January 13, 2016 In support of its recollection of the events of February 28, 2002,

PGIC relied on a Traffic Accident Investigation Report (Report)

G.R. No. 198627 prepared by PO2 Cecilio Grospe Tomas (PO2 Tomas) of the
Muntinlupa City Traffic Enforcement Unit of the Philippine
DST MOVERS CORPORATION, Petitioner, National Police. This was attached as Annex "E"9 of PGIC’s
vs. Complaint and also as Annex "E"10 of its Position Paper. It
PEOPLE'S GENERAL INSURANCE CORPORATION, stated:
Respondent.
TRAFFIC ACCIDENT INVESTIGATION REPORT
DECISION (Entry No. 805-285-0202)

LEONEN, J.: Time and date : At about 10:30 p.m. February 28,
2002
A determination of where the preponderance of evidence lies is Place : along SLEX, Bilibid N/B, Muntinlupa City
a factual issue which, as a rule, cannot be entertained in a Weather con : Fair
Rule 45 petition. When, however, the sole basis of the trial Nature : RIR/DTP/PI (hit and run)
court for ruling on this issue is evidence that should not have Inv vehicle (3)
been admitted for being hearsay, this court will embark on its Vehicle-1 : Honda civic
own factual analysis and will, if necessary, reverse the rulings Plate no.: URZ-976
of the lower courts. A traffic accident investigation report Driver : MA. ADELINE YUBOCO Y DELA CRUZ
prepared by a police officer relying solely on the account of a (injured)
supposed eyewitness and not on his or her personal Lic. no. : N03-96-213671
knowledge is not evidence that is admissible as an exception Address : 24 Hernandez st., BF Homes Paranaque
to the Hearsay Rule. City
Reg. Owner : Fidel Yuboco
This resolves a Petition for Review on Certiorari1 under Rule Address : same as driver
45 of the 1997 Rules of Civil Procedure praying that the Damage : rear & front portion, whole right side portion
assailed May 11, 2011 Decision2 and September 8, 2011 Vehicle-2 : Mits. Lancer
Resolution3 of the Court of Appeals Former Twelfth Division in Plate no.: CMM-373
CA-G.R. SP No. 109163 be reversed and set aside, and that a Driver : HARRISON TUQUERO Y VALDEZ
new one be entered dismissing respondent People’s General Lic. no. : 014-02-032855
Insurance Corporation’s (PGIC) Complaint for Sum of Money.4 Address : 13-16 Carolina st., Villasol Subd., Angeles
City
In its assailed May 11, 2011 Decision, the Court of Appeals Reg. Owner : Edgardo Tuquero
affirmed with modification the ruling of Branch 47 of the Address : 518 Obio st., Villasol Subd., Angeles City
Regional Trial Court of Manila in Civil Case No. 07-118093 Damage : left side rear portion
which, in turn, affirmed in toto the ruling of Branch 22 of the Vehicle-3 : Truck
Metropolitan Trial Court of Manila in Civil Case No. 181900. In Plate no.: UAL-295
its assailed September 8, 2011 Resolution, the Court of Driver : Unidentified
Appeals denied petitioner DST Movers Corporation’s (DST Damage : Undetermine [sic]
Movers) Motion for Reconsideration.5 Reportee : G. Simbahon of PNCC/SLEX
F A C T S:
The Metropolitan Trial Court of Manila found DST Movers liable
to pay PGIC the amount of P90,000.00 by way of actual It appears that while V1 was on stop position facing north at
damages plus interest as well as P10,000.00 for attorney’s the aforesaid place of occurrence when the rear portion of the
fees and costs of suit.6 The Court of Appeals ordered DST same was allegedly hit/bumped by V3 which was moving same
Movers to pay PGIC the amount of P25,000.00 as temperate direction on the same place due to strong impact V1 pushed
damages in lieu of the original award of P90,000.00 as actual forward and hit the left side rear portion of V2 causing
damages.7 damages and injuries thereon. After the impact, V3 escaped
towards undisclosed direction and left V1 & V2 at the place of
In a Complaint for Sum of Money filed before the Metropolitan accident. During investigation V1 & V2 driver gave voluntary
Trial Court of Manila, PGIC alleged that at about 10:30 p.m. on handwritten statement and they were advised to submit
February 28, 2002, along the South Luzon Expressway and in medical certificate, estimate/photos of damages as annexes.
the area of Bilibid, Muntinlupa City, a Honda Civic sedan with
plate number URZ-976 (sedan) was hit on the rear by an Isuzu Status of the case: For follow-up. . . . . . . . . . . . . .
Elf truck with plate number UAL-295 (truck). PGIC underscored
that the sedan was on a stop position when it was hit. The (sgd.)
sedan was then allegedly pushed forward, thereby hitting a PO2 Cecilio Grospe Tomas PNP
Mitsubishi Lancer. The driver of the truck then allegedly - on case -11
escaped.8
The truck was supposedly subsequently discovered to be
owned by DST Movers.12 The sedan was covered by PGIC’s

1
insurance under Policy No. HAL-PC-1314.13 As a result of the
February 28, 2002 incident, the sedan’s owner, Fidel Yuboco,
filed a total loss claim with PGIC in the amount of P320,000.00.
PGIC paid Fidel Yuboco the entire amount of P320,000.00.14
Asserting that it was subrogated to Fidel Yuboco’s rights and
that the proximate cause of the mishap was the negligence of
the driver of the truck, PGIC, through counsel, sent DST
Movers demand letters. PGIC demanded from DST Movers the
amount of P90,000.00, which represented the difference
between the P320,000.00 paid by PGIC to Yuboco and the
salvage price of P230,000.00, at which PGIC was supposedly
able to sell what remained of the sedan.15
Its demands not having been satisfied, PGIC proceeded to file
its Complaint16 for Sum of Money before the Metropolitan Trial
Court of Manila. This case was docketed as Civil Case No.
181900.17
In its Answer,18 DST Movers acknowledged that it was the
owner of the truck. However, it claimed that the truck did not
make any trips on February 28, 2002 as it was undergoing
repairs and maintenance.19 In support of this affirmative
defense, DST Movers attached as Annexes "1" to "1-F"20
copies of invoices, receipts, and cash vouchers relating to
repairs and maintenance procedures that were undertaken on
the truck on specific dates, which included February 28, 2002.
Following the submission of the parties’ position papers,
Branch 22 of the Metropolitan Trial Court Manila rendered its
Decision21 favoring PGIC’s version of events and finding DST
Movers liable. The dispositive portion of this Decision reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant ordering to pay the latter to
pay the [sic] of Php90,000.00 as actual damages plus interest
of 12% per annum from the date of filing of the complaint and
the sum of Php10,000.00 as and for attorney’s fees and the
costs of suit.
SO ORDERED.22
On appeal, the ruling of the Metropolitan Trial Court was
affirmed in toto by Branch 47 of the Regional Trial Court of
Manila.23
DST Movers then filed before the Court of Appeals a Petition
for Review under Rule 42 of the 1997 Rules of Civil Procedure.
In its assailed May 11, 2011 Decision, the Court of Appeals
affirmed the rulings of the Regional Trial Court and the
Metropolitan Trial Court. However, it noted that PGIC failed to
prove actual loss with reasonable certainty. As such, the Court
of Appeals deleted the award of P90,000.00 in actual damages
and replaced it with an award of P25,000.00 in temperate
damages.
In its assailed September 8, 2011 Resolution,24 the Court of
Appeals denied DST Movers’ Motion for Reconsideration.
Hence, DST Movers filed the present Petition insisting that its
liability was not established by a preponderance of evidence.
Specifically, it faults the Metropolitan Trial Court for ruling in
favor of PGIC despite how its version of events was supported
by nothing more the Traffic Accident Investigation Report. It
asserts that reliance on this Report was misplaced as it was
supposedly "improperly identified [and] uncorroborated."25
For resolution is the issue of whether petitioner DST Movers
Corporation’s liability was established by a preponderance of
evidence. Subsumed in this is whether it was an error for the
Metropolitan Trial Court to admit and lend evidentiary weight to
the piece of evidence chiefly relied upon by respondent
People’s General Insurance Corporation: the Traffic Accident
Investigation Report prepared by PO2 Tomas.
I
Petitioner comes to this court through a Petition for Review on
Certiorari under Rule 45 of the 1997 Rules of Civil Procedure.
It invites this court to reconsider the consistent rulings of the
Court of Appeals, the Regional Trial Court, and the
Metropolitan Trial Court that petitioner’s liability arising from the
February 28, 2002 incident was established by a
preponderance of evidence.
A Rule 45 petition pertains to questions of law and not to
factual issues. Rule 45, Section 1 of the 1997 Rules of Civil
Procedure is unequivocal:
SECTION 1. Filing of Petition with Supreme Court. — A party
desiring to appeal by certiorari from a judgment or final order or
resolution of the Court of Appeals, the Sandiganbayan, the
Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for
review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth.
This court’s Decision in Cheesman v. Intermediate Appellate
Court26 distinguished questions of law from questions of fact:
As distinguished from a question of law — which exists "when
the doubt or difference arises as to what the law is on a certain
state of facts" — "there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged
facts;" or when the "query necessarily invites calibration of the
whole evidence considering mainly the credibility of witnesses,
existence and relevancy of specific surrounding circumstances,
their relation to each other and to the whole and the
probabilities of the situation."27 (Citations omitted)
Seeking recourse from this court through a petition for review
on certiorari under Rule 45 bears significantly on the manner
by which this court shall treat findings of fact and evidentiary
matters. As a general rule, it becomes improper for this court to
consider factual issues: the findings of fact of the trial court, as
affirmed on appeal by the Court of Appeals, are conclusive on
this court. "The reason behind the rule is that [this] Court is not
a trier of facts and it is not its duty to review, evaluate, and
weigh the probative value of the evidence adduced before the
lower courts."28
A determination of whether a matter has been established by a
preponderance of evidence is, by definition, a question of fact.
2
It entails an appreciation of the relative weight of the competing
parties’ evidence. Rule 133, Section 1 of the Revised Rules on
Evidence provides a guide on what courts may consider in
determining where the preponderance of evidence lies:
SECTION 1. Preponderance of evidence, how determined. —
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same
may legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance
is not necessarily with the greater number.
Consistent with Cheesman, such determination is a "query
[that] necessarily invites calibration of the whole evidence
considering mainly the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation
to each other and to the whole and the probabilities of the
situation."29
On point as regards civil liability for damages, this court in
Caina v. People of the Philippines30 explained:
Questions on whether or not there was a preponderance of
evidence to justify the award of damages or whether or not
there was a causal connection between the given set of facts
and the damage suffered by the private complainant or
whether or not the act from which civil liability might arise exists
are questions of fact.31
Equally on point, this court has explained in many instances
that a determination of the causes of and circumstances
relating to vehicular accidents is a factual matter that this court
may not revisit when the findings of the trial court and the Court
of Appeals are completely in accord.
In Industrial Insurance Co. v. Bondad:32
Questions regarding the cause of the accident and the persons
responsible for it are factual issues which we cannot pass
upon. It is jurisprudentially settled that, as a rule, the
jurisdiction of this Court is limited to a review of errors of law
allegedly committed by the appellate court. It is not bound to
analyze and weigh all over again the evidence already
considered in the proceedings below.33
Likewise, in Viron Transportation v. Delos Santos:34
The rule is settled that the findings of the trial court especially
when affirmed by the Court of Appeals, are conclusive on this
Court when supported by the evidence on record. The
Supreme Court will not assess and evaluate all over again the
evidence, testimonial and documentary adduced by the parties
to an appeal particularly where, such as here, the findings of
both the trial court and the appellate court on the maker
coincide.35 (Citation omitted)
However, there are exceptions that leave room for this court to
make a factual determination for itself and, ultimately, to
overturn the factual findings with which it is confronted:
(1) When the conclusion is a finding grounded entirely on
speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or
impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of
facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of
specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the
petitioners' main and reply briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
contradicted by the evidence on record.36
In Dela Llana v. Biong,37 this court conducted its own (re-)
examination of the evidence as the findings of the Regional
Trial Court conflicted with those of the Court of Appeals. The
Regional Trial Court held that the proximate cause of the
injuries suffered by the petitioner was the supposed reckless
driving of the respondent’s employee; the Court of Appeals
held otherwise. On review, this court sustained the findings of
the Court of Appeals.
In Standard Insurance v. Cuaresma,38 the ruling of the
Metropolitan Trial Court was reversed by the Regional Trial
Court. The latter was then sustained by the Court of Appeals.
On review, this court affirmed the decision of the Court of
Appeals. This court noted that the Metropolitan Trial Court
erroneously gave weight to the traffic accident investigation
report presented by the petitioner as proof of the proximate
cause of the damage sustained by a motor vehicle.
II
Here, petitioner insists that the Traffic Accident Investigation
Report prepared by PO2 Tomas should not have been
admitted and accorded weight by the Metropolitan Trial Court
as it was "improperly identified [and] uncorroborated."39
Petitioner, in effect, asserts that the non-presentation in court
3
of PO2 Tomas, the officer who prepared the report, was fatal to
respondent’s cause.
Unlike in Dela Llana and Standard Insurance, the findings of
the Metropolitan Trial Court, the Regional Trial Court, and the
Court of Appeals in this case are all in accord. They
consistently ruled that the proximate cause of the damage
sustained by the sedan was the negligent driving of a vehicle
owned by petitioner. As with Standard Insurance, however, this
conclusion is founded on the misplaced probative value
accorded to a traffic accident investigation report. In the first
place, this Report should not have been admitted as evidence
for violating the Hearsay Rule. Bereft of evidentiary basis, the
conclusion of the lower courts cannot stand as it has been
reduced to conjecture. Thus, we reverse this conclusion.
Rule 130, Section 36 of the Revised Rules on Evidence
provides for the Hearsay Rule. It renders inadmissible as
evidence out-of-court statements made by persons who are not
presented as witnesses but are offered as proof of the matters
stated. This rule proceeds from the basic rationale of fairness,
as the party against whom it is presented is unable to cross-
examine the person making the statement:40
SECTION 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only to
those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as
otherwise provided in these rules.
The Hearsay Rule, however, is not absolute. Sections 37 to 47
of Rule 130 of the Revised Rules on Evidence enumerate the
exceptions to the Hearsay Rule. Of these, Section 44—
regarding entries in official records—is particularly relevant to
this case:
SECTION 44. Entries in official records. — Entries in official
records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated.
Precisely as an exception to the Hearsay Rule, Rule 130,
Section 44 does away with the need for presenting as witness
the public officer or person performing a duty specially enjoined
by law who made the entry. This, however, is only true, for as
long the following requisites have been satisfied:
(a) that the entry was made by a public officer or by another
person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of
his duties, or by such other person in the performance of a duty
specially enjoined by law; and
(c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been
acquired by him personally or through official information.41
Respondent, the Metropolitan Trial Court, the Regional Trial
Court, and the Court of Appeals are all of the position that the
Report prepared by PO2 Tomas satisfies these
requisites.1âwphi1 Thus, they maintain that it is admissible as
prima facie evidence of the facts it states. This despite the
admitted fact that neither PO2 Tomas, nor the person who
supposedly reported the events of February 28, 2002 to PO2
Tomas – the person identified as "G. Simbahon of
PNCC/SLEX"42 – gave a testimony in support of the Report.
They are in serious error.
The statements made by this court in Standard Insurance are
on point:
[F]or the Traffic Accident Investigation Report to be admissible
as prima facie evidence of the facts therein stated, the
following requisites must be present:
. . . (a) that the entry was made by a public officer or by
another person specially enjoined by law to do so; (b) that it
was made by the public officer in the performance of his duties,
or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official
information.
Regrettably, in this case, petitioner failed to prove the third
requisite cited above. As correctly noted by the courts below,
while the Traffic Accident Investigation Report was exhibited as
evidence, the investigating officer who prepared the same was
not presented in court to testify that he had sufficient
knowledge of the facts therein stated, and that he acquired
them personally or through official information. Neither was
there any explanation as to why such officer was not
presented. We cannot simply assume, in the absence of proof,
that the account of the incident stated in the report was based
on the personal knowledge of the investigating officer who
prepared it.
Thus, while petitioner presented its assured to testify on the
events that transpired during the vehicular collision, his lone
testimony, unsupported by other preponderant evidence, fails
to sufficiently establish petitioner's claim that respondents'
negligence was, indeed, the proximate cause of the damage
sustained by Cham's vehicle.43 [Emphasis supplied]
Respondent presented proof of the occurrence of an accident
that damaged Fidel Yuboco’s Honda Civic sedan,44 that the
sedan was insured by respondent,45 and that respondent paid
Fidel Yuboco’s insurance claims.46 As to the identity, however,
of the vehicle or of the person responsible for the damage
sustained by the sedan, all that respondent relies on is the
Report prepared by PO2 Tomas.
It is plain to see that the matters indicated in the Report are not
matters that were personally known to PO2 Tomas. The Report
is candid in admitting that the matters it states were merely
reported to PO2 Tomas by "G. Simbahon of PNCC/SLEX."47 It
was this "G. Simbahon," not PO2 Tomas, who had personal
knowledge of the facts stated in the Report. Thus, even as the
Report embodies entries made by a public officer in the
performance of his duties, it fails to satisfy the third requisite for
4
admissibility for entries in official records as an exception to the
Hearsay Rule.
To be admitted as evidence, it was thus imperative for the
person who prepared the Report—PO2 Tomas—to have
himself presented as a witness and then testify on his Report.
However, even as the Report would have been admitted as
evidence, PO2 Tomas’ testimony would not have sufficed in
establishing the identity of the motor vehicle and/or the person
responsible for the damage sustained by the sedan. For this
purpose, the testimony of G. Simbahon was necessary.
Of course, we are aware that this case was decided by the
Metropolitan Trial Court pursuant to the Revised Rule on
Summary Procedure (considering that petitioner’s total claims
amounted to less than P200,000.0048). Accordingly, no trial
was conducted as, after the conduct of a preliminary
conference, the parties were made to submit their position
papers. There was, thus, no opportunity to present witnesses
during an actual trial. However, Section 9 of the Revised Rule
on Summary Procedure calls for the submission of witnesses’
affidavits together with a party’s position paper and after the
conduct of a preliminary conference:
SECTION 9. Submission of Affidavits and Position Papers. —
Within ten (10) days from receipt of the order mentioned in the
next preceding section,49 the parties shall submit the affidavits
of their witnesses and other evidence on the factual issues
defined in the order, together with their position papers setting
forth the law and the facts relied upon by them.
These affidavits take the place of actual testimony in court and
serve to expedite the resolution of cases covered by the
Revised Rule on Summary Procedure. Thus, it was still
insufficient for respondent to have merely annexed the Report
to its Position Paper. By its lonesome, and unsupported by an
affidavit executed by PO2 Tomas, the Report was hearsay
and, thus, inadmissible.
As the sole evidence relied upon by respondent as to the
identity of the responsible motor vehicle or person has been
rendered unworthy of even the slightest judicial consideration,
there is no basis for holding-as the Metropolitan Trial Court did-
that the motor vehicle responsible for the damage sustained by
the sedan was owned by petitioner. Not only this, petitioner has
even adduced proof that on February 28, 2002, its Isuzu Elf
truck with plate number UAL-295 was undergoing repairs and
maintenance and, thus, could not have been at the South
Luzon Expressway. The weight of evidence is clearly in
petitioner's favor.
WHEREFORE, the Petition for Review on Certiorari is
GRANTED. The assailed May 11, 2011 Decision and
September 8, 2011 Resolution of the Court of Appeals Former
Twelfth Division in CA-G.R. SP No. 109163 are REVERSED
and SET ASIDE. Respondent People's General Insurance
Corporation's Complaint is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
***
G.R. No. 147746 October 25, 2005
PERLA COMPANIA DE SEGUROS, INC. and BIENVENIDO
S. PASCUAL, Petitioners,
vs.
SPS. GAUDENCIO SARANGAYA III and PRIMITIVA B.
SARANGAYA, Respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the 1997 Rules
of Civil Procedure seeking to annul the decisions of the Court
of Appeals (CA) dated June 29, 2000 and March 31, 2001,
respectively, which affirmed the decision of the Regional Trial
Court (RTC), Branch 21 of Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and
Primitiva Sarangaya erected a semi-concrete, semi-narra, one-
storey commercial building fronting the provincial road of
Santiago, Isabela. The building was known as "Super A
Building" and was subdivided into three doors, each of which
was leased out. The two-storey residence of the Sarangayas
was behind the second and third doors of the building. On the
left side of the commercial building stood the office of the
Matsushita Electric Philippine Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc.
(petitioner-corporation), through its branch manager and co-
petitioner Bienvenido Pascual, entered into a contract of lease
of the first door of the "Super A Building," abutting the office of
Matsushita. Petitioner-corporation renovated its rented space
and divided it into two. The left side was converted into an
office while the right was used by Pascual as a garage for a
1981 model 4-door Ford Cortina, a company-provided vehicle
he used in covering the different towns within his area of
supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but
did not bring the car with him. Three days later, he returned to
Santiago and, after checking his appointments the next day,
decided to "warm up" the car. When he pulled up the
handbrake and switched on the ignition key, the engine made
an "odd" sound and did not start. Thinking it was just the
gasoline percolating into the engine, he again stepped on the
accelerator and started the car. This revved the engine but
petitioner again heard an unusual sound. He then saw a small
flame coming out of the engine. Startled, he turned it off,
alighted from the vehicle and started to push it out of the
garage when suddenly, fire spewed out of its rear compartment
and engulfed the whole garage. Pascual was trapped inside
and suffered burns on his face, legs and arms.
Meanwhile, respondents were busy watching television when
they heard two loud explosions. The smell of gasoline
permeated the air and, in no time, fire spread inside their
house, destroying all their belongings, furniture and appliances.
The city fire marshall conducted an investigation and thereafter
submitted a report to the provincial fire marshall. He concluded
5
that the fire was "accidental." The report also disclosed that
petitioner-corporation had no fire permit as required by law.
Based on the same report, a criminal complaint for "Reckless
Imprudence Resulting to (sic) Damage in (sic) Property"1 was
filed against petitioner Pascual. On the other hand, petitioner-
corporation was asked to pay the amount of ₱7,992,350,
inclusive of the value of the commercial building. At the
prosecutor’s office, petitioner Pascual moved for the withdrawal
of the complaint, which was granted.
Respondents later on filed a civil complaint based on quasi-
delict against petitioners for a "sum of money and damages,"
alleging that Pascual acted with gross negligence while
petitioner-corporation lacked the required diligence in the
selection and supervision of Pascual as its employee. They
prayed for payment of the following damages:
1. ₱2,070,000.00 - representing the value of the 2-storey
residential building and the 3-door apartment;
2. ₱5,922,350.00 - representing the value of the jewelries,
appliances, [furniture], fixtures and cash;
3. ₱8,300.00 – a month for [lost rental] income from July 1995
until such time that the premises is restored to its former
condition or payment for its value, whichever comes first;
4. ₱2,000,000.00 – for moral damages;
5. ₱1,000,000.00 – for exemplary damages, and
6. Attorney’s fees equivalent to 15% of the total amount to be
awarded to the plaintiffs.2
During the trial, respondents presented witnesses who testified
that a few days before the incident, Pascual was seen buying
gasoline in a container from a nearby gas station. He then
placed the container in the rear compartment of the car.
In his answer, Pascual insisted that the fire was purely an
accident, a caso fortuito, hence, he was not liable for damages.
He also denied putting a container of gasoline in the car’s rear
compartment. For its part, petitioner-corporation refused
liability for the accident on the ground that it exercised due
diligence of a good father of a family in the selection and
supervision of Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents.
The decretal portion of the decision read:
WHEREFORE, in the light of the foregoing considerations
judgment is hereby rendered ORDERING the defendants,
Bienvenido Pascual and Perla Compania de Seguros, Inc. to
pay jointly and solidarily to the plaintiffs spouses Gaudencio
and Primitiva Sarangaya the total sum of Two Million Nine
Hundred Four Thousand Eight Hundred and Eighty Pesos
([₱]2,904,880.00) as actual damages with legal interest
thereon from December 12, 1995 until fully paid.3 (emphasis
supplied)
The court a quo declared that, although the respondents failed
to prove the precise cause of the fire that engulfed the garage,
Pascual was nevertheless negligent based on the doctrine of
res ipsa loquitur.4 It did not, however, categorically rule that the
gasoline container allegedly placed in the rear compartment of
the car caused the fire. The trial court instead declared that
both petitioners failed to adduce sufficient evidence to prove
that they employed the necessary care and diligence in the
upkeep of the car.5 Contrary to the claims of petitioner-
corporation, the trial court also found that it failed to employ the
diligence of a good father of a family, as required by law, in the
selection and supervision of Pascual.
With respect to the amount of damages, the trial court awarded
to respondents no more than their claim for actual damages
covering the cost of the 2-storey residential building and the
commercial building, including their personal properties. It
explained:
According to the plaintiff Gaudencio Sarangaya III, he made a
list of what was lost. His list includes the commercial building
that was burned which he valued at ₱2,070,000.00. The
defendants take exception to the value given by the plaintiff
and for this purpose they submitted the tax declaration of the
building which states that the market value is ₱183,770.00.
The Court takes judicial notice that the valuation appearing on
the tax declaration of property is always lower [than] the correct
value thereof. Considering that the building that was burned
was a two-storey residential house with a commercial building
annex with a total floor area of 241 square meters as stated in
the tax declaration, mostly concrete mixed with narra and other
lumber materials, the value given by the plaintiffs of
₱2,070,000.00 is reasonable and credible and it shall be
awarded to the plaintiffs.
The other items listed are assorted [furniture] and fixtures
totaling ₱307,000.00 assorted appliances worth ₱358,350.00;
two filing cabinets worth ₱7,000.00 and clothing and other
personal effects costing ₱350,000.00, household utensils
costing ₱15,000.00. The Court finds them reasonable and
credible considering the social and financial stature of the
plaintiffs who are businessmen. There could be no question
that they were able to acquire and own quite a lot of home
furnishings and personal belongings. The costing however is
high considering that these belongings were already used for
quite some time so a 20% depreciation should be equitably
deducted from the cost of acquisition submitted by plaintiffs.
Thus, the total amount recoverable would be ₱1,037,350.00
less 20% or a total of ₱829,880.00. The ₱5,000.00
representing foodstock can also be ordered paid to the
plaintiffs. x x x.6
On appeal to the Court of Appeals, the appellate court again
ruled in favor of respondents but modified the amount of
damages awarded by the trial court. It held:
x x x the Decision of the Court a quo is AFFIRMED, with the
modification that the Appellants are hereby ordered to pay the
Appellees, jointly and severally, the total amount of
₱600,000.00 by way of nominal damages under Articles 2222
and 2223 of the New Civil Code, with interest thereon, at the
6
rate of 6% per annum from the date of the Decision of this
Court.7
The appellate court was in accord with the trial court’s findings
that the doctrine of res ipsa loquitur was correctly applied in
determining the liability of Pascual and that petitioner-
corporation, as the employer, was vicariously liable to
respondents. Nonetheless, for respondents’ failure to
substantiate their actual loss, the appellate court granted
nominal damages of ₱600,000 to them.
Petitioners and respondents filed their respective motions for
reconsideration.
In their MR, petitioners contested the findings of fact of the
appellate court. They denied any liability whatsoever to
respondents but this was rejected by the CA for lack of merit.
Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the
award of nominal damages was erroneous. They prayed that,
in lieu of the award of nominal damages, the case should
instead be remanded to the trial court for reception of
additional evidence on their claim for actual damages. The CA
granted respondents’ MR. Hence they did not appeal the CA’s
decision to us. According to the CA:
Anent Plaintiffs-Appellees’ plea that, in lieu of the Court’s
award of nominal damages, the case be remanded to the Court
a quo, in the interest of justice, to enable them to adduce
evidence to prove their claim for actual damages, we find the
same meritorious.
Accordingly, the Decision of the Court is hereby amended to
read as follows:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the
Court a quo appealed from is AFFIRMED. The award of
nominal damages is set aside. Let the records be remanded to
the Court a quo for the reception of additional evidence by the
Plaintiffs-Appellees and the Defendants-Appellants anent
Plaintiffs-Appellees’ claim for actual damages.8 (emphasis
supplied)
Via this petition, petitioners ascribe the following errors to the
appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE
DOCTRINE OF ["RES IPSA LOQUITUR"] IN THE PRESENT
CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND
PERLA NEGLIGENT IN THE SUPERVISION OF PASCUAL,
AND CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE
FIRE BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF
SUPERVISION OF EMPLOYEE’S CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE SUPREME
COURT ON TRANSPORTATION COMPANIES; AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED
THE REMAND OF THE CASE TO RTC ISABELA FOR
RECEPTION OF ADDITIONAL EVIDENCE BY THE
SARANGAYA SPOUSES ON THEIR CLAIM FOR ACTUAL
DAMAGES.9
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself."10 It relates to the fact
of an injury that sets out an inference to the cause thereof or
establishes the plaintiff’s prima facie case.11 The doctrine
rests on inference and not on presumption.12 The facts of the
occurrence warrant the supposition of negligence and they
furnish circumstantial evidence of negligence when direct
evidence is lacking.13
The doctrine is based on the theory that the defendant either
knows the cause of the accident or has the best opportunity of
ascertaining it and the plaintiff, having no knowledge thereof, is
compelled to allege negligence in general terms.14 In such
instance, the plaintiff relies on proof of the happening of the
accident alone to establish negligence.15
The doctrine provides a means by which a plaintiff can pin
liability on a defendant who, if innocent, should be able to
explain the care he exercised to prevent the incident
complained of. Thus, it is the defendant’s responsibility to show
that there was no negligence on his part.16
To sustain the allegation of negligence based on the doctrine
of res ipsa loquitur, the following requisites must concur:
1) the accident is of a kind which does not ordinarily occur
unless someone is negligent;
2) the cause of the injury was under the exclusive control of the
person in charge and
3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured.17
Under the first requisite, the occurrence must be one that does
not ordinarily occur unless there is negligence. "Ordinary"
refers to the usual course of events.18 Flames spewing out of
a car engine, when it is switched on, is obviously not a normal
event. Neither does an explosion usually occur when a car
engine is revved. Hence, in this case, without any direct
evidence as to the cause of the accident, the doctrine of res
ipsa loquitur comes into play and, from it, we draw the
inference that based on the evidence at hand, someone was in
fact negligent and responsible for the accident.
The test to determine the existence of negligence in a
particular case may be stated as follows: did the defendant in
committing the alleged negligent act, use reasonable care and
caution which an ordinarily prudent person in the same
situation would have employed?19 If not, then he is guilty of
negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to
submit any proof that he had it periodically checked (as its
year-model and condition required) revealed his negligence. A
prudent man should have known that a 14-year-old car,
constantly used in provincial trips, was definitely prone to
damage and other defects. For failing to prove care and
diligence in the maintenance of the vehicle, the necessary
7
inference was that Pascual had been negligent in the upkeep
of the car.
Pascual attempted to exculpate himself from liability by
insisting that the incident was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed
only when: (a) the cause of the unforeseen and unexpected
occurrence was independent of the human will; (b) it was
impossible to foresee the event which constituted the caso
fortuito or, if it could be foreseen, it was impossible to avoid; (c)
the occurrence must be such as to render it impossible to
perform an obligation in a normal manner and (d) the person
tasked to perform the obligation must not have participated in
any course of conduct that aggravated the accident.20
In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or loss.21
In a vehicular accident, for example, a mechanical defect will
not release the defendant from liability if it is shown that the
accident could have been prevented had he properly
maintained and taken good care of the vehicle.22
The circumstances on record do not support the defense of
Pascual. Clearly, there was no caso fortuito because of his
want of care and prudence in maintaining the car.
Under the second requisite, the instrumentality or agency that
triggered the occurrence must be one that falls under the
exclusive control of the person in charge thereof. In this case,
the car where the fire originated was under the control of
Pascual. Being its caretaker, he alone had the responsibility to
maintain it and ensure its proper functioning. No other person,
not even the respondents, was charged with that obligation
except him.
Where the circumstances which caused the accident are
shown to have been under the management or control of a
certain person and, in the normal course of events, the incident
would not have happened had that person used proper care,
the inference is that it occurred because of lack of such care.23
The burden of evidence is thus shifted to defendant to
establish that he observed all that was necessary to prevent
the accident from happening. In this aspect, Pascual utterly
failed.
Under the third requisite, there is nothing in the records to
show that respondents contributed to the incident. They had no
access to the car and had no responsibility regarding its
maintenance even if it was parked in a building they owned.
On the second assigned error, we find no reason to reverse the
decision of the Court of Appeals. The relationship between the
two petitioners was based on the principle of pater familias
according to which the employer becomes liable to the party
aggrieved by its employee if he fails to prove due diligence of a
good father of a family in the selection and supervision of his
employees.24 The burden of proof that such diligence was
observed devolves on the employer who formulated the rules
and procedures for the selection and hiring of his employees.
In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience
and service records.25 While the petitioner-corporation does
not appear to have erred in considering Pascual for his
position, its lack of supervision over him made it jointly and
solidarily liable for the fire.
In the supervision of employees, the employer must formulate
standard operating procedures, monitor their implementation
and impose disciplinary measures for the breach thereof.26 To
fend off vicarious liability, employers must submit concrete
proof, including documentary evidence, that they complied with
everything that was incumbent on them.27 Here, petitioner-
corporation’s evidence hardly included any rule or regulation
that Pascual should have observed in performing his functions.
It also did not have any guidelines for the maintenance and
upkeep of company property like the vehicle that caught fire.
Petitioner-corporation did not require periodic reports on or
inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not exert effort
to be apprised of the condition of Pascual’s car or its
serviceability.
Petitioner-corporation’s argument that the liability attached to
employers only applies in cases involving the supervision of
employees in the transportation business is incorrect. Article
2180 of the Civil Code states that employers shall be liable for
the damage caused by their employees. The liability is
imposed on all those who by their industry, profession or other
enterprise have other persons in their service or supervision.28
Nowhere does it state that the liability is limited to employers in
the transportation business.
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.
***
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.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on
his patient's fate. 1
8
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the decision 4
of the Regional Trial Court, dated 30 January 1992, finding
private respondents liable for damages arising from negligence
in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. "A") robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman. Married to Rogelio E.
Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5). She underwent a series
of examinations which included blood and urine tests (Exhs.
"A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be Hosaka; see
TSN, February 20, 1990, p. 3), one of the defendants in this
case, on June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant), would be
on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy" operation after examining
the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00,
which was to include the anesthesiologist's fee and which was
to be paid after the operation (TSN, October 19, 1989, pp. 14-
15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also
there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11). Her husband,
Rogelio, was also with her (TSN, October 19, 1989, p. 18). At
the operating room, Herminda saw about two or three nurses
and Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide
moral support to the patient, to them. Herminda was allowed to
stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to
look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda
Cruz about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, "Mindy,
wala pa ba ang Doctor"? The former replied, "Huwag kang
mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and
informed the patient's husband, Rogelio, that the doctor was
not yet around (id., p. 13). When she returned to the operating
room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying
[and] waiting for the arrival of the doctor" even as he did his
best to find somebody who will allow him to pull out his wife
from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost
12:00 noon, he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p.
21). While talking to Dr. Garcia at around 12:10 P.M., he came
to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing
those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that "Dr.
Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing
the patient for the operation" (TSN, January 13, 1988, p. 16).
As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard
Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of
the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard
Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived
at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patient's nailbed became bluish and
the patient was placed in a trendelenburg position — a position
where the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of blood
9
supply to the patient's brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN,
July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw
a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards
the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October
19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk
to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to
him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a
good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital
to explain what happened to the patient. The doctors explained
that the patient had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part
of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of
the absence of oxygen in her brain for four to five minutes
(TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still
needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from "diffuse cerebral parenchymal
damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for
damages with the Regional Trial Court of Quezon City against
herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the sustained by Erlinda was due to lack of oxygen
in her brain caused by the faulty management of her airway by
private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect
that the cause of brain damage was Erlinda's allergic reaction
to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts
set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so
holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in intubating
[the] patient, the patient's nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position,
because of the decrease of blood supply to the patient's brain.
The evidence further shows that the hapless patient suffered
brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in
turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is
liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of his
obligation to provide the patient a good anesthesiologist', and
for arriving for the scheduled operation almost three (3) hours
late.
On the part of DLSMC (the hospital), this Court finds that it is
liable for the acts of negligence of the doctors in their "practice
of medicine" in the operating room. Moreover, the hospital is
liable for failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.
In having held thus, this Court rejects the defense raised by
defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would
not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after
her (the patient's) nailbed turned bluish, belie their claim.
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.
10
Accordingly, the latter are ordered to pay, jointly and severally,
the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the
plaintiff Erlinda Ramos reckoned from November 15, 1985 or in
the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the
further sum of P200,000,00 by way of exemplary damages;
and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the
Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial court.
The decretal portion of the decision of the appellate court
reads:
WHEREFORE, for the foregoing premises the appealed
decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to
pay the unpaid hospital bills amounting to P93,542.25, plus
legal interest for justice must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June
1995 by petitioner Rogelio Ramos who was mistakenly
addressed as "Atty. Rogelio Ramos." No copy of the decision,
however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of
the reglementary period for filing a motion for reconsideration.
On the same day, Atty. Ligsay, filed with the appellate court a
motion for extension of time to file a motion for reconsideration.
The motion for reconsideration was submitted on 4 July 1995.
However, the appellate court denied the motion for extension
of time in its Resolution dated 25 July 1995. 9 Meanwhile,
petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August
1995 a motion to admit the motion for reconsideration
contending that the period to file the appropriate pleading on
the assailed decision had not yet commenced to run as the
Division Clerk of Court of the Court of Appeals had not yet
served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit
the motion for reconsideration of petitioners in its Resolution,
dated 29 March 1996, primarily on the ground that the fifteen-
day (15) period for filing a motion for reconsideration had
already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a
Motion for Reconsideration cannot be extended; precisely, the
Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already
passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on
11 April 1996. The next day, or on 12 April 1996, Atty. Sillano
filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted
the motion for extension of time and gave petitioners additional
thirty (30) days after the expiration of the fifteen-day (15) period
counted 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
IN NOT APPLYING THE DOCTRINE OF RES IPSA
LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose
of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners
with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court
of Appeals was validly dismissed by the appellate court for
having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind
the delay in filing the motion for reconsideration is attributable
to the fact that the decision of the Court of Appeals was not
11
sent to then counsel on record of petitioners, the Coronel Law
Office. In fact, a copy of the decision of the appellate court was
instead sent to and received by petitioner Rogelio Ramos on 9
June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received
by petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the present
case, since 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 believed that the
receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now
look into the merits of the case. For a more logical presentation
of the discussion we shall first consider the issue on the
applicability of the doctrine of res ipsa loquitur to the instant
case. Thereafter, the first two assigned errors shall be tackled
in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself." The phrase "res ipsa
loquitur'' is a maxim for the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question
of fact for defendant to meet with an explanation. 13 Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and
the accident is such as in ordinary course of things does not
happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or
was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the person
who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged
with negligence. 15 It is grounded in the superior logic of
ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself. 16
Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a
rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability. 17
Instead, it is considered as merely evidentiary or in the nature
of a procedural rule. 18 It is regarded as a mode of proof, or a
mere procedural of convenience since it furnishes a substitute
for, and relieves a plaintiff of, the burden of producing specific
proof of negligence. 19 In other words, mere invocation and
application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the
process of such proof, permitting the plaintiff to present along
with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. 20 Still,
before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in
the absence of someone's negligence;
2. It is caused by an instrumentality within the exclusive control
of the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the "control
of instrumentality" which caused the damage. 22 Such element
of control must be shown to be within the dominion of the
defendant. In order to have the benefit of the rule, a plaintiff, in
addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.
23
Medical malpractice 24 cases do not escape the application of
this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the
cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference. 26
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is dispensed
with because the injury itself provides the proof of negligence.
27 The reason is that the general rule on the necessity of
expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within
the common knowledge of mankind which may be testified to
by anyone familiar with the facts. 28 Ordinarily, only physicians
and surgeons of skill and experience are competent to testify
as to whether a patient has been treated or operated upon with
a reasonable degree of skill and care. However, testimony as
to the statements and acts of physicians and surgeons,
12
external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses.
29 Hence, in cases where the res ipsa loquitur is applicable,
the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge
can determine the proper standard of care. 30 Where common
knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise
to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. 31 When the
doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of
and the injury sustained while under the custody and
management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to
res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in
the following situations: leaving of a foreign object in the body
of the patient after an operation, 32 injuries sustained on a
healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily
used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure
to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res
ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis
or of a scientific treatment. 38 The physician or surgeon is not
required at his peril to explain why any particular diagnosis was
not correct, or why any particular scientific treatment did not
produce the desired result. 39 Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether or
not in the process of the operation any extraordinary incident or
unusual event outside of the routine performance occurred
which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If
there was such extraneous interventions, the doctrine of res
ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.
42
We find the doctrine of res ipsa loquitur appropriate in the case
at bar. As will hereinafter be explained, the damage sustained
by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa
loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell, 43 where the Kansas Supreme Court in applying the
res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation
and delivered his person over to the care, custody and control
of his physician who had complete and exclusive control over
him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in
mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury
was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person
being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence
of negligence. Upon these facts and under these
circumstances a layman would be able to say, as a matter of
common knowledge and observation, that the consequences of
professional treatment were not as such as would ordinarily
have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory
negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than
to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine
general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete
and exclusive control over her. At the time of submission,
Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to
the performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
13
sustained, is an injury which does not normally occur in the
process of a gall bladder operation. In fact, this kind of situation
does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal
tube. Normally, a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore,
the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-
charge. Likewise, petitioner Erlinda could not have been guilty
of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body
(the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of
the physicians, we hold that a practical administration of justice
dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say,
as a matter of common knowledge and observation, if
negligence attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in this
case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable
in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each
case must be viewed in its own light and scrutinized in order to
be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine
and the presumption of negligence allowed therein, the Court
now comes to the issue of whether the Court of Appeals erred
in finding that private respondents were not negligent in the
care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlinda's comatose condition. Corollary
thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private
respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony of
Dra. Gutierrez, the Court of Appeals rationalized that she was
candid enough to admit that she experienced some difficulty in
the endotracheal intubation 45 of the patient and thus, cannot
be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were
able to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to the
allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz offered in
favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter,
being a nurse, was allegedly not knowledgeable in the process
of intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold
that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda
and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not
only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private
respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care
of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz,
Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness
Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on
the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a sudden
heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
14

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
decrease of blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will
show that intubation is not taught as part of nursing procedures
and techniques. Indeed, we take judicial notice of the fact that
nurses do not, and cannot, intubate. Even on the assumption
that she is fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz, admittedly, did
not peep into the throat of the patient. (TSN, July 25, 1991, p.
13). More importantly, there is no evidence that she ever
auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon who succeeded in doing
so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is
that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether
or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions
which are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony of
expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence in
non-technical matters or those of which an ordinary person
may be expected to have knowledge, or where the lack of skill
or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As
such, it would not be too difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require
a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced
clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at
Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San Pablo
City; and then Dean of the Capitol Medical Center School of
Nursing. 50 Reviewing witness Cruz' statements, we find that
the same were delivered in a straightforward manner, with the
kind of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical background as
a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at
your first attempt (sic), you did not immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
15
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
Curiously in the case at bar, respondent Dra. Gutierrez made
the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since
Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure.
From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and
visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward
the central nervous system, cardiovascular system, lungs and
upper airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine
mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula
and the thyromental distance. 56 Thus, physical characteristics
of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need
arises, as when initial assessment indicates possible problems
(such as the alleged short neck and protruding teeth of Erlinda)
a thorough examination of the patient's airway would go a long
way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until
the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing
her patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives
lie at the core of the physician's centuries-old Hippocratic Oath.
Her failure to follow this medical procedure is, therefore, a clear
indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over
this omission by playing around with the trial court's ignorance
of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference
between an elective surgery and an emergency surgery just so
her failure to perform the required pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to
see the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gain the trust
and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the
operative procedure of the anesthesiologist and in my case,
with elective cases and normal cardio-pulmonary clearance like
that, I usually don't do it except on emergency and on cases
that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do
a proper interview and clinical evaluation. There is ample time
to explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least
one day before the intended surgery, when the patient is
relaxed and cooperative.
Erlinda's case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda's case prior to the operation and prepare
her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only
in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of
this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to
perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda's comatose
condition.
Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her system. Towards
16
this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty
Board of Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction
to the short-acting barbiturate. We find the theory of private
respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the
field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert
would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's
testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own
admission that he formulated his opinions on the drug not from
the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but
only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based
only on what you have read from books and not by your own
personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of
your own personal experience you feel that you can testify on
pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in
which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony
as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. — The opinion of a witness
on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience. 63
Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary
knowledge, skill, and training in the field of anesthesiology.
Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents' intentionally avoided
providing testimony by competent and independent experts in
the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium
may have produced Erlinda's coma by triggering an allergic
mediated response, has no support in evidence. No evidence
of stridor, skin reactions, or wheezing — some of the more
common accompanying signs of an allergic reaction —
appears on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm happens
only very rarely. If courts were to accept private respondents'
hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy
theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to
advanced in order to absolve them of any and all responsibility
for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural
and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the
result would not have occurred. 64 An injury or damage is
proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or omission
played a substantial part in bringing about or actually causing
17
the injury or damage; and that the injury or damage was either
a direct result or a reasonably probable consequence of the act
or omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause which
triggered the chain of events leading to Erlinda's brain damage
and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony
that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered
the esophagus instead of the respiratory tree. In other words,
instead of the intended endotracheal intubation what actually
took place was an esophageal intubation. During intubation,
such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as
the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting
the endotracheal tube (up to the time the tube was withdrawn
for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack
of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think
so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the trachea,
the same gave no guarantee of oxygen delivery, the hallmark
of a successful intubation. In fact, cyanosis was again
observed immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was
accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late.
As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her
brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-third
(1/3) of deaths and serious injuries associated with anesthesia.
69 Nevertheless, ninety-eight percent (98%) or the vast
majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient's airway prior to
the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the
pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together
with a change in technique. 71 In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-
operative evaluation, would have had little difficulty going
around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative
management and intubation, respondent Dra. Gutierrez'
negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called
"captain of the ship," 73 it is the surgeon's responsibility to see
to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found in
his failure to exercise the proper authority (as the "captain" of
the operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no evidence on
record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka
had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over
three hours late for the latter's operation. Because of this, he
had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in
Erlinda's condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and visiting
"consultants," 74 who are allegedly not hospital employees,
presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is only
more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the basis of
18
mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties,
or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks
of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in
fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and
their attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent hospital is
solidarily liable with respondent doctors for petitioner's
condition. 76
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil
Code which considers a person accountable not only for his
own acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of
the family to prevent damage. 78 In other words, while the
burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed to
adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting
to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent
hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the
above discussions, private respondents were unable to rebut
the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages
under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The
trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff,
"subject to its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the
trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to
bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital
or be transferred to a hospice specializing in the care of the
chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly turned from side
to side to prevent bedsores and hypostatic pneumonia.
Feeding is done by nasogastric tube. Food preparation should
be normally made by a dietitian to provide her with the correct
daily caloric requirements and vitamin supplements.
Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of
the care the family is usually compelled to undertake at home
to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199. — Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty.
80 In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And
19
because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
As it would not be equitable — and certainly not in the best
interests of the administration of justice — for the victim in such
cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages
previously awarded — temperate damages are appropriate.
The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only home-
based nursing care for a comatose patient who has remained
in that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more
in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes
in such care. They should not be compelled by dire
circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result of
the injury (amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent
a traumatic amputation of her left lower extremity at the distal
left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which
was paid for by Li), she will be required to undergo adjustments
in her prosthetic devise due to the shrinkage of the stump from
the process of healing.
These adjustments entail costs, prosthetic replacements and
months of physical and occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her lower
limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for
example, the prosthetic will have to be adjusted to respond to
the changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-menopausal
women. In other words, the damage done to her would not only
be permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes which her
body would normally undergo through the years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All
of these adjustments, it has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will
only allow a reasonable amount of functional restoration of the
motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable.
83
The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious than
the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and
a mother.
Meanwhile, the actual physical, emotional and financial cost of
the care of petitioner would be virtually impossible to quantify.
Even the temperate damages herein awarded would be
inadequate if petitioner's condition remains unchanged for the
next ten years.
We recognized, in Valenzuela that a discussion of the victim's
actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or
those actually affected by the victim's condition. 84 The
husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner,
altering their long term goals to take into account their life with
a comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The
family's moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in
moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount
of P100,000.00 are hereby awarded. Considering the length
and nature of the instant suit we are of the opinion that
attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death to
their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the
same automatically gives the injured a right to reparation for
the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
20
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.
***
G.R. No. 124354 April 11, 2002
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS, and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DE LOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino
Hosaka and Dr. Perfecta Gutierrez move for a reconsideration
of the Decision, dated December 29, 1999, of this Court
holding them civilly liable for petitioner Erlinda Ramos’
comatose condition after she delivered herself to them for their
professional care and management.
For better understanding of the issues raised in private
respondents’ respective motions, we will briefly restate the
facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking
professional medical help, was advised to undergo an
operation for the removal of a stone in her gall bladder
(cholecystectomy). She was referred to Dr. Hosaka, a surgeon,
who agreed to perform the operation on her. The operation
was scheduled for June 17, 1985 at 9:00 in the morning at
private respondent De Los Santos Medical Center (DLSMC).
Since neither petitioner Erlinda nor her husband, petitioner
Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before
the scheduled operation. By 7:30 in the morning of the
following day, petitioner Erlinda was already being prepared for
operation. Upon the request of petitioner Erlinda, her sister-in-
law, Herminda Cruz, who was then Dean of the College of
Nursing at the Capitol Medical Center, was allowed to
accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived
so Dr. Gutierrez tried to get in touch with him by phone.
Thereafter, Dr. Gutierrez informed Cruz that the operation
might be delayed due to the late arrival of Dr. Hosaka. In the
meantime, the patient, petitioner Erlinda said to Cruz, "Mindy,
inip na inip na ako, ikuha mo ako ng ibang Doctor."
By 10:00 in the morning, when Dr. Hosaka was still not around,
petitioner Rogelio already wanted to pull out his wife from the
operating room. He met Dr. Garcia, who remarked that he was
also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived
at the hospital at around 12:10 in the afternoon, or more than
three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about
Dr. Hosaka’s arrival. While she held the hand of Erlinda, Cruz
saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr.
Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish
discoloration of Erlinda’s nailbeds on her left hand. She (Cruz)
then heard Dr. Hosaka instruct someone to call Dr. Calderon,
another anesthesiologist. When he arrived, Dr. Calderon
attempted to intubate the patient. The nailbeds of the patient
remained bluish, thus, she was placed in a trendelenburg
position – a position where the head of the patient is placed in
a position lower than her feet. At this point, Cruz went out of
the operating room to express her concern to petitioner Rogelio
that Erlinda’s operation was not going well.
Cruz quickly rushed back to the operating room and saw that
the patient was still in trendelenburg position. At almost 3:00 in
the afternoon, she saw Erlinda being wheeled to the Intensive
Care Unit (ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in the ICU for a
month. She was released from the hospital only four months
later or on November 15, 1985. Since the ill-fated operation,
Erlinda remained in comatose condition until she died on
August 3, 1999.1
Petitioners filed with the Regional Trial Court of Quezon City a
civil case for damages against private respondents. After due
trial, the court a quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private respondents were
negligent in the performance of their duties to Erlinda. On
appeal by private respondents, the Court of Appeals reversed
the trial court’s decision and directed petitioners to pay their
"unpaid medical bills" to private respondents.
Petitioners filed with this Court a petition for review on
certiorari. The private respondents were then required to
submit their respective comments thereon. On December 29,
1999, this Court promulgated the decision which private
21
respondents now seek to be reconsidered. The dispositive
portion of said Decision states:
WHEREFORE, the decision and resolution of the appellate
court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents
the following: 1) P1,352,000.00 as actual damages computed
as of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each exemplary damages and attorney’s fees;
and 5) the costs of the suit.2
In his Motion for Reconsideration, private respondent Dr.
Hosaka submits the following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED
REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR.
HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-
THE-SHIP" DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING
RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT
THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT
DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME
COURT ERRED IN AWARDING DAMAGES THAT WERE
CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.3
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY OVERLOOKED THE FACT THAT THE
COURT OF APPEAL’S DECISION DATED 29 MAY 1995 HAD
ALREADY BECOME FINAL AND EXECUTORY AS OF 25
JUNE 1995, THEREBY DEPRIVING THIS HONORABLE
COURT OF JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY
CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT
DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE
BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH
THE STANDARDS OF DUE CARE EXPECTED IN HER
RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE
BY SUBSTANTIAL PROOF OF HER HAVING
SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY
PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF
PETITIONER’S WITNESS HERMINDA CRUZ, DESPITE THE
EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES
WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY
DISREGARDED THE EXPERT TESTIMONY OF DR.
JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE
ON THE PART OF RESPONDENT DOCTOR.4
Private respondent De Los Santos Medical Center likewise
moves for reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE
COURSE TO THE INSTANT PETITION AS THE DECISION
OF THE HONORABLE COURT OF APPEALS HAD ALREADY
BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING
THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS
BETWEEN RESPONDENT DE LOS SANTOS MEDICAL
CENTER AND DRS. ORLINO HOSAKA AND PERFECTA
GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING
THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER
IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN
INCREASING THE AWARD OF DAMAGES IN FAVOR OF
PETITIONERS.5
In the Resolution of February 21, 2000, this Court denied the
motions for reconsideration of private respondents Drs. Hosaka
and Gutierrez. They then filed their respective second motions
for reconsideration. The Philippine College of Surgeons filed its
Petition-in-Intervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the intervenor, said
doctrine had long been abandoned in the United States in
recognition of the developments in modern medical and
hospital practice.6 The Court noted these pleadings in the
Resolution of July 17, 2000.7
On March 19, 2001, the Court heard the oral arguments of the
parties, including the intervenor. Also present during the
22
hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr.,
Consultant of the Philippine Charity Sweepstakes, former
Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of
the Philippine Society of Anesthesiologists, Inc. and Professor
and Vice-Chair for Research, Department of Anesthesiology,
College of Medicine-Philippine General Hospital, University of
the Philippines; and Dr. Lydia M. Egay, Professor and Vice-
Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the
Philippines.
The Court enumerated the issues to be resolved in this case as
follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON)
IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS
MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.8
We shall first resolve the issue pertaining to private respondent
Dr. Gutierrez. She maintains that the Court erred in finding her
negligent and in holding that it was the faulty intubation which
was the proximate cause of Erlinda’s comatose condition. The
following objective facts allegedly negate a finding of
negligence on her part: 1) That the outcome of the procedure
was a comatose patient and not a dead one; 2) That the
patient had a cardiac arrest; and 3) That the patient was
revived from that cardiac arrest.9 In effect, Dr. Gutierrez insists
that, contrary to the finding of this Court, the intubation she
performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her
part is belied by the records of the case. It has been sufficiently
established that she failed to exercise the standards of care in
the administration of anesthesia on a patient. Dr. Egay
enlightened the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist
should do before we administer anesthesia? The initial step is
the preparation of the patient for surgery and this is a pre-
operative evaluation because the anesthesiologist is
responsible for determining the medical status of the patient,
developing the anesthesia plan and acquainting the patient or
the responsible adult particularly if we are referring with the
patient or to adult patient who may not have, who may have
some mental handicaps of the proposed plans. We do pre-
operative evaluation because this provides for an opportunity
for us to establish identification and personal acquaintance with
the patient. It also makes us have an opportunity to alleviate
anxiety, explain techniques and risks to the patient, given the
patient the choice and establishing consent to proceed with the
plan. And lastly, once this has been agreed upon by all parties
concerned the ordering of pre-operative medications. And
following this line at the end of the evaluation we usually come
up on writing, documentation is very important as far as when
we train an anesthesiologist we always emphasize this
because we need records for our protection, well, records. And
it entails having brief summary of patient history and physical
findings pertinent to anesthesia, plan, organize as a problem
list, the plan anesthesia technique, the plan post operative,
pain management if appropriate, special issues for this
particular patient. There are needs for special care after
surgery and if it so it must be written down there and a request
must be made known to proper authorities that such and such
care is necessary. And the request for medical evaluation if
there is an indication. When we ask for a cardio-pulmonary
clearance it is not in fact to tell them if this patient is going to be
fit for anesthesia, the decision to give anesthesia rests on the
anesthesiologist. What we ask them is actually to give us the
functional capacity of certain systems which maybe affected by
the anesthetic agent or the technique that we are going to use.
But the burden of responsibility in terms of selection of agent
and how to administer it rest on the anesthesiologist.10
The conduct of a preanesthetic/preoperative evaluation prior to
an operation, whether elective or emergency, cannot be
dispensed with.11 Such evaluation is necessary for the
formulation of a plan of anesthesia care suited to the needs of
the patient concerned.
Pre-evaluation for anesthesia involves taking the patient’s
medical history, reviewing his current drug therapy, conducting
physical examination, interpreting laboratory data, and
determining the appropriate prescription of preoperative
medications as necessary to the conduct of anesthesia.12
Physical examination of the patient entails not only evaluating
the patient’s central nervous system, cardiovascular system
and lungs but also the upper airway. Examination of the upper
airway would in turn include an analysis of the patient’s cervical
spine mobility, temporomandibular mobility, prominent central
incisors, deceased or artificial teeth, ability to visualize uvula
and the thyromental distance.13
Nonetheless, Dr. Gutierrez omitted to perform a thorough
preoperative evaluation on Erlinda. As she herself admitted,
she saw Erlinda for the first time on the day of the operation
itself, one hour before the scheduled operation. She
auscultated14 the patient’s heart and lungs and checked the
latter’s blood pressure to determine if Erlinda was indeed fit for
operation.15 However, she did not proceed to examine the
patient’s airway. Had she been able to check petitioner
Erlinda’s airway prior to the operation, Dr. Gutierrez would
most probably not have experienced difficulty in intubating the
former, and thus the resultant injury could have been avoided.
As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until
the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing
her patient for the first time only an hour before the scheduled
23
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives
lie at the core of the physician’s centuries-old Hippocratic Oath.
Her failure to follow this medical procedure is, therefore, a clear
indicia of her negligence.16
Further, there is no cogent reason for the Court to reverse its
finding that it was the faulty intubation on Erlinda that caused
her comatose condition. There is no question that Erlinda
became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted
to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this
involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any
other acts were done by Dr. Gutierrez or comatose before any
act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some
intervention, professional acts have been done by Dr.
Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of
some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.17
What is left to be determined therefore is whether Erlinda’s
hapless condition was due to any fault or negligence on the
part of Dr. Gutierrez while she (Erlinda) was under the latter’s
care. Dr. Gutierrez maintains that the bronchospasm and
cardiac arrest resulting in the patient’s comatose condition was
brought about by the anaphylactic reaction of the patient to
Thiopental Sodium (pentothal).18 In the Decision, we
explained why we found Dr. Gutierrez’ theory unacceptable. In
the first place, Dr. Eduardo Jamora, the witness who was
presented to support her (Dr. Gutierrez) theory, was a
pulmonologist. Thus, he could not be considered an authority
on anesthesia practice and procedure and their
complications.19
Secondly, there was no evidence on record to support the
theory that Erlinda developed an allergic reaction to pentothal.
Dr. Camagay enlightened the Court as to the manifestations of
an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical
terminology an allergic reaction is something which is not usual
response and it is further qualified by the release of a hormone
called histamine and histamine has an effect on all the organs
of the body generally release because the substance that
entered the body reacts with the particular cell, the mass cell,
and the mass cell secretes this histamine. In a way it is some
form of response to take away that which is not mine, which is
not part of the body. So, histamine has multiple effects on the
body. So, one of the effects as you will see you will have
redness, if you have an allergy you will have tearing of the
eyes, you will have swelling, very crucial swelling sometimes of
the larynges which is your voice box main airway, that swelling
may be enough to obstruct the entry of air to the trachea and
you could also have contraction, constriction of the smaller
airways beyond the trachea, you see you have the trachea this
way, we brought some visual aids but unfortunately we do not
have a projector. And then you have the smaller airways, the
bronchi and then eventually into the mass of the lungs you
have the bronchus. The difference is that these tubes have
also in their walls muscles and this particular kind of muscles is
smooth muscle so, when histamine is released they close up
like this and that phenomenon is known as bronco spasm.
However, the effects of histamine also on blood vessels are
different. They dilate blood vessel open up and the patient or
whoever has this histamine release has hypertension or low
blood pressure to a point that the patient may have decrease
blood supply to the brain and may collapse so, you may have
people who have this.20
These symptoms of an allergic reaction were not shown to
have been extant in Erlinda’s case. As we held in our Decision,
"no evidence of stridor, skin reactions, or wheezing – some of
the more common accompanying signs of an allergic reaction –
appears on record. No laboratory data were ever presented to
the court."21
Dr. Gutierrez, however, insists that she successfully intubated
Erlinda as evidenced by the fact that she was revived after
24
suffering from cardiac arrest. Dr. Gutierrez faults the Court for
giving credence to the testimony of Cruz on the matter of the
administration of anesthesia when she (Cruz), being a nurse,
was allegedly not qualified to testify thereon. Rather, Dr.
Gutierrez invites the Court’s attention to her synopsis on what
transpired during Erlinda’s intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5%
(250 mg) given by slow IV. 02 was started by mask. After
pentothal injection this was followed by IV injection of Norcuron
4mg. After 2 minutes 02 was given by positive pressure for
about one minute. Intubation with endotracheal tube 7.5 m in
diameter was done with slight difficulty (short neck & slightly
prominent upper teeth) chest was examined for breath sounds
& checked if equal on both sides. The tube was then anchored
to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4
liters was given. Blood pressure was checked 120/80 & heart
rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was
discontinued & 02 given alone. Cyanosis disappeared. Blood
pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant
and sonorous rales all over the chest. D_5%_H20 & 1 ampule
of aminophyline by fast drip was started. Still the cyanosis was
persistent. Patient was connected to a cardiac monitor.
Another ampule of of [sic] aminophyline was given and solu
cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage
and intercardiac injection of adrenalin was given & heart beat
reappeared in less than one minute. Sodium bicarbonate &
another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive
pressure. Laboratory exams done (see results in chart).
Patient was transferred to ICU for further management.22
From the foregoing, it can be allegedly seen that there was no
withdrawal (extubation) of the tube. And the fact that the
cyanosis allegedly disappeared after pure oxygen was supplied
through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the
entries purportedly contained in Dr. Gutierrez’ synopsis. It is
significant to note that the said record prepared by Dr.
Gutierrez was made only after Erlinda was taken out of the
operating room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs must be
recorded. In Dr. Gutierrez’ case, she could not account for at
least ten (10) minutes of what happened during the
administration of anesthesia on Erlinda. The following
exchange between Dr. Estrella, one of the amicii curiae, and
Dr. Gutierrez is instructive:
DR. ESTRELLA
Q You mentioned that there were two (2) attempts in the
intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the
tube inserted or was the laryngoscope only inserted, which was
inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right
somewhere in the re-direct, a certain lawyer, you were asked
that you did a first attempt and the question was – did you
withdraw the tube? And you said – you never withdrew the
tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there
was no, there was no insertion of the tube during that first
attempt. Now, the other thing that we have to settle here is –
when cyanosis occurred, is it recorded in the anesthesia record
when the cyanosis, in your recording when did the cyanosis
occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you
do during that period or from the time of induction to the time
that you probably get the patient out of the operating room that
every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time
anymore because I did that after the, when the patient was
about to leave the operating room. When there was second
cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at
12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was
oxygenated for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start
giving the pentothal very slowly and that was around one
minute.
Q So, that is about 12:13 no, 12:15, 12:17?
25
A Yes, and then, after one minute another oxygenation
was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the
menorcure which is a relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do
any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now
more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to
this patient?
A After that time you examine the, if there is relaxation of
the jaw which you push it downwards and when I saw that the
patient was relax because that monorcure is a relaxant, you
cannot intubate the patient or insert the laryngoscope if it is not
keeping him relax. So, my first attempt when I put the
laryngoscope on I saw the trachea was deeply interiorly. So,
what I did ask "mahirap ata ito ah." So, I removed the
laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after
the first attempt as you claimed that it was only the
laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the
laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did
you make?
A I said "mahirap ata ito" when the first attempt I did not
see the trachea right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away
within two to three seconds.
Q At what point, for purposes of discussion without
accepting it, at what point did you make the comment "na
mahirap ata to intubate, mali ata ang pinasukan"
A I did not say "mali ata ang pinasukan" I never said that.
Q Well, just for the information of the group here the
remarks I am making is based on the documents that were
forwarded to me by the Supreme Court. That is why for
purposes of discussion I am trying to clarify this for the sake of
enlightenment. So, at what point did you ever make that
comment?
A Which one, sir?
Q The "mahirap intubate ito" assuming that you
(interrupted)
A Iyon lang, that is what I only said "mahirap intubate
(interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope
for the first time.
Q So, when you claim that at the first attempt you inserted
the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the,
somewhere in the transcript of records that when the lawyer of
the other party try to inquire from you during the first attempt
that was the time when "mayroon ba kayong hinugot sa tube, I
do not remember the page now, but it seems to me it is there.
So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and
looking at the anesthesia records from 12:20 to 12:30 there
was no recording of the vital signs. And can we presume that
at this stage there was already some problems in handling the
patient?
A Not yet.
Q But why are there no recordings in the anesthesia
record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the
witness is laughing)
Q No, I am just asking. Remember I am not here not to
pin point on anybody I am here just to more or less clarify
certainty more ore less on the record.
A Yes, Sir.
26

Q And so it seems that there were no recording during
that span of ten (10) minutes. From 12:20 to 12:30, and going
over your narration, it seems to me that the cyanosis appeared
ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was
the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to
enlighten, I am just going over the record ano, kung mali ito
kuwan eh di ano. So, ganoon po ano, that it seems to me that
there is no recording from 12:20 to 12:30, so, I am just
wondering why there were no recordings during the period and
then of course the second cyanosis, after the first cyanosis. I
think that was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).23
We cannot thus give full credence to Dr. Gutierrez’ synopsis in
light of her admission that it does not fully reflect the events
that transpired during the administration of anesthesia on
Erlinda. As pointed out by Dr. Estrella, there was a ten-minute
gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda
were not recorded during that time. The absence of these data
is particularly significant because, as found by the trial court, it
was the absence of oxygen supply for four (4) to five (5)
minutes that caused Erlinda’s comatose condition.
On the other hand, the Court has no reason to disbelieve the
testimony of Cruz. As we stated in the Decision, she is
competent to testify on matters which she is capable of
observing such as, the statements and acts of the physician
and surgeon, external appearances and manifest conditions
which are observable by any one.24 Cruz, Erlinda’s sister-in-
law, was with her inside the operating room. Moreover, being a
nurse and Dean of the Capitol Medical Center School of
Nursing at that, she is not entirely ignorant of anesthetic
procedure. Cruz narrated that she heard Dr. Gutierrez remark,
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." She observed that the nailbeds of Erlinda
became bluish and thereafter Erlinda was placed in
trendelenburg position.25 Cruz further averred that she noticed
that the abdomen of Erlinda became distended.26
The cyanosis (bluish discoloration of the skin or mucous
membranes caused by lack of oxygen or abnormal hemoglobin
in the blood) and enlargement of the stomach of Erlinda
indicate that the endotracheal tube was improperly inserted
into the esophagus instead of the trachea. Consequently,
oxygen was delivered not to the lungs but to the
gastrointestinal tract. This conclusion is supported by the fact
that Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to the
patient’s brain. The brain was thus temporarily deprived of
oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally
happen absent any negligence in the administration of
anesthesia and in the use of an endotracheal tube. As was
noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube,
were all under the exclusive control of private respondents Dr.
Gutierrez and Dr. Hosaka.27 In Voss vs. Bridwell,28 which
involved a patient who suffered brain damage due to the
wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas
Supreme Court applied the doctrine of res ipsa loquitur,
reasoning that the injury to the patient therein was one which
does not ordinarily take place in the absence of negligence in
the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say
that "[o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and
under these circumstances, a layman would be able to say, as
a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as
would ordinarily have followed if due care had been
exercised."29 Considering the application of the doctrine of res
ipsa loquitur, the testimony of Cruz was properly given
credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred
in finding him negligent as a surgeon by applying the Captain-
of-the-Ship doctrine.30 Dr. Hosaka argues that the trend in
United States jurisprudence has been to reject said doctrine in
light of the developments in medical practice. He points out
that anesthesiology and surgery are two distinct and
specialized fields in medicine and as a surgeon, he is not
deemed to have control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field and
has acquired skills and knowledge in the course of her training
which Dr. Hosaka, as a surgeon, does not possess.31 He
states further that current American jurisprudence on the
matter recognizes that the trend towards specialization in
medicine has created situations where surgeons do not always
have the right to control all personnel within the operating
room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General
Hospital,34 which involved a suit filed by a patient who lost his
voice due to the wrongful insertion of the endotracheal tube
preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued
both the anesthesiologist and the surgeon for the injury
suffered by him. The Supreme Court of Appeals of West
Virginia held that the surgeon could not be held liable for the
loss of the patient’s voice, considering that the surgeon did not
have a hand in the intubation of the patient. The court rejected
the application of the "Captain-of-the-Ship Doctrine," citing the
fact that the field of medicine has become specialized such that
surgeons can no longer be deemed as having control over the
other personnel in the operating room. It held that "[a]n
assignment of liability based on actual control more realistically
reflects the actual relationship which exists in a modern
27
operating room."35 Hence, only the anesthesiologist who
inserted the endotracheal tube into the patient’s throat was
held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with
the Captain-of-the-Ship doctrine does not mean that this Court
will ipso facto follow said trend. Due regard for the peculiar
factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts
on record it can be logically inferred that Dr. Hosaka exercised
a certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the
services of Dr. Gutierrez. In effect, he represented to
petitioners that Dr. Gutierrez possessed the necessary
competence and skills. Drs. Hosaka and Gutierrez had worked
together since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr. Gutierrez
to administer the anesthesia on his patient.36
Second, Dr. Hosaka himself admitted that he was the attending
physician of Erlinda. Thus, when Erlinda showed signs of
cyanosis, it was Dr. Hosaka who gave instructions to call for
another anesthesiologist and cardiologist to help resuscitate
Erlinda.37
Third, it is conceded that in performing their responsibilities to
the patient, Drs. Hosaka and Gutierrez worked as a team.
Their work cannot be placed in separate watertight
compartments because their duties intersect with each
other.38
While the professional services of Dr. Hosaka and Dr.
Gutierrez were secured primarily for their performance of acts
within their respective fields of expertise for the treatment of
petitioner Erlinda, and that one does not exercise control over
the other, they were certainly not completely independent of
each other so as to absolve one from the negligent acts of the
other physician.
That they were working as a medical team is evident from the
fact that Dr. Hosaka was keeping an eye on the intubation of
the patient by Dr. Gutierrez, and while doing so, he observed
that the patient’s nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes that the
counsel for Dr. Hosaka admitted that in practice, the
anesthesiologist would also have to observe the surgeon’s acts
during the surgical process and calls the attention of the
surgeon whenever necessary39 in the course of the treatment.
The duties of Dr. Hosaka and those of Dr. Gutierrez in the
treatment of petitioner Erlinda are therefore not as clear-cut as
respondents claim them to be. On the contrary, it is quite
apparent that they have a common responsibility to treat the
patient, which responsibility necessitates that they call each
other’s attention to the condition of the patient while the other
physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss
in his duty of attending to petitioner Erlinda promptly, for he
arrived more than three (3) hours late for the scheduled
operation. The cholecystectomy was set for June 17, 1985 at
9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m.
In reckless disregard for his patient’s well being, Dr. Hosaka
scheduled two procedures on the same day, just thirty minutes
apart from each other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta. Teresita Hospital did
not proceed on time, Erlinda was kept in a state of uncertainty
at the DLSMC.
The unreasonable delay in petitioner Erlinda’s scheduled
operation subjected her to continued starvation and
consequently, to the risk of acidosis,40 or the condition of
decreased alkalinity of the blood and tissues, marked by sickly
sweet breath, headache, nausea and vomiting, and visual
disturbances.41 The long period that Dr. Hosaka made Erlinda
wait for him certainly aggravated the anxiety that she must
have been feeling at the time. It could be safely said that her
anxiety adversely affected the administration of anesthesia on
her. As explained by Dr. Camagay, the patient’s anxiety usually
causes the outpouring of adrenaline which in turn results in
high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One
is to alleviate anxiety. Second is to dry up the secretions and
Third is to relieve pain. Now, it is very important to alleviate
anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When
a patient is anxious there is an outpouring of adrenalin which
would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to
disturbances in the heart rhythm, which would have adverse
implications. So, we would like to alleviate patient’s anxiety
mainly because he will not be in control of his body there could
be adverse results to surgery and he will be opened up; a knife
is going to open up his body. x x x42
Dr. Hosaka cannot now claim that he was entirely blameless of
what happened to Erlinda. His conduct clearly constituted a
breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about
anxiety, would you consider a patient's stay on the operating
table for three hours sufficient enough to aggravate or magnify
his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that
was the case, three hours waiting and the patient was already
on the operating table (interrupted)
DR. CAMAGAY:
28
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to
the aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a
source of anxiety and most operating tables are very narrow
and that patients are usually at risk of falling on the floor so
there are restraints that are placed on them and they are
never, never left alone in the operating room by themselves
specially if they are already pre-medicated because they may
not be aware of some of their movement that they make which
would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come
on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very late for the
scheduled operation of petitioner Erlinda is violative, not only of
his duty as a physician "to serve the interest of his patients with
the greatest solicitude, giving them always his best talent and
skill,"44 but also of Article 19 of the Civil Code which requires a
person, in the performance of his duties, to act with justice and
give everyone his due.
Anent private respondent DLSMC’s liability for the resulting
injury to petitioner Erlinda, we held that respondent hospital is
solidarily liable with respondent doctors therefor under Article
2180 of the Civil Code45 since there exists an employer-
employee relationship between private respondent DLSMC
and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, x x x the control
exercised, the hiring and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control
test is determining. x x x46
DLSMC however contends that applying the four-fold test in
determining whether such a relationship exists between it and
the respondent doctors, the inescapable conclusion is that
DLSMC cannot be considered an employer of the respondent
doctors.
It has been consistently held that in determining whether an
employer-employee relationship exists between the parties, the
following elements must be present: (1) selection and
engagement of services; (2) payment of wages; (3) the power
to hire and fire; and (4) the power to control not only the end to
be achieved, but the means to be used in reaching such an
end.47
DLSMC maintains that first, a hospital does not hire or engage
the services of a consultant, but rather, accredits the latter and
grants him or her the privilege of maintaining a clinic and/or
admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate board
(diplomate), evidence of fellowship and references.48 Second,
it is not the hospital but the patient who pays the consultant’s
fee for services rendered by the latter.49 Third, a hospital does
not dismiss a consultant; instead, the latter may lose his or her
accreditation or privileges granted by the hospital.50 Lastly,
DLSMC argues that when a doctor refers a patient for
admission in a hospital, it is the doctor who prescribes the
treatment to be given to said patient. The hospital’s obligation
is limited to providing the patient with the preferred room
accommodation, the nutritional diet and medications prescribed
by the doctor, the equipment and facilities necessary for the
treatment of the patient, as well as the services of the hospital
staff who perform the ministerial tasks of ensuring that the
doctor’s orders are carried out strictly.51
After a careful consideration of the arguments raised by
DLSMC, the Court finds that respondent hospital’s position on
this issue is meritorious. There is no employer-employee
relationship between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the injury suffered
by petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a
physician to membership in DLSMC’s medical staff as active or
visiting consultant is first decided upon by the Credentials
Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of
Obstetrics and Gynecology, Pediatrics, Surgery with the
department head of the particular specialty applied for as
chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the
acceptance or rejection of the applicant physician, and said
director or administrator validates the committee's
recommendation.52 Similarly, in cases where a disciplinary
action is lodged against a consultant, the same is initiated by
the department to whom the consultant concerned belongs and
filed with the Ethics Committee consisting of the department
29
specialty heads. The medical director/hospital administrator
merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which pays any
of its consultants for medical services rendered by the latter to
their respective patients. Moreover, the contract between the
consultant in respondent hospital and his patient is separate
and distinct from the contract between respondent hospital and
said patient. The first has for its object the rendition of medical
services by the consultant to the patient, while the second
concerns the provision by the hospital of facilities and services
by its staff such as nurses and laboratory personnel necessary
for the proper treatment of the patient.
Further, no evidence was adduced to show that the injury
suffered by petitioner Erlinda was due to a failure on the part of
respondent DLSMC to provide for hospital facilities and staff
necessary for her treatment.
For these reasons, we reverse the finding of liability on the part
of DLSMC for the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award
of damages to petitioners in view of the supervening event of
petitioner Erlinda’s death. In the assailed Decision, the Court
awarded actual damages of One Million Three Hundred Fifty
Two Thousand Pesos (P1,352,000.00) to cover the expenses
for petitioner Erlinda’s treatment and care from the date of
promulgation of the Decision up to the time the patient expires
or survives.53 In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand
Pesos (P1,500,000.00) in view of the chronic and continuing
nature of petitioner Erlinda’s injury and the certainty of further
pecuniary loss by petitioners as a result of said injury, the
amount of which, however, could not be made with certainty at
the time of the promulgation of the decision. The Court justified
such award in this manner:
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty.
In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
As it would not be equitable—and certainly not in the best
interests of the administration of justice—for the victim in such
cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages
previously awarded—temperate damages are appropriate. The
amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only home-
based nursing care for a comatose patient who has remained
in that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more
in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes
in such care. They should not be compelled by dire
circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.54
However, subsequent to the promulgation of the Decision, the
Court was informed by petitioner Rogelio that petitioner Erlinda
died on August 3, 1999.55 In view of this supervening event,
the award of temperate damages in addition to the actual or
compensatory damages would no longer be justified since the
actual damages awarded in the Decision are sufficient to cover
the medical expenses incurred by petitioners for the patient.
Hence, only the amounts representing actual, moral and
exemplary damages, attorney’s fees and costs of suit should
be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as
follows:
(1) Private respondent De Los Santos Medical Center is
hereby absolved from liability arising from the injury suffered by
petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez are hereby declared to be solidarily liable for the
injury suffered by petitioner Erlinda on June 17, 1985 and are
ordered to pay petitioners—
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney’s fees; and
(e) the costs of the suit.
SO ORDERED.
***
[ G.R. No. 203081, January 17, 2018 ]
30
 LINDA CACHO, MINORS SARAH JANE, JACQUELINE,
FIRE RINA AND MARK LOUISE ALL SURNAMED CACHO,
ALL REPRESENTED BY THEIR MOTHER AND GUARDIAN
AD LITEM LINDA CACHO, PETITIONERS,
VS.
GERARDO MANAHAN, DAGUPAN BUS CO., INC., AND
RENATO DE VERA DOING BUSINESS UNDER THE NAME
R. M. DE VERA CONSTRUCTION, RESPONDENT.
DECISION
MARTIRES, J.:
For resolution is the Petition for Review on Certiorari,[1]
docketed as G.R. No. 203081, assailing the 22 March 2012
Decision[2] and the 3 August 2012 Resolution[3] of the Court of
Appeals (CA) in CA-G.R. CV No. 83499. The CA reversed the
26 January 2004 Decision[4] of the Regional Trial Court,
Branch 55 of Alaminos, Pangasinan (RTC), and dismissed the
complaint for damages docketed as Civil Case No. A-2553.
THE FACTS
The present case arose from a complaint for damages filed by
the petitioners, the wife and children of Bismark Cacho
(Cacho), against Gerardo Manahan (Manahan), Dagupan Bus
Co., Inc. (Dagupan Bus), and Renato de Vera (De Vera), the
owner of R.M. De Vera Construction (De Vera Construction).
The records disclose that on 30 June 1999 a vehicular accident
occurred along the national highway at Pogo, Alaminos,
Pangasinan, near the Embarcadero Bridge. At around 5:00
A.M. on the said date, Cacho was driving a Nissan Sentra with
Plate No. UAM 778 from Alaminos, Pangasinan to Bani,
Pangasinan, when it collided with a Dagupan Bus, with Plate
No. AVD 548, traversing on the opposite lane. The car had
already crossed the bridge when it collided with the bus which
was just about to enter the bridge. The collision caused heavy
damage to the front of the bus, the total wreckage of the
Nissan Sentra, Cacho's instant death, and multiple injuries to
three (3) passengers inside the car.
The complaint alleged that Cacho's car was hit by the bus
because the latter swerved to the left lane as it tried to avoid a
pile of boulders placed on the shoulder of the road. These
boulders were negligently placed by De Vera Construction
contracted by the local government to do some work on the
Embarcadero Bridge.
Dagupan Bus, the owner and operator of the bus, and
Manahan, the bus driver, jointly filed their answer with
counterclaim and cross-claims. They claimed that it was Cacho
who drove fast coming from the bridge and bumped into the
bus that was on full stop; and that Cacho had to swerve to the
left because there were boulders of rocks scattered on his
lane.
In their cross-claims, Dagupan Bus and Manahan argued that
the proximate cause of the accident was because of De Vera
Construction's negligence for leaving the boulders of rocks on
both shoulders of the national highway. These rocks obstructed
passage on the highway and posed an imminent danger to
vehicles passing by. At the time of the accident, the rocks were
piled on both shoulders and some rocks rolled down to both
lanes of the highway.
In his answer with counterclaim, De Vera maintained that he
ensured the safety of the road by piling the boulders in a safe
place to make sure they did not encroach upon the road. He
presented the municipality's local civil engineer to testify that
he inspected the road and found that De Vera Construction
had complied with the safety measures. Like his co-
defendants, De Vera blamed Cacho for driving recklessly and
causing the collision with the bus.
The Ruling of the Trial Court
After thoroughly evaluating the evidence adduced by all the
parties, the RTC held Dagupan Bus, Manahan, and De Vera
jointly and severally liable to pay the petitioners:
Sixty Thousand (P60,000) Pesos as reduced amount for burial
and funeral expenses incurred by them as shown from the
receipts;
Fifty Thousand (P50,000) Pesos for loss of life;
Two Million (P2,000,000) Pesos as the reduced amount for the
loss of support of the [petitioners] had not [Cacho] meet his
untimely death;
Another amount of moral damages in the reduced sum of
Three Hundred Thousand (P300,000) Pesos;
Exemplary damages in the reduced sum of One Hundred
Thousand (P100,000) Pesos;
Loss of earning capacity in the amount of One Million Six
Hundred Eighty Thousand (P1,680,000) Pesos; and
Attorney's fees in the sum of Two Hundred Thousand
(P200,000) Pesos.
For the total amount of Four Million Three Hundred Ninety
Thousand (P4,390,000) Pesos.[5]
Initially, the RTC did not believe that the bus was on full stop
and that Cacho caused the collision, viz:
The Court cannot believe that the [bus] had stopped fully upon
reaching the front portion of the bridge because Exhibit K
shows that in fact the [bus] has encroached the lane as shown
in Exhibit K-1 to mean therefore that the [bus] was not on full
stop position when the incident happened but was moving.
Likewise, Exhibit K shows the left portion, left front wheel of the
[bus] was steered to the right which is clearly depicted in
Exhibit J and also clearly shown in Exhibit I showing the front
right wheel of the bus turned to the left side.
xxxx
The Court cannot also believe that [Cacho] driving the Nissan
Sentra was the one that bumped the [bus], the reason being
31
that, if it was [Cacho] driving the car bumped the [bus], in this
position shown in
Exhibit F-2, how will the [bus], the defendant in this case
explain the damage that he suffered as shown in Exhibit 3
which shows the front left portion of the bus having suffered
damages at the line of the bus driver's seat, so that if there
were two (2) vehicles running on opposite direction in this kind
of impact the smaller vehicle, which is the Nissan Sentra could
have been thrown to the left side of the bus (along the driver's
line of seat) as shown in Exhibit 2 because if the [bus] was
stationary and the Nissan Sentra was the one that bumped
while running, the position of the Nissan Sentra car should not
have been on the left but on the opposite direction in line with
the front of the bus or slightly off the front of the bus and
besides how can Dagupan Bus explain if indeed the bus was
stationary at the time of the incident since it is shown that it has
occupied outside its lane shown in Exhibit K-1.[6]
The RTC explained that Manahan was negligent in driving the
bus because it was traversing at the speed of 80-100 KM/H
and was about to enter a very narrow bridge.[7] In coming up
with this finding, the trial court gave much credence and
importance to the testimony of one Alvin Camba (Camba), who
was a passenger of the bus in this incident, over the testimony
of Dagupan Bus' conductor.[8] Furthermore, the RTC stressed
the negligence on the part of Manahan as he had the last clear
chance to avoid the collision, to wit:
Another point. At 5:20 A.M., more or less, both vehicles should
have still their lights on and since the [bus] is higher than the
Nissan Sentra, the [bus] could have noticed the incoming car
and could have the last clear chance to avoid the car, had
[Manahan] exercised extraordinary diligence by running the
bus slowly since the width of the bridge is narrow and the car
was already about to clear the bridge by crossing the span of
the entire bridge. This was not done and neither was the last
reasonable opportunity to avoid the impending harm exercise;
such failure spells clearly the negligence of [Manahan].[9]
To add, applying the doctrine of res ipsa loquitor, the RTC
concluded that Cacho could not have driven on Manahan's
side of the road because the car he was driving was thrown to
a position where the car's front was facing the left side of the
bus.[10]
In the end, the trial court held that the proximate cause of the
incident was the negligence of Manahan in driving the bus as
well as the negligence on the part of De Vera for allowing his
employees to place boulders near the bridge.[11] The RTC
noted:
The Court can also take Judicial Notice of the Embarcadero
Bridge which is a very narrow bridge but the length is quite
long that could hardly accommodate two (2) big vehicles
crossing one another, except, if these vehicles are running at a
very low speed.
In Exhibit H and H-1 [De Vera] operating [De Vera
Construction], had placed boulders/stones on the edge of the
road which to the mind of the Court additionally hampers the
flow of traffic and likewise shown in Exhibit I.[12]
The CA Ruling
In the assailed decision, the CA reversed the trial court's ruling,
effectively dismissing the complaint for damages against
Manahan, Dagupan Bus, and De Vera. Contrary to the trial
court's findings, the CA did not believe that the bus was
running very fast and that it suddenly swerved to the left to
avoid the boulders. It held:
Logic and the principles of force and momentum dictate that, if
the [bus] was moving at a high speed until it collided with the
Nissan Sentra, said bus would have traveled a farther distance
from the point of collision especially considering its size and
weight compared to the Nissan Sentra.
Moreover, if the [bus] swerved to its left while speeding until
the time of collision, the bus would be occupying a bigger, if
not, the entire portion of the opposite lane. Certainly, the
Nissan Sentra which is a lighter and smaller vehicle could not
have stopped the [bus'] force and momentum if [Manahan] was
driving the bus very fast. As the evidence (Exhibit "2") shows,
the Nissan Sentra was in a perpendicular position with its front
portion rammed against the upper left portion of the bus.
Further, the evidence (Exhibit "K") shows that the [bus] was
just situated at the approach of the bridge and in parallel
position to the road notwithstanding the fact that its front tires
were swerved to its left side. This is consistent with [Dagupan
Bus and Manahan's] averment that the bus was at a full stop
and waiting for the Nissan Sentra to cross the bridge so that it
could in turn proceed.
Regarding the position of the front tires of the bus, to the mind
of this Court, considering that the bridge is narrower than the
road, the front tires had to be aimed to its left to compensate
for the bus length before entering the narrow bridge.
Furthermore, the [bus] had to encroach a portion of the
opposite lane to avoid the boulders on its right side.
Notwithstanding the position of the bus, it cannot be said that
the Dagupan Bus was the party liable for the collision. It must
be emphasized that the [bus] still left a significant space to
enable the vehicles coming from the opposite direction to
safely pass the bridge and into the highway. As Exhibit "K"
shows, there is approximately a 24-inch space between a
passing red car and the [bus] and the red car had passed the
bridge and traversed the highway and safely avoided the [bus]
on its left with ease. Moreover, the picture (Exhibit "K") shows
that the red car is being followed by a jeepney, which is
evidently bigger than the red car and the subject Nissan
Sentra, and presumably, the said jeepney was able to pass
through the same space without difficulty.
Definitely, [Cacho] had a significant space to maneuver his car
safely from the bridge and into the highway and pas[s] the
[bus] on its left. Unfortunately, the Nissan Sentra still collided
with the [bus]. Despite the fact that the bus was at a full stop at
the approach of the bridge and with enough space for other
32
vehicles from the opposite lane to pass through, [Cacho] failed
to avoid the [bus] and collided with [it]. Clearly, it was [Cacho]
who drove the Nissan Sentra negligently or with lack of due
care. [Cacho]'s negligence resulted in the collision which left
his Nissan Sentra car lying perpendicular to the left side of the
[bus] and with considerable damage to both the bus and his
car, and, sadly, in his death.
xxxx
In the case at bench, the proximate cause of the accident was
clearly the negligence of [Cacho] in driving the Nissan Sentra.
We are not ruling here on the liability of defendant [De Vera]
who was found by the RTC to be solidarity liable with [Dagupan
Bus and Manahan] because of his negligence in carelessly
dumping the stone boulders on the road and which both the
[bus] and the Nissan Sentra tried to avoid on their respective
side of the highway. Be it noted that [De Vera] did not appeal
from the RTC's decision.[13]
After their motion for reconsideration was denied, the
petitioners filed the petition before this Court.
OUR RULING
Camba's testimony as he was a passenger of the bus during
the accident. Camba testified that the bus was travelling at a
high speed even if it was nearing the Embarcadero Bridge:
Q:
On June 30, 1999, at about 5:20 in the morning, will you tell us,
Mr. Witness, where were you?
A:
I was aboard the [bus] that was bound for Manila but I was
going to Alaminos and it collided with a car, sir.
Q:
Mr. Witness, do you know the number of the [bus] that you
were riding?
A:
272, sir.
Q:
What happened at Pogo, Alaminos, Pangasinan, Mr. Witness?
A:
I noticed that the driver of the bus that I was riding was driving
fast and it suddenly swerved to the left and then I heard a
"bang" but I did not alight at once because I was bumped the
seat in front and I was a little dizzy.

The petition has merit.

xxxx
At the onset, we must remember that a Rule 45 review is
generally limited to questions of law.[14] This limitation exists
because we are not a trier of facts who undertakes the re- Q:
examination and re-assessment of the evidence presented by You said, Mr. Witness, that the driver of the [bus] was driving
the contending parties during the trial.[15] The appreciation very fast, is it not?
and resolution of factual issues are the functions of the lower A:
courts, whose resulting findings are then received with respect Yes, sir.
and are generally binding on this Court.[16] However, there are
exceptions, such as when the factual findings of the CA and
the trial court are contradictory.[17] Q:
Could you estimate the speed in terms of kilometers per hour?
Although the present petition substantially raises factual A:
matters, we review the contrasting evaluation and conclusion Between 80 to 100 kilometers per hour, sir.
by the RTC and the CA. An examination of the records shows
that both the RTC and the CA had carefully considered the
facts behind the case. On one hand, the RTC found that it was Q:
Manahan's negligence that was the proximate cause of the And you sad that the bus suddenly swerved to the left, is it not?
accident. The CA's position is that Cacho was driving A:
recklessly as it traversed the bridge, so he was found Yes, sir.
negligent. Taken that the RTC and the CA have different
positions on who was negligent, we now ascertain who
between them is correct. xxxx

After review of the conclusions of fact and the evidence on

record, we are inclined to side with the RTC's findings. Q:
How far was the spot of the impact or the spot of the accident
First, the assessment of the trial court on the credibility of to the edge of the ridge?
witnesses is accorded great weight and respect and even A:
considered as conclusive and binding. Given that the trial judge From here... (witness demonstrating) a distance between 2 - 3
has the unique opportunity to observe the witness first hand, or 2 ½ meters.
he can be expected to determine with reasonable discretion
which testimony is acceptable and which witness is worthy of
belief.[18] In the case at bar, the RTC gave much credence to Q:

33
So we can safely say that the accident happened at the
approach of the bridge coming from Bani?
A:
Yes, madam.
xxxx
Q:
What part of the bus did you ride?
A:
Right side, madam.
Q:
How many seats?
A:
Third seat, madam.
Q:
When you were approaching the bridge, did you also see the
car of Mr. Cacho coming?
A:
I did not see the car approaching, madam.
Q:
Were you sleeping at that time?
A:
No, madam.
Q:
Considering that it was 5:00 in the morning, the lights of the
vehicle were on, you did not see the light of the car of Mr.
Cacho?
A:
When I saw it was immediately before the impact, it was
followed by the sound of the impact.[19]
Although Dagupan Bus offered the testimony of one of its bus
conductors to contradict Camba's version, we agree with the
trial court that his testimony duly established the fact that
Manahan was driving the bus at a high speed before they
entered the bridge. This unbiased piece of evidence alone
supports the RTC's conclusion that there was negligence on
the part of Manahan. Absent any showing that the calibration of
the credibility of the witness was flawed, we are bound by this
assessment. As much as possible, we will sustain the trial
court's findings unless it could be shown that it ignored,
overlooked, misunderstood, misappreciated, or misapplied
substantial facts and circumstances which, if considered, would
materially affect the result of the case.[20] In this case, there is
no such instance. The RTC's meticulous analysis deserves
more credit because it is supported by the evidence on record.
We simply cannot adopt the CA's position that the bus was on
full stop upon entering the bridge as this is based on
speculation and contrary to evidence. Borne by the record, the
impact of the collision resulted in the car being thrown about
ninety (90) degrees counter-clockwise to the opposite lane
before resting perpendicular to the road. The resulting position
of the vehicle after the collision is incompatible with the
conclusion that the bus was at full stop. Cacho's car would not
be thrown off and be turned counter-clockwise to the opposite
direction of its motion if there was no heavier and greater force
that collided with it. This circumstance was duly established by
the photographs of the scene taken after the accident.
Second, negligence on the part of Manahan was also
established by the photographs showing that he occupied
Cacho's lane. Exhibits "I-1" and "J-1" would show that the front
wheels of the bus were turned to the left. We can easily notice
from Exhibits "K-1" and "L-1" that both the front and rear left
wheels of the bus already occupied a portion of the opposite
lane; leaving a smaller space for Cacho to safely exit the
bridge. We also observe that there was enough space on the
right side of the road because a man extending his two hands,
as depicted in Exhibit "M," could fit between the right side of
the bus and the shoulder of the road.
From these circumstances, therefore, we find that Manahan
was clearly negligent because the bus he was driving already
occupied a portion of the opposite lane, and he was driving at a
high speed while approaching the bridge.
In Picart v. Smith,[21] we laid down the test by which we
determine the existence of negligence, viz:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and
caution which an ordinary prudent person would have used in
the same situation? If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They
are not, and are not supposed to be, omniscient of the future.
Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as
a result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a
given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have
34
foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against
its consequences.[22] (emphases ours)
Using this test, Manahan was clearly negligent when he was
relatively driving fast on a narrow highway and approaching a
similarly narrow bridge. We must bear in mind that a bus is a
significantly large vehicle which would be difficult to maneuver
and stop if it were travelling at a high speed. On top of this, the
time of the accident was on or about sunrise when visibility on
the road was compromised. Manahan should have been more
prudent and careful in his driving the bus especially
considering that Dagupan Bus is a common carrier. Given the
nature of the business and for reasons of public policy, the
common carrier is bound "to observe extraordinary diligence in
the vigilance over the goods and for the safety of the
passengers transported by them, according to all the
circumstances of each case."[23]
Moreover, we can also say that Manahan was legally
presumed negligent under Article 2185 of the Civil Code, which
provides: "unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been negligent if at
the time of the mishap, he was [in violation of] any traffic
regulation."[24] Based on the place and time of the accident,
Manahan was actually violating a traffic rule found in R.A. No.
4136, otherwise known as the Land Transportation and Traffic
Code:
CHAPTER VI
TRAFFIC RULES
ARTICLE I
Speed Limit and Keeping to the Right
Section 35. Restriction as to speed. –
(a) Any person driving a motor vehicle on a highway shall drive
the same at a careful and prudent speed, not greater or less
than is reasonable and proper, having due regard for the traffic,
the width of the highway, and of any other condition then and
there existing; and no person shall drive any motor vehicle
upon a highway at such speed as to endanger the life, limb and
property of any person, nor at a speed greater than will permit
him to bring the vehicle to a stop within the assured clear
distance ahead. (emphasis and underlining ours)
(b) Subject to the provisions of the preceding paragraph, the
rate of speed of any motor vehicle shall not exceed the
following:
Considering that the bus was already approaching the
Embarcadero Bridge, Manahan should have already slowed
down a few meters away from the bridge. Actually, he should
have stopped farther away from the bridge because he would
have been able to see that Cacho's car was already crossing
the bridge. An experienced and competent bus driver would be
able to know how to properly react upon seeing another vehicle
ahead that is about to exit a narrow bridge. Obviously,
Manahan failed to do so.
Having established Manahan's negligence, he is liable with
Dagupan Bus to indemnify Cacho's heirs. Article 2180, in
relation to Article 2176, of the Civil Code provides that the
employer of a negligent employee is liable for the damages
caused by the latter. When an injury is caused by the
negligence of an employee there instantly arises a presumption
of the law that there was negligence on the part of the
employer either in the selection of his employee or in the
supervision over him after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the
employer that it had exercised the care and diligence of a good
father of a family in the selection and supervision of his
employee. Hence, to escape solidary liability, for a quasi-delict
committed by its employees, an employer must overcome the
presumption by presenting convincing proof that it exercised
the care and diligence of a good father of a family in the
selection and supervision of its employees.[25]
When an employee causes damage due to his own negligence
while performing his own duties, the juris tantum presumption
arises that his employer is negligent, rebuttable only by proof of
observance of the diligence of a good father of a family. In the
selection of prospective employees, employers are required to
examine them as to their qualifications, experience, and
service records. With respect to the supervision of employees,
employers must formulate standard operating procedures,
monitor their implementation, and impose disciplinary
measures for breaches thereof. These facts must be shown by
concrete proof, including documentary evidence.[26]
A closer scrutiny of the evidence presented to overcome this
presumption would show that Dagupan Bus failed in this
regard. It would seem that Manahan applied with Dagupan Bus
sometime in April 1999.[27] In his application form, he stated
that prior to his employment with Dagupan Bus, he was a truck
driver. Along with his application, Manahan was required to
submit the following documents: 2x2 ID pictures,
recommendation letter, NBI clearance, SSS E-1 form, TIN
number, barangay clearance, residence certificate, driver's
license, and birth certificate.[28]
Finding his requirements to be complete, Manahan was
cleared for actual driving and a written examination. On 10 May
1999, Manahan passed his driving examination, but the
examiner noted his slow reaction in stopping.[29] Manahan's
MAXIMUM ALLOWABLE Passenger Motor trucks
SPEEDS Cars and and buses
Motorcycle
1. On open country roads, with 80km. per hour   50 km. per
no "blind corners" not closely hour
bordered by habitations.
2. On "through streets" or 40 km. per hour   30 km. per
boulevards, clear of traffic, with hour
no "blind corners," when so
designated.
3. On city and municipal streets, 30 km. per hour   30 km. per
with light traffic, when not hour
designated "through streets."
4. Through crowded streets, 20 km. per hour   20 km. per
approaching intersections at hour
"blind corners," passing school 35
zones, passing other vehicles
which are stationary, or for
similar dangerous
circumstances.
written examination also points out that he cannot recognize
traffic signs indicating a narrow road.[30] After undergoing
shop training, Manahan underwent a seven (7)-day apprentice
training which he completed on 7 June 1999.[31] A few days
after, or on 21 June 1999, Dagupan Bus gave Manahan
clearance to report for duty as a bus driver.[32]
On this point, we are surprised at how prompt Dagupan Bus
had allowed Manahan to drive one of its buses considering he
had no prior experience driving one. The only time he was
actually able to drive a bus was probably during his driving
examination and a few more times while undergoing
apprenticeship. We cannot simply brush aside and ignore
Dagupan Bus' haste to hire Manahan; to our mind, this is
negligence on its part.
In addition, we noted that Manahan's apprenticeship record
indicate that he is not fit to drive aircon buses nor to drive at
night. That the accident happened early in the morning, when
the visibility conditions are the same as driving at night,
Manahan should not have been driving in the first place. Once
more, Dagupan Bus' negligence is clear.
While the immediate beneficiaries of the standard of
extraordinary diligence are the passengers, they are not the
only persons the law seeks to benefit. If we were to solely
require this standard of diligence for a common carrier's
passengers, this would be incongruent to the State's
responsibility to curb accidents on the road. That common
carriers should carefully observe the statutory standard of
extraordinary diligence in respect of their passengers, such
diligence should similarly benefit pedestrians and the owners
and passengers of other vehicles who are equally entitled to
the safe and convenient use of our roads and highways.[33]
All said, finding both Manahan and Dagupan Bus negligent in
meeting their responsibilities, the RTC was correct in awarding
damages in favor of Cacho's heirs. Clearly, the CA committed
a reversible error.
Further, we noticed that the RTC failed to provide for the
interest required of the award. Since the damages imposed
were the result of a complaint for damages based on a quasi-
delict, the interest on these awards must be computed from the
date when the RTC rendered its decision in the civil case, or on
26 January 2004, as it was at this time that a quantification of
the damages may be deemed to have been reasonably
ascertained.[34] From the finality of a judgment awarding a
sum of money until it is satisfied, the award shall be considered
a forbearance of credit, regardless of whether the award in fact
pertained to one.[35] To be consistent with the foregoing, the
interest on the monetary awards shall then be fixed at six
percent (6%) per annum, until the damages are fully paid.
WHEREFORE, the foregoing premises considered, the present
petition is GRANTED. The 22 March 2012 Decision and the 3
August 2012 Resolution of the Court of Appeals in CA-G.R. CV
No. 83499 are REVERSED and SET ASIDE and the 26
January 2004 Decision of the Regional Trial Court, Branch 55,
Alaminos, Pangasinan in Civil Case No. A-2553 is
REINSTATED with the following MODIFICATION: Gerardo
Manahan, Dagupan Bus Co., and Renato De Vera are
solidarity ordered to pay interest on the monetary awards in
favor of the petitioners at the rate of six percent (6%) per
annum, to be computed from 26 January 2004.
SO ORDERED.
***
G.R. No. 162267 July 4, 2008
PCI LEASING AND FINANCE, INC., petitioner,
vs.
UCPB GENERAL INSURANCE CO., INC., respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court, seeking a reversal of the
Decision1 of the Court of Appeals (CA) dated December 12,
2003 affirming with modification the Decision of the Regional
Trial Court (RTC) of Makati City which ordered petitioner and
Renato Gonzaga (Gonzaga) to pay, jointly and severally,
respondent the amount of P244,500.00 plus interest; and the
CA Resolution2 dated February 18, 2004 denying petitioner's
Motion for Reconsideration.
The facts, as found by the CA, are undisputed:
On October 19, 1990 at about 10:30 p.m., a Mitsubishi Lancer
car with Plate Number PHD-206 owned by United Coconut
Planters Bank was traversing the Laurel Highway, Barangay
Balintawak, Lipa City. The car was insured with plantiff-
appellee [UCPB General Insurance Inc.], then driven by
Flaviano Isaac with Conrado Geronimo, the Asst. Manager of
said bank, was hit and bumped by an 18-wheeler Fuso Tanker
Truck with Plate No. PJE-737 and Trailer Plate No. NVM-133,
owned by defendants-appellants PCI Leasing & Finance, Inc.
allegedly leased to and operated by defendant-appellant
Superior Gas & Equitable Co., Inc. (SUGECO) and driven by
its employee, defendant appellant Renato Gonzaga.
The impact caused heavy damage to the Mitsubishi Lancer car
resulting in an explosion of the rear part of the car. The driver
and passenger suffered physical injuries. However, the driver
defendant-appellant Gonzaga continued on its [sic] way to its
[sic] destination and did not bother to bring his victims to the
hospital.
Plaintiff-appellee paid the assured UCPB the amount of
P244,500.00 representing the insurance coverage of the
damaged car.
As the 18-wheeler truck is registered under the name of PCI
Leasing, repeated demands were made by plaintiff-appellee for
the payment of the aforesaid amounts. However, no payment
was made. Thus, plaintiff-appellee filed the instant case on
March 13, 1991.3
PCI Leasing and Finance, Inc., (petitioner) interposed the
defense that it could not be held liable for the collision, since
the driver of the truck, Gonzaga, was not its employee, but that
36
of its co-defendant Superior Gas & Equitable Co., Inc.
(SUGECO).4 In fact, it was SUGECO, and not petitioner, that
was the actual operator of the truck, pursuant to a Contract of
Lease signed by petitioner and SUGECO.5 Petitioner,
however, admitted that it was the owner of the truck in
question.6
After trial, the RTC rendered its Decision dated April 15, 1999,7
the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of plaintiff UCPB General Insurance
[respondent], ordering the defendants PCI Leasing and
Finance, Inc., [petitioner] and Renato Gonzaga, to pay jointly
and severally the former the following amounts: the principal
amount of P244,500.00 with 12% interest as of the filing of this
complaint until the same is paid; P50,000.00 as attorney's fees;
and P20,000.00 as costs of suit.
SO ORDERED.8
Aggrieved by the decision of the trial court, petitioner appealed
to the CA.
In its Decision dated December 12, 2003, the CA affirmed the
RTC's decision, with certain modifications, as follows:
WHEREFORE, the appealed decision dated April 15, 1999 is
hereby AFFIRMED with modification that the award of
attorney's fees is hereby deleted and the rate of interest shall
be six percent (6%) per annum computed from the time of the
filing of the complaint in the trial court until the finality of the
judgment. If the adjudged principal and the interest remain
unpaid thereafter, the interest rate shall be twelve percent
(12%) per annum computed from the time the judgment
becomes final and executory until it is fully satisfied.
SO ORDERED.9
Petitioner filed a Motion for Reconsideration which the CA
denied in its Resolution dated February 18, 2004.
Hence, herein Petition for Review.
The issues raised by petitioner are purely legal:
Whether petitioner, as registered owner of a motor vehicle that
figured in a quasi-delict may be held liable, jointly and
severally, with the driver thereof, for the damages caused to
third parties.
Whether petitioner, as a financing company, is absolved from
liability by the enactment of Republic Act (R.A.) No. 8556, or
the Financing Company Act of 1998.
Anent the first issue, the CA found petitioner liable for the
damage caused by the collision since under the Public Service
Act, if the property covered by a franchise is transferred or
leased to another without obtaining the requisite approval, the
transfer is not binding on the Public Service Commission and,
in contemplation of law, the grantee continues to be
responsible under the franchise in relation to the operation of
the vehicle, such as damage or injury to third parties due to
collisions.10
Petitioner claims that the CA's reliance on the Public Service
Act is misplaced, since the said law applies only to cases
involving common carriers, or those which have franchises to
operate as public utilities. In contrast, the case before this
Court involves a private commercial vehicle for business use,
which is not offered for service to the general public.11
Petitioner's contention has partial merit, as indeed, the vehicles
involved in the case at bar are not common carriers, which
makes the Public Service Act inapplicable.
However, the registered owner of the vehicle driven by a
negligent driver may still be held liable under applicable
jurisprudence involving laws on compulsory motor vehicle
registration and the liabilities of employers for quasi-delicts
under the Civil Code.
The principle of holding the registered owner of a vehicle liable
for quasi-delicts resulting from its use is well-established in
jurisprudence. Erezo v. Jepte,12 with Justice Labrador as
ponente, wisely explained the reason behind this principle,
thus:
Registration is required not to make said registration the
operative act by which ownership in vehicles is transferred, as
in land registration cases, because the administrative
proceeding of registration does not bear any essential relation
to the contract of sale between the parties (Chinchilla vs.
Rafael and Verdaguer, 39 Phil. 888), but to permit the use and
operation of the vehicle upon any public highway (section 5 [a],
Act No. 3992, as amended.) The main aim of motor vehicle
registration is to identify the owner so that if any accident
happens, or that any damage or injury is caused by the vehicle
on the public highways, responsibility therefor can be fixed on
a definite individual, the registered owner. Instances are
numerous where vehicles running on public highways caused
accidents or injuries to pedestrians or other vehicles without
positive identification of the owner or drivers, or with very scant
means of identification. It is to forestall these circumstances, so
inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the
determination of persons responsible for damages or injuries
caused on public highways.
"'One of the principal purposes of motor vehicles legislation is
identification of the vehicle and of the operator, in case of
accident; and another is that the knowledge that means of
detection are always available may act as a deterrent from lax
observance of the law and of the rules of conservative and safe
operation. Whatever purpose there may be in these statutes, it
is subordinate at the last to the primary purpose of rendering it
certain that the violator of the law or of the rules of safety shall
not escape because of lack of means to discover him.' The
purpose of the statute is thwarted, and the displayed number
becomes a 'snare and delusion,' if courts would entertain such
defenses as that put forward by appellee in this case. No
responsible person or corporation could be held liable for the
most outrageous acts of negligence, if they should be allowed
to place a 'middleman' between them and the public, and
37
escape liability by the manner in which they recompense their
servants." (King vs. Brenham Automobile Co., 145 S.W. 278,
279.)
With the above policy in mind, the question that defendant-
appellant poses is: should not the registered owner be allowed
at the trial to prove who the actual and real owner is, and in
accordance with such proof escape or evade responsibility and
lay the same on the person actually owning the vehicle? We
hold with the trial court that the law does not allow him to do
so; the law, with its aim and policy in mind, does not relieve
him directly of the responsibility that the law fixes and places
upon him as an incident or consequence of registration. Were
a registered owner allowed to evade responsibility by proving
who the supposed transferee or owner is, it would be easy for
him, by collusion with others or otherwise, to escape said
responsibility and transfer the same to an indefinite person, or
to one who possesses no property with which to respond
financially for the damage or injury done. A victim of
recklessness on the public highways is usually without means
to discover or identify the person actually causing the injury or
damage. He has no means other than by a recourse to the
registration in the Motor Vehicles Office to determine who is
the owner. The protection that the law aims to extend to him
would become illusory were the registered owner given the
opportunity to escape liability by disproving his ownership. If
the policy of the law is to be enforced and carried out, the
registered owner should not be allowed to prove the contrary to
the prejudice of the person injured, that is, to prove that a third
person or another has become the owner, so that he may
thereby be relieved of the responsibility to the injured person.
The above policy and application of the law may appear quite
harsh and would seem to conflict with truth and justice. We do
not think it is so. A registered owner who has already sold or
transferred a vehicle has the recourse to a third-party
complaint, in the same action brought against him to recover
for the damage or injury done, against the vendee or transferee
of the vehicle. The inconvenience of the suit is no justification
for relieving him of liability; said inconvenience is the price he
pays for failure to comply with the registration that the law
demands and requires.
In synthesis, we hold that the registered owner, the defendant-
appellant herein, is primarily responsible for the damage
caused to the vehicle of the plaintiff-appellee, but he
(defendant-appellant) has a right to be indemnified by the real
or actual owner of the amount that he may be required to pay
as damage for the injury caused to the plaintiff-appellant.13
The case is still good law and has been consistently cited in
subsequent cases.14 Thus, there is no good reason to depart
from its tenets.
For damage or injuries arising out of negligence in the
operation of a motor vehicle, the registered owner may be held
civilly liable with the negligent driver either 1) subsidiarily, if the
aggrieved party seeks relief based on a delict or crime under
Articles 100 and 103 of the Revised Penal Code; or 2)
solidarily, if the complainant seeks relief based on a quasi-
delict under Articles 2176 and 2180 of the Civil Code. It is the
option of the plaintiff whether to waive completely the filing of
the civil action, or institute it with the criminal action, or file it
separately or independently of a criminal action;15 his only
limitation is that he cannot recover damages twice for the same
act or omission of the defendant.16
In case a separate civil action is filed, the long-standing
principle is that the registered owner of a motor vehicle is
primarily and directly responsible for the consequences of its
operation, including the negligence of the driver, with respect to
the public and all third persons.17 In contemplation of law, the
registered owner of a motor vehicle is the employer of its
driver, with the actual operator and employer, such as a
lessee, being considered as merely the owner's agent.18 This
being the case, even if a sale has been executed before a
tortious incident, the sale, if unregistered, has no effect as to
the right of the public and third persons to recover from the
registered owner.19 The public has the right to conclusively
presume that the registered owner is the real owner, and may
sue accordingly.20
In the case now before the Court, there is not even a sale of
the vehicle involved, but a mere lease, which remained
unregistered up to the time of the occurrence of the quasi-delict
that gave rise to the case. Since a lease, unlike a sale, does
not even involve a transfer of title or ownership, but the mere
use or enjoyment of property, there is more reason, therefore,
in this instance to uphold the policy behind the law, which is to
protect the unwitting public and provide it with a definite person
to make accountable for losses or injuries suffered in vehicular
accidents.21 This is and has always been the rationale behind
compulsory motor vehicle registration under the Land
Transportation and Traffic Code and similar laws, which, as
early as Erezo, has been guiding the courts in their disposition
of cases involving motor vehicular incidents. It is also important
to emphasize that such principles apply to all vehicles in
general, not just those offered for public service or utility.22
The Court recognizes that the business of financing companies
has a legitimate and commendable purpose.23 In earlier
cases, it considered a financial lease or financing lease a legal
contract,24 though subject to the restrictions of the so-called
Recto Law or Articles 1484 and 1485 of the Civil Code.25 In
previous cases, the Court adopted the statutory definition of a
financial lease or financing lease, as:
[A] mode of extending credit through a non-cancelable lease
contract under which the lessor purchases or acquires, at the
instance of the lessee, machinery, equipment, motor vehicles,
appliances, business and office machines, and other movable
or immovable property in consideration of the periodic payment
by the lessee of a fixed amount of money sufficient to amortize
at least seventy (70%) of the purchase price or acquisition
cost, including any incidental expenses and a margin of profit
over an obligatory period of not less than two (2) years during
which the lessee has the right to hold and use the leased
property, x x x but with no obligation or option on his part to
purchase the leased property from the owner-lessor at the end
of the lease contract. 26
Petitioner presented a lengthy discussion of the purported
trend in other jurisdictions, which apparently tends to favor
absolving financing companies from liability for the
38
consequences of quasi-delictual acts or omissions involving
financially leased property.27 The petition adds that these
developments have been legislated in our jurisdiction in
Republic Act (R.A.) No. 8556,28 which provides:
Section 12. Liability of lessors. - Financing companies shall not
be liable for loss, damage or injury caused by a motor vehicle,
aircraft, vessel, equipment, machinery or other property leased
to a third person or entity except when the motor vehicle,
aircraft, vessel, equipment or other property is operated by the
financing company, its employees or agents at the time of the
loss, damage or injury.1avvphi1
Petitioner's argument that the enactment of R.A. No. 8556,
especially its addition of the new Sec. 12 to the old law, is
deemed to have absolved petitioner from liability, fails to
convince the Court.
These developments, indeed, point to a seeming emancipation
of financing companies from the obligation to compensate
claimants for losses suffered from the operation of vehicles
covered by their lease. Such, however, are not applicable to
petitioner and do not exonerate it from liability in the present
case.
The new law, R.A. No. 8556, notwithstanding developments in
foreign jurisdictions, do not supersede or repeal the law on
compulsory motor vehicle registration. No part of the law
expressly repeals Section 5(a) and (e) of R.A. No. 4136, as
amended, otherwise known as the Land Transportation and
Traffic Code, to wit:
Sec. 5. Compulsory registration of motor vehicles. - (a) All
motor vehicles and trailer of any type used or operated on or
upon any highway of the Philippines must be registered with
the Bureau of Land Transportation (now the Land
Transportation Office, per Executive Order No. 125, January
30, 1987, and Executive Order No. 125-A, April 13, 1987) for
the current year in accordance with the provisions of this Act.
xxxx
(e) Encumbrances of motor vehicles. - Mortgages,
attachments, and other encumbrances of motor vehicles, in
order to be valid against third parties must be recorded in the
Bureau (now the Land Transportation Office). Voluntary
transactions or voluntary encumbrances shall likewise be
properly recorded on the face of all outstanding copies of the
certificates of registration of the vehicle concerned.
Cancellation or foreclosure of such mortgages, attachments,
and other encumbrances shall likewise be recorded, and in the
absence of such cancellation, no certificate of registration shall
be issued without the corresponding notation of mortgage,
attachment and/or other encumbrances.
x x x x (Emphasis supplied)
Neither is there an implied repeal of R.A. No. 4136. As a rule,
repeal by implication is frowned upon, unless there is clear
showing that the later statute is so irreconcilably inconsistent
and repugnant to the existing law that they cannot be
reconciled and made to stand together.29 There is nothing in
R.A. No. 4136 that is inconsistent and incapable of
reconciliation.
Thus, the rule remains the same: a sale, lease, or financial
lease, for that matter, that is not registered with the Land
Transportation Office, still does not bind third persons who are
aggrieved in tortious incidents, for the latter need only to rely
on the public registration of a motor vehicle as conclusive
evidence of ownership.30 A lease such as the one involved in
the instant case is an encumbrance in contemplation of law,
which needs to be registered in order for it to bind third
parties.31 Under this policy, the evil sought to be avoided is the
exacerbation of the suffering of victims of tragic vehicular
accidents in not being able to identify a guilty party. A contrary
ruling will not serve the ends of justice. The failure to register a
lease, sale, transfer or encumbrance, should not benefit the
parties responsible, to the prejudice of innocent victims.
The non-registration of the lease contract between petitioner
and its lessee precludes the former from enjoying the benefits
under Section 12 of R.A. No. 8556.
This ruling may appear too severe and unpalatable to leasing
and financing companies, but the Court believes that petitioner
and other companies so situated are not entirely left without
recourse. They may resort to third-party complaints against
their lessees or whoever are the actual operators of their
vehicles. In the case at bar, there is, in fact, a provision in the
lease contract between petitioner and SUGECO to the effect
that the latter shall indemnify and hold the former free and
harmless from any "liabilities, damages, suits, claims or
judgments" arising from the latter's use of the motor vehicle.32
Whether petitioner would act against SUGECO based on this
provision is its own option.
The burden of registration of the lease contract is minuscule
compared to the chaos that may result if registered owners or
operators of vehicles are freed from such responsibility.
Petitioner pays the price for its failure to obey the law on
compulsory registration of motor vehicles for registration is a
pre-requisite for any person to even enjoy the privilege of
putting a vehicle on public roads.
WHEREFORE, the petition is DENIED. The Decision dated
December 12, 2003 and Resolution dated February 18, 2004
of the Court of Appeals are AFFIRMED.
Costs against petitioner.
SO ORDERED.
***
G.R. No. 107968 October 30, 1996
ELIAS S. CIPRIANO and/or E.S. CIPRIANO ENTERPRISES,
petitioner,
vs.
THE COURT OF APPEALS and MACLIN ELECTRONICS,
INC., respondents.
MENDOZA, J.:p
39

This is a petition for review of the decision 1 of the Court of
Appeals in CA-G.R. CV No. 36045 which affirmed in toto the
decision of Branch 58 2 of the Quezon City Regional Trial
Court, ordering the petitioner to pay P252,155.00 to private
respondent for the loss of the latter's vehicle while undergoing
rustproofing and P10,000.00 in attorney's fees.
The facts of the case are as follows:
Petitioner Elias S. Cipriano is the owner of E.S. Cipriano
Enterprises, which is engaged in the rustproofing of vehicles,
under the style Mobilkote. On April 30, 1991, private
respondent Maclin Electronics, Inc., through an employee,
brought a 1990 model Kia Pride People's car to petitioner's
shop for rustproofing. The car had been purchased the year
before the Integrated Auto Sales, Inc. for P252,155.00.
The vehicle was received in the shop under Job Order No.
123581, 3 which showed the date it was received for
rustproofing as well its condition at the time. Neither the time of
acceptance nor the hour of release, however, was specified.
According to the petitioner, the car was brought to his shop at
10 o'clock in the morning of April 30, 1991 and was ready for
release later that afternoon, as it took only six hours to
complete the process of rustproofing.
In the afternoon of May 1, 1991, fire broke out at the Lambat
restaurant, which petitioner also owned, adjoining his Mobilkote
rustproofing shop. The fire destroyed both the shop and the
restaurant, including private respondent's Kia Pride. The car
had been kept inside the building, allegedly to protect it from
theft. Petitioner claimed that despite efforts to save the vehicle,
there was simply not enough time to get it out of the building,
unlike three other cars which had been saved because they
were parked near the entrance of the garage. 4
On May 8, 1991, private respondent sent a letter to petitioner,
demanding reimbursement for the value of the Kia Pride. In
reply, petitioner denied liability on the ground that the fire was a
fortuitous event. This prompted private respondent to bring this
suit for the value of its vehicle and for damages against
petitioner. Private respondent alleged that its vehicle was lost
due to the negligence and imprudence of the petitioner, citing
petitioner's failure to register his business with the Department
of Trade and Industry under P.D. No. 1572 and to insure it as
required in the rules implementing the Decree. 5
In his Answer, petitioner invoked Art. 1174 of the Civil Code
and denied liability for the loss which he alleged was due to
fortuitous event. He later testified that he employed an
electrician who regularly inspected the lighting in his restaurant
and rustproofing shop. In addition, he claimed he had installed
fire-fighting devices and that the fire was an accident entirely
independent of his will and devoid of any negligence on his
part. He further averred that private respondent's car was
ready for release as early as afternoon of April 30, 1991 and
that it was private respondent's delay in claiming it that was the
cause of the loss.
Petitioner explained that rustproofing involved spraying
asphalt-like materials underneath a motor vehicle so that rust
will not corrode its body and that the materials and chemicals
used for this purpose are not inflammable. Therefore, he could
not be made to assume the risk of loss due to fire. He also
claimed that he was not required to register his business with
the Department of Trade and Industry, because he was not
covered by P.D. No. 1572.
On the other hand, private respondent argued that petitioner
was liable for the loss of the car even if it was caused by a
fortuitous event. It contended that the nature of petitioner's
business required him to assume the risk because under P.D.
No. 1572, petitioner was required to insure his property as well
as those of his customers.
The trial court sustained the private respondent's contention
that the "failure of defendant to comply with P.D. No. 1572 is in
effect a manifest act of negligence which renders defendants
[petitioner herein] liable for the loss of the car even if the same
was caused by fire," 6 even as it ruled that the business of
rustproofing is "definitely covered" P.D. No. 1572. Since
petitioner did not register his business and insure it, he must
bear the cost of loss of his customers. As already noted, the
court ordered petitioner to pay private respondent P252,155.00
with interest at 6% per annum from the filing of the case and
attorney's fees in the amount of P10,000.00.
On Appeal, the decision was affirmed. The Court of Appeals
ruled that the provisions of the Civil Code relied upon by the
petitioner are not applicable to this case, and that the law
applicable to the case is P.D. No. 1572, the purpose of which is
to protect customers who entrust their properties to service and
repair enterprises. The Court of Appeals held that by virtue of
the provisions of P.D. No. 1572 and its implementing rules and
regulations which require fire insurance coverage prior to
accreditation, owners of service and repair enterprises assume
the risk of loss of their customer's property. The appellate court
stated:
Defendant-appellant was operating the business of
rustproofing of cars and other motor vehicles illegally at the
time of the fire in question; i.e., without the necessary
accreditation and license from the Department of Trade and
Industry, and it is for this reason that it did not carry at least a
fire insurance coverage to protect the vehicles entrusted to it
by its customers. Therefore, it must bear the consequences of
such illegal operation, including the risk of losses or injuries to
the vehicles of its customers brought about by unforeseen or
fortuitous events like the fire that gutted its shop
and completely burned appellee's car while said vehicle was in
its possession. 7
The Court of Appeals also affirmed the award of attorney's
fees, ruling that although the lower court did not expressly and
specifically state the reason for the award, the basis therefor
could be inferred from the finding that petitioner unjustly
refused to pay private respondent's valid and demandable
claim. Said the appellate court:
Such wanton, reckless, and illegal operation of appellant's
business resulted in appellee's lack of protection from the fire
that gutted appellant's shop and which completely burned its
car while in appellant's possession for rustproofing. Yet
40
appellant adamantly and stubbornly refused to pay appellee
the value of its lost car. It was, therefore, correctly ordered by
the court a quo to pay appellee reasonable attorney's fees as it
had unjustly and unreasonably refused to satisfy the latter's
plainly valid, just, and demandable claim, compelling said
appellee to file this action to protect its interests (Art. 2208,
pars. (2) and (5), New Civil Code). 8
Hence, this appeal. Petitioner contends that the fire which
destroyed private respondent's car was a fortuitous event for
which he cannot be held responsible. In support of his
argument, he cites the following provisions of the Civil Code:
Art. 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person
shall be responsible for those events which could not be
foreseen, or which, though foreseen, were inevitable.
Art. 1262. An obligation which consists in the delivery of a
determinate thing shall be extinguished if it should be lost or
destroyed without the fault of the debtor, and before he has
incurred in delay.
When by law or stipulation, the obligor is liable even for
fortuitous events, the loss of the thing does not extinguish the
obligation, and he shall be responsible for damages. The same
rule applies when the nature of the obligation requires the
assumption of risk.
The contention is without merit. The issue in this case is
whether petitioner was required to insure his business and the
vehicles received by him in the course of his business and, if
so, whether his failure to do so constituted negligence,
rendering him liable for loss due to the risk required to be
insured against. We hold that both questions must be
answered in the affirmative.
We have already held that violation of a statutory duty is
negligence per se. In F.F. Cruz and Co., Inc. v. Court of
Appeals, 9 we held the owner of a furniture shop liable for the
destruction of the plaintiff's house in a fire which started in his
establishment in view of his failure to comply with an ordinance
which required the construction of a firewall. In Teague v.
Fernandez, 10 we stated that where the very injury which was
intended to be prevented by the ordinance has happened, non-
compliance with the ordinance was not only an act of
negligence, but also the proximate cause of the death.
Indeed, the existence of a contract between petitioner and
private respondent does not bar a finding of negligence under
the principles of quasi-delict, as we recently held in Fabre v.
Court of Appeals. 11 Petitioner's negligence is the source of
his obligation. He is not being held liable for breach of his
contractual obligation due to negligence but for his negligence
in not complying with a duty imposed on him by law. It is
therefore immaterial that the loss occasioned to private
respondent was due to a fortuitous event, since it was
petitioner's negligence in not insuring against the risk which
was the proximate cause of the loss.
Thus, P.D. No. 1572, §1 requires service and repair
enterprises for motor vehicles, like that petitioner's, to register
with Department of Trade and Industry. As condition for such
registration or accreditation, Ministry Order No. 32 requires
covered enterprises to secure insurance coverage. Rule III of
this Order provides in pertinent parts: 12
§1 — REQUIREMENTS FOR ACCREDITATION
1) Enterprises applying for original accreditation shall submit
the following:
1.1 List of machineries/equipment/tools in useful condition;
1.2 List of certified engineers/accredited technicians mechanics
with their personal data;
1.3 Copy of Insurance Policy of the shop covering the property
entrusted by its customer for repair, service or maintenance
together with a copy of the official receipt covering the full
payment of premium:
1.4 Copy of Bond referred to under Section 7, Rule III of this
Rules and Regulations;
1.5 Written service warranty in the form prescribed by the
Bureau;
1.6 Certificate issued by the Securities and Exchange
Commission and Articles of Incorporation or Partnership in
case of corporation or partnership;
1.7 Such other additional documents which the Director may
require from time to time.
§8 — INSURANCE POLICY
The insurance policy of the following risks like theft, pilferage,
fire, flood and loss should cover exclusively the machines,
motor vehicles, heavy equipment, engines, electronics,
electrical airconditioners, refrigerators, office machines and
data processing equipment, medical and dental equipment,
other consumer mechanical and industrial equipment stored for
repair and/or service in the premises of the applicant.
There is thus a statutory duty imposed on petitioner and it is for
his failure to comply with this duty that he was guilty or
negligence rendering him liable for damages to private
respondent. While the fire in this case may be considered a
fortuitous event, 13 this circumstance cannot exempt petitioner
from liability for loss.
We think, however, that the Court of Appeals erred in
sustaining the award of attorney's fees by the lower court. It is
now settled that the reasons or grounds for an award of
attorney's fees must be set forth in the decision of the court. 14
They cannot be left to inference as the appellate court held in
this case. The reason for this is that it is not sound policy to
penalize the right to litigate. An award of attorney's fees, being
an exception to this policy and limited to the grounds
enumerated in the law, 15 must be fully justified in the decision.
It can not simply be inserted as an item of recoverable
41
damages in the judgment of the court. Since in this case there
is no justification for the award of attorney's fees in the decision
of the trial court, it was error for the Court of Appeals to sustain
such award.

WHEREFORE, the decision, dated November 18, 1992, of the

Court of Appeals is AFFIRMED, with the modification that the
award of attorney's fees is DELETED.

SO ORDERED.

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