Ramos Vs CA

FIRST DIVISION
[G.R. No. 124354. December 29, 1999.]

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.
Luis C. A. Sillano for petitioners.
Antonio H. Abad & Associates for respondents Doctors.
Tanjuatco, Sta. Maria, Tanjuatco for respondent DLSMC.
SYNOPSIS
In the morning of June 17, 1985, Erlinda Ramos was brought into the
operating room of the Delos Santos Medical Center for a cholecystectomy. She
was then a robust woman, normal as any other except for occasional complaints of
discomfort due to pains allegedly caused by the presence of stones in her gall
bladder. At around 3:00 p.m. of that day, Erlinda was taken to the Intensive Care
unit of the hospital, comatose. On January 8, 1986, Erlinda's husband filed a civil
case for damages against said hospital and Drs. Orlino Hosaka and Perfecta
Gutierrez. The Regional Trial Court ruled in favor of the plaintiffs. The Court of
Appeals, however, reversed the decision of the lower court and ordered the
dismissal of the complaint. Hence, this petition.
The doctrine of res ipsa loquitur is 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. 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.
aACHDS
Brain damage, which Erlinda sustained is an injury which does not normally
occur in the process of a gall bladder operation. In fact, this kind of situation does
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Jurisprudence 1901 to 2016 Second Release
not happen in the absence of negligence of someone in the administration of

anesthesia and in the use of endotracheal tube. Moreover, 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.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR
RECONSIDERATION; NO DELAY OF FILING IN CASE AT BAR. It is
elementary that when a party is represented by counsel, all notices should be sent
to the party's lawyer at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the counsel
on record of petitioner, there can be no sufficient notice to speak of. Hence, the
delay in the filing of the motion for reconsideration cannot be taken against
petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we
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.
2. CIVIL LAW; DOCTRINE OF RES IPSA LOQUITUR;
ELUCIDATED. 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. Where the thing which caused the
injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if
those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose
from or was caused by the defendant's want of care. The doctrine of res ipsa
loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may
justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in 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
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itself. 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. Instead, it is considered as merely evidentiary or in the
nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural
convenience since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. In other words, mere invocation
and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the burden of going forward
with the proof. Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown: 1. The accident is of a kind which
ordinarily does not occur in the absence of someone's negligence; 2. It is caused by
an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 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 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.
TaHDAS
3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE.

Medical malpractice 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. 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.
Although generally, expert medical testimony is relied upon in malpractice suits to
prove that a physician has done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The reason is that the general rule on
the necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of
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physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is allowed
because there is no other way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him. Thus, courts of other
jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, injuries sustained on a
healthy part of the body which was not under, or in the area, of treatment, removal
of the wrong part of the body when another part was intended, knocking out a
tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and
loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, 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. 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. 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. 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. The real question, therefore, is whether or not in
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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. If there was such extraneous interventions, the doctrine of
res ipsa loquitur may be utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could.
4. ID.; ID.; APPLICABLE IN CASE AT BAR. We find the doctrine
of res ipsa loquitur appropriate in the case at bar. . . . Brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not 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.
CaTSEA
5. ID.; ID.; CONTRIBUTORY NEGLIGENCE. 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.
6. REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE;
UPHELD IN CASE AT BAR. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any one. This is
precisely allowed under the doctrine of res 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
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want of care is so obvious as to render expert testimony unnecessary.

7. ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL
EVIDENCE; OPINION OF EXPERT WITNESS; NOT ADMITTED IN CASE
AT BAR. The provision in the rules of evidence 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. 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.
8. CIVIL LAW; DAMAGES; EXCEPTIONAL NEGLIGENCE AND
PROFESSIONAL IRRESPONSIBILITY IN THE MEDICAL FIELD IN CASE
AT BAR. Respondent Dra. Gutierrez' act of seeing her patient for the first time
only an hour before the scheduled operative procedure was therefore, an act of
exceptional negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the
physician's centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
9. ID.; ID.; ID. As the so-called "captain of the ship," it is the
surgeon's responsibility to see to it that those under him perform their task in the
proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative team) in not
determining if his anesthesiologist observed proper anesthesia protocols. In fact,
no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not
escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no
time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in Erlinda's condition.
10. ID.; TORTS; PROXIMATE CAUSE; ELUCIDATED. 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
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the injury or damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission. It is the dominant,
moving or producing cause. Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably the proximate cause which
triggered the chain of events leading to Erlinda's brain damage and, ultimately, her
comatosed condition.
11 ID.; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS;
EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS BETWEEN HOSPITALS
AND CONSULTANTS FOR THE PURPOSE OF ALLOCATING
RESPONSIBILITY IN MEDICAL NEGLIGENCE CASES. 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 physician's performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely terminated. In other
words, private hospitals, hire, fire and exercise real control over their attending and
visiting "consultant" staff. While "consultants" are not, technically employees, a
point which respondent hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.
DCTSEA
12. ID.; ID.; ID.; EMPLOYERS LIABLE FOR THE DAMAGES

CAUSED BY THEIR EMPLOYEES. The basis for holding an employer
solidarily responsible for the negligence of its employee is found in Article 2180 of
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the Civil Code which considers a person accountable not only for his own acts but
also for those of others based on the former's responsibility under a relationship of
patria potestas. Such responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of the family to
prevent damage. In other words, while the burden of proving negligence rests on
the plaintiffs, once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they observed the
diligence of a good father of a family to prevent damage. In the instant case,
respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and supervision of the latter. It
failed to adduce evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its burden under the
last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
13. ID.; DAMAGES; ACTUAL AND TEMPERATE DAMAGES;
PROPER IN CASE AT BAR. 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. Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a consequence of an act
of negligence has been completed and that the cost can be liquidated. However,
these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to predict. In these
cases, the amount of damages which should be awarded, if they are to adequately
and correctly respond to the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of trial; and one which would
meet pecuniary loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate damages can and
should be awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases. As it
would not be equitable and certainly not in the best interests of the
administration of justice for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
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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 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.
14. ID.; ID.; PROPER MORAL DAMAGES. The actual physical,
emotional and financial cost of the care of petitioner would be virtually impossible
to quantify. Even the temperate damages herein awarded would be inadequate if
petitioner's condition remains unchanged for the next ten years. We recognized
that the victim's actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim
or those actually affected by the victim's condition. The husband and the children,
all petitioners in this case, will have to live with the day to day uncertainty of the
patient's illness, knowing any hope of recovery is close to nil. They have fashioned
their daily lives around the nursing care of petitioner, altering their long term goals
to take into account their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the victim. The family's
moral injury and suffering in this case is clearly a real one. For the foregoing
reasons, an award of P2,000,000.00 in moral damages would be appropriate.
15. ID.; ID.; EXEMPLARY DAMAGES AND ATTORNEY'S FEES.
By way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the
opinion that attorney's fees valued at P100,000.00 are likewise proper. Our courts
face unique difficulty in adjudicating medical negligence cases because physicians
are not insurers of life and, they rarely set out to intentionally cause injury or death
to their patients. However, intent is immaterial in negligence cases because where
negligence exists and is proven, the same automatically gives the injured a right to
reparation for the damage caused. Established medical procedures and practices,
though in constant flux are devised for the purpose of preventing complications. A
physician's experience with his patients would sometimes tempt him to deviate
from established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to follow
established procedure results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made between the deviation and the
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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.
TCacIA
DECISION
KAPUNAN, J :
p
The Hippocratic Oath mandates physicians to give primordial consideration

to the health and welfare of their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and
death. In this sense, the doctor plays God on his patient's fate. 1(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(2)
Petitioners seek the reversal of the decision 3(3) of the Court of Appeals,
dated 29 May 1995, which overturned the decision 4(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.
cdrep
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
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10
(Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN,
January 13, 1988, p. 7), she and her husband Rogelio met for the first time
Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3),
one of the defendants in this case, on June 10, 1985. They agreed that their
date at the operating table at the DLSMC (another defendant), would be on
June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents (findings from
the Capitol Medical Center, FEU Hospital and DLSMC) presented to him.
Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to
include the anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February
27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at
one of the rooms of the DLSMC, located along E. Rodriguez Avenue,
Quezon City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room,
she was prepared for the operation by the hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She reiterated her previous
request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they
went down from her room to the operating room (TSN, January 13, 1988,
pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989,
p. 18). At the operating room, Herminda saw about two or three nurses and
Dr. Perfecta Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff, Herminda
introduced herself as Dean of the College of Nursing at the Capitol Medical
Center who was to provide moral support to the patient, to them. Herminda
was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look
for Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then went back to the patient who
asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag kang
mag-alaala, darating na iyon" (ibid.).
Thereafter, Herminda went out of the operating room and informed
the patient's husband, Rogelio, that the doctor was not yet around (id., p. 13).
When she returned to the operating room, the patient told her, "Mindy, inip
na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and
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told Rogelio about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and]
waiting for the arrival of the doctor" even as he did his best to find
somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his
wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na
raw." Upon hearing those words, he went down to the lobby and waited for
the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating
room with the patient, heard somebody say that "Dr. Hosaka is already here."
She then saw people inside the operating room "moving, doing this and that,
[and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16).
As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan"
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as
Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The patient's nailbed became bluish and the patient
was placed in a trendelenburg position a position where the head of the
patient is placed in a position lower than her feet which is an indication that
there is a decrease of blood supply to the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
prLL
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
Copyright 1994-2016
12
Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr.
Hosaka. The latter informed the former that something went wrong during
the intubation. Reacting to what was told to him, Rogelio reminded the
doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to
explain what happened to the patient. The doctors explained that the patient
had bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months
thereafter or on November 15, 1985, the patient was released from the
hospital.
During the whole period of her confinement, she incurred hospital
bills amounting to P93,542.25 which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part of her body.
She cannot see or hear. She is living on mechanical means. She suffered
brain damage as a result of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from
the hospital, she has been staying in their residence, still needing constant
medical attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be suffering from "diffuse cerebral parenchymal
damage" (Exh. "G"; see also TSN, December 21, 1989, p. 6). 5(5)
Thus, on 8 January 1986, petitioners filed a civil case 6(6) for damages with
the Regional Trial Court of Quezon City against herein private respondents
alleging negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of
Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the 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 Erlinda's allergic reaction to the
anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court
rendered judgment in favor of petitioners, to wit:
Copyright 1994-2016
13
After evaluating the evidence as shown in the finding of facts set

forth earlier, and applying the aforecited provisions of law and jurisprudence
to the case at bar, this Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the patient, but
also in not repeating the administration of atropine (TSN, August 20, 1991,
pp. 5-10), without due regard to the fact that the patient was inside the
operating room for almost three (3) hours. For after she committed a mistake
in intubating [the] patient, the patient's nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows
that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes which,
in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for
the acts of Dr. Perfecta Gutierrez whom he had chosen to administer
anesthesia on the patient as part of his obligation to provide the patient a
'good anesthesiologist', and for arriving for the scheduled operation almost
three (3) hours late.
cdphil
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
xxx
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered

in favor of the plaintiffs and against the defendants. Accordingly, the latter
are ordered to pay, jointly and severally, the former the following sums of
Copyright 1994-2016
14
money, to wit:
1)
the sum of P8,000.00 as actual monthly expenses for the

plaintiff Erlinda Ramos reckoned from November 15, 1985 or
in the total sum of P632,000.00 as of April 15, 1992, subject
to its being updated;
2)
the sum of P100,000.00 as reasonable attorney's fees;
3)
the sum of P800,000.00 by way of moral damages and the

further sum of P200,000.00 by way of exemplary damages;
and,
4)
the costs of the suit.
SO ORDERED. 7(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(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(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
Copyright 1994-2016
15
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.
SO ORDERED. 10(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:
I
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
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16
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11(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(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.
cdphil
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 for filing a motion for
reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices
should be sent to the party's lawyer at his given address. With a few exceptions,
notice to a litigant without notice to his counsel on record is no notice at all. In the
present case, since a copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we
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
Copyright 1994-2016
17
that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for defendant
to meet with an explanation. 13(13) Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if
those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose
from or was caused by the defendant's want of care. 14(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(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(16) Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.
However, much has been said the res ipsa loquitur is not a ruled of
substantive law and, as such, does not create or constitute an independent or
separate ground of liability. 17(17) Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. 18(18) It is regarded as a mode of proof, of a
mere procedural convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. 19(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(20) Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily shown:
1.
The accident is of a kind which ordinarily does not occur in the

absence of someone's negligence;
2.
It is caused by an instrumentality within the exclusive control of the

defendant or defendants; and
3.
The possibility of contributing conduct which would make the

plaintiff responsible is eliminated. 21(21)
In the above requisites, the fundamental element is the "control of the

Copyright 1994-2016
18
instrumentality" which caused the damage. 22(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(23)
Medical malpractice 24(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(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(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(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(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(29)
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the
aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. 30(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(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
Copyright 1994-2016
19
situations: leaving of a foreign object in the body of the patient after an operation,
32(32) injuries sustained on a healthy part of the body which was not under, or in
the area, of treatment, 33(33) removal of the wrong part of the body when another
part was intended, 34(34) knocking out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, 35(35) and loss of an eye while the
patient plaintiff was under the influence of anesthetic, during or following an
operation for appendicitis, 36(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(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(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(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(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(41) If there was such extraneous interventions, the doctrine or res ipsa loquitur
may be utilized and the defendant is called upon to explain the matter, by evidence
of exculpation, if he could. 42(42)
We find the doctrine of res ipsa loquitur appropriate in the case 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.
LLjur
A case strikingly similar to the one before us is Voss vs. Bridwell, 43(43)
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20
where the Kansas Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and
delivered his person over to the care, custody and control of his physician
who had complete and exclusive control over him, but the operation was
never performed. At the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable damage and
injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in the
use and employment of an endoctracheal tube. Ordinarily a person being put
under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in 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(44)
Indeed, the principles enunciated in the aforequoted case apply with equal
force here. In the present case, Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder operation. In fact, this kind of
situation does not 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
Copyright 1994-2016
21
tube, were all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is
injured or destroyed while the patient is unconscious and under the immediate and
exclusive control of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common
knowledge and observation, if negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus, upon all these initial determination
a case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case
we are not saying that the doctrine is applicable in any and all cases where injury
occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each
case must be viewed in its own light and scrutinized in order to be within the res
ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the
presumption of negligence allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of the operation and, if
in the affirmative, whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the witnesses for the
private respondents.
In sustaining the position of private respondents, the Court of Appeals
relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In
giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized
that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation 45(45) of the patient and thus, cannot be said to be
covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda
was not caused by the alleged faulty intubation but was due to the allergic reaction
of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate,
as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners
Copyright 1994-2016
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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:
cdasia
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:
Copyright 1994-2016
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
23
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O

lumalaki ang tiyan."
xxx
xxx
xxx
ATTY. PAJARES:
Q:
From whom did you hear those words "lumalaki ang tiyan"?
A:
From Dra. Perfecta Gutierrez.

xxx
xxx
xxx
Q.
After hearing the phrase "lumalaki ang tiyan," what did you notice
on the person of the patient?
A:
I notice (sic) some bluish discoloration on the nailbeds of the left

hand where I was at.
Q:
Where was Dr. Orlino Ho[s]aka then at that particular time?
A:
I saw him approaching the patient during that time.
Q:
When he approached the patient, what did he do, if any?
A:
He made an order to call on the anesthesiologist in the person of Dr.

Calderon.
Q:
Did Dr. Calderon, upon being called, arrive inside the operating
room?
A:
Yes sir.
Q:
What did [s]he do, if any?
A:
[S]he tried to intubate the patient.
Q:
What happened to the patient?
A:
When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.
xxx
xxx
xxx
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
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24
decrease of blood supply to the brain. 46(46)

xxx
xxx
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial
court by declaring that:
A perusal of the standard nursing curriculum in our country will
show that intubation is not taught as part of nursing procedures and
techniques. Indeed, we take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is fully capable of
determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25,
1991, p. 13). More importantly, there is no evidence that she ever
auscultated the patient or that she conducted any type of examination to
check if the endotracheal tube was in its proper place, and to determine the
condition of the heart, lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in
doing so clearly suffer from lack of sufficient factual bases. 47(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 as a success.
We do not agree with the above reasoning of the appellate court. Although
witness Cruz is not an anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions which are observable
by any one. 48(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(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
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25
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(50) Reviewing witness Cruz' statements, we find that the same were delivered
in a straightforward manner, with the kind of detail, clarity, consistency and
spontaneity which would have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra.
Gutierrez who admitted that she experienced difficulty in inserting the tube into
Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q:
In this particular case, Doctora, while you were intubating at your

first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A:
Yes sir.
Q:
Did you pull away the tube immediately?
A:
You do not pull the . . .
Q:
Did you or did you not?
A:
I did not pull the tube.
Q:
When you said "mahirap yata ito," what were you referring to?
A:
"Mahirap yata itong i-intubate," that was the patient.
Q:
So, you found some difficulty in inserting the tube?
A:
Yes, because of (sic) my first attempt, I did not see right away.
51(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(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.
cdphil
The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to make a
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26
thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even

if this would mean postponing the procedure. From their testimonies, it appears
that the observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic accidents.
Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and visits with the patient,
traditionally, the day before elective surgery. 53(53) It includes taking the patient's
medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54(54) The physical examination performed by
the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55(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(56)
Thus, physical characteristics of the patient's upper airway that could make
tracheal intubation difficult should be studied. 57(57) Where the need arises, as
when initial assessment indicates possible problems (such as the alleged short neck
and protruding teeth of Erlinda) a thorough examination of the patient's airway
would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda
for the first time on the day of the operation itself, on 17 June 1985. Before this
date, no prior consultations with, or pre-operative evaluation of Erlinda was done
by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of
the physiological make-up and needs of Erlinda. She was likewise not properly
informed of the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the
first time only an hour before the scheduled operative procedure was therefore, an
act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the
physician's centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission
by playing around with the trial court's ignorance of clinical procedure, hoping that
she could get away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency surgery just so her
failure to perform the required pre-operative evaluation would escape unnoticed.
In her testimony she asserted:
ATTY. LIGSAY:
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27
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(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.
Erlinda's case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation of Erlinda's
case prior to the operation and prepare her for anesthesia. However, she never saw
the patient at the bedside. She herself admitted that she had seen petitioner only in
the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is truly the proximate cause
of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia
which led to Erlinda's coma was due to bronchospasm 59(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
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anoxic encephalopathy, 60(60) was due to an unpredictable drug reaction to the

short-acting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly advance expert
opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and,
as such, could not have been capable, as an expert would, of explaining to the
court the pharmacologic and toxic effects of the supposed culprit, Thiopental
Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as
an expert witness in the anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his opinions on the drug not
from the practical experience gained by a specialist or expert in the administration
and use of Sodium Pentothal on patients, but only from reading certain references,
to wit:
dctai
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
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with medical authority?

A:
No. That is why I used references to support my claims. 61(61)
An anesthetic accident caused by a rare drug-induced bronchospasm

properly falls within the fields of anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that the appellate court
erred in giving weight to Dr. Jamora's testimony as an expert in the administration
of Thiopental Sodium.
The provision in the rules of evidence 62(62) regarding expert witnesses
states:
SECTION 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(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
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to absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand
that it was the faulty intubation which was the proximate cause of Erlinda's
comatose condition.
Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. 64(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(65) It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty
intubation is undeniably the proximate cause which triggered the chain of events
leading to Erlinda's brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first
intubation was a failure. This fact was likewise observed by witness Cruz when
she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that the endotracheal
tube entered the esophagus instead of the respiratory tree. In other words, instead
of the intended endotracheal intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the
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(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(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
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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(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(69) Nevertheless, ninety-eight percent
(98%) or the vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient's airway prior to the operation.
70(70) As stated beforehand, respondent Dra. Gutierrez failed to observe the
proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have been much more
prepared to meet the contingency brought about by the perceived anatomic
variations in the patient's neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in
technique. 71(71) In other words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would have had little difficulty
going around the short neck and protruding teeth. 72(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.
cda
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(73) it is the
surgeon's responsibility to see to it that those under him perform their task in the
proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative team) in not
determining if his anesthesiologist observed proper anesthesia protocols. In fact,
no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not
escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no
time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident.
The unique practice (among private hospitals) of filling up specialist staff with
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attending and visiting "consultants," 74(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(75) This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he
is normally required to attend clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into
the hospital. In addition to these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting "consultant" staff. While "consultants" are not,
technically employees, a point which respondent hospital asserts in denying all
responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting
physicians. This being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for petitioner's
condition. 76(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
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the former's responsibility under a relationship of patria potestas. 77(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(78) In
other words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian, teacher
or employer) who should prove that they observed the diligence of a good father of
a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence showing that
it exercised the diligence of a good father of a family in the hiring and supervision
of the latter. It failed to adduce evidence with regard to the degree of supervision
which it exercised over its physicians. In neglecting to offer such proof, or proof of
a similar nature, respondent hospital thereby failed to discharge its burden under
the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in
accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon these disquisitions we hold
that private respondents are solidarily liable for damages under Article 2176
79(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 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
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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:
ARTICLE 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.
LexLib
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(80) In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in the best interests of the
administration of justice for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awarded temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
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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(81)
In Valenzuela vs. Court of Appeals, 82(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 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.
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xxx
xxx
xxx
A prosthetic devise, however technologically advanced, will only

allow a reasonable amount of functional restoration of the motor functions of
the lower limb. The sensory functions are forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and physical pain are
inestimable. 83(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.
cdrep
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's condition remains unchanged
for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury
would not even scratch the surface of the resulting moral damage because it would
be highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected
by the victim's condition. 84(84) The husband and the children, all petitioners in
this case, will have to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives
around the nursing care of petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The family's moral injury
and suffering in this case is clearly a real one. For the foregoing reasons, an award
of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of
P100,000.00 are hereby awarded. Considering the length and nature of the instant
suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise
proper.
Our courts face unique difficulty in adjudicating medical negligence cases
because physicians are not insurers of life and, they rarely set out to intentionally
cause injury or death to their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the same automatically gives
Copyright 1994-2016
37
the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are
devised for the purpose of preventing complications. A physician's experience with
his patients would sometimes tempt him to deviate from established community
practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results in
the evil precisely sought to be averted by observance of the procedure and a nexus
is made between the deviation and the injury or damage, the physician would
necessarily be called to account for it. In the case at bar, the failure to observe
pre-operative assessment protocol which would have influenced the intubation in a
salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed
from are hereby modified so as to award in favor of petitioners, and solidarily
against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment
of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5)
the costs of the suit.
SO ORDERED.
llcd
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

Footnotes
1.
2.
3.
4.
5.
6.
7.
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 eight
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 hadn't made a concerted effort to do something about it."
Cholecystectomy is the surgical excision of the gall bladder.
CA Rollo, pp. 129-140.
Records, pp. 270-279.
Id. at 270-275.
Docketed as Civil Case No. Q-46885.
Copyright 1994-2016
38
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
CA Rollo, p. 166.
Id. at 145.
Id. at 195.
Rollo, p. 19.
Id. at 91-98.
57B Am Jur 2d, 493 (1989).
Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
57B Am Jur 2d, supra note 13 at 499.
Ibid.
Id. at 502.
Ibid.
Id.
Id. at 503.
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.
St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166
(1967).
57B Am Jur 2d, supra note 13, at 513.
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]).
Voss vs. Bridwell, supra note 21.
Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan.
573, 274 P.237.
Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802,
149 P. 422, 423.
SOLIS, supra note 27, at 239.
Voss vs. Bridwell, supra note 21 at 970-971.
Armstrong vs. Wallace, 47 P.2d 740 (1935).
Thomsen vs. Burgeson, 79 P.2d 136 (1938).
Griffin vs. Norman, 192 NYS 322 (1922).
Brown vs. Shortilledge, 277 P.134 (1929).
Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
Voss vs. Bridwell, supra note 21, at 969.
Id. at 968.
Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
Ibid.
Id. at 971.
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
Copyright 1994-2016
39
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
breathing on his own, the anesthetist inserts an instrument called a laryngoscope

into the patient's oral pharynx. The patient's neck is hyperextended, that is, bent
back as far as possible so that the anesthetist can see or "visualize" the patient's
epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube
between the patient's vocal cords into the trachea, and then hook the tube to the
breathing bag and anesthetic machine.
TSN, January 13, 1988, pp. 16-20.
Stockham vs. Hall, supra note 29.
61 Am Jur 2d, 513 (1989).
TSN, January 13, 1988, p. 3.
TSN, November 15, 1990, p. 11.
TSN, October 9, 1990, p. 13.
STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
Ibid.
Id. at 105 (Underscoring supplied).
Id. at 106.
Id.
Constriction of the air passages of the lung by spasmodic contraction of the
bronchial muscles (as in asthma).
Permanent damage to the brain caused by inadequate oxygenation.
TSN, February 28, 1991, pp. 10-11.
Rule 130, RULES OF COURT.
61 Am Jur 2d, supra note 49, 516.
BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
Ibid.
It is a bluish coloration of the skin or mucous membranes caused by lack of
oxygen or abnormal hemoglobin in the blood.
TSN, March 27, 1990, p. 22.
Records, p. 274.
FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
Ibid.
Id. The book provides a thorough discussion on the management of difficult
intubations.
Id.
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 surgeon not only
for the wrongful acts of those who are under his physical control but also those
wherein he has extension of control.
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.
These requirements are in fact found in the standard application forms for visiting
Copyright 1994-2016
40
76.
77.
78.
79.
80.
81.
82.
83.
84.
and attending physicians of respondent hospital.

The hospital's 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 hospital's direct or indirect consent.
VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
Art. 2180 of the Civil Code provides:
Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Art. 2224, CIVIL CODE.
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.
253 SCRA 303 (1996).
Id. at 327-328.
Id. at 328.
Copyright 1994-2016
41
Endnotes
1 (Popup - Popup)
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 eight
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 hadn't made a concerted effort to do something about it."
2 (Popup - Popup)
2.
Cholecystectomy is the surgical excision of the gall bladder.
3 (Popup - Popup)
3.
4 (Popup - Popup)
4.
5 (Popup - Popup)
5.
Id. at 270-275.
6 (Popup - Popup)
6.
Docketed as Civil Case No. Q-46885.
7 (Popup - Popup)
7.
Copyright 1994-2016
42
8 (Popup - Popup)
8.
CA Rollo, p. 166.
9 (Popup - Popup)
9.
Id. at 145.
10 (Popup - Popup)
10.
Id. at 195.
11 (Popup - Popup)
11.
Rollo, p. 19.
12 (Popup - Popup)
12.
Id. at 91-98.
13 (Popup - Popup)
13.
57B Am Jur 2d, 493 (1989).
14 (Popup - Popup)
14.
Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15 (Popup - Popup)
15.
57B Am Jur 2d, supra note 13 at 499.
16 (Popup - Popup)
16.
Ibid.
17 (Popup - Popup)
17.
Id. at 502.
Copyright 1994-2016
43
18 (Popup - Popup)
18.
Ibid.
19 (Popup - Popup)
19.
Id.
20 (Popup - Popup)
20.
Id. at 503.
21 (Popup - Popup)
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 (Popup - Popup)
22.
St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166
(1967).
23 (Popup - Popup)
23.
57B Am Jur 2d, supra note 13, at 513.
24 (Popup - Popup)
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 (Popup - Popup)
25.
26 (Popup - Popup)
Copyright 1994-2016
44
26.
Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 (Popup - Popup)
27.
SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 (Popup - Popup)
28.
Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan.
573, 274 P.237.
29 (Popup - Popup)
29.
Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802,
149 P. 422, 423.
30 (Popup - Popup)
30.
SOLIS, supra note 27, at 239.
31 (Popup - Popup)
31.
Voss vs. Bridwell, supra note 21 at 970-971.
32 (Popup - Popup)
32.
Armstrong vs. Wallace, 47 P.2d 740 (1935).
33 (Popup - Popup)
33.
Thomsen vs. Burgeson, 79 P.2d 136 (1938).
34 (Popup - Popup)
34.
Griffin vs. Norman, 192 NYS 322 (1922).
35 (Popup - Popup)
35.
Brown vs. Shortilledge, 277 P.134 (1929).
Copyright 1994-2016
45
36 (Popup - Popup)
36.
Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 (Popup - Popup)
37.
38 (Popup - Popup)
38.
Id. at 968.
39 (Popup - Popup)
39.
Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 (Popup - Popup)
40.
41 (Popup - Popup)
41.
Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42 (Popup - Popup)
42.
Ibid.
43 (Popup - Popup)
43.
44 (Popup - Popup)
44.
Id. at 971.
45 (Popup - Popup)
Copyright 1994-2016
46
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 patient's oral pharynx. The patient's neck is hyperextended, that is, bent
back as far as possible so that the anesthetist can see or "visualize" the patient's
epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube
between the patient's vocal cords into the trachea, and then hook the tube to the
breathing bag and anesthetic machine.
46 (Popup - Popup)
46.
TSN, January 13, 1988, pp. 16-20.
47 (Popup - Popup)
47.
48 (Popup - Popup)
48.
Stockham vs. Hall, supra note 29.
49 (Popup - Popup)
49.
61 Am Jur 2d, 513 (1989).
50 (Popup - Popup)
50.
TSN, January 13, 1988, p. 3.
51 (Popup - Popup)
51.
52 (Popup - Popup)
52.
TSN, October 9, 1990, p. 13.
53 (Popup - Popup)
53.
STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
Copyright 1994-2016
47
54 (Popup - Popup)
54.
Ibid.
55 (Popup - Popup)
55.
Id. at 105 (Underscoring supplied).
56 (Popup - Popup)
56.
Id. at 106.
57 (Popup - Popup)
57.
Id.
58 (Popup - Popup)
58.
59 (Popup - Popup)
59.
Constriction of the air passages of the lung by spasmodic contraction of the

bronchial muscles (as in asthma).
60 (Popup - Popup)
60.
Permanent damage to the brain caused by inadequate oxygenation.
61 (Popup - Popup)
61.
TSN, February 28, 1991, pp. 10-11.
62 (Popup - Popup)
62.
Rule 130, RULES OF COURT.
Copyright 1994-2016
48
63 (Popup - Popup)
63.
61 Am Jur 2d, supra note 49, 516.
64 (Popup - Popup)
64.
BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 (Popup - Popup)
65.
Ibid.
66 (Popup - Popup)
66.
It is a bluish coloration of the skin or mucous membranes caused by lack of

oxygen or abnormal hemoglobin in the blood.
67 (Popup - Popup)
67.
TSN, March 27, 1990, p. 22.
68 (Popup - Popup)
68.
Records, p. 274.
69 (Popup - Popup)
69.
FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 (Popup - Popup)
70.
Ibid.
71 (Popup - Popup)
71.
Id. The book provides a thorough discussion on the management of difficult

intubations.
72 (Popup - Popup)
Copyright 1994-2016
49
72.
Id.
73 (Popup - Popup)
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 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 (Popup - Popup)
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 (Popup - Popup)
75.
These requirements are in fact found in the standard application forms for visiting
and attending physicians of respondent hospital.
76 (Popup - Popup)
76.
The hospital's 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 hospital's direct or indirect consent.
77 (Popup - Popup)
77.
VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78 (Popup - Popup)
78.
Art. 2180 of the Civil Code provides:
79 (Popup - Popup)
79.
Whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done.
Copyright 1994-2016
50
80 (Popup - Popup)
80.
Art. 2224, CIVIL CODE.
81 (Popup - Popup)
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 (Popup - Popup)
82.
253 SCRA 303 (1996).
83 (Popup - Popup)
83.
Id. at 327-328.
84 (Popup - Popup)
84.
Id. at 328.
Copyright 1994-2016
51

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FIRST DIVISION

[G.R. No. 124354. December 29, 1999.]

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not happen in the absence of negligence of someone in the administration of

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3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE.

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CD Technologies Asia, Inc.

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5. ID.; ID.; CONTRIBUTORY NEGLIGENCE. Petitioner Erlinda

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want of care is so obvious as to render expert testimony unnecessary.

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12. ID.; ID.; ID.; EMPLOYERS LIABLE FOR THE DAMAGES

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damages previously awarded temperate damages are appropriate. The amount

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The Hippocratic Oath mandates physicians to give primordial consideration

The antecedent facts as summarized by the trial court are reproduced

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Meanwhile, Rogelio, who was outside the operating room, saw a

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After evaluating the evidence as shown in the finding of facts set

WHEREFORE, and in view of the foregoing, judgment is rendered

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the sum of P8,000.00 as actual monthly expenses for the

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

the sum of P800,000.00 by way of moral damages and the

the costs of the suit.

Private respondents seasonably interposed an appeal to the Court of

The decision of the Court of Appeals was received on 9 June 1995 by

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A copy of the above resolution was received by Atty. Sillano on 11 April

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IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11(11)

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The accident is of a kind which ordinarily does not occur in the

It is caused by an instrumentality within the exclusive control of the

The possibility of contributing conduct which would make the

In the above requisites, the fundamental element is the "control of the

CD Technologies Asia, Inc.

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CD Technologies Asia, Inc.

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