ROGELIO E.

RAMOS and ERLINDA RAMOS, in their own behalf and as natural

guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ,
respondents.
1999-12-29 | G.R. No. 124354
DECISION
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error, may spell the difference between life and death. In
this sense, the doctor plays God on his patients fate.[1]

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy.[2]

Petitioners seek the reversal of the decision[3] of the Court of Appeals, dated 29 May 1995, which overturned
the decision[4]of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for
damages arising from negligence in the performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused
by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any
other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company,
she has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5).
She underwent a series of examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her

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husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p.
3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at
the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy" operation after examining the documents (findings from the Capitol
Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka
to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologists fee
and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the
hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She reiterated her previous request for Herminda to be with
her even during the operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband,
Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not
a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay
inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa ba ang
Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon" (ibid.).

Thereafter, Herminda went out of the operating room and informed the patients husband, Rogelio, that the
doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her, "Mindy,
inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about what the
patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor" even
as he did his best to find somebody who will allow him to pull out his wife from the operating room (TSN,
October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the operating room

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waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around
12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing those words, he went down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody
say that "Dr. Hosaka is already here." She then saw people inside the operating room "moving, doing this and
that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez
say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of
the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter
noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed became bluish and the patient was placed in a
trendelenburg position - a position where the head of the patient is placed in a position lower than her feet
which is an indication that there is a decrease of blood supply to the patients brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that something
wrong was x x x happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p.
9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards
the door of the operating room. He also saw several doctors rushing towards the operating room. When
informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to be back with the
patient inside the operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive
Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former
that something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the
doctor that the condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The

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doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the
patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the
subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything.
She cannot move any part of her body. She cannot see or hear. She is living on mechanical means. She
suffered brain damage as a result of the absence of oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case[6] for damages with the Regional Trial Court of Quezon
City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlindas injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage
sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway
by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied
on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage
was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in
not only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed
became bluish and the patient, thereafter, was placed in trendelenburg position, because of the

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decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient
suffered brain damage because of the absence of oxygen in her (patient's) brain for approximately four
to five minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the
patient a `good anesthesiologist', and for arriving for the scheduled operation almost three (3) hours
late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the
doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable for failing
through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed
to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due
care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and prudence as the patient's case was
an elective, not an emergency case.

xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against
the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following
sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;

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

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way of
exemplary damages; and,

4) the costs of the suit.

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SO ORDERED.[7]
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of
the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant
De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay
the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must be tempered with
mercy.

SO ORDERED.[8]

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension
of time in its Resolution dated 25 July 1995.[9] Meanwhile petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to
the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the
fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand,
admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9,
1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The
Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4,
necessarily, the 15-day period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

| Page 6 of 32

SO ORDERED.[10]

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorari
under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30)
days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May
1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

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

CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.[11]Before we discuss the merits of the case,
we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion for
reconsideration filed by petitioners with the Court of Appeals. In their Comment,[12] private respondents
contend that the petition should not be given due course since the motion for reconsideration of the
petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having
been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to
and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate
court apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate court
was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period

| Page 7 of 32

for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the partys lawyer at
his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on
25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former
should be considered in determining the timeliness of the filing of the present petition. Based on this, the
petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res
ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res
ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur" is a maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation.[13] Where
the thing which caused the injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendants want of care.[14]

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence.[15] It is grounded in the superior logic of
ordinary human experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.[16] Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability.[17] Instead, it is considered as merely
evidentiary or in the nature of a procedural rule.[18] It is regarded as a mode of proof, or a mere procedural

| Page 8 of 32

convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific
proof of negligence.[19] In other words, mere invocation and application of the doctrine does not dispense with
the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to thereby place on the defendant the burden of
going forward with the proof.[20] Still, before resort to the doctrine may be allowed, the following requisites
must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of 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.[21]

In the above requisites, the fundamental element is the "control of the instrumentality" which caused the
damage.[22]Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it
is applicable, and must establish that the essential elements of the doctrine were present in a particular
incident.[23]

Medical malpractice[24]cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been
applied when the circumstances attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm.[25] The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference.[26]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the
injury itself provides the proof of negligence.[27] The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and not to matters that
are within the common knowledge of mankind which may be testified to by anyone familiar with the facts.[28]
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a
patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as
to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which
are observable by any one may be given by non-expert witnesses.[29]Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the

| Page 9 of 32

patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care.[30] Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred.[31] When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of
and the injury sustained while under the custody and management of the defendant without need to produce
expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because
there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,[32] injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment,[33] removal of the wrong part of the body when another part was
intended,[34] knocking out a tooth while a patients jaw was under anesthetic for the removal of his tonsils,[35]
and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an
operation for appendicitis,[36] among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the consequences of professional care were not as such
as would ordinarily have followed if due care had been exercised.[37] A distinction must be made between the
failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service
or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon
which involves the merits of a diagnosis or of a scientific treatment. [38] The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.[39] Thus, res ipsa loquitur is not available in a malpractice suit if
the only showing is that the desired result of an operation or treatment was not accomplished.[40]The real
question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual
event outside of the routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the untoward consequence.[41] If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the

| Page 10 of 32

matter, by evidence of exculpation, if he could.[42]

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the Kansas Supreme Court in
applying theres ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the
operation was never performed. At the time of submission he was neurologically sound and physically
fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and
totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid
operation or in the absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon
these facts and under these circumstances a layman would be able to say, as a matter of common
knowledge and observation, that the consequences of professional treatment were not as such as
would ordinarily have followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her
gall bladder. On that fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an
injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation

| Page 11 of 32

does not happen in the absence of negligence of someone in the administration of anesthesia and in the use
of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any
and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the
res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the proximate cause of Erlindas comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation[45]of the patient and thus, cannot be said to be covering her negligence with falsehood.
The appellate court likewise opined that private respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the
patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert

| Page 12 of 32

witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the
tube since the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so
holding, the appellate court returned a verdict in favor of respondents physicians and hospital and absolved
them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will
be shown hereinafter, private respondents own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of
Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested
to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law,
who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified
to this effect:

ATTY.
PAJARES:
Q:

In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A:

In particular, I could see that she was intubating the patient.

Q:

Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.

A:

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

ATTY.
PAJARES:

| Page 13 of 32

Q:

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

A:

From Dra. Perfecta Gutierrez.

xxx

Q:

After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the
patient?

A:

I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q:

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

A:

I saw him approaching the patient during that time.

Q:

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

A:

He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q:

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

A:

Yes sir.

Q:

What did [s]he do, if any?

A:

[S]he tried to intubate the patient.

Q:

What happened to the patient?

A:

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

Q:

Do you know the reason why the patient was placed in that trendelenburg position?

A:

As far as I know, when a patient is in that position, there is a decrease of blood supply to
the brain.[46]
xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as
part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not,
and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a
patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the
patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated
the patient or that she conducted any type of examination to check if the endotracheal tube was in its
proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases.[47]

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a

| Page 14 of 32

success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which are
observable by any one.[48] This is precisely allowed under the doctrine of res ipsa loquitur where the testimony
of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof
of negligence in non-technical matters or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary.[49]
We take judicial notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a medical degree to be
acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the
FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical
Center School of Nursing.[50]Reviewing witness Cruz' statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlindas trachea, to wit:

ATTY. LIGSAY:
Q:

In this particular case, Doctora, while you were intubating at your first attempt (sic), you
did not immediately see the trachea?

DRA. GUTIERREZ:
A:

Yes sir.

Q:

Did you pull away the tube immediately?

A:

You do not pull the ...

Q:

Did you or did you not?

A:

I did not pull the tube.

Q:

When you said "mahirap yata ito," what were you referring to?

| Page 15 of 32

A:

"Mahirap yata itong i-intubate," that was the patient.

Q:

So, you found some difficulty in inserting the tube?

A:

Yes, because of (sic) my first attempt, I did not see right away.[51]

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a person)[52] making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough assessment of Erlindas airway, prior to the induction
of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patients medical records and visits with the patient, traditionally, the
day before elective surgery.[53] It includes taking the patients medical history, review of current drug therapy,
physical examination and interpretation of laboratory data.[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and
upper airway.[55] A thorough analysis of the patient's airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance.[56] Thus, physical characteristics of the patients upper
airway that could make tracheal intubation difficult should be studied.[57]Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patients airway would go a long way towards decreasing patient morbidity and
mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act
of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

| Page 16 of 32

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez
tried to muddle the difference between an elective surgery and an emergency surgery just so her failure to
perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:
Q:

Would you agree, Doctor, that it is good medical practice to see the patient a day before
so you can introduce yourself to establish good doctor-patient relationship and gain the
trust and confidence of the patient?

DRA. GUTIERREZ:

A:

As I said in my previous statement, it depends on the operative procedure of the

anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (sic).[58]

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a
few minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that
can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of
time to make a proper assessment, including the time to be at the patient's bedside to do a proper interview
and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted
at least one day before the intended surgery, when the patient is relaxed and cooperative.

Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlindas case prior to the operation and prepare her for anesthesia. However,
she never saw the patient at the bedside. She herself admitted that she had seen petitioner only in the
operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage
of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate
cause of Erlindas comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas coma was
due to bronchospasm[59] mediated by her allergic response to the drug, Thiopental Sodium, introduced into
her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians
and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic encephalopathy,[60] was due to an unpredictable drug

| Page 17 of 32

reaction to the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is
not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediated
processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert
would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental
Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he formulated
his opinions on the drug not from the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only from reading certain references, to wit:

ATTY. LIGSAY:
Q:

In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?

DR. JAMORA:
A:

We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q:

But not in particular when you practice pulmonology?

A:

No.

Q:

In other words, your knowledge about pentothal is based only on what you have read from
books and not by your own personal application of the medicine pentothal?

A:

Based on my personal experience also on pentothal.

Q:

How many times have you used pentothal?

A:

They used it on me. I went into bronchospasm during my appendectomy.

Q:

And because they have used it on you and on account of your own personal experience
you feel that you can testify on pentothal here with medical authority?

A:

No. That is why I used references to support my claims.[61]

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are
within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamoras
| Page 18 of 32

testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence[62]regarding expert witnesses states:

Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of recognized authorities on the subject or by practical
experience.[63]Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since
he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field, private respondents intentionally avoided providing
testimony by competent and independent experts in the proper areas.

Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions,
or wheezing - some of the more common accompanying signs of an allergic reaction - appears on record. No
laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to absolve them of any and all responsibility for the patients
condition.

In view of the evidence at hand, we are inclined to believe petitioners stand that it was the faulty intubation
which was the proximate cause of Erlindas comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred.[64] An injury
or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably probable consequence of
the act or omission.[65] It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate

| Page 19 of 32

cause which triggered the chain of events leading to Erlindas brain damage and, ultimately, her comatosed
condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was
an esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal
tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong
place. That abdominal distention had been observed during the first intubation suggests that the length of
time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt)
was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis.[66]
As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue.[67] However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No evidence exists on record,
beyond private respondents' bare claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the
same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation was accomplished. Even granting that the
tube was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the
trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for
about four to five minutes.[68]

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia.[69] Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patients airway prior to the operation.[70] As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patients neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique.[71] In other words, an
experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had

| Page 20 of 32

little difficulty going around the short neck and protruding teeth.[72] Having failed to observe common medical
standards in pre-operative management and intubation, respondent Dra. Gutierrez negligence resulted in
cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship,"[73] it is the surgeons responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosakas negligence can be found in his failure to exercise
the proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr.
Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape
us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as
Erlindas cholecystectomy, and was in fact over three hours late for the latters operation. Because of this, he
had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that
he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the
events which resulted in Erlindas condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants,"[74] who are allegedly not
hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the application.[75] This is particularly true with
respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable
to the hospital or its peer review committee, is normally politely terminated.

| Page 21 of 32

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 employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for petitioners condition.[76]

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the formers responsibility under a relationship of patria potestas.[77] Such responsibility
ceases when the persons or entity concerned prove that they have observed the diligence of a good father of
the family to prevent damage.[78] In other words, while the burden of proving negligence rests on the plaintiffs,
once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who
should prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which
it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible with its physicians for Erlindas condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of
the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents
were unable to rebut the presumption of negligence. Upon these disquisitions we hold that private
respondents are solidarily liable for damages under Article 2176[79] of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of
the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated

| Page 22 of 32

amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring
home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in
the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should
be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory
complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:

Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to
as actual or compensatory damages.

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

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to
the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty.[80] In other words, temperate damages can and should be awarded
on top of actual or compensatory damages in instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility arises when both actual and temperate

| Page 23 of 32

damages are provided for. The reason is that these damages cover two distinct phases.

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

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

In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were difficult to estimate because while they would have been
a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to
arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be
deprived of the full ambulatory functions of her left extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be
required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the
process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other words, the damage done to her would
not only be permanent and lasting, it would also be permanently changing and adjusting to the

| Page 24 of 32

physiologic changes which her body would normally undergo through the years. The replacements,
changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.

x x x.

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.[83]

The injury suffered by Erlinda as a consequence of private respondents negligence is certainly much more
serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her husband
and children, who, in the intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioners
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victims actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually affected
by the victims condition.[84] The husband and the children, all petitioners in this case, will have to live with the
day to day uncertainty of the patients illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The familys moral injury and suffering in this case is clearly a real one.
For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorneys fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is

| Page 25 of 32

immaterial in negligence cases because where negligence exists and is proven, the same automatically gives
the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physicians experience with his patients would sometimes tempt him to deviate
from established community practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results in the evil precisely sought to
be averted by observance of the procedure and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe
pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to
private respondents case.

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

SO ORDERED.

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

________________________________________

[1]

In the United States alone, a great number of people die every year as a result of medical mishaps. The 13

December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled "Doctors
Deadly Mistakes" which is quoted in part: "It is hardly news that medical professionals make mistakes - even
dumb, deadly mistakes. What is shocking is how often it happens. Depending on which statistics you believe,
the number of Americans killed by medical screw-ups is somewhere between 44,000 and 98,000 every year the eighth leading cause of death even by the more conservative figure, ahead of car crashes, breast cancer
and AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health officials
had known about the problem for years and hadnt made a concerted effort to do something about it."

[2]

Cholecystectomy is the surgical excision of the gall bladder.

[3]

CA Rollo, pp. 129-140.

| Page 26 of 32

[4]

Records, pp. 270-279.

[5]

Id. at 270-275.

[6]

Docketed as Civil Case No. Q-46885.

[7]

Records, pp. 276-278.

[8]

CA Rollo, p. 166.

[9]

Id. at 145.

[10]

Id. at 195.

[11]

Rollo, p. 19.

[12]

Id. at 91-98.

[13]

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

[14]

Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).

[15]

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

[16]

Ibid.

[17]

Id. at 502.

[18]

Ibid.

[19]

Id.

[20]

Id. at 503.

[21]

Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 324 P.2d

501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249
P.2d 647.

[22]

St. Johns Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).

| Page 27 of 32

[23]

57B Am Jur 2d, supra note 13, at 513.

[24]

It is the type of claim which a victim has available to him or her to redress a wrong committed by a medical

professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778 [1997]).

[25]

Voss vs. Bridwell, supra note 21.

[26]

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

[27]

SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

[28]

Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P.237.

[29]

Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423.

[30]

SOLIS, supra note 27, at 239.

[31]

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

[32]

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

[33]

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

[34]

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

[35]

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

[36]

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

[37]

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

[38]

Id. at 968.

[39]

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

[40]

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

| Page 28 of 32

[41]

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

[42]

Ibid.

[43]

Voss vs. Bridwell, supra note 21.

[44]

Id. at 971.

[45]

It is the method of intubating a patient through the oral cavity. Under this procedure, after the patient has

been preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist inserts an
instrument called a laryngoscope into the patients oral pharynx. The patients neck is hyperextended, that is,
bent back as far as possible so that the anesthetist can see or "visualize" the patients epiglottis and vocal
cords. The anesthetist will then thread the endotracheal tube between the patients vocal cords into the
trachea, and then hook the tube to the breathing bag and anesthetic machine.

[46]

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

[47]

CA Rollo, pp. 134-135.

[48]

Stockham vs. Hall, supra note 29

[49]

61 Am Jur 2d, 513 (1989).

[50]

TSN, January 13, 1988, p. 3

[51]

TSN, November 15, 1990, p. 11.

[52]

TSN, October 9, 1990, p. 13.

[53]

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

[54]

Ibid.

[55]

Id. at 105 (Underscoring supplied).

[56]

Id. at 106.5

| Page 29 of 32

[57]

Id.

[58]

TSN, November 15, 1990, p. 6.

[59]

Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as in

asthma).

[60]

Permanent damage to the brain caused by inadequate oxygenation.

[61]

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

[62]

Rule 130, RULES OF COURT.

[63]

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

[64]

BLACKS LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

[65]

Ibid.

[66]

It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal

hemoglobin in the blood.

[67]

TSN, March 27, 1990, p. 22.

[68]

Records, p. 274.

[69]

FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).

[70]

Ibid.

[71]

Id. The book provides a thorough discussion on the management of difficult intubations.

[72]

Id.

[73]

Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the

safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for
everything that goes wrong within the four corners of the operating room. It enunciates the liability of the

| Page 30 of 32

surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he
has extension of control.

[74]

The term "consultant" is loosely used by hospitals to distinguish their attending and visiting physicians from

the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not
consultant, is used.

[75]

These requirements are in fact found in the standard application forms for visiting and attending physicians

of respondent hospital.

[76]

The hospitals control over respondent physicians is all the more significant when one considers the fact

that it controls everything which occurs in an operating room, through its nursing supervisors and charge
nurses. No operations can be undertaken without the hospitals direct or indirect consent.

[77]

VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).

[78]

Art. 2180 of the Civil Code provides: The obligation imposed by Article 2176 is demandable not only for

one's own acts or omissions, but also for those or persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the latter are employed or on occassion of their
functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.

[79]

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay

for the damage done.

[80]

Art. 2224, CIVIL CODE.

| Page 31 of 32

[81]

Should petitioner remain in the same condition for another ten years, the amount awarded in the form of

temperate damages would in fact, be inadequate.

[82]

253 SCRA 303 (1996).

[83]

Id. at 327-328.

[84]

Id. at 328.

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