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Legal Medicine Medical Negligence Digest by Bianca Beltran

[G.R. No. 118231. July 5, 1996]


BATIQUIN vs. COURT OF APPEALS
At present, the primary objective of the medical profession is
the preservation of life and maintenance of the health of the
people.
FACTS
Dr. Batiquin was a Resident Physician at the Negros Oriental
Provincial Hospital, Dumaguete City. She was also the Actg. Head
of the Department of Obstetrics and Gynecology at the said
Hospital.
Mrs. Villegas, a married woman, submitted herself to Dr.
Batiquin for prenatal care as the latter's private patient. One
morning, Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy,
also a Resident Physician at the same Hospital, C.I. and O.R. Nurse
Arlene Diones and some student nurses performed a simple
cesarean section on Mrs. Villegas and after 45 minutes Mrs.
Villegas delivered her first child, Rachel Acogido. Thereafter,
Plaintiff remained confined at the Hospital during which she was
regularly visited by Dr. Batiquin.
Soon after leaving the Hospital Mrs. Villegas began to suffer
abdominal pains and complained of being feverish. She also
gradually lost her appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain medicines. The
abdominal pains and fever kept on recurring despite the
medications administered by Dr. Batiquin. When the pains
become unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City.
Dr. Ma. Salud Kho found Mrs. Villegas to be feverish, pale and
was breathing fast. Upon examination she felt an abdominal mass
one finger below the umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas' chest,

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abdomen and kidney. She also took blood tests of Plaintiff. A


blood count showed that Mrs. Villegas had an infection inside her
abdominal cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to another surgery to
which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she
found whitish-yellow discharge inside, an ovarian cyst on
each of the left and right ovaries which gave out pus, dirt
and pus behind the uterus, and a piece of rubber materials
on the right side of the uterus embedded on the ovarian cyst,
2 inches by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked like a piece
of a "rubber glove" and which is also "rubber-drain like. It
could have been a torn section of a surgeon's gloves or could have
come from other sources. And this foreign body was the cause of
the infection of the ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery.
The piece of rubber allegedly found near private respondent
Flotilde Villegas' uterus was not presented in court, and although
Dr. Ma. Salud Kho testified that she sent it to a pathologist in Cebu
City for examination, it was not mentioned in the pathologist's
Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which mentioned
the piece of rubber are a Medical Certificate, a Progress Record, an
Anesthesia Record, a Nurse's Record, and a Physician's Discharge
Summary. The trial court, however, regarded these documentary
evidence as mere hearsay.
The trial court deemed vital Dr. Victoria Batiquin's testimony
that when she confronted Dr. Kho regarding the piece of rubber,
"Dr. Kho answered that there was rubber indeed but that she
threw it away." This statement, the trial court noted, was never
denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that
offending "rubber" (1) that it was sent to the Pathologist in Cebu
as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it

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away as told by her to Defendant. The failure of the Plaintiffs to


reconcile these two different versions serve only to weaken their
claim against Defendant Batiquin.
RTC - held in favor of the petitioners herein.
CA reversed the decision. It deemed Dr. Khos positive
testimony to definitely establish that a piece of rubber was found
near private respondent Villegas uterus. It further noted the fact
that Villegas can no longer bear children because her uterus and
ovaries were removed by Dr. Kho is not taken into consideration as
it not shown that the removal of said organs were the direct result
of the rubber left by the appellee Dr. Batiquin near the uterus.
What is establishe is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy ad caused
appelants fear, worry and anxiety.
ISSUE
Whether or not the testimony of Dr. Kho should be given
credence
Ruling
We agree with the Court of Appeals. The phrase relied upon by
the trial court does not negate the fact that Dr. Kho saw a piece of
rubber in private respondent Villegas' abdomen, and that she sent
it to a laboratory and then to Cebu City for examination by a
pathologist. Not even the Pathologist's Report, although devoid of
any mention of a piece of rubber, could alter what Dr. Kho
saw. Furthermore, Dr. Kho's knowledge of the piece of rubber
could not be based on other than first hand.
Although hearsay, Dr. Batiquin's claim was not objected to, and
hence, the same is admissible but it carries no probative
value. Nevertheless, assuming otherwise, Dr. Batiquin's statement
cannot belie the fact that Dr. Kho found a piece of rubber near
private respondent Villegas' uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of rubber. On this score, it

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is perfectly reasonable to believe the testimony of a witness with


respect to some facts and disbelieve his testimony with respect to
other facts. And it has been aptly said that even when a witness is
found to have deliberately falsified in some material particulars, it
is not required that the whole of his uncorroborated testimony be
rejected, but such portions thereof deemed worthy of belief may
be credited.
Considering that we have assessed Dr. Kho to be a credible
witness, her positive testimony [that a piece of rubber was indeed
found in private respondent Villegas' abdomen] prevails over the
negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court
has had occasion to delve into the nature and operation of this
doctrine:
Res ipsa loquitur. 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
ordinary 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 [sic] was such that in the ordinary course of things
would not happen if reasonable care had been used.
xxx
xxx
xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar
to the law of negligence which recognizes that prima

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facie negligence may be established without direct proof and


furnishes a substitute for specific proof of negligence. The
doctrine 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 particular case, is
not intended to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence
thereof and facilitates the burden of plaintiff of proving a breach of
the duty of due care. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is absent
and not readily available.
In the instant case, all the requisites for recourse to the doctrine
are present. First, the entire proceedings of the cesarean section
were under the exclusive control of Dr. Batiquin. In this light, the
private respondents were bereft of direct evidence as to the actual
culprit or the exact cause of the foreign object finding its way into
private respondent Villegas' body, which, needless to say, does
not occur unless through the intervention of negligence. Second,
since aside from the cesarean section, private respondent Villegas
underwent no other operation which could have caused the
offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the
cesarean section performed by Dr. Batiquin. The petitioners, in
this regard, failed to overcome the presumption of negligence
arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin
is therefore liable for negligently leaving behind a piece of rubber
in private respondent Villegas' abdomen and for all the adverse
effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives of
the people, and State's compelling interest to enact
measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease
or trauma." Indeed, a physician is bound to serve the

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interest of his patients "with the greatest of solicitude,


giving them always his best talent and skill." Through her
tortious conduct, the petitioner endangered the life of
Flotilde Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal standards
set forth for professionals, in the general, and members of
the medical profession, in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the
Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in
toto.
Costs against the petitioners.
SO ORDERED.

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FE CAYAO-LASAM,
- versus SPOUSES CLARO and
EDITHA RAMOLETE,

G.R. No. 159132


Promulgated:
December 18, 2008

FACTS
Respondent, three months pregnant Editha Ramolete (Editha)
was brought to the Lorma Medical Center (LMC) in San Fernando, La
Union due to vaginal bleeding. Upon advice of petitioner
relayed via telephone, Editha was admitted to the LMC on the
same day. A pelvic sonogram was then conducted on Editha revealing
the fetus weak cardiac pulsation. The following day, Edithas repeat
pelvic sonogram showed that aside from the fetus weak cardiac
pulsation, no fetal movement was also appreciated. Due to
persistent
and
profuse
vaginal
bleeding,
petitioner
advised Editha to undergo a Dilatation and Curettage
Procedure (D&C) or raspa. Petitioner performed the D&C
procedure. Editha was discharged from the hospital the following day.
Editha was once again brought at the LMC, as she was
suffering from vomiting and severe abdominal pains. Editha was
attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V.
Komiya. Dr. Mayo allegedly informed Editha that there was a
dead
fetus
in
the
latters
womb. After, Editha underwent laparotomy, she was found to
have a massive intra-abdominal hemorrhage and a ruptured
uterus. Thus, Editha had to undergo a procedure for
hysterectomy and as a result, she has no more chance to bear
a child.
Editha and her husband Claro Ramolete (respondents) filed a
Complaint for Gross Negligence and Malpractice against petitioner
before the Professional Regulations Commission (PRC).
Petitioner denied the allegations of negligence and incompetence
with the following explanations: upon Edithas confirmation that she

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would seek admission at the LMC, petitioner immediately called the


hospital to anticipate the arrival of Editha and ordered through the
telephone the medicines Editha needed to take, which the nurses
carried out; petitioner visited Editha during her rounds; she performed
an internal examination on Editha and she discovered that the latters
cervix was already open, thus, petitioner discussed the possible D&C
procedure, should the bleeding become more profuse; she conducted
another internal examination on Editha, which revealed that the
latters cervix was still open; Editha persistently complained of her
vaginal bleeding and her passing out of some meaty mass in the
process of urination and bowel movement; thus, petitioner advised
Editha to undergo D&C procedure which the respondents consented
to; petitioner was very vocal in the operating room about not being
able to see an abortus; taking the words of Editha to mean that she
was passing out some meaty mass and clotted blood, she assumed
that the abortus must have been expelled in the process of bleeding; it
was Editha who insisted that she wanted to be discharged; petitioner
agreed, but she advised Editha to return for check-up which the latter
failed to do.
Petitioner contended that it was Edithas gross negligence
and/or omission in insisting to be discharged against doctors advice
and her unjustified failure to return for check-up as directed by
petitioner that contributed to her life-threatening condition on;
that Edithas hysterectomy was brought about by her very abnormal
pregnancy known as placenta increta, which was an extremely rare
and very unusual case of abdominal placental implantation. Petitioner
argued that whether or not a D&C procedure was done by her or any
other doctor, there would be no difference at all because at any stage
of gestation before term, the uterus would rupture just the same.
Board of Medicine (the Board) of the PRC - exonerating
petitioner from the charges filed against her. The Board held that
Edithas case was a case of Ectopic Pregnancy Interstitial. This type
of ectopic pregnancy is one that is being protected by the uterine
muscles and manifestations may take later than four (4) months and
only attributes to two percent (2%) of ectopic pregnancy cases. When
complainant Editha was admitted in the hospital due to vaginal

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bleeding, an ultra-sound was performed upon her and the result of the
Sonogram Test reveals a morbid fetus but did not specify where the
fetus was located. Obstetricians will assume that the pregnancy is
within the uterus unless so specified by the Sonologist who conducted
the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was
not able to determine that complainant Editha is having
an ectopic pregnancy interstitial. The D&C conducted on Editha is
necessary considering that her cervix is already open and so as to stop
the profuse bleeding. Simple curettage cannot remove a fetus if the
patient is having an ectopic pregnancy, since ectopic pregnancy is
pregnancy conceived outside the uterus and curettage is done only
within the uterus. Therefore, a more extensive operation needed in
this case of pregnancy in order to remove the fetus.
Appeal to PRC decision - reversing the findings of the Board
and revoking petitioners authority or license to practice her profession
as a physician.
Petitioner brought the matter to the CA in a Petition for Review
under Rule 43 of the Rules of Court. Petitioner also dubbed her
petition as one for certiorari under Rule 65 of the Rules of Court. The
CA held that the Petition for Review under Rule 43 of the Rules of Court
was an improper remedy, as the enumeration of the quasijudicial agencies in Rule 43 is exclusive. PRC is not among the quasijudicial bodies whose judgment or final orders are subject of a petition
for review to the CA, thus, the petition for review of the PRC Decision,
filed at the CA, was improper. Citing Section 26 of Republic Act (R.A.)
No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy
and adequate remedy under the ordinary course of law which
petitioner should have availed herself of was to appeal to the Office of
the President.
ISSUE
1. WHETHER OR NOT PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONERS LICENSE TO
PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO

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SUPPORT ITS CONCLUSION AS TO THE


RESPONDENT EDITHA RAMOLETES INJURY;

CAUSE

OF

2. WHETHER OR NOT PRC COMMITTED AN EVEN GRAVER


ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE
FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE
NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH
THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS
THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO
MANALO, M.D. ;[AND]
3. WHETHER OR NOT PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE
NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY
CONTRARY TO EVIDENCE ON RECORD.

RULING
Anent the substantive merits of the case, petitioner questions
the PRC decision for being without an expert testimony to support its
conclusion and to establish the cause of Edithas injury. Petitioner
avers that in cases of medical malpractice, expert testimony is
necessary to support the conclusion as to the cause of the injury.
Medical malpractice is a particular form of negligence which
consists in the failure of a physician or surgeon to apply to his practice
of medicine that degree of care and skill which is ordinarily employed
by the profession generally, under similar conditions, and in like
surrounding circumstances. In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed
to do something which a reasonably prudent physician or surgeon
would not have done, and that the failure or action caused injury to the
patient.

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There are four elements involved in medical negligence cases:


duty, breach, injury and proximate causation.
A
physician-patient
relationship
was
created
when Editha employed
the
services
of
the
petitioner. As Edithas physician, petitioner was duty-bound to use at
least the same level of care that any reasonably competent doctor
would use to treat a condition under the same circumstances. The
breach of these professional duties of skill and care, or their improper
performance by a physician surgeon, whereby the patient is injured in
body or in health, constitutes actionable malpractice. As to this aspect
of medical malpractice, the determination of the reasonable level of
care and the breach thereof, expert testimony is essential. Further,
inasmuch as the causes of the injuries involved in malpractice actions
are determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the
conclusion as to causation.
In the present case, respondents did not present any expert
testimony to support their claim that petitioner failed to do something
which a reasonably prudent physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of
Dr. Augusto M. Manalo, who was clearly an expert on the subject.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which he or
she is to testify, either by the study of recognized authorities on the
subject or by practical experience.
From the expert witness testimony, it is clear that the D&C
procedure was conducted in accordance with the standard practice,
with the same level of care that any reasonably competent doctor

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would use to treat a condition under the same circumstances, and that
there was nothing irregular in the way the petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil
action for damages under Article 2176 of the Civil Code. The defenses
in an action for damages, provided for under Article 2179 of the Civil
Code are:
Art. 2179. When the plaintiffs own negligence was
the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendants lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have occurred.
An injury or damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case that the act or
omission played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was either a direct
result or a reasonably probable consequence of the act or omission.
In the present case, the Court notes the findings of the Board of
Medicine:
When complainant was discharged on July 31,
1994, herein respondent advised her to return
on August 4, 1994 or four (4) days after the
D&C. This advise was clear in complainants
Discharge Sheet. However, complainant failed to do
so. This being the case, the chain of continuity as required in

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order that the doctrine of proximate cause can be validly


invoked was interrupted. Had she returned, the
respondent
could
have
examined
her
thoroughly. x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that
assuming that there was in fact a misdiagnosis, the same would have
been rectified if Editha followed the petitioners order to return for a
check-up. Dr. Manalo stated:
Granting
that
the
obstetriciangynecologist has been misled (justifiably) up to thus
point that there would have been ample opportunity
to rectify the misdiagnosis, had the patient returned,
as instructed for her follow-up evaluation. It was one
and a half months later that the patient sought
consultation with another doctor. The continued growth
of an ectopic pregnancy, until its eventual rupture, is a
dynamic process. Much change in physical findings could be
expected in 1 months, including the emergence of
suggestive ones.
It is undisputed that Editha did not return for a follow-up
evaluation, in defiance of the petitioners advise. Editha omitted the
diligence required by the circumstances which could have avoided the
injury. The omission in not returning for a follow-up evaluation played a
substantial
part
in
bringing
about Edithas own
injury. Had Editha returned, petitioner could have conducted the
proper
medical
tests
and
procedure
necessary
to
determine Edithas health condition and applied the corresponding
treatment which could have prevented the rupture of Edithas uterus.
The D&C procedure having been conducted in accordance with the
standard medical practice, it is clear that Edithas omission was the
proximate cause of her own injury and not merely a contributory
negligence on her part.

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Contributory negligence is the act or omission amounting to want


of ordinary care on the part of the person injured, which, concurring
with the defendants negligence, is the proximate cause of the
injury. Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident.[
Where the immediate cause of an accident resulting in an injury is the
plaintiffs own act, which contributed to the principal occurrence as one
of its determining factors, he cannot recover damages for the
injury. Again, based on the evidence presented in the present
case under review, in which no negligence can be attributed
to the petitioner, the immediate cause of the accident
resulting in Edithas injury was her own omission when she
did not return for a follow-up check up, in defiance of
petitioners orders. The immediate cause of Edithas injury
was her own act; thus, she cannot recover damages from the
injury.
All told, doctors are protected by a special rule of law. They are
not guarantors of care. They are not insurers against mishaps or
unusual consequences specially so if the patient herself did not
exercise the proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision
of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is
hereby REVERSED and SET ASIDE. The Decision of the Board of
Medicine
dated March
4,
1999 exonerating
petitioner
is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

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ROGELIOP. NOGALES,
- versus CAPITOL MEDICAL CENTER,
DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR,
DR. ROSA UY,
DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON,
DR.NOE
ESPINOLA,
and
December 19, 2006
NURSEJ. DUMLAO

G.R. No. 142625

Promulgated:

FACTS
Pregnant with her fourth child, Corazon Nogales
(Corazon) 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
edema indicating preeclampsia, which is a dangerous
complication of pregnancy.
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).

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On 26 May 1976, Corazon was admitted at 2:30 a.m. at the


CMC after the staff nurse noted the written admission request of
Dr. Estrada. Upon Corazons admission at the CMC, Rogelio
Nogales (Rogelio) executed and signed the Consent on
Admission and Agreement and Admission Agreement. 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.
Around 3:00
a.m.,
Dr.
Estrada
ordered
several
procedures to be done to Corazon. The following orders are:
a. for 10 mg. of valium be administered immediately by
intramuscular injection
b. 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 Nurses Observation Notes, Dr. Joel Enriquez
(Dr. Enriquez), an anesthesiologist at CMC, was notified at 4:15
a.m. of Corazons admission. Subsequently, when asked if he
needed the services of an anesthesiologist, Dr. Estrada
refused. Despite Dr. Estradas refusal, Dr. Enriquez stayed to
observe Corazons condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No.
1 of the CMC. At 6:10 a.m., Corazons bag of water ruptured
spontaneously. At 6:12 a.m., Corazons 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),

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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 Corazons 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. Corazons
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. Estradas 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 Corazons 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.
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. Espinolas efforts, Corazon died

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at 9:15 a.m. The cause of death was hemorrhage, post


partum.
Petitioners filed a complaint for damages 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 Corazons condition. Petitioners charged CMC
with negligence in the selection and supervision of defendant
physicians and hospital staff.
After more than 11 years of trial, the trial court rendered
judgment 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.
Petitioners appealed the trial courts 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
respondents alleged liability.

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19

On 6 February 1998, the Court of Appeals affirmed the


decision of the trial court.
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 courts judgment, is already final as against Dr. Oscar
Estrada.
The Court of Appeals Ruling:
In its Decision of 6 February 1998, the Court of Appeals
upheld the trial courts ruling. The Court of Appeals rejected
petitioners view that the doctrine in Darling v. Charleston
Community Memorial Hospital applies to this case. According to
the Court of Appeals, the present case differs from
the Darling case since Dr. Estrada is an independent contractorphysician 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 physicians negligence. A hospital is
not responsible for the negligence of a physician who is an
independent contractor.
The Court of Appeals found the cases of Davidson v.
Conole and Campbell v. Emma Laing Stevens Hospital applicable
to this case. Quoting Campbell, the Court of Appeals stated that
where there is no proof that defendant physician was an employee
of defendant hospital or that defendant hospital had reason to
know that any acts of malpractice would take place, defendant

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20

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. While the assisting physicians and
nurses may be employed by the hospital, or engaged by the
patient, they normally become the temporary servants or agents
of the surgeon in charge while the operation is in progress, and
liability may be imposed upon the surgeon for their negligent acts
under the doctrine of respondeat superior.
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. Estradas 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.
ISSUE
Whether CMC is vicariously liable for the negligence of Dr.
Estrada.
RULING

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21

On the Liability of CMC


A hospital which is the employer, master, or principal of a
physician employee, servant, or agent, may be held liable for the
physicians negligence under the doctrine of respondeat superior.
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 physicians negligence in Ramos v.
Court of Appeals, 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.
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 physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from

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22

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 patients condition, the control exercised, the
hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employeremployee 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 petitioners
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 formers responsibility under a
relationship of patria potestas. x x x
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

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23

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.
The Court finds no single evidence pointing to CMCs
exercise of control over Dr. Estradas treatment and
management of Corazons condition. Throughout Corazons
pregnancy, she was under the exclusive prenatal care of Dr.
Estrada. At the time of Corazons 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 Corazons condition. While Dr. Estrada enjoyed staff
privileges at CMC, such fact alone did not make him an employee
of CMC. CMC merely allowed Dr. Estrada to use its facilities when
Corazon was about to give birth, which CMC considered an
emergency. Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is WHETHER CMC IS AUTOMATICALLY
EXEMPT FROM LIABILITY CONSIDERING THAT DR. ESTRADA
IS AN INDEPENDENT CONTRACTOR-PHYSICIAN.
General Rule: A hospital is not liable for the
negligence of an independent contractor-physician.
Exception: The hospital may be liable if the physician is
the ostensible agent of the hospital.
This exception is also known as the doctrine of apparent
authority. Under 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.

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24

Elements of 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.

Doctrine of Apparent Authority Two (2) Essential Factors To


Determine The Liability Of An Independent-Contractor Physician
1. Hospitals manifestations. It is sometimes described as
an inquiry whether the hospital acted in a manner
which would lead a reasonable person to conclude
that the individual who was alleged to be negligent
was an employee or agent of the hospital. In this
regard, the hospital need not make express representations

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25

to the patient that the treating physician is an employee of


the hospital; rather a representation may be general and
implied.
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.
*In the instant case, CMC impliedly held out Dr. Estrada as a
member of its medical staff. Through CMCs 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.
Estradas request for Corazons 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 Corazons admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelios belief that Dr. Estrada was a
member of CMCs medical staff. 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.

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26

Third, Dr. Estradas referral of Corazons 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 CMCs medical staff was collaborating with
other CMC-employed specialists in treating Corazon.
2. Patients 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.
*The records show that the Spouses Nogales relied upon a
perceived employment relationship with CMC in accepting Dr.
Estradas services. Rogelio testified that he and his wife
specifically chose Dr. Estrada to handle Corazons delivery not only
because of their friends recommendation, but more importantly
because of Dr. Estradas connection with a reputable hospital, the
[CMC]. In other words, Dr. Estradas relationship with CMC played
a significant role in the Spouses Nogales decision in accepting Dr.
Estradas services as the obstetrician-gynecologist for Corazons
delivery. Moreover, as earlier stated, there is no showing that
before and during Corazons 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 Corazons delivery. The
Court notes that prior to Corazons fourth pregnancy, she used to
give birth inside a clinic. Considering Corazons age then, the
Spouses Nogales decided to have their fourth child delivered at
CMC, which Rogelio regarded one of the best hospitals at the time.
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, Rogelios consent in Corazons hysterectomy

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27

to be performed by a different physician, namely Dr. Espinola, is a


clear indication of Rogelios confidence in CMCs surgical staff.
CMCs 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., 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. xxx

Likewise unconvincing is CMCs 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

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28

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 Corazons death due to negligence during such
treatment or operation. Such release forms, being in the nature of
contracts
of
adhesion,
are
construed
strictly
against
hospitals. Besides, a blanket release in favor of hospitals from
any and all claims, which includes claims due to bad faith or gross
negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in
favor of establishments like hospitals but may only mitigate
liability depending on the circumstances. [58] When a person
needing urgent medical attention rushes to a hospital, he cannot
bargain on equal footing with the hospital on the terms of
admission and operation. Such a person is literally at the mercy
of the hospital. There can be no clearer example of a contract of
adhesion than one arising from such a dire situation. Thus, the
release forms of CMC cannot relieve CMC from liability for the
negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Courts pronouncement in its 9 September
2002
Resolution that the filing of petitioners Manifestation
confined petitioners claim only against CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy, who have filed their comments, the Court
deems it proper to resolve the individual liability of the remaining
respondents to put an end finally to this more than two-decade old
controversy.
[59]

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29

a)
b)
c)
d)
e)
f)

Dr. Ely Villaflor Not Negligent


Dr. Rosa Uy Not Negligent
Dr. Joel Enriquez Not Negligent
Dr. Perpetua Lacson Not Negligent
Dr. Noe Espinola Not Negligent
Nurse J. Dumlao Not Negligent

WHEREFORE, the Court PARTLY GRANTS the petition. The


Court finds respondent Capitol Medical Center vicariously liable for
the negligence of Dr. Oscar Estrada. The amounts of P105,000 as
actual damages and P700,000 as moral damages should each earn
legal interest at the rate of six percent (6%) per annum computed
from the date of the judgment of the trial court. The Court affirms
the rest of the Decision dated 6 February 1998 and Resolution
dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No.
45641.
PROFESSIONAL SERVICES,
G.R. No. 126297
INC.,
- versus THE
COURT
OF
APPEALS
and NATIVIDAD and ENRIQUE
AGANA,
x-------------------x
NATIVIDAD [substituted by her
children Marcelino Agana III,
Enrique Agana, Jr.,
Emma Agana-Andaya,
Jesus Agana and Raymund
Agana] and ENRIQUE AGANA,

G.R. No. 126467

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30

versus -

THE COURT OF APPEALS and JUAN


FUENTES,
x-------------------x
MIGUEL AMPIL,

G.R. No. 127590

- versus NATIVIDAD and ENRIQUE


AGANA,
Promulgated:February 2, 2010
x------------------------------------------- - - - - - - -x

FACTS

PSI, together with Dr. Miguel Ampil and Dr. Juan Fuentes, was
impleaded by Enrique Agana and Natividad Agana (later
substituted by her heirs), in a complaint for damages for the
injuries suffered by Natividad when Dr. Ampil and Dr. Fuentes
neglected to remove from her body two gauzes which were used
in the surgery they performed on her on at the Medical City
General Hospital. PSI was impleaded as owner, operator and
manager of the hospital.
RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes
for damages.

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31

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.
ISSUE

Whether a hospital may be held liable for the negligence of


physicians-consultants allowed to practice in its premises.

RULING
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, in reality it utilizes doctors, surgeons and medical
practitioners in the conduct of its business of facilitating medical
and surgical treatment. 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

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32

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 in relation to Article
2180 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 and Article 1869 of the Civil Code
or the principle of apparent authority. Moreover, regardless of its
relationship with the doctor, the hospital may be held

directly

liable to the patient for its own negligence or failure to follow


established standard of conduct to which it should conform as a
corporation.

This Court still employs the control test to determine the


existence of an employer-employee relationship between hospital
and doctor. In Calamba Medical Center, Inc. v. National Labor
Relations Commission, et al. 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.

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33

xx xx xx
As priorly stated, private respondents maintained
specific work-schedules, as determined by petitioner
through its medical director, which consisted of 24-hour
shifts totaling forty-eight hours each week and which were
strictly to be observed under pain of administrative
sanctions.
That
petitioner
exercised
control
over
respondents gains light from the undisputed fact
that in the emergency room, the operating room, or
any department or ward for that matter,
respondents' work is monitored through its nursing
supervisors, charge nurses and orderlies. Without
the approval or consent of petitioner or its medical
director, no operations can be undertaken in those
areas. For control test to apply, it is not essential
for the employer to actually supervise the
performance of duties of the employee, it being
enough that it has the right to wield the power.

In the present case, it appears to have escaped the Court's


attention that both the RTC and the CA found no employment
relationship between PSI and Dr. Ampil, and that the Aganas did
not question such finding. In its March 17, 1993 decision, the
RTC found that defendant doctors were not employees of PSI in its

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34

hospital, they being merely consultants without any employeremployee relationship and in the capacity of independent
contractors. The Aganas never questioned such finding.

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. 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 held vicariously liable for the negligence of Dr. Ampil
under the principle of respondeat superior.

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35

There is, however, ample evidence that the hospital (PSI)


held out to the patient (Natividad) 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.
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. The consent forms signed by
Enrique as required by 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.
The Court cannot speculate on what could have been
behind the Aganas decision but would rather adhere strictly to the
fact that, under the circumstances at that time, Enrique decided
to consult Dr. Ampil for he believed him to be a staff member of a
prominent and known hospital. After his meeting with Dr. Ampil,
Enrique
advised
his
wife
Natividad
to
go
to

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36

the Medical City General Hospital to be examined by said doctor,


and the hospital acted in a way that fortified Enrique's belief.
This Court must therefore maintain the ruling that PSI
is vicariously liable for the negligence of Dr. Ampil as its
ostensible agent.
Moving on to the next issue, PSI made an admission in its
Motion for Reconsideration 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.
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had
no power to control the means or method by which Dr. Ampil
conducted the surgery on Natividad Agana, it had the power to
review or cause the review of what may have irregularly
transpired within its walls strictly for the purpose of determining
whether some form of negligence may have attended any
procedure done inside its premises, with the ultimate end of
protecting its patients.
Second, it is a judicial admission that, by virtue of the nature
of its business as well as its prominence 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.

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37

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; 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. 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.
Given the standard of conduct that PSI defined for itself, the
next relevant inquiry is whether the hospital measured up to it.
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

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38

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 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.

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39

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 doctorsconsultants under any and all circumstances. The ruling is unique
to this case, for the liability of PSI arose from an implied agency
with Dr. Ampil and an admitted corporate duty to Natividad.
Other circumstances peculiar to this case warrant this
ruling, 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.
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.

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40

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.

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41

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


ROGELIO E. RAMOS and ERLINDA RAMOS vs. COURT OF
APPEALS, DE LOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DR. PERFECTA GUTIERREZ
FACTS
Petitioner Erlinda Ramos was under a comatose condition after
she delivered herself to De Los Santos Medical Center, Dr. Orlino
Hosaka and Dr. Perfecta Gutierrez for their professional care and
management.
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 in the morning at private
respondent De Los Santos Medical Center (DLSMC). 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.
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.
9:30 am - Dr. Hosaka had not yet arrived. Dr. Gutierrez informed
Cruz that the operation might be delayed due to the late arrival of
Dr. Hosaka.
10:00 am - Dr. Hosaka still not around
12:00 pm - Dr. Hosaka arrived at the hospital or more than
three (3) hours after the scheduled operation.
Cruz 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

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42

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
Petitioners filed 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.
ISSUE
1. WHETHER
OR
NOT
DR.
PERFECTA
GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS
LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS
MEDICAL CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE

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43

COMMITTED BY THEIR VISITING CONSULTANT SURGEON


AND ANESTHESIOLOGIST.
We shall first resolve the issue pertaining to private respondent
Dr. Gutierrez. Unfortunately, Dr. Gutierrez claim of lack of
negligence on her part is belied by the records of the case. It has
been sufficiently established that she failed to exercise the
standards of care in the administration of anesthesia on a
patient. Dr. Egay enlightened the Court on what these standards
are:
x x x What are the standards of care that an
anesthesiologist should do before we administer
anesthesia? The initial step is the preparation of the
patient for surgery and this is a pre-operative evaluation
because the anesthesiologist is responsible for
determining the medical status of the patient, developing
the anesthesia plan and acquainting the patient or the
responsible adult particularly if we are referring with the
patient or to adult patient who may not have, who may
have some mental handicaps of the proposed plans. We
do pre-operative evaluation because this provides for an
opportunity for us to establish identification and personal
acquaintance with the patient. It also makes us have an
opportunity to alleviate anxiety, explain techniques and
risks to the patient, given the patient the choice and
establishing consent to proceed with the plan. And lastly,
once this has been agreed upon by all parties concerned
the ordering of pre-operative medications. And following
this line at the end of the evaluation we usually come up
on writing, documentation is very important as far as
when we train an anesthesiologist we always emphasize
this because we need records for our protection, well,
records. And it entails having brief summary of patient
history and physical findings pertinent to anesthesia,
plan, organize as a problem list, the plan anesthesia
technique, the plan post operative, pain management if

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44

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.
The conduct of a preanesthetic/preoperative evaluation prior to
an operation, whether elective or emergency, cannot be
dispensed with. Such evaluation is necessary for the formulation of
a plan of 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.
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.
Nonetheless, Dr. Gutierrez omitted to perform a thorough
preoperative evaluation on Erlinda. As she herself admitted, she
saw Erlinda for the first time on the day of the operation itself, one
hour before the scheduled operation. She auscultated the

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45

patients heart and lungs and checked the latters blood pressure
to determine if Erlinda was indeed fit for operation. 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 preoperative 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 Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.
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:

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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.
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

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47

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

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48

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 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

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49

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?
DR. GUTIERREZ
Yes.
Q
There were two attempts. In the first attempt was the tube
inserted or was the laryngoscope only inserted, which was
inserted?
A
All the laryngoscope.

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50

A
Q

A
Q

Q
A
Q
A
Q
A
Q
A
Q

All the laryngoscope. But if I remember right somewhere in


the re-direct, a certain lawyer, you were asked that you did a
first attempt and the question was did you withdraw the
tube? And you said you never withdrew the tube, is that
right?
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?

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51

A
Q
A
Q
A

Q
A
Q
A
Q
A

A
Q
A

Yes, and then, I asked the resident physician to start giving


the pentothal very slowly and that was around one minute.
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.

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52

Q
A
Q
A
Q
A
Q

A
Q

A
Q
A
Q
A
Q
A
Q

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.
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

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53

A
Q
A
Q

A
Q
A
Q
A
Q

A
Q

A
Q
A
Q
A

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.
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)

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Huwag ho kayong makuwan, we are just trying to enlighten,


I am just going over the record ano, kung mali ito kuwan eh di
ano. So, ganoon po ano, that it seems to me that there is no
recording from 12:20 to 12:30, so, I am just wondering why
there were no recordings during the period and then of course
the second cyanosis, after the first cyanosis. I think that was
the time Dr. Hosaka came in?
A
No, the first cyanosis (interrupted).[23]
We cannot thus give full credence to Dr. Gutierrez synopsis in
light of her admission that it does not fully reflect the events that
transpired during the administration of anesthesia on Erlinda. As
pointed out by Dr. Estrella, there was a ten-minute gap in Dr.
Gutierrez synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is
particularly significant because, as found by the trial court, it was
the absence of oxygen supply for four (4) to five (5) minutes that
caused 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

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55

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.
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]
In Voss vs. Bridwell,[28] which involved a patient who suffered
brain damage due to the wrongful administration of anesthesia,
and even before the scheduled mastoid operation could be
performed, the Kansas Supreme Court applied the doctrine of res
ipsa loquitur, reasoning that the injury to the patient therein was
one which does not ordinarily take place in the absence of
negligence in the administration of an anesthetic, and in the use
and employment of an endotracheal tube. The court went on to
say that [o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and
under these circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would
ordinarily
have
followed
if
due
care
had
been
[29]
exercised. 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-theShip 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

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56

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 Captainof-the-Ship Doctrine, citing the fact that the field of medicine has
become specialized such that surgeons can no longer be deemed
as having control over the other personnel in the operating
room. It held that [a]n assignment of liability based on actual
control more realistically reflects the actual relationship which
exists in a modern operating room.[35] Hence, only the
anesthesiologist who inserted the endotracheal tube into the
patients throat was held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with
the Captain-of-the-Ship doctrine does not mean that this Court
will ipso facto follow said trend. Due regard for the peculiar
factual circumstances obtaining in this case justify the application
of the Captain-of-the-Ship doctrine. From the facts on record it can
be logically inferred that Dr. Hosaka exercised a certain degree of,
at the very least, supervision over the procedure then being
performed on Erlinda.

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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.

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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 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

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and he will be opened up; a knife is going to open up his


body. x x x[42]
Dr. Hosaka cannot now claim that he was entirely blameless of
what happened to Erlinda. His conduct clearly constituted a
breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about
anxiety, would you consider a patient's stay on the operating
table for three hours sufficient enough to aggravate or
magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that
was the case, three hours waiting and the patient was already
on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to
the aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already
a source of anxiety and most operating tables are very narrow
and that patients are usually at risk of falling on the floor so
there are restraints that are placed on them and they are
never, never left alone in the operating room by themselves
specially if they are already pre-medicated because they may
not be aware of some of their movement that they make
which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come
on time?

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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 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

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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

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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 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

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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.
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.

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In the instant case, petitioners were able to provide only homebased 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)
P1,352,000.00 as actual damages;
(b)
P2,000,000.00 as moral damages;
(c)
P100,000.00 as exemplary damages;

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(d)
P100,000.00 as attorneys fees; and
(e)
the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago,
JJ., concur.

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G.R. No. 167366

September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS


ZAFE, Petitioners,
vs.
COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and
FE R. SERRANO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari 1 under Rule
45 of the Rules of Court seeking the annulment and setting aside
of the 21 February 2005 decision2 of the Court of Appeals (CA) in
CA-G.R. CV No. 65800. In the assailed decision, the CA affirmed
in toto the decision of the Regional Trial Court (R TC), Branch 22,
Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr.
Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.
Culled from the records are the following antecedent facts:
At about 9:15 in the evening of 16 September 1995, Raymond S.
Olavere (Raymond), a victim of a stabbing incident, was rushed to
the emergency room of the Bicol Regional Medical Center (BRMC).
There, Raymond was attended to by Nurse Arlene Balares (Nurse
Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) the emergency
room resident physician.
Subsequently, the parents of Raymondthe spouses Deogenes
Olavere (Deogenes) and Fe R. Serranoarrived at the BRMC. They
were accompanied by one Andrew Olavere, the uncle of Raymond.

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After extending initial medical treatment to Raymond, Dr. Realuyo


recommended that the patient undergo "emergency exploratory
laparotomy." Dr. Realuyo then requested the parents of Raymond
to procure 500 cc of type "O" blood needed for the operation.
Complying with the request, Deogenes and Andrew Olavere went
to the Philippine National Red Cross to secure the required blood.
At 10:30 P.M., Raymond was wheeled inside the operating room.
During that time, the hospital surgeons, Drs. Zafe and Cereno,
were busy operating on gunshot victim Charles Maluluy-on.
Assisting them in the said operation was Dr. Rosalina Tatad (Dr.
Tatad), who was the only senior anesthesiologist on duty at BRMC
that night. Dr. Tatad also happened to be the head of
Anesthesiology Department of the BRMC.
Just before the operation on Maluluy-on was finished, another
emergency case involving Lilia Aguila, a woman who was giving
birth to triplets, was brought to the operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was finished.
By that time, however, Dr. Tatad was already working with the
obstetricians who will perform surgery on Lilia Aguila. There being
no other available anesthesiologist to assist them, Drs. Zafe and
Cereno decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to examine
Raymond and they found that the latters blood pressure was
normal and "nothing in him was significant."3 Dr. Cereno reported
that based on the xray result he interpreted, the fluid inside the
thoracic cavity of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the
BRMC with a bag containing the requested 500 cc type "O" blood.
They handed over the bag of blood to Dr. Realuyo.

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After Dr. Tatad finished her work with the Lilia Aguila operation,
petitioners immediately started their operation on Raymond at
around 12:15 A.M. of 17 September 1995. Upon opening of
Raymonds thoracic cavity, they found that 3,200 cc of blood was
stocked therein. The blood was evacuated and petitioners found a
puncture at the inferior pole of the left lung.
In his testimony, Dr. Cereno stated that considering the loss of
blood suffered by Raymond, he did not immediately transfuse
blood because he had to control the bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At 1:45
A.M., while the operation was on-going, Raymond suffered a
cardiac arrest. The operation ended at 1:50 A.M. and Raymond
was pronounced dead at 2:30 A.M.
Raymonds death certificate5 indicated that the immediate cause
of death was "hypovolemic shock" or the cessation of the
functions of the organs of the body due to loss of blood.6
Claiming that there was negligence on the part of those who
attended to their son, the parents of Raymond, on 25 October
1995, filed before the RTC, Branch 22, Naga City a complaint for
damages7 against Nurse Balares, Dr. Realuyo and attending
surgeons Dr. Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own behalf.
They also presented the testimonies of Andrew Olavere and one
Loira Oira, the aunt of Raymond. On the other hand, Dr. Cereno,
Dr. Realuyo, Nurse Balares and Security Guard Diego Reposo
testified for the defense. On rebuttal, the parents of Raymond
presented Dr. Tatad, among others.

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On 15 October 1999, the trial court rendered a decision 8 the


dispositive portion of which reads:
WHEREFORE, premises considered, this Court hereby renders
judgment:
1. Dismissing the case against Dr. Ruel Levy Realuyo and
Arlene Balares for lack of merit;
2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno
to pay the heirs of Raymond Olavere, jointly and severally the
following amounts:
1. P 50,000.00 for the death of the victim;
2. P 150,000.00 as moral damages;
3. P 100,000.00 as exemplary damages;
4. P 30,000.00 for attorneys fees; and
5. Cost of suit.9
x x x x.
The trial court found petitioners negligent in not immediately
conducting surgery on Raymond. It noted that petitioners have
already finished operating on Charles Maluluy-on as early as 10:30
in the evening, and yet they only started the operation on
Raymond at around 12:15 early morning of the following day. The
trial court held that had the surgery been performed promptly,
Raymond would not have lost so much blood and, therefore, could
have been saved.10
The trial court also held that the non-availability of Dr. Tatad after
the operation on Maluluy-on was not a sufficient excuse for the

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petitioners to not immediately operate on Raymond. It called


attention to the testimony of Dr. Tatad herself, which disclosed the
possibility of calling a standby anesthesiologist in that situation.
The trial court opined that the petitioners could have just
requested for the standby anesthesiologist from Dr. Tatad, but they
did not.
Lastly, the trial court faulted petitioners for the delay in the
transfusion of blood on Raymond.
On appeal, the CA in a decision dated 21 February 2005 affirmed
in toto the judgment rendered by the RTC finding herein
petitioners guilty of gross negligence in the performance of their
duties and awarding damages to private respondents.
Hence, this petition for review on certiorari under Rule 45 of the
Rules of Court assailing the CA decision on the following grounds:
1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE
GROSSLY NEGLIGENT IN THE PERFORMANCE OF THEIR
DUTIES;
2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL
REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY
AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND
LIABLE FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF
MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEYS
FEES EXORBITANT OR EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of Court, only
questions of law may be raised. The reason behind this is that this

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Court is not a trier of facts and will not re-examine and re-evaluate
the evidence on record.11 Factual findings of the CA, affirming that
of the trial court, are therefore generally final and conclusive on
this Court. This rule is subject to the following exceptions: (1) the
conclusion is grounded on speculations, surmises or conjectures;
(2) the inference is manifestly mistaken, absurd or impossible; (3)
there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting;
(6) there is no citation of specific evidence on which the factual
findings are based; (7) the findings of absence of fact are
contradicted by the presence of evidence on record; (8) the
findings of the CA are contrary to those of the trial court; (9) the
CA manifestly overlooked certain relevant and undisputed facts
that, if properly considered, would justify a different conclusion;
(10) the findings of the CA are beyond the issues of the case; and
(11) such findings are contrary to the admissions of both
parties.12 In this case, We find exceptions (1) and (4) to be
applicable.
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 the failure or action caused injury to
the patient.13 Stated otherwise, the complainant must prove: (1)
that the health care provider, either by his act or omission, had

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been negligent, and (2) that such act or omission proximately


caused the injury complained of.
The best way to prove these is through the opinions of expert
witnesses belonging in the same neighborhood and in the same
general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified physicians
stems from the formers realization that the latter possess unusual
technical skills which laymen in most instances are incapable of
intelligently evaluating, hence, the indispensability of expert
testimonies.14
Guided by the foregoing standards, We dissect the issues at hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of the
petitioners by their failure to perform the operation on Raymond
immediately after finishing the Maluluy-on operation. It rejected as
an excuse the nonavailability of Dr. Tatad. The trial court relied on
the testimony of Dr. Tatad about a "BRMC protocol" that introduces
the possibility that a standby anesthesiologist could have been
called upon. The pertinent portions of the testimony of Dr. Tatad
provides:
Q: Aside from you and Dr. Rebancos, who was the standby
anesthesiologist?
A: We have a protocol at the Bicol Medical Center to have a
consultant who is on call.
Q: How many of them?
A: One.

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Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency case to be
attended to in the Bicol Medical Center?
A: Yes sir.15
Dr. Tatad further testified:
Q: Alright (sic), considering that you said you could not attend to
Raymond Olavere because another patient was coming in the
person of Lilia Aguila, did you not suggest to Dr. Cereno to call the
standby anesthesiologist?
A: They are not ones to do that. They have no right to call for the
standby anesthesiologist.
Q: Then, who should call for the standby anesthesiologist?
A: It is me if the surgeon requested.
Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.
Q: I just want to know that in this case the surgeon did not request
you to call for the standby anesthesiologist?

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A: No sir.16
From there, the trial court concluded that it was the duty of the
petitioners to request Dr. Tatad to call on Dr. Rosalina Flores, the
standby anesthesiologist. Since petitioners failed to do so, their
inability to promptly perform the operation on Raymond becomes
negligence on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in any
evidence on the record for that matter, which shows that the
petitioners were aware of the "BRMC protocol" that the hospital
keeps a standby anesthesiologist available on call. Indeed, other
than the testimony of Dr. Tatad, there is no evidence that proves
that any such "BRMC protocol" is being practiced by the hospitals
surgeons at all.
Evidence to the effect that petitioners knew of the "BRMC
protocol" is essential, especially in view of the contrary assertion
of the petitioners that the matter of assigning anesthesiologists
rests within the full discretion of the BRMC Anesthesiology
Department. Without any prior knowledge of the "BRMC protocol,"
We find that it is quite reasonable for the petitioners to assume
that matters regarding the administration of anesthesia and the
assignment of anesthesiologists are concerns of the
Anesthesiology Department, while matters pertaining to the
surgery itself fall under the concern of the surgeons. Certainly, We
cannot hold petitioners accountable for not complying with
something that they, in the first place, do not know.
Second. Even assuming ex gratia argumenti that there is such
"BRMC protocol" and that petitioners knew about it, We find that
their failure to request for the assistance of the standby

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anesthesiologist to be reasonable when taken in the proper


context. There is simply no competent evidence to the contrary.
From the testimony of Dr. Tatad herself, it is clear that the matter
of requesting for a standby anaesthesiologist is not within the full
discretion of petitioners. The "BRMC protocol" described in the
testimony requires the petitioners to course such request to Dr.
Tatad who, as head of the Department of Anesthesiology, has the
final say of calling the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on operation,
Dr. Tatad was already assisting in the Lilia Aguila operation. Drs.
Zafe and Cereno then proceeded to examine Raymond and they
found that the latters blood pressure was normal and "nothing in
him was significant."17 Dr. Cereno even concluded that based on
the x-ray result he interpreted, the fluid inside the thoracic cavity
of Raymond was minimal at around 200-300 cc. Such findings of
Drs. Cereno and Zafe were never challenged and were unrebutted.
Given that Dr. Tatad was already engaged in another urgent
operation and that Raymond was not showing any symptom of
suffering from major blood loss requiring an immediate operation,
We find it reasonable that petitioners decided to wait for Dr. Tatad
to finish her surgery and not to call the standby anesthesiologist
anymore. There is, after all, no evidence that shows that a prudent
surgeon faced with similar circumstances would decide otherwise.
Here, there were no expert witnesses presented to testify that the
course of action taken by petitioners were not in accord with those
adopted by other reasonable surgeons in similar situations.
Neither was there any testimony given, except that of Dr. Tatads,
on which it may be inferred that petitioners failed to exercise the
standard of care, diligence, learning and skill expected from

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76

practitioners of their profession. Dr. Tatad, however, is an expert


neither in the field of surgery nor of surgical practices and
diagnoses. Her expertise is in the administration of anesthesia and
not in the determination of whether surgery ought or not ought to
be performed.
Another ground relied upon by the trial court in holding petitioners
negligent was their failure to immediately transfuse blood on
Raymond. Such failure allegedly led to the eventual death of
Raymond through "hypovolemic shock." The trial court relied on
the following testimony of Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused to him
while he was inside the operating room?
A: The blood arrived at 1:40 a.m. and that was the time when this
blood was hooked to the patient.
xxxx
Q: Prior to the arrival of the blood, you did not request for blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
xxxx
A: 9:30.
xxxx

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Q: Had this blood been given to you before the operation you
could have transfused the blood to the patient?
A: Of course, yes.
Q: And the blood was transfused only after the operation?
A: Because that was the time when the blood was given to us.
xxxx
Q: Have you monitored the condition of Raymond Olavere?
A: I monitored the condition during the time when I would
administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have been in
critical condition?
A: At the time when the blood pressure was 60/40 I again told Dr.
Cereno that blood was already needed.
Q: With that condition, Doctor, that the patient had 60/40 blood
pressure you did not decide on transfusing blood to him?
A: I was asking for blood but there was no blood available.
Q: From whom did you ask?

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A: From the surgeon. According to Dr. Zafe there was only 500 cc
but still for cross-matching.18
From the aforesaid testimony, the trial court ruled that there was
negligence on the part of petitioners for their failure to have the
blood ready for transfusion. It was alleged that at 11:15 P.M., the
500 cc of blood was given to Dr. Realuyo by Raymonds parents. At
11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes
had passed. Yet, the blood was not ready for transfusion as it was
still being cross-matched.19 It took another two hours before blood
was finally transfused to Raymond at 1:40 A.M. of 17 September
1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood, if there
was any, cannot be attributed as the fault of the petitioners. The
petitioners were never shown to be responsible for such delay. It is
highly unreasonable and the height of injustice if petitioners were
to be sanctioned for lapses in procedure that does not fall within
their duties and beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly explained
the apparent delay in the transfusion of blood on Raymond before
and during the operation.
Before the operation, Dr. Cereno explained that the reason why no
blood transfusion was made on Raymond was because they did
not then see the need to administer such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the operation you
were informed that there was 500 cc of blood available and was
still to be cross-matched. What time was that when you were
informed that 500 cc of blood was due for crossmatching?

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A: I am not sure of the time.


Q: But certainly, you learned of that fact that there was 500 cc of
blood, which was due for crossmatching immediately prior to the
operation?
A: Yes, sir.
Q: And the operation was done at 12:15 of September 17?
A: Yes, sir.
Q: And that was the reason why you could not use the blood
because it was being crossmatched?
A: No, sir. That was done only for a few minutes. We did not
transfuse at that time because there was no need. There is a
necessity to transfuse blood when we saw there is gross
bleeding inside the body. 20 (Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was already
able to discover that 3,200 cc of blood was stocked in the thoracic
cavity of Raymond due to the puncture in the latters left lung.
Even then, however, immediate blood transfusion was not feasible
because:
Q: Now considering the loss of blood suffered by Raymund
Olavere, why did you not immediately transfuse blood to the
patient and you waited for 45 minutes to elapse before transfusing
the blood?
A: I did not transfuse blood because I had to control the
bleeders. If you will transfuse blood just the same the
blood that you transfuse will be lost. After evacuation of
blood and there is no more bleeding

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Q: It took you 45 minutes to evacuate the blood?


A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only transfuse
blood after 45 minutes?
A: We have to look for some other lesions. It does not mean
that when you slice the chest you will see the lesions
already.21
(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went unchallenged
or unrebutted. The parents of Raymond were not able to present
any expert witness to dispute the course of action taken by the
petitioners.
Causation Not Proven
In medical negligence cases, it is settled that the complainant has
the burden of establishing breach of duty on the part of the
doctors or surgeons. It must be proven that such breach of duty
has a causal connection to the resulting death of the patient. 22 A
verdict in malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical
probability based upon competent expert testimony.
The parents of Raymond failed in this respect. Aside from their
failure to prove negligence on the part of the petitioners, they also
failed to prove that it was petitioners fault that caused the injury.
Their cause stands on the mere assumption that Raymonds life
would have been saved had petitioner surgeons immediately
operated on him; had the blood been cross-matched immediately
and had the blood been transfused immediately. There was,

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however, no proof presented that Raymonds life would have been


saved had those things been done. Those are mere assumptions
and cannot guarantee their desired result. Such cannot be made
basis of a decision in this case, especially considering that the
name, reputation and career of petitioners are at stake.
The Court understands the parents grief over their sons
death.1wphi1 That notwithstanding, it cannot hold petitioners
liable. It was noted that Raymond, who was a victim of a stabbing
incident, had multiple wounds when brought to the hospital. Upon
opening of his thoracic cavity, it was discovered that there was
gross bleeding inside the body. Thus, the need for petitioners to
control first what was causing the bleeding. Despite the situation
that evening i.e. numerous patients being brought to the hospital
for emergency treatment considering that it was the height of the
Peafrancia Fiesta, it was evident that petitioners exerted earnest
efforts to save the life of Raymond. It was just unfortunate that the
loss of his life was not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors are
protected by a special law. They are not guarantors of care. They
do not even warrant a good result. They are not insurers against
mishaps or unusual consequences. Furthermore, they are not
liable for honest mistake of judgment"23
This Court affirms the ruling of the CA that the BRMC is not an
indispensible party. The core issue as agreed upon by the parties
and stated in the pre-trial order is whether petitioners were
negligent in the performance of their duties. It pertains to
acts/omissions of petitioners for which they could be held liable.
The cause of action against petitioners may be prosecuted fully
and the determination of their liability may be arrived at without
impleading the hospital where they are employed. As such, the

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BRMC cannot be considered an indispensible party without whom


no final determination can be had of an action.24
IN THE LIGHT OF THE FOREGOING, the instant Petition for
Review on Certiorari is hereby GRANTED. The Court of Appeals
decision dated 21 February 2005 in CA-G.R. CV No. 65800 is
hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice

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Republic of the Philippines


Supreme Court
Manila

THIRDDIVISION

DR. EMMANUEL JARCIA,


JR.and DR.
MARILOU
BASTAN,
Petitioners,

G.R. No. 187926


Present:
CARPIO,* J.,
PERALTA,** Acting
Chairperson,
ABAD,

- versus -

PEREZ,*** and
MENDOZA, JJ.

Promulgated:
February 15, 2012

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PEOPLE OF
THEPHILIPPINES,
Respondent.
x --------------------------------------------------------------------------------------- x
DECISION
MENDOZA, J.:

Even early on, patients have consigned their lives to


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

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THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the


National Bureau of Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr.
Bastan), for their alleged neglect of professional duty which
caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious
physical injuries. Upon investigation, the NBI found that Roy Jr. was
hit by a taxicab; that he was rushed to the Manila Doctors Hospital
for an emergency medical treatment; that an X-ray of the victims
ankle was ordered; that the X-ray result showed no fracture as
read by Dr. Jarcia; that Dr. Bastan entered the emergency
room (ER) and, after conducting her own examination of the
victim, informed Mrs. Santiago that since it was only the ankle that
was hit, there was no need to examine the upper leg; that eleven
(11) days later, Roy Jr. developed fever, swelling of the right leg
and misalignment of the right foot; that Mrs. Santiago brought him
back to the hospital; and that the X-ray revealed a right mid-tibial
fracture and a linear hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City
Prosecutor of Manila for preliminary investigation. Probable cause
was found and a criminal case for reckless imprudence resulting to
serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No.
01-196646.
On June 14, 2005, the RTC found the petitioners guilty
beyond reasonable doubt of the crime of Simple Imprudence
Resulting to Serious Physical Injuries. The decretal portion of the
RTC decision reads:

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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.
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

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the necessary and reasonable prudence in ascertaining


the extent of injury of Alfonso Santiago, Jr.

However, the negligence exhibited by the two


doctors does not approximate negligence of a reckless
nature
but
merely
amounts
to
simple
imprudence. Simple imprudence consists in the lack of
precaution displayed in those cases in which the damage
impending to be caused is not the immediate nor the
danger clearly manifest. The elements of simple
imprudence are as follows.
1.

that there is lack of precaution on the part


of the offender; and

2.

that the damage impending to be caused


is not immediate of the danger is not clearly
manifest.

Considering all the evidence on record, The Court


finds the accused guilty for simple imprudence resulting
to physical injuries. Under Article 365 of the Revised
Penal Code, the penalty provided for is arresto mayor in
its minimum period.

Dissatisfied, the petitioners appealed to the CA.

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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

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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 accusedappellants negligence, and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the
part of the physician as well as a causal connection of
such breach and the resulting injury of his patient. The
connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by
intervening efficient causes. In other words, the
negligence must be the proximate cause of the
injury. Negligence, no matter in what it consists, cannot
create a right of action unless it is the proximate cause of
the injury complained of. The proximate cause of an
injury is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would
not have occurred.
In the case at bench, the accused-appellants
questioned the imputation against them and argued that
there is no causal connection between their failure to
diagnose the fracture and the injury sustained by Roy.
We are not convinced.

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The prosecution is however after the cause which


prolonged the pain and suffering of Roy and not on the
failure of the accused-appellants to correctly diagnose the
extent of the injury sustained by Roy.
For a more logical presentation of the discussion,
we shall first consider the applicability of the doctrine
of res ipsa loquitur to the instant case. Res ipsa
loquitur is a Latin phrase which literally means the thing
or the transaction speaks for itself. The doctrine of res
ipsa loquitur is simply a recognition of the postulate that,
as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who
controls the instrumentality causing the injury in the
absence of some explanation by the accused-appellant
who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and, on the
basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of
the accident itself. Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.
The specific acts of negligence was narrated by
Mrs. Santiago who accompanied her son during the
latters ordeal at the hospital. She testified as follows:
Fiscal Formoso:

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91

Q:

Now, he is an intern did you not consult


the doctors, Dr. Jarcia or Dra. Pamittan to
confirm whether you should go home or
not?

A:

Dra. Pamittan was inside the cubicle of


the nurses and I asked her, you let us go
home and you dont even clean the wounds
of my son.

Q:
A:

And what did she [tell] you?


They told me they will call a resident
doctor, sir.
xxx

xxx

xxx

Q:

Was there a resident doctor [who] came?

A:

Yes, Sir. Dra. Bastan arrived.

Q:

Did you tell her what you want on you to


be done?

A:

Yes, sir.

Q:

What did you [tell] her?

A:

I told her, sir, while she was cleaning the


wounds of my son, are you not going to xray up to the knee because my son was
complaining pain from his ankle up to the
middle part of the right leg.

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Q:
A:

Q:

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?

A:

I told her, sir, why is it that they did not


examine[x] the whole leg. They just lifted
the pants of my son.

Q:

So you mean to say there was no


treatment made at all?

A:

None, sir.
xxx

A:

A:
Q:

xxx

I just listened to them, sir. And I just


asked if I will still return my son.
xxx

Q:

xxx

xxx

xxx

And you were present when they were


called?
Yes, sir.
And what
Sis. Retoria?

was

discussed

then

by

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93

A:

When they were there they admitted that


they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the


following requisites must be satisfactorily shown:
1.

The accident is of a kind which ordinarily


does not occur in the absence of someones
negligence;

2.

It is caused by an instrumentality within


the exclusive control of the defendant or
defendants; and

3. The possibility of contributing conduct which


would make the plaintiff responsible is
eliminated.
In the above requisites, the fundamental element
is the control of the instrumentality which caused the
damage. Such element of control must be shown to be
within the dominion of the accused-appellants. In order to
have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it
is applicable and must establish that the essential
elements of the doctrine were present in a particular
incident. The early treatment of the leg of Roy would
have lessen his suffering if not entirely relieve him from
the fracture. A boy of tender age whose leg was hit by a
vehicle would engender a well-founded belief that his

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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?

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

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95

different thing. Because if you are an


orthopedic resident, I am not trying to say
but 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.
Q:

You mean to say there is no supervisor


attending the emergency room?

A:

At the emergency room, at the Manila


Doctors Hospital, the supervisor there is a
consultant that usually comes from a family
medicine. They see where a certain patient
have to go and then if they cannot manage
it, they refer it to the consultant on duty.
Now at that time, I dont [know] why they
dont.Because at that time, I think, it is
the decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill and


experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements 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

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96

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
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 DISMISSED and the
assailed decision of the trial court finding accused-

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97

appellants guilty beyond reasonable doubt of simple


imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.
SO ORDERED.

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-

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98

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. 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

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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.

The foregoing can be synthesized into two basic issues: [1]


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

Legal Medicine Medical Negligence Digest by Bianca Beltran


100

negligence complained of. The Court is also of the view that the CA
erred in applying the doctrine of res ipsa loquitur in this particular
case.
As to the Application 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

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101

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.

The doctrine of res ipsa loquitur as a rule of evidence is


unusual to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence. The
doctrine, however, is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a given case, is not
meant to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines
and regulates what shall be prima facie evidence thereof and
helps the plaintiff in proving a breach of the duty. The doctrine
can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available. [11]
The requisites for the application of the doctrine of res ipsa
loquitur are: (1) the accident was of a kind which does not
ordinarily
occur
unless
someone
is
negligent; (2) the
instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury
suffered must not have been due to any voluntary action or
contribution of the person injured.[12]

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102

In this case, the circumstances that caused patient Roy Jr.s


injury and the series of tests that were supposed to be undergone
by him to determine the extent of the injury suffered
were not under the exclusive control of Drs. Jarcia and Bastan. It
was
established
that
they
are
mere
residents
of
the Manila Doctors Hospital at that time who attended to the
victim at the emergency room.[13] While it may be true that the
circumstances pointed out by the courts below seem doubtless to
constitute reckless imprudence on the part of the petitioners, this
conclusion is still best achieved, not through the scholarly
assumptions of a layman like the patients mother, but by the
unquestionable knowledge of expert witness/es. As to whether the
petitioners have exercised the requisite degree of skill and care in
treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia 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]

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103

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 precautionon the part of the
person performing or failing to perform such act.[15]
The elements of simple negligence are: (1) that there is lack
of precaution on the part of the offender, and (2) that the damage
impending to be caused is not immediate or the danger is not
clearly manifest.[16]

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


that the petitioners are guilty of reckless imprudence or simple
negligence. The elements thereof were not proved by the
prosecution beyond reasonable doubt.

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


pediatric orthopedic, although pointing to some medical
procedures that could have been done by Dr. Jarcia and Dr. Bastan,
as physicians on duty, was not clear as to whether the injuries
suffered by patient Roy Jr. were indeed aggravated by the
petitioners judgment call and their diagnosis or appreciation of
the condition of the victim at the time they assessed him. Thus:

Q:

Will you please tell us, for the record, doctor, what is
your specialization?

A:

At present I am the chairman department of


orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.

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104

Q:

In June 1998, doctor, what was your position and


what was your specialization at that time?

A:

Since 1980, I have been specialist in pediatric


orthopedic.

Q:

When Alfonso Santiago, Jr. was brought to you by his


mother, what did you do by way of physicians as first
step?

A:

As usual, I examined the patient physically and, at


that time as I have said, the patient could not walk so
I [began] to suspect that probably 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.

Q:

What part of the leg, doctor, did you request to be


examined?

A:

If we refer for an x-ray, usually, we suspect a


fracture whether in approximal, middle or
lebistal tinial, we usually x-ray the entire
extremity.

Q:

And what was the result?

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105

A:

Well, I can say that it was a spiral fracture of the


mid-tibial, it is the bigger bone of the leg.

Q:

And when you say spiral, doctor, how long was this
fracture?

A:

When we say spiral, it is a sort of letter S, the length


was about six (6) to eight (8) centimeters.

Q:

Mid-tibial, will you please point to us, doctor, where


the tibial is?
(Witness pointing to his lower leg)

A:

The tibial is here, there are two bones here, the


bigger one is the tibial and the smaller one is the
fibula. The bigger one is the one that get fractured.

Q:

And in the course of your examination of Alfonso


Santiago, Jr. did you ask for the history of such injury?

A:

Yes, actually, that was a routine part of our


examination that once a patient comes in, before we
actually examine the patient, we request for a
detailed history. If it is an accident, then, we request
for the exact mechanism of injuries.

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106

Q:

And as far as you can recall, Doctor, what was the


history of that injury that was told to you?

A:

The patient was sideswiped, I dont know if it is a


car, but it is a vehicular accident.

Q:

Who did you interview?

A:

The mother.

Q:

How about the child himself, Alfonso Santiago, Jr.?

A:

Normally, we do not interview the child because,


usually, at his age, the answers are not accurate. So,
it was the mother that I interviewed.

Q:

And were you informed also of his early medication


that was administered on Alfonso Santiago, Jr.?

A:

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

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107

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

xxx

Q:

You also said, Doctor, that Dr. Jarcia and Dra. Bastan
are not even an orthopedic specialist.

A:

They are general surgeon residents. You have


to man[x] the emergency room, including
neurology, orthopedic, general surgery, they
see everything at 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?

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108

A:

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.

Q:

Not the entire body but the entire leg?

A:

I think, if my examination requires it, I would.

Q:

So, you would conduct first an examination?

A:

Yes, sir.

Q:

And do you think that with that examination


that you would have conducted you would
discover the necessity subjecting the entire foot
for x-ray?

A:

It is also possible but according to them, the


foot and the ankle were swollen and not the leg,
which sometimes normally happens that the
actual fractured bone do not get swollen.

xxxx

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109

Q:

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?

A:

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
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

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110

would not, and could not, be enough basis to hold one criminally
liable; thus, a reasonable doubt as to the petitioners guilt.

Although the Court sympathizes with the plight of the mother


and the child in this case, the Court is bound by the dictates of
justice which hold inviolable the right of the accused to be
presumed innocent until proven guilty beyond reasonable doubt.
The Court, nevertheless, finds the petitioners civilly liable for their
failure to sufficiently attend to Roy Jr.s medical needs when the
latter was rushed to the ER, for while a criminal conviction requires
proof beyond reasonable doubt, only a preponderance of evidence
is required to establish civil liability. Taken into account also was
the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi
driver who hit the victim. It may be true that the actual, direct,
immediate, and proximate cause of the injury (fracture of the leg
bone or tibia) of Roy Jr. was the vehicular accident when he was hit
by a taxi. The petitioners, however, cannot simply invoke such
fact alone to excuse themselves from any liability. If this would be
so, doctors would have a ready defense should they fail to do their
job in attending to victims of hit-and-run, maltreatment, and other
crimes of violence in which the actual, direct, immediate, and
proximate cause of the injury is indubitably the act of the
perpetrator/s.

In failing to perform an extensive medical examination to


determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan
were remiss of their duties as members of the medical profession.
Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they
should have referred the patient to another doctor with sufficient

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111

training and experience instead of assuring him and his mother


that everything was all right.

This Court cannot also stamp its imprimatur on the


petitioners contention that no physician-patient relationship
existed between them and patient Roy Jr., since they were not his
attending physicians at that time. They claim that they were
merely requested by the ER nurse to see the patient while they
were passing by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA. The
petitioners, therefore, raise the want of doctor-patient relationship
for the first time on appeal with this Court. It has been settled that
issues raised for the first time on appeal cannot be considered
because a party is not permitted to change his theory on
appeal. To allow him to do so is unfair to the other party and
offensive to the rules of fair play, justice and due
process.[18] Stated differently, basic considerations of due process
dictate that theories, issues and arguments not brought to the
attention of the trial court need not be, and ordinarily will not be,
considered by a reviewing court.[19]

Assuming again for the sake of argument that the petitioners


may still raise this issue of no physicianpatient relationship, the
Court finds and so holds that there was a physicianpatient
relationship in this case.

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


a patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician,
for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing
in the same field; and that he will employ such training, care, and

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112

skill in the treatment of the patient. Thus, in treating his patient, a


physician is under a duty to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and
in the same general line of practice ordinarily possess and exercise
in like cases. Stated otherwise, the physician has the obligation to
use at least the same level of care that any other reasonably
competent physician would use to treat the condition under similar
circumstances.
Indubitably, a physician-patient relationship exists between
the petitioners and patient Roy Jr. Notably, the latter and his
mother went to the ER for an immediate medical attention. The
petitioners allegedly passed by and were requested to attend to
the victim (contrary to the testimony of Dr. Tacata that they were,
at that time, residents on duty at the ER).[21] They obliged and
examined the victim, and later assured the mother that everything
was fine and that they could go home. Clearly, a physician-patient
relationship was established between the petitioners and the
patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from


the start that they were not in the position to attend to Roy Jr., a
vehicular accident victim, with the degree of diligence and
commitment expected of every doctor in a case like this, they
should have not made a baseless assurance that everything
was all right. By doing so, they deprived Roy Jr. of adequate
medical attention that placed him in a more dangerous situation
than he was already in. What petitioners should have done, and
could have done, was to refer Roy Jr. to another doctor who could
competently and thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only


civilly, and not criminally, liable as the facts show.

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113

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


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

Established medical procedures and practices, though in


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

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114

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
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou
Bastan of the crime of reckless imprudence resulting to serious
physical injuries but declaring them civilly liable in the amounts of:

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115

(1)
(2)
(3)
(4)

3,850.00 as actual damages;


100,000.00 as moral damages;
50,000.00 as exemplary damages; and
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.

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116

EN BANC
DR. RUBI LI,
Petitioner,

- versus -

G.R. No. 165279


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

SPOUSES
REYNALDO
Promulgated:
and LINA SOLIMAN, as
parents/heirs
of
June 7, 2011
deceased
Angelica
Soliman,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:

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117

Challenged in this petition for review on certiorari is the


Decision dated June
15,
2004 as
well
as
the
Resolution dated September 1, 2004 of the Court of Appeals (CA)
in
CA-G.R.
CV
No.
58013
which
modified
the
Decision dated September
5,
1997 of
the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No.
8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter,
Angelica Soliman, underwent a biopsy of the mass located in her
lower extremity at the St. Lukes Medical Center (SLMC). Results
showed
that
Angelica
was
suffering
from osteosarcoma, osteoblastic
type, 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.

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118

On the other hand, the Certificate of Death issued by SLMC


stated the cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c.
Status Post Chemotherapy
On February 21, 1994, respondents filed a damage
suit 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 machemo. 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, 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

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119

and triggers a chain of events (sepsis or septicemia) that may lead


to bleeding in the form of Disseminated Intravascular Coagulation
(DIC), as what the autopsy report showed in the case of Angelica.
Since the medical records of Angelica were not produced in
court, the trial and appellate courts had to rely on testimonial
evidence, principally the declarations of petitioner and
respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the
hospital after Angelicas surgery and discussed with them
Angelicas condition. Petitioner told respondents that Angelica
should be given two to three weeks to recover from the operation
before starting chemotherapy. Respondents were apprehensive
due to financial constraints as Reynaldo earns only
from P70,000.00 to P150,000.00 a year from his jewelry and watch
repairing business. 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. This was disputed by

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120

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. Those were the only side-effects of
chemotherapy treatment mentioned by petitioner.
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. Petitioner
proceeded with the chemotherapy by first administering hydration
fluids to Angelica.
The following day, August 19, petitioner began administering
three
chemotherapy
drugs

Cisplatin, Doxorubicin and


Cosmegen intravenously. Petitioner was supposedly assisted by
her trainees Dr. Leo Marbella and Dr. Grace Arriete. In his
testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.
On the second day of chemotherapy, August 20, respondents
noticed reddish discoloration on Angelicas face. They asked
petitioner about it, but she merely quipped, Wala yan. Epekto ng
gamot. 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.
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. Petitioner testified that she did not

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121

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.
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. 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.
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.
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.

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122

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. Petitioner insisted it was carpopedal spasm, not convulsions. She verified that at around 4:50 that
afternoon, Angelica developed difficulty in breathing and had fever.
She then requested for an electrocardiogram analysis, and infused
calcium gluconate on the patient at a stat dose. She further
ordered that Angelica be given Bactrim, a synthetic antibacterial
combination drug, to combat any infection on the childs body.
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.
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

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bleeding. 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. At this time, the attending physician was Dr.
Marbella who was shaking his head saying that Angelicas
platelets were down and respondents should pray for their
daughter. Reynaldo claimed that he was introduced to a
pediatrician who took over his daughters case, Dr. Abesamis who
also told him to pray for his daughter. Angelica continued to have
difficulty in her breathing and blood was being suctioned from her
stomach. A nurse was posted inside Angelicas room to assist her
breathing and at one point they had to revive Angelica by
pumping her chest. Thereafter, Reynaldo claimed that Angelica
already experienced difficulty in urinating and her bowel consisted
of blood-like fluid. Angelica requested for an electric fan as she
was in pain. Hospital staff attempted to take blood samples from
Angelica but were unsuccessful because they could not even
locate her vein. Angelica asked for a fruit but when it was given to
her, she only smelled it. At this time, Reynaldo claimed he could
not find either petitioner or Dr. Marbella. That night, Angelica
became hysterical and started removing those gadgets attached
to her. At three oclock in the morning of September 1, a priest
came and they prayed before Angelica expired. Petitioner finally
came back and supposedly told respondents that there was
malfunction or bogged-down machine.
By petitioners own account, Angelica was merely irritable
that day (August 31). Petitioner noted though that Angelicas skin
was indeed sloughing off. She stressed that at 9:30 in the
evening, Angelica pulled out her endotracheal tube. On

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September 1, exactly two weeks after being admitted at SLMC for


chemotherapy, Angelica died. The cause of death, according to
petitioner, was septicemia, or overwhelming infection, which
caused Angelicas other organs to fail. Petitioner attributed this to
the patients poor defense mechanism brought about by the
cancer itself.
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.
Respondents also presented as witnesses Dr. Jesusa NievesVergara, Medico-Legal Officer of the PNP-Crime Laboratory who
conducted the autopsy on Angelicas cadaver, and Dr. Melinda
Vergara Balmaceda who is a Medical Specialist employed at the
Department of Health (DOH) Operations and Management
Services.
Testifying on the findings stated in her medico-legal report, Dr.
Vergara noted the following: (1) there were fluids recovered from
the abdominal cavity, which is not normal, and was due to
hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper
portion of and areas adjacent to, the esophagus; (4) lungs were
heavy with bleeding at the back and lower portion, due to
accumulation of fluids; (4) yellowish discoloration of the liver; (5)
kidneys showed appearance of facial shock on account of
hemorrhages; and (6) reddishness on external surface of the
spleen. All these were the end result of hypovolemic shock
secondary to multiple organ hemorrhages and disseminated
intravascular coagulation. Dr. Vergara opined that this can be
attributed to the chemical agents in the drugs given to the victim,
which caused platelet reduction resulting to bleeding sufficient to
cause the victims death. The time lapse for the production of DIC
in the case of Angelica (from the time of diagnosis of sarcoma)
was too short, considering the survival rate of about 3 years. The

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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.
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.
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

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126

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.
In dismissing the complaint, the trial court held that
petitioner was not liable for damages as she observed the best
known procedures and employed her highest skill and knowledge
in the administration of chemotherapy drugs on Angelica but
despite all efforts said patient died. It cited the testimony of Dr.
Tamayo who testified that he considered petitioner one of the
most proficient in the treatment of cancer and that the patient in
this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the
standard of negligence laid down in Picart v. Smith, 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
ofP139,064.43.
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

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127

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 sideeffect 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.
On this point therefore, [w]e find defendant-appellee
Dr. Rubi Li negligent which would entitle plaintiffsappellants to their claim for damages.
xxxx

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128

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.

Actual damages of P139,064.43, plus P9,828.00


for funeral expenses;

2.

Moral damages of P200,000.00;

3.

Exemplary damages of P50,000.00;

4.

Attorneys fee of P30,000.00.

SO ORDERED.
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 prechemotherapy procedures and in the administration of
chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects
of chemotherapy, including death, petitioner argues that it was
foolhardy to imagine her to be all-knowing/omnipotent. While the
theoretical side effects of chemotherapy were explained by her to
the respondents, as these should be known to a competent
doctor, petitioner cannot possibly predict how a particular
patients genetic make-up, state of mind, general health and body
constitution would respond to the treatment. These are obviously

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dependent on too many known, unknown and immeasurable


variables, thus requiring that Angelica be, as she was, constantly
and closely monitored during the treatment. Petitioner asserts
that she did everything within her professional competence to
attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in
her field and her current position as co-director for clinical affairs
of the Medical Oncology, Department of Medicine of SLMC,
petitioner contends that in the absence of any clear showing or
proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pretreatment 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.
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

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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.
This Court has recognized that medical negligence cases are
best proved by opinions of expert witnesses belonging in the same
general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the
expert opinion of qualified physicians stems from the formers
realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating,
hence the indispensability of expert testimonies.
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

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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 theUnited States, the
seminal case was Schoendorff v. Society of New York
Hospital 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. 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.
Subsequently, in Canterbury v. Spence the court observed
that the duty to disclose should not be limited to medical usage as
to arrogate the decision on revelation to the physician alone. Thus,
respect for the patients right of self-determination on particular
therapy demands a standard set by law for physicians rather than
one which physicians may or may not impose upon
themselves. 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

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132

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. 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. 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.
Reiterating
the
foregoing
considerations, Cobbs
v.
Grant 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. 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

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133

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.
Cobbs v. Grant further reiterated the pronouncement
in Canterbury v. Spence that for liability of the physician for failure
to inform patient, there must be causal relationship between
physicians failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been
made, consent to treatment would not have been given.
There are four essential elements a plaintiff must prove in a
malpractice action based upon the doctrine of informed consent:
(1) the physician had a duty to disclose material risks; (2) he
failed to disclose or inadequately disclosed those risks; (3) as a
direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented
to; and (4) plaintiff was injured by the proposed treatment. The
gravamen in an informed consent case requires the plaintiff to
point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it.
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

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134

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.
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. Such expert testimony must show the
customary standard of care of physicians in the same practice as
that of the defendant doctor.
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

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135

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

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person in the patients position when deciding to accept


or reject a recommended medical procedure.
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 CAG.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.