolo a bl[u] instrument, or a dagger? A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir. Q This Genital Examination showed a complete laceration of the right side of the hymen, this may have been possibly caused by a dagger, is it not? A No, sir. I won't say that this would have been caused by a dagger, because a dagger would have made at its incision . . . not a laceration, sir. Q But this laceration may also have been caused by other factors other the human male organ, is that correct? A A hard bl[u]nt instrument, sir could show. Q My question is other than the human male organ? A Possible, sir. xxx xxx xxx COURT: Q You mentioned that the hymen was lacerated on the right side? A Yes, your Honor. Q And if there is a complete erection by a human organ is this possible that the laceration can only be on the right side of the hymen? A Yes, your Honor, its possible. Q How about if the penetration was done by a finger, was it the same as the human organ?

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A Well, it defends on the size of the finger that penetrat[es] that organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor. Q How about two fingers? A Possible, sir. To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the location and description of the victim's clothings, especially her undergarments, the position of the body when found and the like. 63 In People v. Macalino, 64 for instance, the Court affirmed a conviction for the rape of a two-year old child on the basis of circumstantial evidence. 65 The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had been produced by sexual intercourse is corroborated by the testimony given by complainant. Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on the child's buttocks and some blood on her private part.(Emphasis in the original) In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually abused the victim. The only circumstance from which such inference might be made is that accused-appellant was seen with the victim walking toward the place where the girl's body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that there was spermatozoa in the girl's vaginal canal. Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on the body of the victim, he testified: 66 [A]fter examining the body I took note that were several stab wounds . . . these were all found at the back area sir . . . extending from the back shoulder down to the lower back area from the left to the right. Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location of the external bodily injuries of the victim is on the face, 67 neck, 68 and anterior portion 69 of her body. Although it is not unnatural to find contusions on the posterior side, these are usually caused by the downward pressure on the victim's body during the sexual assault. 70 It is unquestionably different when, as in this case, all the stab wounds (except for a minor cut in the lower left leg) had their
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entry points at the back running from the upper left shoulder to the lower right buttocks. It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was immediately after it was found. 71 Furthermore, there is a huge bloodstain in the back portion of her shorts. 72 This must be because she wearing this piece of clothing when the stab wounds were inflicated or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down the girl's lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled up the victim's shorts and undergarments after the alleged rape, otherwise, the victim's shorts would not have been stained so extensively. Again, this is contrary to ordinary human experience. Even assuming that Jennifer had been raped, there is no sufficient proof that it was accusedappellant who had raped her. He did not confess to having raped the victim. From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt. 73 Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as actual damages. However, the list of expenses produced by the victim's father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award of actual damages should be reduced to P12,000.00. In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of P25,000.00 is deemed appropriate. 74 In accordance with our rulings in People v. Robles 75 and People v. Mengote, 76 the indemnity should be fixed at P50,000.00 and the moral damages at P50,000.00. 77 WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the costs.1wphi1.nt

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SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Purisima and Buena, JJ., no took part. #Footnotes 1 Per Judge Bienvenido R. Estrada. 2 Records, p. 15. Dr. Macaranas was not presented as a witness and her postmortem report was not offered in evidence by either party. 3 Folder of Exhibits, p. 5; Exh. G. 4 Records, p. 1. 5 TSN, pp. 3-4, March 4, 1997. 6 Id., pp. 8, 13. 7 Id., p. 19. 8 Id., pp. 13-15 (Translation by the trail court). 9 Id., pp. 20-21. 10 TSN, pp. 4-7, 13, March 3, 1997. 11 TSN, pp. 4-5, 13, April 3, 1997. 12 TSN, pp. 4-7, March 13, 1997. 13 TSN, p. 6, Feb. 28, 1997. 14 TSN, p. 4, Feb. 25, 1997. 15 TSN, p. 8, Feb. 28, 1997. 16 TSN, p. 14, April 10, 1997. 17 Id., pp. 6-9.

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18 TSN, p. 10, April 10, 1997. 19 Id., p. 13. 20 Id., p. 15. 21 Records, p. 20. 22 TSN, pp. 12-13, April 8, 1997. 23 Id., p. 16. 24 Id., pp. 10-11. 25 Records, p. 20. 26 TSN, pp. 8-11, April 15, 1997. 27 Id., p. 26-27. 28 Id., pp. 17-18, 27-29. 29 Id., p. 31. 30 Rollo, p. 32; Decision, p. 14. 31 Broken down as follows: P200,000.00 as moral damages; P200,000.00 as exemplary damages; P50,000.00 as civil indemnity; and P30,000.00 for funeral and related expenses. 32 Rollo, p. 50; Appellant's Brief, p. 1. 33 Id., pp. 54-60; Id., pp. 5-11. 34 People v. Andan, 269 SCRA 95 (1997). 35 Sanchez v. Demetriou, 227 SCRA 627 (1993). 36 People v. Deniega, 251 SCRA 626 (1995); People v. Espaola, 271 SCRA 689 (1997); People v. Cabiles, 284 SCRA 199 (1998); People v. Tan, 286 SCRA 207, 214 (1998) citing cases.

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37 Accused-appellant was picked up by the police without any warrant of arrest, although his case did not fall under any of the three instances where warrantless arrests are authorized under Rule 113, 5 of the Revised Rules of Criminal Procedure. 38 TSN, p. 4, Feb. 25, 1995. 39 251 SCRA 293, 314 (1995). 40 269 SCRA 95 (1997). 41 Id., at 314. Reiterated in People v. Cabiles, 284 SCRA 199 (1998). 42 Rollo, p. 59; Appellant's Brief, p. 10. 43 TSN, p. 10, April 10, 1997. 44 Rollo, p. 59; Appellant's Brief, p. 10. 45 Rollo, pp. 62-63, Appellant's Brief, pp. 13-14. 46 TSN, pp. 10-11, April 18, 1997. 47 Records, p, 13. 48 Rollo, p, 32; Decision, p. 14. 49 People v. Tonog, 205 SCRA 772 (1992); People v. Manzano, 58 SCRA 250 (1974). 50 People v. Ferrer, 255 SCRA 19, 36 (1996), citing People v. Lacao, 60 SCRA 89 (1974). 51 TSN, p. 16, April 8, 1997. 52 People v. Alib, 222 SCRA 517 (1993); People v. Orita, 184 SCRA 105 (1990). 53 People v. Evangelista, 282 SCRA 37 (1997); People v. Orita, supra. 54 Records, p. 20. 55 People v. Butron, 272 SCRA 352 (1997); People v. Gabris, 258 SCRA 663 (1996); People v. Alimon, 257 SCRA 658 (1996); People v. Lazaro, 249 SCRA 234 (1995); People v. Salinas, 232 SCRA 274 (1994). 56 225 SCRA 594 (1993).

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57 See People v. Macalino, 209 SCRA 788, 795 (1992). 59 HERZOG, MEDICAL JURISPRUDENCE, 617 (1931). 60 Records, p. 20. 61 TSN, p. 20, April 8, 1997. 62 TSN, pp. 15-19, April 8, 1997 (emphasis added). 63 See People v. Develles, 208 SCRA 101 (1992); People v. Magana, 259 SCRA 380 (1996). 64 209 SCRA 788 (1992). 65 Id., at 797. 66 TSN, pp. 12-13, April 8, 1997. 67 People v. Advincula, 96 SCRA 875, 878 (1980); People v. Lood, 117 SCRA 467, 471 (1982); People v. Aguirre, 143 SCRA 572, 578 (1986); People v. Gecomo, 254 SCRA 82, 92 (1996). 68 People v. Garcia, 89 SCRA 440, 448 (1979); People v. Saligan, 101 SCRA 264, 269 (1980); People v. Vizcarra, 115 SCRA 743, 746 (1982); People v. Umali, 116 SCRA 23, 32 (1982); People v. Aguirre, supra.; People v. Dawandawan, 184 SCRA 264, 269 (1990); People v. Magana, supra. 69 People v. Saligan, supra; People v. Empleo, 226 SCRA 454, 459 (1993). 70 See People v. Madridano, 227 SCRA 363, 363 (1993); People v. Emplo, supra.; People v. Garcia, supra. 71 Exh. C. 72 Ehx. B. 73 See People v. Dino, 160 SCRA 197, 209 (1988). 74 People v. Espanola, 271 SCRA 689 (1997). 75 G.R. No. 124300, March 25, 1999.

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76 G.R. No. 130491, March 25, 1999. 77 Supra note 74. Republic SUPREME Manila SECOND DIVISION G.R. No. 159738 December 9, 2004 of the Philippines COURT

UNION MOTOR CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ALEJANDRO A. ETIS, respondents.

DECISION

CALLEJO, SR., J.: This is a petition for review on certiorari filed by petitioner Union Motor Corporation of the April 10, 2003 Decision1of the Court of Appeals (CA) in CA-G.R. SP No. 73602 which affirmed the decision of the National Labor Relations Commission (NLRC) holding that respondent Alejandro A. Etis was illegally dismissed from his employment. On October 23, 1993, the respondent was hired by the petitioner as an automotive mechanic at the service department in the latters Paco Branch. In 1994, he was transferred to the Caloocan City Branch, where his latest monthly salary was P6,330.00. During his employment, he was awarded the "Top Technician" for the month of May in 1995 and Technician of the Year (1995). He also became a member of the Exclusive P40,000.00 Club and received the Model Employee Award in the same year. On September 22, 1997, the respondent made a phone call to Rosita dela Cruz, the company nurse, and informed her that he had to take a sick leave as he had a painful and unbearable toothache. The next day, he again phoned Dela Cruz and told her that he could not report for work because he still had to consult a doctor. Finding that the respondents ailment was due to a tooth inflammation, the doctor referred him to a dentist for further management.2 Dr.
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Rodolfo Pamor, a dentist, then scheduled the respondents tooth extraction on September 27, 1997, hoping that, by that time, the inflammation would have subsided. Upon instructions from the management, Mr. Dumagan, a company security guard, visited the respondent in his house on September 24, 1997 and confirmed that the latter was ill. On September 27, 1997, Dr. Pamor rescheduled the respondents tooth extraction on October 4, 1997 because the inflammation had not yet subsided and recommended that he rest. Thus, the respondent was not able to report for work due to the painful and unbearable toothache. On October 2, 1997, the petitioner issued an Inter Office Memorandum3 through Angelo B. Nicolas, the manager of its Human Resources Department, terminating the services of the respondent for having incurred more than five (5) consecutive absences without proper notification. The petitioner considered the consecutive absences of the respondent as abandonment of office under Section 6.1.1, Article III of the Company Rules. On October 4, 1997, Dr. Pamor successfully extracted the respondents tooth. As soon as he had recovered, the respondent reported for work, but was denied entry into the companys premises. He was also informed that his employment had already been terminated. The respondent sought help from the union which, in turn, included his grievance in the arbitration before the National Conciliation and Mediation Board (NCMB). Pending the resolution thereof, the respondent wrote to the petitioner asking for the reconsideration of his dismissal,4 which was denied. Sometime thereafter, the unions complaints were dismissed by the NCMB. Left with no other recourse, the respondent filed, on May 18, 1999, a complaint for illegal dismissal before the arbitration branch of the NLRC against the petitioner and/or Benito Cua, docketed as NLRC-NCR Case No. 00-05-05691-99.5 The respondent alleged that he was dismissed from his employment without just and legal basis. For its part, the petitioner averred that his dismissal was justified by his ten (10) unauthorized absences. It posited that, under Article 282 of the Labor Code, an employees gross and habitual neglect of his duties is a just cause for termination. It further alleged that the respondents repetitive and habitual acts of being absent without notification constituted nothing less than abandonment, which is a form of neglect of duties.6 On October 19, 2000, the Labor Arbiter rendered a Decision dismissing the complaint. The Labor Arbiter ruled that the respondents failure to report for work for ten (10) days without an approved leave of absence was equivalent to gross neglect of duty, and that his claim that he had been absent due to severe toothache leading to a tooth extraction was unsubstantiated. The Labor Arbiter stressed that "unnotarized medical certificates were self-serving and had no probative weight." Aggrieved, the respondent appealed the decision to the NLRC, docketed as NLRC NCR CA No. 027002-01. He alleged therein that
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I THE HONORABLE LABOR ARBITER COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING THE COMPLAINT. II THERE ARE SERIOUS ERRORS IN THE FINDINGS OF FACTS WHICH WOULD CAUSE GRAVE OR IRREPARABLE DAMAGE OR INJURY TO HEREIN COMPLAINANT.7 On November 29, 2001, the NLRC issued a Resolution reversing the decision of the Labor Arbiter. The dispositive portion of the resolution reads: WHEREFORE, the assailed decision dated October 19, 2000 is SET ASIDE and REVERSED. Accordingly, the respondent-appellee is hereby ordered to immediately reinstate complainant to his former position without loss of seniority rights and other benefits and payment of his full backwages from the time of his actual dismissal up to the time of his reinstatement. All other claims are dismissed for lack of merit.8 The NLRC upheld the claim of the respondent that his successive absences due to severe toothache was known to management. It ruled that the medical certificates issued by the doctor and dentist who attended to the respondent substantiated the latters medical problem. It also declared that the lack of notarization of the said certificates was not a valid justification for their rejection as evidence. The NLRC declared that the respondents absence for ten (10) consecutive days could not be classified as gross and habitual neglect of duty under Article 282 of the Labor Code. The NLRC resolved to deny the motion for reconsideration of the petitioner, per its Resolution9 dated August 26, 2002. The petitioner, thereafter, filed a petition for certiorari under Rule 65 of the Rules of Court before the CA, docketed as CA-G.R. SP No. 73602. It raised the following issues: Whether or not the public respondent gravely abused it[s] discretion, amounting to lack or excess of jurisdiction in reversing the decision of the labor arbiter a quo and finding that private respondent Alejandro A. Etis was illegally dismissed. Whether or not public respondent gravely abused its discretion in reinstating private respondent Alejandro A. Etis to his former position without loss of seniority rights and awarding him full backwages.10

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In its Decision11 dated April 10, 2003, the CA affirmed in toto the November 29, 2001 Resolution of the NLRC. The CA agreed with the ruling of the NLRC that medical certificates need not be notarized in order to be admitted in evidence and accorded full probative weight. It held that the medical certificates which bore the names and licenses of the doctor and the dentist who attended to the respondent adequately substantiated the latters illness, as well as the tooth extraction procedure performed on him by the dentist. The CA concluded that since the respondents absences were substantiated, the petitioners termination of his employment was without legal and factual basis. The CA similarly pointed out that even if the ten-day absence of the respondent was unauthorized, the same was not equivalent to gross and habitual neglect of duty. The CA took into consideration the respondents unblemished service, from 1993 up to the time of his dismissal, and the latters proven dedication to his job evidenced by no less than the following awards: Top Technician of the Year (1995), Member of the Exclusive P40,000.00 Club, and Model Employee of the Year (1995). The motion for reconsideration of the petitioner was denied by the appellate court. Hence, the petition at bar. The petitioner raises the following issues for the Courts resolution: I WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN GIVING MUCH EVIDENTIARY WEIGHT TO THE MEDICAL CERTIFICATES SUBMITTED BY THE PRIVATE RESPONDENT. II WHETHER OR NOT THE HONORABLE LABOR ARBITER COMMITTED A REVERSIBLE ERROR IN RULING THAT PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.12 As had been enunciated in numerous cases, the issues that can be delved with in a petition for review under Rule 45 are limited to questions of law. The Court is not tasked to calibrate and assess the probative weight of evidence adduced by the parties during trial all over again.13 Well-established is the principle that findings of fact of quasi-judicial bodies, like the NLRC, are accorded with respect, even finality, if supported by substantial evidence.14However, if, as in this case, the findings of the Labor Arbiter clash with those of the NLRC and CA, this Court is compelled to go over the records of the case, as well as the submissions of the parties, and resolve the factual issues.

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The petitioner avers that the respondents absences were unauthorized, and that the latter failed to notify the petitioner in writing of such absences, the reasons therefor, and his (respondents) whereabouts as prescribed by the company rules. The petitioner avers that its security guard caught the respondent at home, fit to work. The petitioner further asserts that it was justified in dismissing the respondent under Section 6.1.1, Article III of the Company Rules which reads: An employee who commits unauthorized absences continuously for five (5) consecutive working days without notice shall be considered as having abandoned his job and shall be terminated for cause with applicable laws. The petitioner contends that the respondents dismissal was also justified under Article 282(b) of the Labor Code, which provides that an employer may dismiss an employee due to gross and habitual neglect of his duties. The contention of the petitioner has no merit. The NLRC ruled that the respondent notified the petitioner of his illness through the company nurse, and that the petitioner even dispatched a security guard to the respondents house to ascertain the reason of his absences, thus: The termination by respondent-appellee of complainants service despite knowledge of complainants ailment, as shown by the telephone calls made by the latter to the company nurse and the actual confirmation made by respondents company guard, who personally visited complainants residence, clearly establishes the illegality of complainants dismissal. The documentary testimonies of the nurse, Miss Rosita dela Cruz, regarding complainants telephone calls and the confirmation made by respondents security guard, Mr. Dumagan, are evidentiary matters which are relevant and material and must be considered to the fullest by the Labor Arbiter a quo. These circumstantial facts were miserably set aside by the Labor Arbiter a quo wherein he concluded that complainant committed gross neglect of duty on alleged continued absences is to our mind, not fully substantiated and ought not be given credence by this Commission. Time and again, this Tribunal impresses that, in labor proceedings, in case of doubt, the doubt must be reasonably in favor of labor. Maybe doubts hang in this case but these doubts must be resolved in favor of labor as mandated by law and our jurisprudence. From the facts of this case, it is only but reasonable to conclude that complainants service was, indeed, terminated without legal or valid cause. Where the law protects the right of employer to validly exercise management prerogative such as to terminate the services of an employee, such exercise must be with legal cause as enumerated in Article 282 of the Labor Code or by authorized cause as defined in Article 283 of the Labor Code.15 The CA affirmed the findings of facts of the NLRC.
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We agree with the rulings of the NLRC and the CA. We note that the company rules do not require that the notice of an employees absence and the reasons therefor be in writing and for such notice to be given to any specific office and/or employee of the petitioner. Hence, the notice may be verbal; it is enough then that an officer or employee of the petitioner, competent and responsible enough to receive such notice for and in behalf of the petitioner, was informed of such absence and the corresponding reason. The evidence on record shows that the respondent informed the petitioner of his illness through the company nurse. The security guard who was dispatched by the petitioner to verify the information received by the company nurse, confirmed the respondents illness. We find and so hold that the respondent complied with the requisite of giving notice of his illness and the reason for his absences to the petitioner. We reject the petitioners contention that the medical certificates adduced in evidence by the respondent to prove (a) his illness, the nature and the duration of the procedures performed by the dentist on him; and (b) the period during which he was incapacitated to work are inadmissible in evidence and barren of probative weight simply because they were not notarized, and the medical certificate dated September 23, 1997 was not written on paper bearing the dentists letterhead. Neither do we agree with the petitioners argument that even assuming that the respondent was ill and had been advised by his dentist to rest, the same does not appear on the medical certificate dated September 23, 1997; hence, it behooved the respondent to report for work on September 23, 1997. The ruling of the Court in Maligsa v. Atty. Cabanting16 is not applicable in this case. It bears stressing that the petitioner made the same arguments in the NLRC and the CA, and both tribunals ruled as follows: First, We concur with the ratiocination of respondent NLRC when it ruled that a medical certificate need not be notarized, to quote: xxx. He was dismissed by reason of the fact that the Medical Certificate submitted by the complainant should not be given credence for not being notarized and that no affidavit was submitted by the nurse to prove that the complainant, indeed, called the respondents office by telephone. After full scrutiny and judicious evaluation of the records of this case, We find the appeal to be meritorious. Regrettably, the Labor Arbiter a quo clearly failed to appreciate complainants pieces of evidence. Nowhere in our jurisprudence requires that all medical certificates be notarized to be accepted as a valid evidence. In this case, there is [neither] difficulty nor an obstacle to claim that the medical certificates presented by complainant are genuine and authentic. Indeed, the physician and the dentist who examined the complainant, aside from their respective letterheads, had written their respective license numbers below
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their names and signatures. These facts have not been impugned nor rebutted by respondent-appellee throughout the proceedings of his case. Common sense dictates that an ordinary worker does not need to have these medical certificates to be notarized for proper presentation to his company to prove his ailment; hence, the Labor Arbiter a quo, in cognizance with the liberality and the appreciation on the rules on evidence, must not negate the acceptance of these medical certificates as valid pieces of evidence. We believe, as we ought to hold, that the medical certificates can prove clearly and convincingly the complainants allegation that he consulted a physician because of tooth inflammation on September 23, 1997 and a dentist who later advised him to rest and, thus, clinically extended his tooth extraction due to severe pain and inflammation. Admittingly, it was only on October 4, 1997 that complainants tooth was finally extracted. From these disquisitions, it is clear that the absences of private respondent are justifiable.17 We agree with the NLRC and the appellate court. In light of the findings of facts of the NLRC and the CA, the petitioner cannot find solace in the ruling of this Court in Maligsa v. Atty. Cabantnig.18 While the records do not reveal that the respondent filed the required leave of absence for the period during which he suffered from a toothache, he immediately reported for work upon recovery, armed with medical certificates to attest to the cause of his absence. The respondent could not have anticipated the cause of his illness, thus, to require prior approval would be unreasonable.19 While it is true that the petitioner had objected to the veracity of the medical certificates because of lack of notarization, it has been said that verification of documents is not necessary in order that the said documents could be considered as substantial evidence.20 The medical certificates were properly signed by the physicians; hence, they bear all the earmarks of regularity in their issuance and are entitled to full probative weight.21 The petitioner, likewise, failed to prove the factual basis for its dismissal of the respondent on the ground of gross and habitual negligence under Article 282(b) of the Labor Code of the Philippines, or even under Section 6.1.1, Rule III of the Company Rules. Dismissal is the ultimate penalty that can be meted to an employee. Thus, it must be based on just cause and must be supported by clear and convincing evidence.22 To effect a valid dismissal, the law requires not only that there be just and valid cause for termination; it, likewise, enjoins the employer to afford the employee the opportunity to be heard and to

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defend himself.23 Article 282 of the Labor Code enumerates the just causes for the termination of employment by the employer: ART. 282. TERMINATION BY EMPLOYER An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties. To warrant removal from service, the negligence should not merely be gross but also habitual. Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.24 The petitioner has not sufficiently shown that the respondent had willfully disobeyed the company rules and regulation. The petitioner also failed to prove that the respondent abandoned his job. The bare fact that the respondent incurred excusable and unavoidable absences does not amount to an abandonment of his employment. The petitioners claim of gross and habitual neglect of duty pales in comparison to the respondents unblemished record. The respondent did not incur any intermittent absences. His only recorded absence was the consecutive ten-day unauthorized absence, albeit due to painful and unbearable toothache. The petitioners claim that the respondent had manifested poor work attitude was belied by its own recognition of the respondents dedication to his job as evidenced by the latters awards: Top Technician of the Year (1995), Member of the ExclusiveP40,000.00 Club, and Model Employee of the Year (1995). IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The Decision of the Court of Appeals in CA-G.R. SP No. 73602 is AFFIRMED. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

Footnotes
1

Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Eugenio S. Labitoria and Regalado E. Maambong, concurring.

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2 3 4 5 6 7 8 9

Rollo, p. 133. CA Rollo, p. 41. Rollo, p. 135. Id. at 148. CA Rollo, p. 35. Id. at 52. Id. at 22. Id. at 24. Id. at 7. Rollo, pp. 19-27. Id. at 9.

10 11 12 13

Suprelines Transportation Company, Inc. and Manolet Lavides v. ICC Leasing and Financing Corporation, 398 SCRA 508 (2003).
14 15 16 17 18 19 20 21 22

San Miguel Corporation v. MAERC Integrated Services, Inc., 405 SCRA 579 (2003). CA Rollo, pp. 21-22. 272 SCRA 408 (1997). Rollo, pp. 24-25. Supra. Stellar Industrial Services, Inc. v. NLRC, 252 SCRA 323 (1996). Bambalan v. Workmens Compensation Commission, 153 SCRA 166 (1987). See note 19. Nagusara v. NLRC, 290 SCRA 245 (1998).

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23 24

Santos v. San Miguel Corporation, 399 SCRA 172 (2003). Philippine Aeolus Automotive United Corporation v. NLRC, 331 SCRA 237 (2000).

FIRST DIVISION G.R. No. 200792 : November 14, 2012 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NEIL B. COLORADO, Accused-Appellant. DECISION REYES, J.: For the Court's review is the Decision1rll dated August 19,2011 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03767, which affirmed with modification the Decision2rll dated June 19, 2008 in Criminal Case No. 8-390 of the Regional Trial Court ( RTC), Burgos, Pangasinan, Branch 70 finding herein accused-appellant Neil B. Colorado (Colorado) guilty beyond reasonable doubt of the crime of rape. The Facts Accused-appellant Colorado was charged with the crime of rape in an Information that reads: That sometime in December, 2002 in the evening in Sitio x x x, Brgy. Iliw-Iliw, Burgos, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the brother of AAA,3rll inside their house, by means of force, threats and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge with AAA, a twelve (12) years (sic) old girl, against her will and consent, to her damage and prejudice.4rll Colorado pleaded "not guilty" upon arraignment. During the pre-trial, the parties stipulated on the following: (1) the existence of the Medico Legal Certificate and the Birth Certificate of AAA; (2) that Colorado is a full-blood brother of AAA; and (3) that Colorado and AAA lived under the same roof.5rll After pre-trial, trial on the merits ensued. Records indicate that AAA was born on October 10, 1990. She was the second to the youngest in a family of twelve siblings. Colorado was an older brother who lived with her, their parents and two other brothers, BBB and CCC, in Burgos, Pangasinan. AAA testified that sometime in December 2002, her parents attended a wedding celebration somewhere in Hermosa, Dasol, Pangasinan, leaving behind AAA, Colorado and their two other brothers in the house. When their parents had not yet arrived in the evening, Colorado
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committed the dastardly act against AAA. She was twelve (12) years old at that time, while Colorado was already twenty-four (24) years old. He approached AAA, held her two hands, even threatened her with a knife and covered her mouth with a handkerchief. He then removed AAAs shorts and panty, inserted his penis into the young girls vagina, then made a push and pull movement. AAA tried to resist her brothers sexual aggression, but miserably failed despite her efforts because of her brothers greater strength. Colorado later left AAA, who put back her shorts and underwear, but remained awake because of fear and trauma with what she had gone through. On that same night, Colorado raped AAA twice more, unmindful of the presence of their two other brothers who were then sleeping inside the room where Colorado ravished AAA. In both instances, Colorado still threatened AAA with a knife, removed her shorts and panty, inserted his penis into his sisters vagina, then performed the push and pull movement. Colorado warned AAA that he would stab her should she report to anyone what he had done. AAA then did not dare reveal these incidents to anybody, until she had the courage to report them to their mother. Also in her testimony before the trial court, AAA disclosed that she had been raped by Colorado when she was just nine (9) years old. She also revealed having been ravished on different dates by another brother, DDD, and a brother-in-law. A Medico-Legal Certificate6rll prepared by Dr. Ma. Teresa Sanchez (Dr. Sanchez), Medical Officer III of the Western Pangasinan District Hospital who examined AAA on January 10, 2003, contained the following findings: =INTERNAL EXAM FINDINGS: -Nonparous Introitus-Hymenal laceration at 6 oclock position with bleeding-Vagina admits 2 fingers with slight resistance-Uterus small-(+) bleedingx x x7rll Colorado testified for his defense. He denied having raped AAA, arguing that he was not living with AAA in their parents house in December 2002. Allegedly, he was at that time staying with an older sister in Osme, Dasol. Colorado claimed that on the night of the alleged incident, he

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was fishing with his brother-in-law, and that they returned to Osme, Dasol in the morning of the following day. The Ruling of the RTC On June 19, 2008, the RTC rendered its decision finding Colorado guilty beyond reasonable doubt of the crime of qualified rape, and sentencing him to suffer the penalty of reclusion perpetua. He was also ordered to pay AAA the amount of P50,000.00 as moral damages and P75,000.00 as civil indemnity. The dispositive portion of its decision reads: WHEREFORE, in view of the foregoing, this Court finds accused NEIL B. COLORADO, GUILTY beyond reasonable doubt of the crime of rape. In view of the enactment of Republic Act [No.] 9346 prohibiting the imposition of death penalty this Court sentences the accused to suffer the penalty of RECLUSION PERPETUA. Further, accused shall indemnify [AAA] the amount of Php 50,000.00 as moral damages and Php 75,000.00 as civil indemnity. (People vs. Ambray, 303 SCRA 709). SO ORDERED.8rll Feeling aggrieved, Colorado appealed from the RTCs decision to the CA, reiterating in his appeal the defenses of denial and alibi. He further sought his acquittal by arguing that the hymenal lacerations discovered by AAAs examining doctor, and considered by the trial court in determining his culpability, could have been caused not by him, but by the sexual aggressions committed by their brother DDD or their brother-in-law unto AAA. The Ruling of the CA The CA affirmed Colorados conviction, but modified his civil liability. The decretal portion of its Decision dated August 19, 2011 reads: WHEREFORE, the appealed Decision of the Regional Trial Court of Burgos, Pangasinan (Branch 70), dated 19 June 2008, is AFFIRMED with the MODIFICATION that, in addition to the civil indemnity of Seventy-Five Thousand Pesos (P75,000.00), appellant is ordered to pay the victim moral damages of Seventy-Five Thousand Pesos (P75,000.00) instead of Fifty Thousand Pesos (P50,000.00), and to pay exemplary damages of Thirty Thousand Pesos (P30,000.00). SO ORDERED.9rll Hence, this appeal. Both Colorado and the Office of the Solicitor General, as counsel for plaintiff-appellee People of the Philippines, dispensed with the filing with the Court of supplemental briefs, and adopted instead their respective briefs with the CA.

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This Courts Ruling The appeal lacks merit. Colorado was charged with the crime of rape, qualified by the victims minority and her relationship to her ravisher, as defined and penalized under Article 266-A, in relation to Article 266-B, of the Revised Penal Code (RPC), as follows: Art. 266-A. Rape; When and How Committed. Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a. Through force, threat or intimidation; b. When the offended party is deprived of reason or otherwise unconscious; c. By means of fraudulent machination or grave abuse of authority; and d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. xxx Art. 266-B. Penalties.x x x. xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; xxx Both the RTC and the CA correctly ruled on the concurrence of the following elements of qualified rape, as defined in the aforequoted provisions of the RPC: (1) that the victim is a female over 12 years but under 18 years of age; (2) that the offender is a parent, ascendant, stepparent, guardian or relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; and (3) that the offender has carnal knowledge of the victim either through force, threat or intimidation; or when she is deprived of reason or

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is otherwise unconscious; or by means of fraudulent machinations or grave abuse of authority.10rll The age of the victim at the time of the crimes commission is undisputed. During the pre-trial, the parties agreed on the existence of AAAs Certificate of Live Birth,11rll a "certified true/xerox copy" of which forms part of the records and provides that AAA was born on October 10, 1990. AAA was then only 12 years old in December 2002, a significant fact that was sufficiently alleged in the Information. In People v. Pruna,12rllwe held that the best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. As to the second element, there is no dispute that Colorado is a full-blood brother of AAA, as this was also among the parties stipulated facts during the cases pre-trial. The grounds now being raised by Colorado to justify his exoneration delve mainly on the alleged absence of the crimes third element. He denies AAAs claim that he had ravished her, raising the defense of alibi and the alleged doubt and suspicion that should be ascribed to AAAs accusations. On this matter, settled is the rule that the findings of the trial court on the credibility of a witness deserve great weight, given the clear advantage of a trial judge in the appreciation of testimonial evidence. We have repeatedly recognized that the trial court is in the best position to assess the credibility of witnesses and their testimonies, because of its unique opportunity to observe the witnesses first hand and to note their demeanor, conduct, and attitude under grueling examination. These are significant factors in evaluating the sincerity of witnesses, in the process of unearthing the truth. The rule finds even more stringent application where the said findings are sustained by the CA. Thus, except for compelling reasons, we are doctrinally bound by the trial courts assessment of the credibility of witnesses.13rll We then take due consideration of the trial courts findings of fact, its assessment of AAAs credibility, her testimony and the manner by which her statements were relayed, as discussed in the RTCs Decision convicting Colorado and which reads in part:chanroblesvirtuallawlibrary AAA testified directly and categorically how she was raped by the accused Neil Colorado who is her full-blood brother sometime in the night of December 2002. That while AAA was sleeping with her older brother BBB and her younger brother CCC, accused went near her and held her two (2) hands, covered her mouth with handkerchief. Thereafter, accused removed her short pants and underwear, and inserted his penis into her vagina. After removing his penis, accused went back to sleep. AAA however could no longer sleep because she was already afraid that the accused will return which the accused did. For the second time, accused raped AAA. Accused covered her mouth

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with a handkerchief, inserted his penis into her vagina and accused did the push and pull movement. xxx When AAA declares that she has been raped, she says in effect all that would be necessary to show that rape did take place (PP. vs. Maglantay, 304 SCRA 272), for as long as the testimony of AAA is free from serious or major incongruence and unbridled by suspicion or doubt. The testimony of AAA is simple, candid, straightforward and consistent on material points detailing every single bestial act of her brother in ravishing her. Moreover, AAA on several occasions (August 1, 2006 and September 19, 2006) was on the verge of crying and in fact shed tears during her direct examination. Crying of the victim during her testimony is evidence of the credibility of the rape charge with the verity born out of human nature and experience (PP. vs. Agustin, 365 SCRA 167; PP vs. Garcia, supra). Though a medical certificate is not necessary to prove the commission of rape (PP. vs. Bares, 355 SCRA 435), but when the victims testimony is corroborated by the physicians findings of penetration (Exh. "A") or hymenal laceration as when the hymen is no longer intact, there is sufficient foundation to find the existence of the essential requisite of carnal knowledge (PP. vs. Montejo, 355 SCRA 210; PP. vs. Bation, 305 SCRA 253). Further, no young and decent woman in her right mind especially of tender age as that of AAA who is fifteen (15) years old would concoct a story of defloration, allow an examination of her private parts and thereafter pervert herself by being subjected to a public trial, if she was not motivated solely by her desire to obtain justice for the wrong committed against her. (PP. vs. Albior, 352 SCRA 35; PP. vs. Vidal, 353 SCRA 194)14rll (Emphasis ours) These observations were affirmed by the CA on appeal, as it held: A conscientious review of the records shows that AAAs testimonies in this case bear the marks of truthfulness, spontaneity and sincerity. She was crying while answering questions about the rape incident. Obviously, the process called to her mind not only the mere details of the sexual abuse but the lingering hurt and pain that come with it. Her tears were unimpeachable testaments to the truth of her allegations. xxx During cross-examination, AAA remained steadfast, unwavering and spontaneous. Significantly also, her testimony is supported by the medical evidence on record, which showed that she had a laceration in her hymen and was thus in a non-virgin state.15rll(Citations omitted and emphasis ours) The Court finds no cogent reasons to overturn these findings. Indeed, it was established that Colorado succeeded in having carnal knowledge of the victim, employing force, threat and intimidation that allowed him to consummate his bestial act. AAA had positively identified Colorado as her rapist. Such identification of Colorado could not have been difficult for AAA
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considering that Colorado was a brother who lived with her in their parents house. Even the failure of AAA to identify the exact date of the crimes commission is inconsequential to Colorados conviction. In rape cases, the date of commission is not an essential element of the offense; what is material is its occurrence,16rll a fact that was sufficiently established given AAAs and her testimonys credibility. Contrary to Colorados contention, AAAs claim that two other siblings were sleeping in the same room where she was raped did not render her statements incredible. Time and again, we have taken into consideration how rapists are not deterred by the presence of people nearby, such as the members of their own family inside the same room, with the likelihood of being discovered, since lust respects no time, locale or circumstance.17rll As against AAAs credible testimony, Colorados defenses lack persuasion. While Colorado denied in his testimony that he lived with AAA, such fact was already admitted by the parties during the pre-trial. His defense that he was in Osme, Dasol at the time of the crimes commission was even uncorroborated by any other witness. By jurisprudence, denial is an intrinsically weak defense which must be buttressed by strong evidence of non-culpability to merit credibility. Mere denial, without any strong evidence to support it, can scarcely overcome the positive declaration by the child-victim of the identity of the appellant and his involvement in the crime attributed to him.18rll Moreover, for the defense of alibi to prosper, two requisites must concur: first, the appellant was at a different place at the time the crime was committed; and second, it was physically impossible for him to be at the crime scene at the time of its commission.19rll The defense failed to establish these requisites. On the contrary, Colorado testified that from Osme, where he claimed to have lived with an older sister, he could normally reach his parents house by a three-hour walk. There were also other means of transportation in these two places,20rll which then could have allowed Colorado to travel the distance over a shorter period of time. Colorado also questions the weight of Dr. Sanchezs medico-legal certificate, arguing that AAAs hymenal lacerations could have resulted from the sexual aggressions allegedly committed against her by DDD and their brother-in-law. Such contention, however, deserves no consideration, given that results of an offended partys medical examination are merely corroborative in character. As explained by the Court in People v. Balonzo,21rll a medical certificate is not necessary to prove the commission of rape, as even a medical examination of the victim is not indispensable in a prosecution for rape. Expert testimony is merely corroborative in character and not essential to conviction. An accused can still be convicted of rape on the basis of the sole testimony of the private complainant.22rll Furthermore, laceration of the hymen, even if considered the most telling and irrefutable physical evidence of sexual assault, is not always essential to establish the consummation of the crime of rape. In the context that is used in the RPC, "carnal knowledge," unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the hymen be ruptured.23rll Thus, even granting that AAAs lacerations were not caused by

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Colorado, the latter could still be declared guilty of rape, after it was established that he succeeded in having carnal knowledge of the victim. Given the foregoing, the CA did not err in affirming the trial court's conviction of Colorado. The crime is qualified by the victim's minority and her relationship to Colorado, yet the appellate court correctly explained that the imposable penalty is reclusion pe1petua, in lieu of death, taking into account the provisions of Republic Act (R.A.) No. 9346 that prohibit the imposition of death penalty in criminal cases. We however clarify that Colorado shall be ineligible for parole, a requirement under Section 3 of R.A. No. 9346 that was not mentioned in the assailed CA decision and which, must then be rectified by this Decision.24rll The civil indemnity, moral damages and exemplary damages, as modified and awarded by the CA, conform to prevailing jurisprudence.blrlllbrr WHEREFORE, in view of the foregoing, the Decision dated August 19, 2011 of the Com1 of Appeals in CA-G.R. CR-HC No. 03767 is AFFIRMED with MODIFICATION in that accusedappellant Neil B. Colorado is sentenced to suffer the penalty of reclusion pe1petua, without eligibility for parole. The accused is likewise ordered to pay legal interest on all damages awarded at the legal rate of 6% from the date of finality of this Decision until fully satisfied.rllbrr SO ORDERED. Endnotes:

rll Penned by Associate Justice Ricardo R. Rosario, with Associate Justices Hakim S. Abdulwahid and Ramon A. Cruz, concurring; rollo, pp. 2-14.
2 3

rll Under the sala of Executive Judge Ma.Ellen M. Aguilar; records, pp. 266-273. rll Under Republic Act No. 9262, also known as the "Anti-Violence Against Women and their

Children Act of 2004", and its implementing rules, the real name of the victim and those of her immediate family members are withheld; fictitious initials are instead used to protect the victims identity.
4 5 6

rll Records, p. 266. rll Id. at 47. rll Id. at 296.

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7 8 9

rll Id. rll Id. at 273. rll Rollo, p. 13. rll People v. Arcillas, G.R. No. 181491, July 30, 2012. rll Records, p. 72. rll 439 Phil. 440, 470 (2002).

10 11 12 13

rll People v. Salazar, G.R. No. 181900, October 20, 2010, 634 SCRA 307, 319-320, citing People v. Ducabo, G.R. No. 175594, September 28, 2007, 534 SCRA 458, 467.
14 15 16

rll Records, p. 271. rll Rollo, pp. 10-11.

rll People v. Pangilinan, G.R. No. 183090, November 14, 2011, 660 SCRA 16, 32; see also People v. Dollano, Jr., G.R. No. 188851, October 19, 2011, 659 SCRA 740, 753-754.
17

rll People v. Platilla, 428 Phil. 520, 531 (2002), citing People v. Lapiz, 394 Phil. 160, 173 (2000) and People v. Watimar, 392 Phil. 711, 724 (2000).
18 19 20 21 22 23 24

rll People v. Espino, Jr., G.R. No. 176742, June 17, 2008, 554 SCRA 682, 702. rll People v. Estrada, G.R. No. 178318, January 15, 2010, 610 SCRA 222, 233. rll TSN, November 28, 2007, p. 6; Records, p. 230. rll G.R. No. 176153, September 21, 2007, 533 SCRA 760. rll Id. at 774. rll People v. Tagun, 427 Phil. 389, 403-404 (2002). rll See People v. Bodoso, G.R. No. 188129, July 5, 2010, 623 SCRA 580, 605-606.

Republic of the Philippines Supreme Court

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Manila SECOND DIVISION RICO ROMMEL ATIENZA, Petitioner, G.R. No. 177407 Present: NACHURA, Acting Chairperson, PERALTA, DEL CASTILLO,* VILLARAMA, JR.,** and MENDOZA, JJ. Promulgated: February 9, 2011

- versus -

BOARD OF MEDICINE and EDITHA SIOSON, Respondents.

x------------------------------------------------------------------------------------x DECISION NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision[1] dated September 22, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders[2] issued by public respondent Board of Medicine (BOM) in Administrative Case No. 1882. The facts, fairly summarized by the appellate court, follow.

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Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered several diagnostic laboratory tests. The tests revealed that her right kidney is normal. It was ascertained, however, that her left kidney is non-functioning and non-visualizing. Thus, she underwent kidney operation in September, 1999. On February 18, 2000, private respondents husband, Romeo Sioson (as complainant), filed a complaint for gross negligence and/or incompetence before the [BOM] against the doctors who allegedly participated in the fateful kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza. It was alleged in the complaint that the gross negligence and/or incompetence committed by the said doctors, including petitioner, consists of the removal of private respondents fully functional right kidney, instead of the left non-functioning and non-visualizing kidney. The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his evidence, private respondent Editha Sioson, also named as complainant there, filed her formal offer of documentary evidence. Attached to the formal offer of documentary evidence are her Exhibits A to D, which she offered for the purpose of proving that her kidneys were both in their proper anatomical locations at the time she was operated. She described her exhibits, as follows: EXHIBIT A the certified photocopy of the X-ray Request form dated December 12, 1996, which is also marked as Annex 2 as it was actually originally the Annex to x x x Dr. Pedro Lantin, IIIs counter affidavit filed with the City Prosecutor of Pasig City in connection with the criminal complaint filed by [Romeo Sioson] with the said office, on which are handwritten entries which are the interpretation of the results of the ultrasound examination. Incidentally, this exhibit happens to be the same as or identical to the certified photocopy of the document marked as Annex 2 to the Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable Board in answer to this complaint; EXHIBIT B the certified photo copy of the X-ray request form dated January 30, 1997, which is also marked as Annex 3 as

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it was actually likewise originally an Annex to x x x Dr. Pedro Lantin, IIIs counter-affidavit filed with the Office of the City Prosecutor of Pasig City in connection with the criminal complaint filed by the herein complainant with the said office, on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit happens to be also the same as or identical to the certified photo copy of the document marked as Annex 3 which is likewise dated January 30, 1997, which is appended as such Annex 3 to the counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4, 2000, with this Honorable Board in answer to this complaint. EXHIBIT C the certified photocopy of the X-ray request form dated March 16, 1996, which is also marked as Annex 4, on which are handwritten entries which are the interpretation of the results of the examination. EXHIBIT D the certified photocopy of the X-ray request form dated May 20, 1999, which is also marked as Annex 16, on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit appears to be the draft of the typewritten final report of the same examination which is the document appended as Annexes 4 and 1 respectively to the counter-affidavits filed by x x x Dr. Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In the case of Dr. dela Vega however, the document which is marked as Annex 4 is not a certified photocopy, while in the case of Dr. Lantin, the document marked as Annex 1 is a certified photocopy. Both documents are of the same date and typewritten contents are the same as that which are written on Exhibit D. Petitioner filed his comments/objections to private respondents [Editha Siosons] formal offer of exhibits. He alleged that said exhibits are inadmissible because the same are mere photocopies, not properly identified and authenticated, and intended to establish matters which are hearsay. He added that the exhibits are incompetent to prove the purpose for which they are offered. Dispositions of the Board of Medicine The formal offer of documentary exhibits of private respondent [Editha Sioson] was admitted by the [BOM] per its Order dated May 26, 2004. It reads:

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The Formal Offer of Documentary Evidence of [Romeo Sioson], the Comments/Objections of [herein petitioner] Atienza, [therein respondents] De la Vega and Lantin, and the Manifestation of [therein] respondent Florendo are hereby ADMITTED by the [BOM] for whatever purpose they may serve in the resolution of this case. Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence of the respondents. SO ORDERED. Petitioner moved for reconsideration of the abovementioned Order basically on the same reasons stated in his comment/objections to the formal offer of exhibits. The [BOM] denied the motion for reconsideration of petitioner in its Order dated October 8, 2004. It concluded that it should first admit the evidence being offered so that it can determine its probative value when it decides the case. According to the Board, it can determine whether the evidence is relevant or not if it will take a look at it through the process of admission. x x x.[3]

Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for certiorariwith the CA, assailing the BOMs Orders which admitted Editha Siosons (Edithas) Formal Offer of Documentary Evidence. The CA dismissed the petition for certiorari for lack of merit. Hence, this recourse positing the following issues: I. PROCEDURAL ISSUE: WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD. II. SUBSTANTIVE ISSUE:

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WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD, WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE A PROPERTY RIGHT OR ONES LIVELIHOOD.[4]

We find no reason to depart from the ruling of the CA. Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the assailed Orders were interlocutory, these cannot be the subject of an appeal separate from the judgment that completely or finally disposes of the case.[5] At that stage, where there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left to petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. However, the writ of certiorari will not issue absent a showing that the BOM has acted without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the CAs finding that the BOM did not exceed its jurisdiction or act in grave abuse of discretion is the issue of whether the exhibits of Editha contained in her Formal Offer of Documentary Evidence are inadmissible. Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the best evidence rule; (2) have not been properly identified and authenticated; (3) are completely hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner contends that the exhibits are inadmissible evidence. We disagree. To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies such as the BOM.[6] Although trial courts are enjoined to observe strict enforcement of the rules of evidence,[7] in connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:

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[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.[8] From the foregoing, we emphasize the distinction between the admissibility of evidence and the probative weight to be accorded the same pieces of evidence. PNOC Shipping and Transport Corporation v. Court of Appeals[9] teaches: Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.

Second, petitioners insistence that the admission of Edithas exhibits violated his substantive rights leading to the loss of his medical license is misplaced. Petitioner mistakenly relies on Section 20, Article I of the Professional Regulation Commission Rules of Procedure, which reads:

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Section 20. Administrative investigation shall be conducted in accordance with these Rules. The Rules of Court shall only apply in these proceedings by analogy or on a suppletory character and whenever practicable and convenient. Technical errors in the admission of evidence which do not prejudice the substantive rights of either party shall not vitiate the proceedings.[10] As pointed out by the appellate court, the admission of the exhibits did not prejudice the substantive rights of petitioner because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were in their proper anatomical locations at the time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court: Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxxx (y) That things have happened according to the ordinary course of nature and the ordinary habits of life.

The exhibits are certified photocopies of X-ray Request Forms dated December 12, 1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with Edithas medical case. The documents contain handwritten entries interpreting the results of the examination. These exhibits were actually attached as annexes to Dr. Pedro Lantin IIIs counter affidavit filed with the Office of the City Prosecutor of Pasig City, which was investigating the criminal complaint for negligence filed by Editha against the doctors of Rizal Medical Center (RMC) who handled her surgical procedure. To lay the predicate for her case, Editha offered the exhibits in evidence to prove that her kidneys were both in their proper anatomical locations at the time of her operation. The fact sought to be established by the admission of Edithas exhibits, that her kidneys were both in their proper anatomical locations at the time of her operation, need not be proved as it is covered by mandatory judicial notice.[11] Unquestionably, the rules of evidence are merely the means for ascertaining the truth respecting a matter of fact.[12] Thus, they likewise provide for some facts which are established

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and need not be proved, such as those covered by judicial notice, both mandatory and discretionary.[13] Laws of nature involving the physical sciences, specifically biology,[14] include the structural make-up and composition of living things such as human beings. In this case, we may take judicial notice that Edithas kidneys before, and at the time of, her operation, as with most human beings, were in their proper anatomical locations. Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable. Section 3 of Rule 130 provides: 1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office.

The subject of inquiry in this case is whether respondent doctors before the BOM are liable for gross negligence in removing the right functioning kidney of Editha instead of the left non-functioning kidney, not the proper anatomical locations of Edithas kidneys. As previously discussed, the proper anatomical locations of Edithas kidneys at the time of her operation at the RMC may be established not only through the exhibits offered in evidence.

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Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Edithas kidneys. To further drive home the point, the anatomical positions, whether left or right, of Edithas kidneys, and the removal of one or both, may still be established through a belated ultrasound or x-ray of her abdominal area. In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed.[15]Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had the originals of the exhibits because [it] transferred from the previous building, x x x to the new building.[16] Ultimately, since the originals cannot be produced, the BOM properly admitted Edithas formal offer of evidence and, thereafter, the BOM shall determine the probative value thereof when it decides the case. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 87755 is AFFIRMED. Costs against petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson

WE CONCUR:

DIOSDADO M. PERALTA Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

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JOSE CATRAL MENDOZA Associate Justice TTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson, Second Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

Additional member in lieu of Associate Justice Antonio T. Carpio per Raffle dated August 2, 2010. ** Additional member in lieu of Associate Justice Roberto A. Abad per Raffle dated August 2, 2010. [1] Penned by Presiding Justice Ruben T. Reyes (a retired member of this Court), with Associate Justices Juan Q. Enrique, Jr. and Vicente S.E. Veloso, concurring; rollo, pp. 95-106. [2] Dated May 26, 2004 and October 8, 2004, respectively; id. at 408-411.
[3] [4]

Id. at 95-99. Id. at 677-678.

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[5]

Raymundo v. Isagon Vda. de Suarez, G.R. No. 149017, November 28, 2008, 572 SCRA 384, 403-404. Bantolino v. Coca-Cola Bottlers Phils., Inc., 451 Phil. 839, 845-846 (2003). Francisco, EVIDENCE RULES 128-134 (3rd ed. 1996), p. 9. [8] Id., citing People v. Jaca, et al., 106 Phil. 572, 575 (1959). [9] 358 Phil. 38, 59 (1998). [10] Rollo, p. 101. [11] RULES OF COURT, Rule 129, Sec. 1. SECTION 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. [12] RULES OF COURT, Rule 128, Sec. 1. [13] RULES OF COURT, Rule 129, Sec. 2. SEC. 2. Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. [14] Science of life, definition of Websters Third New International Dictionary. [15] RULES OF COURT, Rule 130, Sec. 5. [16] TSN, July 17, 2003; rollo, pp. 347-348.
[7] [6]

EN BANC

[G.R. Nos. 96027-28. March 08, 2005]

BRIG. GEN. LUTHER A. CUSTODIO*, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS D. CASTRO, SGT. CLARO L. LAT, SGT. ARNULFO B. DE MESA, C1C ROGELIO B. MORENO, C1C MARIO E. LAZAGA, SGT. FILOMENO D. MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, A1C CORDOVA G. ESTELO, MSGT. PABLO S. MARTINEZ, SGT. RUBEN AQUINO, SGT. ARNULFO ARTATES, A1C FELIZARDO TARAN,petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,respondents. RESOLUTION PUNO, J.:

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Before us is a Motion To Re-Open Case With Leave Of Court filed by petitioners who were convicted and sentenced to reclusion perpetua by the Sandiganbayan in Criminal Cases Nos. 10010 and 10011 for the double murder of Senator Benigno Aquino, Jr. and Rolando Galman on August 21, 1983.[1] Petitioners were members of the military who acted as Senator Aquinos security detail upon his arrival in Manila from his three-year sojourn in the United States. They were charged, together with several other members of the military, before the Sandiganbayan for the killing of Senator Aquino who was fatally shot as he was coming down from the aircraft of China Airlines at the Manila International Airport. Petitioners were also indicted for the killing of Rolando Galman who was also gunned down at the airport tarmac. On December 2, 1985, the Sandiganbayan rendered a Decision in Criminal Cases Nos. 10010-10011 acquitting all the accused, which include the petitioners. However, the proceedings before the Sandiganbayan were later found by this Court to be a sham trial. The Court thus nullified said proceedings, as well as the judgment of acquittal, and ordered a re-trial of the cases.[2] A re-trial ensued before the Sandiganbayan. In its decision dated September 28, 1990, the Sandiganbayan, while acquitting the other accused, found the petitioners guilty as principals of the crime of murder in both Criminal Cases Nos. 10010 and 10011. It sentenced them to reclusion perpetua in each case.[3] The judgment became final after this Court denied petitioners petition for review of the Sandiganbayan decision for failure to show reversible error in the questioned decision,[4] as well as their subsequent motion for reconsideration.[5] In August 2004, petitioners sought legal assistance from the Chief Public Attorney who, in turn, requested the Independent Forensic Group of the University of the Philippines to make a thorough review of the forensic evidence in the double murder case. The petitioners, assisted by the Public Attorneys Office, now want to present the findings of the forensic group to this Court and ask the Court to allow the re-opening of the cases and the holding of a third trial to determine the circumstances surrounding the death of Senator Benigno Aquino, Jr. and Rolando Galman. Petitioners invoke the following grounds for the re-opening of the case: I Existence of newly discovered pieces of evidence that were not available during the second trial of the above-entitled cases which could have altered the judgment of the Sandiganbayan, specifically: A) Independent forensic evidence uncovering the false forensic claims that led to the unjust conviction of the petitioners-movants.

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B) A key defense eyewitness to the actual killing of Senator Benigno Aquino, Jr. II There was a grave violation of due process by reason of: A) B) C) D) Insufficient legal assistance of counsel; Deprivation of right to counsel of choice; Testimonies of defense witnesses were under duress; Willful suppression of evidence; E) III There was serious misapprehension of facts on the part of the Sandiganbayan based on false forensic evidence, which entitles petitioners-movants to a re-trial.[6] Petitioners seek to present as new evidence the findings of the forensic group composed of Prof. Jerome B. Bailen, a forensic anthropologist from the University of the Philippines, Atty. Erwin P. Erfe, M.D., a medico-legal practitioner, Benito E. Molino, M.D., a forensic consultant and Human Rights and Peace Advocate, and Anastacio N. Rosete, Jr., D.M.D., a forensic dentistry consultant. Their report essentially concludes that it was not possible, based on the forensic study of the evidence in the double murder case, that C1C Rogelio Moreno fired at Senator Aquino as they descended the service stairway from the aircraft. They posit that Senator Aquino was shot while he was walking on the airport tarmac toward the waiting AVSECOM van which was supposed to transport him from the airport to Fort Bonifacio. This is contrary to the finding of the Sandiganbayan in the second trial that it was C1C Moreno, the security escort positioned behind Senator Aquino, who shot the latter. The report also suggests that the physical evidence in these cases may have been misinterpreted and manipulated to mislead the court. Thus, petitioners assert that the September 28, 1990 decision of the Sandiganbayan should be voided as it was based on false forensic evidence. Petitioners submit that the review by the forensic group of the physical evidence in the double murder case constitutes newly discovered evidence which would entitle them to a new trial under Rule 121 of the 2000 Rules of Criminal Procedure. In addition to the report of the forensic group, petitioners seek to present the testimony of an alleged eyewitness, the driver of the waiting AVSECOM van, SPO4 Ruben M. Cantimbuhan. In his affidavit submitted to this Court, SPO4 Cantimbuhan states that he saw a man in blue uniform similar to that of the Philippine Airlines Use of false forensic evidence that led to the unjust conviction of the petitionersmovants.

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maintenance crew, suddenly fire at Senator Aquino as the latter was about to board the van. The man in blue was later identified as Rolando Galman. Petitioners pray that the Court issue a resolution: 1. [a]nnulling and setting aside this Honorable Courts Resolutions dated July 23, 1991 and September 10, 1991; 2. [a]nnulling and setting aside the Decision of the Sandiganbayan (3rd Division) dated September 28, 1990 in People vs. Custodio, et al., Case No. 10010-10011[;] 3. [o]rdering the re-opening of this case; [and] 4. [o]rdering the Sandiganbayan to allow the reception of additional defense evidence/re-trial in the above entitled cases.[7] The issue now is whether petitioners are entitled to a third trial under Rule 121 of the 2000 Rules of Criminal Procedure. The pertinent sections of Rule 121 of the 2000 Rules of Criminal Procedure provide: Section 1. New Trial or reconsideration. At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. Sec. 2. Grounds for a new trial. The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. xxx Sec. 6. Effects of granting a new trial or reconsideration. The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court

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may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. (emphasis supplied) In line with the objective of the Rules of Court to set guidelines in the dispensation of justice, but without shackling the hands that dispense it, the remedy of new trial has been described as a new invention to temper the severity of a judgment or prevent the failure of justice.[8] Thus, the Rules allow the courts to grant a new trial when there are errors of law or irregularities prejudicial to the substantial rights of the accused committed during the trial, or when there exists newly discovered evidence. In the proceedings for new trial, the errors of law or irregularities are expunged from the record or new evidence is introduced. Thereafter, the original judgment is vacated and a new one is rendered.[9] Under the Rules, a person convicted of a crime may avail of the remedy of new trial before the judgment of conviction becomes final. Petitioners admit that the decision of the Sandiganbayan in Criminal Cases Nos. 10010 and 10011 became final and executory upon denial of their petition for review filed before this Court and their motion for reconsideration. Entry of judgment has in fact been made on September 30, 1991.[10]Nonetheless, they maintain that equitable considerations exist in this case to justify the relaxation of the Rules and re-open the case to accord petitioners the opportunity to present evidence that will exonerate them from the charges against them. We do not find merit in their submission. Petitioners anchor their motion on the ground of newly discovered evidence. Courts are generally reluctantin granting motions for new trial on the ground of newly discovered evidence for it is presumed that the moving party has had ample opportunity to prepare his case carefully and to secure all the necessary evidence before the trial. Such motions are treated with great caution due to the danger of perjury and the manifest injustice of allowing a party to allege that which may be the consequence of his own neglect to defeat an adverse judgment. Hence, the moving party is often required to rebut a presumption that the judgment is correct and that there has been a lack of due diligence, and to establish other facts essential to warrant the granting of a new trial on the ground of newly discovered evidence.[11] This Court has repeatedly held that before a new trial may be granted on the ground of newly discovered evidence, it must be shown (1) that the evidence was discovered after trial; (2) that such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (3) that it is material, not merely cumulative, corroborative, or impeaching; and (4) the evidence is of such weight that it would probably change the judgment if admitted. If the alleged newly discovered evidence could have been very well presented during the trial with the exercise of reasonable diligence, the same cannot be considered newly discovered.[12] These standards, also known as the Berry rule, trace their origin to the 1851 case of Berry vs. State of Georgia[13] where the Supreme Court of Georgia held:
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Applications for new trial on account of newly discovered evidence, are not favored by the Courts. x x x Upon the following points there seems to be a pretty general concurrence of authority, viz; that it is incumbent on a party who asks for a new trial, on the ground of newly discovered evidence, to satisfy the Court, 1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only viz; speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness. (citations omitted) These guidelines have since been followed by our courts in determining the propriety of motions for new trial based on newly discovered evidence. It should be emphasized that the applicant for new trial has the burden of showing that the new evidence he seeks to present has complied with the requisites to justify the holding of a new trial. The threshold question in resolving a motion for new trial based on newly discovered evidence is whether the proferred evidence is in fact a newly discovered evidence which could not have been discovered by due diligence. The question of whether evidence is newly discovered has two aspects: a temporal one,i.e., when was the evidence discovered, and a predictive one, i.e., when should or could it have been discovered. It is to the latter that the requirement of due diligence has relevance.[14] We have held that in order that a particular piece of evidence may be properly regarded as newly discovered to justify new trial, what is essential is not so much the time when the evidence offered first sprang into existence nor the time when it first came to the knowledge of the party now submitting it; what is essential is that the offering party had exercisedreasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it.[15] The Rules do not give an exact definition of due diligence, and whether the movant has exercised due diligence depends upon the particular circumstances of each case.[16] Nonetheless, it has been observed that the phrase is often equated with reasonable promptness to avoid prejudice to the defendant. In other words, the concept of due diligence has both a time component and a good faith component. The movant for a new trial must not only act in a timely fashion in gathering evidence in support of the motion; he must act reasonably and in good faith as well. Due diligence contemplates that the defendant acts reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him.[17] Applying the foregoing tests, we find that petitioners purported evidence does not qualify as newly discovered evidence that would justify the re-opening of the case and the holding of a third trial.

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The report of the forensic group may not be considered as newly discovered evidence as petitioners failed to show that it was impossible for them to secure an independent forensic study of the physical evidence during the trial of the double murder case. It appears from their report that the forensic group used the same physical and testimonial evidence proferred during the trial, but made their own analysis and interpretation of said evidence. They cited the materials and methods that they used for their study, viz: MATERIALS AND METHODS MATERIALS: a. Court records of the case, especially photographs of: a) the stairway where the late Sen. Aquino and his escorts descended; b) the part of the tarmac where the lifeless bodies of the late Sen. Aquino and Galman fell; and c) the autopsy conducted by the NBI Medico-legal team headed by Dr. Mu[]oz; and the autopsy report of the late Sen. Benigno Aquino[,] Jr. signed by Dr. Mu[]oz and Dr. Solis; The gun and live ammunitions collected at the crime scene; A reference human skull photos and X-rays of the same to demonstrate wound location and bullet trajectory; The reports of interviews and statements by the convicted military escorts, and other witnesses; Re-enactment of the killing of Aquino based on the military escorts[] version, by the military escorts themselves in the Bilibid Prison and by volunteers at the NAIA Tarmac; Various books and articles on forensic and the medico-legal field[;] Results of Forensic experiments conducted in relation to the case.

b. c. d. e.

f. g.

METHODS: a. b. c. Review of the forensic exhibits presented in the court; Review of TSNs relevant to the forensic review; Study of and research on the guns, slugs and ammunitions allegedly involved in the crime;

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d. Interviews/re-enactment of the crime based on the militarys accounts, both in the Bilibid Prison where the convicts are confined and the MIA (now NAIA) stairway and tarmac; Conduct of ocular inspection and measurements on the actual crime scene (stairway and tarmac) at the old Manila International Airport (now NAIA); Retracing the slugs trajectory based on the autopsy reports and experts testimonies using an actual human skull; X-rays of the skull with the retraced trajectory based on the autopsy report and experts testimonies; Evaluation of the presented facts and opinions of local experts in relation to accepted forensic findings in international publications on forensic science, particularly on guns and [gunshot] wound injuries; Forensic experiments and simulations of events in relation to this case.[18]

e. f. g. h.

i.

These materials were available to the parties during the trial and there was nothing that prevented the petitioners from using them at the time to support their theory that it was not the military, but Rolando Galman, who killed Senator Aquino. Petitioners, in their present motion, failed to present any new forensic evidence that could not have been obtained by the defense at the time of the trial even with the exercise of due diligence. If they really wanted to seek and offer the opinion of other forensic experts at the time regarding the physical evidence gathered at the scene of the crime, there was ample opportunity for them to do so before the case was finally submitted and decided.[19] A reading of the Sandiganbayan decision dated September 28, 1990 shows a thorough study by the court of the forensic evidence presented during the trial, viz: COURT FINDINGS As to the physical evidence Great significance has to be accorded the trajectory of the single bullet that penetrated the head and caused the death of Sen. Benigno Aquino, Jr. Basic to the question as to trajectory ought to be the findings during the autopsy. The prosector in the autopsy, Dr. Bienvenido Muoz, NBI Medico-Legal Officer, reported in his Autopsy Report No. N-83-22-36, that the trajectory of the gunshot, the wound of entrance having been located at the mastoid region, left, below the external auditory meatus, and the exit wound having been at the anterior

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portion of the mandible, was forward, downward and medially. (Autopsy Report No. N-8322-36, Exhibit NNNN-2-t-2) A controversy as to this trajectory came about when, upon being cross-examined by counsel for the defense, Dr. Bienvenido Muoz made a significant turn-about by stating that the correct trajectory of the fatal bullet was upward, downward, and medially. The present position of Dr. Muoz is premised upon the alleged fact that he found the petrous bone fractured, obviously hit by the fatal bullet. He concluded, in view of this finding, that the fatal bullet must have gone upward from the wound of entrance. Since the fatal bullet exited at the mandible, it is his belief that the petrous bone deflected the trajectory of the bullet and, thus, the bullet proceeded downwards from the petrous bone to the mandible. This opinion of Dr. Bienvenido Muoz in this regard notwithstanding, We hold that the trajectory of the fatal bullet which killed Sen. Benigno Aquino, Jr. was, indeed, forward, downward and medially. For the reason that the wound of entrance was at a higher elevation than the wound of exit, there can be no other conclusion but that the trajectory was downward. The bullet when traveling at a fast rate of speed takes a straight path from the wound of entrance to the wound of exit. It is unthinkable that the bullet, while projected upwards, would, instead of exiting to the roof of the head, go down to the mandible because it was allegedly deflected by a petrous bone which though hard is in fact a mere spongy protuberance, akin to a cartilage. Clear is proof of the downward trajectory of the fatal bullet; First, as Dr. Pedro Solis and Dr. Ceferino Cunanan, the immediate superiors of Dr. Bienvenido Muoz, manifested before the Court, that, since the wound of entrance appeared ovaloid and there is what is known as a contusion collar which was widest at the superior portion, indicating an acute angle of approach, a downward trajectory of the bullet is indicated. This phenomenon indicates that the muzzle of the fatal gun was at a level higher than that of the point of entry of the fatal bullet. There was no showing as to whether a probe could have been made from the wound of entrance to the petrous bone. Out of curiosity, Dr. Juanito Billote tried to insert a probe from the wound of exit into the petrous bone. He was unsuccessful notwithstanding four or five attempts. If at all, this disproves the theory of Dr. Muoz that the trajectory was upward, downward and medially. On the other hand, Dr. Juanito Billote and photographer Alexander Loinaz witnessed the fact that Dr. Muoz[s] understudy, Alejandrino Javier, had successfully made a probe from the wound of entrance directly towards the wound of exit. Alejandrino Javier shouted with excitement upon his success and Alexander Loinaz promptly photographed this event with Alejandrino Javier holding the protruding end of the probe at the mandible. (Exhibit XXXXX-39-A) To be sure, had the main bullet hit the petrous bone, this spongy mash of cartilage would have been decimated or obliterated. The fact that the main bullet was of such force, power and speed that it was able to bore a hole into the mandible and crack it, is an indication that it could
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not have been stopped or deflected by a mere petrous bone. By its power and force, it must have been propelled by a powerful gun. It would have been impossible for the main bullet to have been deflected form an upward course by a mere spongy protuberance. Granting that it was so deflected, however, it could not have maintained the same power and force as when it entered the skull at the mastoid region so as to crack the mandible and make its exit there. But what caused the fracture of the petrous bone? Was there a cause of the fracture, other than that the bullet had hit it? Dr. Pedro Solis, maintaining the conclusion that the trajectory of the bullet was downward, gave the following alternative explanations for the fracture of the petrous bone: First, the petrous bone could have been hit by a splinter of the main bullet, particularly, that which was found at the temporal region; and, Second, the fracture must have been caused by the kinetic force applied to the point of entrance at the mastoid region which had the tendency of being radiated towards the petrous bone. Thus, the fracture in the occipital bone, of the temporal bone, and of the parietal bone, Dr. Pedro Solis pointed out, had been caused by the aforesaid kinetic force. When a force is applied to the mastoid region of the head, Dr. Pedro Solis emphasized, a radiation of forces is distributed all over the cranial back, including, although not limited to, the parietal bone. The skull, Dr. Solis explains, is a box-like structure. The moment you apply pressure on the portion, a distortion, tension or some other mechanical defect is caused. This radiation of forces produces what is known as the spider web linear fracture which goes to different parts of the body. The so-called fracturing of the petrous portion of the left temporal bone is one of the consequences of the kinetic force forcefully applied to the mastoid region. The fact that there was found a fracture of the petrous bone is not necessarily indicative of the theory that the main bullet passed through the petrous bone. Doubt was expressed by Dr. Pedro Solis as to whether the metal fragments alleged by Dr. Bienvenido Muoz to have been found by him inside the skull or at the wound of exit were really parts of the main bullet which killed the Senator. When Dr. Pedro Solis examined these fragments, he found that two (2) of the fragments were larger in size, and were of such shapes, that they could not have gone out of the wound of exit considering the size and shape of the exit wound. Finding of a downward trajectory of the fatal bullet fatal to the credibility of defense witnesses.
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The finding that the fatal bullet which killed Sen. Benigno Aquino, Jr. was directed downwards sustains the allegation of prosecution eyewitnesses to the effect that Sen. Benigno Aquino, Jr. was shot by a military soldier at the bridge stairs while he was being brought down from the plane. Rebecca Quijano saw that the senator was shot by the military man who was directly behind the Senator while the Senator and he were descending the stairs. Rebecca Quijanos testimony in this regard is echoed by Jessie Barcelona, Ramon Balang, Olivia Antimano, and Mario Laher, whose testimonies this Court finds likewise as credible. The downward trajectory of the bullet having been established, it stands to reason that the gun used in shooting the Senator was fired from an elevation higher than that of the wound of entrance at the back of the head of the Senator. This is consistent with the testimony of prosecution witnesses to the effect that the actual killer of the Senator shot as he stood at the upper step of the stairs, the second or third behind Senator Aquino, while Senator Aquino and the military soldiers bringing him were at the bridge stairs. This is likewise consistent with the statement of Sandra Jean Burton that the shooting of Senator Aquino occurred while the Senator was still on the bridge stairs, a conclusion derived from the fact that the fatal shot was fired ten (10) seconds after Senator Aquino crossed the service door and was led down the bridge stairs. It was the expert finding of Dr. Matsumi Suzuki that, as was gauged from the sounds of the footsteps of Senator Aquino, as the Senator went down the bridge stairs, the shooting of the Senator occurred while the Senator had stepped on the 11th step from the top. At the ocular inspection conducted by this Court, with the prosecution and the defense in attendance, it should be noted that the following facts were established as regards the bridge stairs: Observations: The length of one block covering the tarmac 196; The width of one block covering the tarmac 10; The distance from the base of the staircase leading to the emergency tube to the Ninoy marker at the tarmac 126; There are 20 steps in the staircase including the landing; The distance from the first rung of the stairway up to the 20th rung which is the landing of stairs 208; Distance from the first rung of the stairway up to the 20th rung until the edge of the exit door 2311; Distance from the 4th rung up to the exit door 21; Distance from the 5th rung up to the exit door 1911; Length of one rung including railpost 34; Space between two rungs of stairway 9; Width of each rung 11-1/2;
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Length of each rung (end to end) 29: Height of railpost from edge of rung to railing 25. (underlining supplied)[20] The Sandiganbayan again exhaustively analyzed and discussed the forensic evidence in its resolution dated November 15, 1990 denying the motion for reconsideration filed by the convicted accused. The court held: The Autopsy Report No. N-83-2236, Exhibit NNNN-2-t-2 indicated a downward trajectory of the fatal bullet when it stated that the fatal bullet was forward, downward, and medially . . . xxx II The wound of entrance having been at a higher elevation than the wound of exit, there can be no other conclusion but that the trajectory was downward. The fatal bullet, whether it be a Smith and Wesson Caliber .357 magnum revolver or a .45 caliber, must have traveled at a fast rate of speed and it stands to reason that it took a straight path from the wound of entrance to the wound of exit. A hole indicating this straight path was proven to have existed. If, as contended on cross-examination by Dr. Bienvenido Muoz, that the bullet was projected upwards, it ought to have exited at the roof of the head. The theory that the fatal bullet was deflected by a mere petrous bone is inconceivable. III Since the wound of entrance appeared ovaloid and there is what is known as a contusion collar which was widest at the superior portion, indicating an acute angle of approach, a downward trajectory of the fatal bullet is conclusively indicated. This phenomenon indicates that the muzzle of the fatal gun was at a level higher than that of the point of entry of the fatal bullet. IV There was no hole from the petrous bone to the mandible where the fatal bullet had exited and, thus, there is no support to the theory of Dr. Bienvenido Muoz that the fatal bullet had hit the petrous bone on an upward trajectory and had been deflected by the petrous bone towards the mandible. Dr. Juanito Billotes testimony in this regard had amplified the matter with clarity. xxx

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These physical facts, notwithstanding the arguments and protestations of counsel for the defense as now and heretofore avowed, compel the Court to maintain the holding: (1) that the trajectory of the fatal bullet which hit and killed Senator Benigno Aquino, Jr. was forward, downward and medially; (2) that the Senator was shot by a person who stood at a higher elevation than he; and (3) that the Senator was shot and killed by CIC Rogelio Moreno on the bridge stairs and not on the tarmac, in conspiracy with the rest of the accused convicted herein.[21] This Court affirmed said findings of the Sandiganbayan when it denied the petition for review in its resolution of July 25, 1991. The Court ruled: The Court has carefully considered and deliberated upon all the contentions of the petitioners but finds no basis for the allegation that the respondent Sandiganbayan has gravely erred in resolving the factual issues. The attempt to place a constitutional dimension in the petition is a labor in vain. Basically, only questions of fact are raised. Not only is it axiomatic that the factual findings of the Sandiganbayan are final unless they fall within specifically recognized exceptions to the rule but from the petition and its annexes alone, it is readily apparent that the respondent Court correctly resolved the factual issues. xxx The trajectory of the fatal bullet, whether or not the victim was descending the stairway or was on the tarmac when shot, the circumstances showing conspiracy, the participants in the conspiracy, the individual roles of the accused and their respective parts in the conspiracy, the absence of evidence against thirteen accused and their co-accused Col. Vicente B. Tigas, Jr., the lack of credibility of the witnesses against former Minister Jose D. Aspiras, Director Jesus Z. Singson, Col. Arturo A. Custodio, Hermilo Gosuico, Major General Prospero Olivas, and the shooting of Rolando Galman are all factual matters w[h]ich the respondent court discussed with fairness and at length. The petitioners insistence that a few witnesses in their favor should be believed while that of some witnesses against them should be discredited goes into the question of credibility of witnesses, a matter which under the records of this petition is best left to the judgment of the Sandiganbayan.[22] The report of the forensic group essentially reiterates the theory presented by the defense during the trial of the double murder case. Clearly, the report is not newly discovered, but rather recently sought, which is not allowed by the Rules.[23] If at all, it only serves to discredit the version of the prosecution which had already been weighed and assessed, and thereafter upheld by the Sandiganbayan. The same is true with the statement of the alleged eyewitness, SPO4 Cantimbuhan. His narration merely corroborates the testimonies of other defense witnesses during the trial that

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they saw Senator Aquino already walking on the airport tarmac toward the AVSECOM van when a man in blue-gray uniform darted from behind and fired at the back of the Senators head.[24] The Sandiganbayan, however, did not give weight to their account as it found the testimonies of prosecution eyewitnesses Rebecca Quijano and Jessie Barcelona more credible. Quijano and Barcelona testified that they saw the soldier behind Senator Aquino on the stairway aim and fire a gun on the latters nape. As earlier quoted, the Sandiganbayan found their testimonies to be more consistent with the physical evidence. SPO4 Cantimbuhans testimony will not in any way alter the courts decision in view of the eyewitness account of Quijano and Barcelona, taken together with the physical evidence presented during the trial. Certainly, a new trial will only be allowed if the new evidence is of such weight that it would probably change the judgment if admitted.[25] Also, new trial will not be granted if the new evidence is merely cumulative, corroborative or impeaching. As additional support to their motion for new trial, petitioners also claim that they were denied due process because they were deprived of adequate legal assistance by counsel. We are not persuaded. The records will bear out that petitioners were ably represented by Atty. Rodolfo U. Jimenez during the trial and when the case was elevated to this Court. An experienced lawyer in criminal cases, Atty. Jimenez vigorously defended the petitioners cause throughout the entire proceedings. The records show that the defense presented a substantial number of witnesses and exhibits during the trial. After the Sandiganbayan rendered its decision, Atty. Jimenez filed a petition for review with this Court, invoking all conceivable grounds to acquit the petitioners. When the Court denied the petition for review, he again filed a motion for reconsideration exhausting his deep reservoir of legal talent. We therefore find petitioners claim to be unblushingly unsubstantiated. We note that they did not allege any specific facts in their present motion to show that Atty. Jimenez had been remiss in his duties as counsel. Petitioners are therefore bound by the acts and decisions of their counsel as regards the conduct of the case. The general rule is that the client is bound by the action of his counsel in the conduct of his case and cannot be heard to complain that the result of the litigation might have been different had his counsel proceeded differently.[26] We held in People vs. Umali:[27] In criminal as well as civil cases, it has frequently been held that the fact that blunders and mistakes may have been made in the conduct of the proceedings in the trial court, as a result of the ignorance, inexperience, or incompetence of counsel, does not furnish a ground for a new trial. If such grounds were to be admitted as reasons for reopening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent, or experienced, or learned. So it has been held that mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy, materiality, or immateriality of a certain evidence, the proper defense, or the burden of proof are not proper grounds for a new trial; and in general the client is bound by
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the action of his counsel in the conduct of his case, and can not be heard to complain that the result of the litigation might have been different had counsel proceeded differently. (citations omitted) Finally, we are not moved by petitioners assertion that the forensic evidence may have been manipulated and misinterpreted during the trial of the case. Again, petitioners did not allege concrete facts to support their crass claim. Hence, we find the same to be unfounded and purely speculative. IN VIEW WHEREOF, the motion is DENIED. SO ORDERED. Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Carpio-Morales, J., on leave.

Deceased. Rollo Vol. II, pp. 506-563. Galman vs. Sandiganbayan, 144 SCRA 43 (1986). Rollo Vol. I, pp. 71-260. Rollo Vol. I, pp. 433-435. Rollo Vol. I, p. 475. Rollo Vol. II, pp. 517-518. Rollo Vol. II, p. 562. Jose vs. Court of Appeals, 70 SCRA 257 (1976). People vs. Tamayo, 86 Phil. 209 (1950). Rollo Vol. I, p. 477. 58 Am Jur 2d 393. People vs. Li Ka Kim, G.R. No. 148586, May 25, 2004; People vs. Datu, 397 SCRA 695 (2003); People vs. Remudo, 364 SCRA 61 (2001); People vs. Ebias, 342 SCRA 675 (2000); Amper vs. Sandiganbayan, 279 SCRA 434 (1997); Tumang vs. Court of Appeals, 172 SCRA 328 (1989); Jose vs. Court of Appeals, 70 SCRA 257 (1976); People vs. Mangulabnan, et. al., 99 Phil. 992 (1956); Reyes vs. People, 71 Phil. 598 (1941); People vs. Luzon, 4 Phil. 343 (1905). 10 Ga 511 (1851).
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[1] [2] [3] [4] [5] [6] [7] [8] [9]

[10] [11] [12]

[13]

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[14] [15] [16] [17] [18]

Argyrou vs. State, 349 Md 587, 709 A. 2d 1194 (1998). Tumang vs. CA, 172 SCRA 328 (1989). Ibid. Argyrou vs. State, supra, note 14. Annex S, Death On The Tarmac: The Credible View. A Forensic Review and Analysis of Criminal Case Nos. 10010 and 10011 (a.k.a. The Aquino-Galman Case), pp. 12-13; Rollo Vol. II, pp. 1005-1006. See Gaston vs. Finch, 246 Iowa 1360, 72 N.W. 2d 507 (1955). Sandiganbayan Decision dated September 28, 1990, pp. 130-136; Rollo Vol. I, pp. 200-206. Sandiganbayan Resolution dated November 15, 1990, Crim. Cases Nos. 10010-11, pp. 2-8; Rollo Vol. I, pp. 262-268. Resolution dated July 25, 1991, Rollo Vol. I, pp. 433-435. See June vs. Edward, 69 A.D. 2d 612, 419 N.Y.S. 2d 514 (1979). Testimonies of Pelagia Hilario, Lydia Morata, Augusto Fred Floresca and Jose Orias, Sandiganbayan Decision dated September 28, 1990, pp. 113-115; Rollo Vol. I, pp. 183185. People vs. Fajardo, 315 SCRA 283 (1999). People vs. Remudo, 364 SCRA 61 (2001). 15 Phil. 33 (1910).

[19] [20] [21]

[22] [23] [24]

[25] [26] [27]

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