EN BANC 

DR. RUBI LI,Petitioner,

- versus -

G.R. No. 165279

Present:

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

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

Promulgated:

June 7, 2011

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DECISION 

VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is the Decision [1] dated June 15, 2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September 5, 1997 of the Regional Trial Court ofLegazpi City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said institution indicated the cause of death as Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation.[5]

On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post   AKA Antecedent cause : b. (above knee amputation)Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness

(Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing business.[9] Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low

count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long distance.[10] This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function tests.[13] Petitioner proceeded with the chemotherapy by first administering hydration fluids to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin,[15] Doxorubicin[16] and Cosmegen[17]intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied having any participation in administering the said chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas face.[21] They asked petitioner about it, but she merely quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her neck, but petitioner dismissed it again as merely the effect of medicines.[24] Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice any difficulty in

the childs breathing. She claimed that Angelica merely complained of nausea and was given ice chips.[25]

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents asked petitioners permission to bring their child home. Later in the evening, Angelica passed black stool and reddish urine.[26] Petitioner countered that there was no record of blackening of stools but only an episode of loose bowel movement (LBM).Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as naninigas ang kamay at paa). She then requested for a serum calcium determination and stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided.[27]

The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging Angelica, petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate problem arises.[28]

However, Angelica remained in confinement because while still in the premises of SLMC, her convulsions returned and she also had LBM.Angelica was given oxygen and administration of calcium continued.[29]

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a fever and had difficulty breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a stat dose. She further ordered that Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were gadgets attached to Angelica at that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may induce further bleeding.[35] She was also transferred to the intensive care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter could not answer her anymore.[36] At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were down and respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in

urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three oclock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and supposedly told respondents that there was malfunction or bogged-down machine.[37]

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelicas skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died.[40] The cause of death, according to petitioner, was septicemia, or overwhelming infection, which caused Angelicas other organs to fail.[41] Petitioner attributed this to the patients poor defense mechanism brought about by the cancer itself.[42]

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of hypovolemic shock secondary to multiple organ hemorrhages and

disseminated intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives every known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects based on studies and observations, even if such will aggravate the patients condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient

developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them died within six months from amputation because he did not see them anymore after follow-up; it is either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a different course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the chemotherapy treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica. The

appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelicas condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering.

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

x x x x

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:

1.      Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2.      Moral damages of P200,000.00;

3.      Exemplary damages of P50,000.00;

4.      Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly predict how a particular patients genetic make-

up, state of mind, general health and body constitution would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did everything within her professional competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer itself.Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her quality of life surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has

available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioners lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patients death. Furthermore, respondents case was not at all helped by the non-production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of battery (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital[53]which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in damages.[54] From a purely ethical norm, informed consent evolved into a general principle of law that a

physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patients right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patients reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions.[58] The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment.[59]As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physicians failure to divulge and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physicians overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as

exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent. [62] The court thus concluded that the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the patients need, and that need is whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality to the patients decision.[63]

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physicians failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. The gravamen in an informed consent case requires the plaintiff to point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.[64]

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying

cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapys success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary.[65]

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, the plaintiff must prove both the duty and the breach of that duty through expert testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently

incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution.

 As we progress toward the twenty-first century, we now realize that the

legal standard of disclosure is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumera reasonable person in the patients position when deciding to accept or reject a recommended medical procedure.[68] (Emphasis supplied.)

 

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.

No costs.

FIRST DIVISION

G.R. No. 126297             January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner, vs.NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467            January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, vs.JUAN FUENTES, Respondent.

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

G.R. No. 127590            January 31, 2007

MIGUEL AMPIL, Petitioner, vs.NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the very lives of those placed in the hospital’s keeping.1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision3 dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors’ fees, amounted to P60,000.00.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside Natividad’s body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel

Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December 19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor. As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s detriment. He argues that the Court should not discount either of the following

possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the foreign object left in her body as her condition might permit. The ruling in Smith v. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has placed in his patient’s body that should be removed as part of the operation, he thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is 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 Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the "control and management of the thing which caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed

operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders.16 As stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule.17 In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who could afford medical treatment were usually treated at home by their doctors.19 However, the days of house calls and philanthropic health care are over. The modern health care industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-related changes in the hospital industry. One important legal change is an increase in hospital liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior, thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

x x x x x x

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

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

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are not "employees" under this article because the manner in which they perform their work is not within the control of the latter (employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician’s calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly involves highly developed and specialized knowledge,23 such that physicians are generally free to exercise their own skill and judgment in rendering medical services sans interference.24 Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the patient and his actions are of his own responsibility.25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this view. The "Schloendorff doctrine" regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondeat superior principle for fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts came to realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to patients. No longer were a hospital’s functions limited to furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment, even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This Court held:

"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," who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is 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. x x x.

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees, 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. 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. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be any rational basis for excluding the concept of apparent authority from the field of hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of employer-employee relationship between the hospital and the independent physician whose name and competence are certainly certified to the general public by the hospital’s act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of today’s medical and health care should at least exact on the hospital greater, if not broader, legal responsibility for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the hospital should not be allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and manager of Medical City Hospital, "did not perform the necessary

supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the treatment rendered to the patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence extends to permitting a physician known to be incompetent to practice at the hospital.37 With the passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who practice medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty includes the proper supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the healing professions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is

reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that the two pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the knowledge acquired by or notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a method of treatment or care which fell below the recognized standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of the patient’s injuries. We find that such general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability based on the theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At the same time, he must apply

reasonable care and diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

[G.R. No. 122445. November 18, 1997]

DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA UMALI, respondents.

D E C I S I O NFRANCISCO, J.:

"Doctors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishap or unusual consequences. Furthermore they are not liable for honest mistake of judgment" [1]

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest term is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has cause bodily harm.[2] In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code,[3] and in some instances, as a criminal case under Article 365 of the Revised Penal Code[4] with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an information which reads:

"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused

abovenamed, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali on the day following said surgical operation." [5]

Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion of which is hereunder quoted as follows:

"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs."[6]

The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the MTCC[7] prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity for her death.[8]

In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on record.

First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day. [9] Prior to March 22, 1991, Lydia was examined by the petitioner who found a "myoma" [10] in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991.[11]Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00 o'clock in the

afternoon.[12] According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. [13] Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation.[14] The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled.[15]

Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived.[16] But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined.[17] The transfer to the San Pablo City District Hospital was without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance.[18]

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision.[19] The attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and

Gynecology Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient. [20] While petitioner was closing the abdominal wall, the patient died. [21] Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states "shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause.[22]

In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation:

"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dr. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the "abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation."[23]

The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation."[24] And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus:

"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and

supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.

Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply.

Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted the postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart with instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of recklessness and imprudence." [25]

This court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree

of intelligence, physical condition, and other circumstances regarding persons, time and place.

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science.[26] In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,[27]this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. [28] Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.[29]

Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised.

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of

cases, a matter of expert opinion.[30] The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating.[31] Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. [32] This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence.

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a casual connection of such breach and the resulting death of his patient. [33]  In Chan Lugay v. St Luke's Hospital, Inc.,[34] where the attending physician was absolved of liability for the death of the complainant's wife and newborn baby, this court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the 'injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.' In other words, the negligence must be the proximate cause of the injury. For, 'negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.' And 'the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.'''[35] (Underscoring supplied.)

Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:

"Atty. Cachero:

Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a signature above the typewritten name Floresto Arizala, Jr., whose signature is that?

A. That is my signature, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline, will you please explain that in your own language?

A. There was incision wound (sic) the area just below the navel, sir.

Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces patched with clotted blood. Surgical sutures were noted on the operative site.

Intestines and mesenteries are pale with blood clots noted between the mesentric folds.

Hemoperitonium: 300 s.s.,

right paracolic gutter,

50 c.c., left paracolic gutter

200 c.c., mesentric area,

100 c.c., right pelvic gutter

stomach empty.

Other visceral organs, pale.',

will you please explain that on (sic) your own language or in ordinary

A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and also sign of previous surgical operation and there were (sic) clotted blood, sir.

Q. How about the ovaries and adnexal structures?

A. They are missing, sir.

Q. You mean to say there are no ovaries?

A. During that time there are no ovaries, sir.

Q. And there were likewise sign of surgical sutures?

A. Yes, sir.

Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds, will you please explain on (sic) this?

A. In the peritoneal cavity, they are mostly perritonial blood.

Q. And what could have caused this blood?

A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.

Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?

A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.

Q. Can you tell the us what could have caused this hemorrhagic shock?

A. Well hemorrhagic shock is the result of blood loss.

Q. What could have the effect of that loss of blood?

A.   Unattended hemorrhage, sir. [36]  (Underscoring supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:"Q. And were you able to determine the cause of death by virtue of the examination of

the specimen submitted by Dr. Arizala?

A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.

Q. Have you examined the post mortem of Dr. Arizala?

A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.

Q. What could have caused the death of the victim?

A. This pathologic examination are (sic) compatible with the person who died, sir.

Q. Will you explain to us the meaning of hemorrhagic compatible?

A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the victim before she died there was shock of diminish of blood of the circulation. She died most probably before the actual complete blood loss, sir.

Court: Is it possible doctor that the loss of the blood was due on (sic) operation?

A. Based on my pathology findings, sir.

Q. What could have caused this loss of blood?

A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation and this cause (sic) bleeding, or may be set in the

course of the operation, or may be (sic) he died after the operation. Of course there are other cause (sic).

Atty. Cachero:

Q. Especially so doctor when there was no blood replacement?

A. Yes, sir." [37]  (Underscoring supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:

"Atty. Pascual:

Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of control of the cut vessel?

A. Yes, sir.

Q. Or there is a failure to ligate a vessel of considerable size?

A. Yes, sir.

Q. Or even if the vessel were ligated the knot may have slipped later on?

A. Yes, sir.

Q. And you also mentioned that it may be possible also to some clotting defect, is that   correct?

A. May be (sic)."[38] (Underscoring supplied).

Defense witness, Dr. Bu C. Castro also gave the following expert opinion:

"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of such hemorrage (sic)?

A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.

COURT:

What do you think of the cause of the bleeding, the cutting or the operations done in the body?

A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.

Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in a patient by an operations (sic)?

A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.

x x x x x x x x xQ. If the person who performed an autopsy does not find any untight (sic) clot (sic)

blood vessel or any suture that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?

A. Definitely, sir."[39] (Underscoring supplied.)

According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut blood vessel nor was there any indication that the tie or suture of a cut blood vessel had become loose thereby causing the hemorrhage.[40]Hence the following pertinent portion of Dr. Arizala's testimony:

"Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature

A: Ligature, sir.

Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a knot or the tie was merely placed around the cut structure and tied?

A: I cannot recall, sir.

Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?

A: Well, I bothered enough to know that they were sutured, sir.

Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither were you able to determine whether any loose suture was found in the peritoneal cavity?

A: I could not recall any loose sutured (sic), sir."[41]

On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs.[42] And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, anytime."[43] He testified further:

"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?

A. Yes, sir.

Q. And you mentioned that it cannot be prevented?

A. Yes, sir.

Q. Can you even predict if it really happen (sic)?

A. Possible, sir.

Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as DIC?

A. Well, I did reserve because of the condition of the patient.

Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your examination of record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the caused (sic) of death of this Lydia Umali?

A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.

Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic) has been (sic) fault?

ATTY. MALVEDA:

We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.

ATTY. PASCUAL:

Precisely based on this examination.

ATTY. MALVEDA:

Not finding, there was no finding made.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

A.   No, sir, there is no fault on the part of the surgeon, sir ." [44]

This court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent

until proven guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability.[45]

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time[46] and this Court is aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.

Let the copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.

SO ORDERED.

SECOND DIVISION  

SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES,

Petitioners,

-                versus -

SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC.,Respondents.

G.R. No. 158996

Present:

QUISUMBING, J., Chairperson,CARPIO MORALES,TINGA,VELASCO, JR., andBRION, JJ.

Promulgated:

November 14, 2008

x -------------------------------------------------------------------------------------------xD E C I S I O N

BRION, J.:

This petition involves a medical negligence case that was elevated to this Court through an appeal by certiorari under Rule 45 of the Rules of Court. The petition assails the Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 63234, which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states: 

WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows: 

1)      Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida,

Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral damages;

 2)      Ordering the above-named defendant-appellants to jointly and

severally pay the above-named plaintiff-appellees the sum of P100,000.00 by way of exemplary damages;

 3)      Ordering the above-named defendant-appellants to jointly and

severally pay the above-named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory damages; and

 4)      Deleting the award of attorneys fees and costs of suit.

 SO ORDERED. While this case essentially involves questions of facts, we opted for the requested review in light of questions we have on the findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on medical practice.[3]

 BACKGROUND FACTS

 Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected that Teresita might be suffering from diabetes and told her to continue her medications.[4]

 Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresitas admission to the hospital. In the admission slip, he directed the hospital staff to prepare the patient for an on

call D&C[5] operation to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took her blood and urine samples for the laboratory tests[6] which Dr. Fredelicto ordered. 

At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the patients medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]

 Based on these preparations, Dr. Felicisima proceeded with the D&C

operation with Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room.

 A day after the operation (or on April 29, 1987), Teresita was subjected to

an ultrasound examination as a confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.[9] Dr. Felicisima, however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for hospital confinement.

 Teresitas complete laboratory examination results came only on that day

(April 29, 1987). Teresitas urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed under the care of Dr. Amado Jorge, an internist.

 By April 30, 1987, Teresitas condition had worsened. She experienced

difficulty in breathing and was rushed to the intensive care unit.Further tests confirmed that she was suffering from Diabetes Mellitus Type II.[10] Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 1987.[11]

 

Believing that Teresitas death resulted from the negligent handling of her medical needs, her family (respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to as the petitioner spouses) before the RTC of Nueva Ecija.

 The RTC ruled in favor of Teresitas family and awarded actual, moral, and

exemplary damages, plus attorneys fees and costs.[12] The CA affirmed the judgment, but modified the amount of damages awarded and deleted the award for attorneys fees and costs of suit.[13]

 Through this petition for review on certiorari, the petitioner spouses Dr.

Fredelicto (now deceased) and Dr. Felicisima Flores allege that the RTC and CA committed a reversible error in finding them liable through negligence for the death of Teresita Pineda. 

ASSIGNMENT OF ERRORS The petitioner spouses contend that they exercised due care and prudence in the performance of their duties as medical professionals. They had attended to the patient to the best of their abilities and undertook the management of her case based on her complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on record shows that the death of Teresita could have been averted had they employed means other than what they had adopted in the ministration of the patient.  

THE COURTS RULING We do not find the petition meritorious. The respondents claim for damages is predicated on their allegation that the decision of the petitioner spouses to proceed with the D&C operation, notwithstanding Teresitas condition and the laboratory test results, amounted to negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted procedure to address vaginal bleeding the medical problem presented to them. Given that the patient died after the D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or one amounting to negligence. 

Elements of a Medical Negligence Case A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty, breach, injury, and proximate causation.[14]

 Duty refers to the standard of behavior which imposes restrictions on ones conduct.[15] The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable for negligence.[16]

 As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff.[17] To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and two, the failure or action caused injury to the patient.[18] Expert testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert opinion.[19]

 Standard of Care and Breach of Duty D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal bleeding.[20] That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents:

 DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they

perform what we call D&C for diagnostic purposes.xxx xxx xxx

 Q: So are you trying to tell the Court that D&C can be a diagnostic treatment? A: Yes, sir. Any doctor knows this.[21]

 

Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in Teresitas case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been 

addressed first:Q: Why do you consider the time of performance of the D&C not

appropriate? A: Because I have read the record and I have seen the urinalysis, [there

is] spillage in the urine, and blood sugar was 10.67 Q: What is the significance of the spillage in the urine? A: It is a sign that the blood sugar is very high. Q: Does it indicate sickness? A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67. 

xxx xxx xxx COURT: In other words, the operation conducted on the patient, your

opinion, that it is inappropriate? A: The timing of [when] the D&C [was] done, based on the record, in

my personal opinion, that D&C should be postponed a day or two.[22]

 The petitioner spouses countered that, at the time of the operation, there

was nothing to indicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic considering that this was random blood sugar;[23] there were other factors that might have caused Teresitas blood sugar to rise such as the taking of blood samples during lunchtime and while patient was being given intra-venous dextrose.[24] Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal bleeding.

 The petitioner spouses contentions, in our view, miss several

points. First, as early as   April 17, 1987 , Teresita was already suspected to be suffering from diabetes.[25] This suspicion again arose right before the D&C operation on April 28, 1987 when the laboratory result revealed Teresitas increased blood sugar level.[26] Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst all of which are classic symptoms of

diabetes.[27] When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the suspected disease:

 [Expert testimony for the plaintiff showed that] tests should have been

ordered immediately on admission to the hospital in view of the symptoms presented, and that failure to recognize the existence of diabetes constitutes negligence.[28]

 Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not therefore be held accountable for complications coming from other sources. This is a very narrow and self-serving view that even reflects on their competence. 

Taken together, we find that reasonable prudence would have shown that diabetes and its complications were foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must be taken into account so long as it is or should have been known to the physician.[29] And when the patient is exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequate precautions. 

Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the attending physician should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to an internist or diabetologist.This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patients diabetes should have been managed by an internist prior to, during, and after the operation.[31]

 Apart from bleeding as a complication of pregnancy, vaginal bleeding is

only rarely so heavy and life-threatening that urgent first-aid measures are required.[32] Indeed, the expert witnesses declared that a D&C operation on a hyperglycemic patient may be justified only when it is an emergency case when there is profuse vaginal bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse bleeding, not only because the statements were self-serving, but also because the petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the bleeding,[33] but later on said that he did not see it and relied only on Teresitas statement that she was bleeding. [34] He went on to state that

he scheduled the D&C operation without conducting any physical examination on the patient.

 The likely story is that although Teresita experienced vaginal bleeding on

April 28, it was not sufficiently profuse to necessitate an immediate emergency D&C operation. Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal bleeding. A medical record is the only document that maintains a long-term transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal record-keeping includes all patient inter-actions. The records should always be clear, objective, and up-to-date.[37] Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearly of what it does not contain.

 That the D&C operation was conducted principally to diagnose the cause of

the vaginal bleeding further leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician must conduct a thorough pre-operative evaluation of the patient in order to adequately prepare her for the operation and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation of all medical problems during the pre-operative evaluation.[38]

 The aim of pre-operative evaluation is not to screen broadly for

undiagnosed disease, but rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven by findings on history and physical examination suggestive of organ system dysfunctionThe goal is to uncover problem areas that may require further investigation or be amenable to preoperative optimization.

 If the preoperative evaluation uncovers significant comorbidity or

evidence of poor control of an underlying disease process, consultation with an internist or medical specialist may be required to facilitate the work-up and direct management. In this process, communication between the surgeons and the consultants is essential to define realistic goals for this optimization process and to expedite surgical management.[39] [Emphasis supplied.] 

Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the laboratory results were fully reported only on the day

following the D&C operation. Dr. Felicisima only secured a telephone report of the preliminary laboratory result prior to the D&C. This preliminary report did not include the 3+ status of sugar in the patients urine [40] a result highly confirmatory of diabetes. 

Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The presence of hyperglycemia in a surgical patient is associated with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality.[41] Elective surgery in people with uncontrolled diabetes should preferably be scheduledafter acceptable glycemic control has been achieved.[42] According to Dr. Mercado, this is done by administering insulin on the patient.[43]

 The management approach in this kind of patients always includes

insulin therapy in combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the muscle and fat cells while decreasing glucose production by the liver xxx. The net effect is to lower blood glucose levels.[44]

 The prudent move is to address the patients hyperglycemic state immediately and promptly before any other procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or during the D&C operation. Insulin was only administered two days after the operation.

 As Dr. Tan testified, the patients hyperglycemic condition should have been

managed not only before and during the operation, but alsoimmediately after. Despite the possibility that Teresita was afflicted with diabetes, the possibility was casually ignored even in the post-operative evaluation of the patient; the concern, as the petitioner spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma in her uterus, she was advised that she could be discharged a day after the operation and that her recovery could take place at home. This advice implied that a day after the operation and even after the complete laboratory results were submitted, the petitioner spouses still did not recognize any post-operative concern that would require the monitoring of Teresitas condition in the hospital.

 The above facts, point only to one conclusion that the petitioner spouses

failed, as medical professionals, to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of duty was the proximate cause of Teresitas death is a matter we shall next determine. Injury and Causation 

As previously mentioned, the critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries;[45] the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.[46]

 The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately preparing her, aggravated her hyperglycemic state and caused her untimely demise. The death certificate of Teresita lists down the following causes of death:

 Immediate cause: Cardiorespiratory arrestAntecedent cause: Septicemic shock, ketoacidocisUnderlying cause: Diabetes Mellitus IIOther significant conditions

contributing to death: Renal Failure Acute[47]

  Stress, whether physical or emotional, is a factor that can aggravate diabetes;

a D&C operation is a form of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when stress occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death.[48]Medical literature further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products (called ketones) in the blood and urine

(called diabetic ketoacidiosis, a medical emergency with a significant mortality).[49] This was apparently what happened in Teresitas case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death was the diabetic complication that could have been prevented with the observance of standard medical precautions. The D&C operation and Teresitas death due to aggravated diabetic condition is therefore sufficiently established.

 The trial court and the appellate court pinned the liability for Teresitas death

on both the petitioner spouses and this Court finds no reason to rule otherwise. However, we clarify that Dr. Fredelictos negligence is not solely the act of ordering an on call D&C operation when he was mainly an anaesthesiologist who had made a very cursory examination of the patients vaginal bleeding complaint. Rather, it was his failure from the very start to identify and confirm, despite the patients complaints and his own suspicions, that diabetes was a risk factor that should be guarded against, and his participation in the imprudent decision to proceed with the D&C operation despite his early suspicion and the confirmatory early laboratory results. The latter point comes out clearly from the following exchange during the trial:

 Q: On what aspect did you and your wife consult [with] each other? A: We discussed on the finding of the laboratory [results] because the

hemoglobin was below normal, the blood sugar was elevated, so that we have to evaluate these laboratory results what it means.

 Q: So it was you and your wife who made the evaluation when it was

phoned in? A: Yes, sir. Q: Did your wife, before performing D&C ask your opinion whether or

not she can proceed? A: Yes, anyway, she asked me whether we can do D&C based on my

experience. 

Q: And your answer was in the positive notwithstanding the elevation of blood sugar?

 A: Yes, sir, it was both our disposition to do the D&C. [Emphasis

supplied.][50]

 If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for which reason he referred Teresita to Dr. Jorge),[51] he should have likewise refrained from making a decision to proceed with the D&C operation since he was niether an obstetrician nor a gynecologist.

 These findings lead us to the conclusion that the decision to proceed with the

D&C operation, notwithstanding Teresitas hyperglycemia and without adequately preparing her for the procedure, was contrary to the standards observed by the medical profession. Deviation from this standard amounted to a breach of duty which resulted in the patients death. Due to this negligent conduct, liability must attach to the petitioner spouses. Liability of the Hospital

 In the proceedings below, UDMC was the spouses Flores co-defendant. The

RTC found the hospital jointly and severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however denied UDMCs petition for review on certiorari. Since UDMCs appeal has been denied and they are not parties to this case, we find it unnecessary to delve on the matter.Consequently, the RTCs decision, as affirmed by the CA, stands. Award of Damages Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on account of Teresitas confinement and death. The settled rule is that a plaintiff is entitled to be compensated for proven pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm the award of actual damages of P36,000.00 representing the hospital expenses the patient incurred. 

In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled to P50,000.00 as death indemnitypursuant to Article 2206 of the Civil Code, which states that the amount of damages for death caused by a xxx quasi-delict shall be at least three thousand pesos,[53] even though there may have been mitigating circumstances xxx. This is a question of law that the CA missed in its decision and which we now decide in the respondents favor.

 The same article allows the recovery of moral damages in case of death

caused by a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral damages are designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious anxiety, wounded feelings which the respondents herein must have surely felt with the unexpected loss of their daughter. We affirm the appellate courts award of P400,000.00 by way of moral damages to the respondents.

 We similarly affirm the grant of exemplary damages. Exemplary damages

are imposed by way of example or correction for the public good.[54] Because of the petitioner spouses negligence in subjecting Teresita to an operation without first recognizing and addressing her diabetic condition, the appellate court awarded exemplary damages to the respondents in the amount of P100,000.00. Public policy requires such imposition to suppress the wanton acts of an offender.[55] We therefore affirm the CAs award as an example to the medical profession and to stress that the public good requires stricter measures to avoid the repetition of the type of medical malpractice that happened in this case.

 With the award of exemplary damages, the grant of attorneys fees is legally

in order.[56] We therefore reverse the CA decision deleting these awards, and grant the respondents the amount of P100,000.00 as attorneys fees taking into consideration the legal route this case has taken.

 WHEREFORE, we AFFIRM the Decision of the CA dated June 20,

2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral damages ofP400,000.00; and exemplary damages of P100,000.00.

 We MODIFY the CA Decision by additionally granting an award

of P50,000.00 as death indemnity and by reversing the deletion of the award of

attorneys fees and costs and restoring the award of P100,000.00 as attorneys fees. Costs of litigation are adjudged against petitioner spouses.

 To summarize, the following awards shall be paid to the family of the late

Teresita Pineda: 

1.     The sum of P36,000.00 by way of actual and compensatory damages;2.     The sum of P50,000.00 by way of death indemnity;3.     The sum of P400,000.00 by way of moral damages;4.     The sum of P100,000.00 by way of exemplary damages;5.     The sum of P100,000.00 by way of attorneys fees; and6.     Costs.

SO ORDERED.

FIRST DIVISION

G.R. No. 192123               March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through operation conducted on a three-year old patient born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall,3 enabling him to excrete through a colostomy bag attached to the side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of Manila against the attending physicians.12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr. Solidum,13alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then and there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment would dictate under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC excluded them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly

and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

x x x x

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG, the accused himself testified that pre-operation tests were conducted to ensure that the child could withstand the surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he was suffering from any known ailment or disability that could turn into a significant risk. There was not a hint that the nature of the operation itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care.

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

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur means that "where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care."24 It is simply "a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the Court said –

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

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the

standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

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

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

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be conceded without difficulty that the second and third elements were present, considering that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious during the operation, could not have been guilty of contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the administration of anesthesia to the patient, but such fact alone did not prove that the negligence of any of his attending physicians, including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the

operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant portions of the decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second time to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered, and he departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.

x x x x

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence presented is insufficient to establish the first element necessary for application of res ipsa loquitur doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place over a very short period of time. Under these circumstances it would not be reasonable to infer that the physician was negligent. There was no palpably negligent act. The common experience of mankind does not suggest that death would not be expected without negligence. And there is no expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such other person suffers injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report except for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted to correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a 100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate the administration at intervals of the anesthetic agent.

(b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did not respond until no cardiac rate can be auscultated and the surgeons were immediately told to stop the operation. The patient was put on a supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage – still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45 secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons were then told to proceed to the closure and the child’s vital signs throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane. He was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly note I can’t understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It only contains the information that the anesthetic plan was to put the patient under general anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100% oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or shut off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost medical care, never leaving the operating room except for a few minutes to answer the call of nature but leaving behind the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough to show that she assisted in the operation and was therefore conversant of the things that happened. She revealed that they were using a machine that closely monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of

halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard Gercayo for his entire operation; The amount of halothane delivered in this case which is only one percent cannot be summated because halothane is constantly being rapidly eliminated by the body during the entire operation.

x x x x

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the anesthesiologist. Led to agree that the halothane used was not 100% as initially believed, he was nonetheless unaware of the implications of the change in his testimony. The court observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity and abnormal motor function, are manifestations of this condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are incontestable, and they can only be led to one conclusion – if the application of anesthesia was really closely monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

x x x x

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was absolved of liability for the death of the complainant’s wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’"

An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to prove by competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as created by the physician-patient relationship, to act in accordance with the specific norms or standards established by his profession; (b) the breach of the duty by the physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of the general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be measured, and it does not depend, therefore, on any individual physician’s own knowledge either. In attempting to fix a standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures

were administered and spontaneous cardiac function re-established in less than five (5) minutes and that oxygen was continuously being administered throughout, unfortunately, as later become manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the same were all in accordance with the universally accepted standards of medical care and there is no evidence of any fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was used as a sole anesthetic agent.

x x x x

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a … to counter act the Hypoxia that is being experienced by the patient

(sic).

x x x x

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me.

x x x x

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".

x x x x

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this operation is that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to operations being conducted by the doctor at the time when the operation is being done might also contribute to that hypoxia is that correct?

A That is a possibility also.

x x x x

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his imperforate anus, considered a major operation, had exposed him to the risk of suffering the same condition.43 He then corrected his earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications."45However, the foregoing circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other factors related to Gerald’s major operation, which could or could not necessarily be attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its corresponding side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability.1âwphi1 But we cannot now find and declare him civilly liable because the circumstances that have been established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The term industry means any

department or branch of art, occupation or business, especially one that employs labor and capital, and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and humanitarian work.50Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.

G.R. No. 159132             December 18, 2008

FE CAYAO-LASAM, petitioner, vs.SPOUSES CLARO and EDITHA RAMOLETE, respondents.*

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision1 dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed viatelephone, Editha was admitted to the LMC on the same day. A pelvic sonogram2 was then conducted on Editha revealing the fetus’ weak cardiac pulsation.3 The following day, Editha’s repeat pelvic sonogram4 showed that aside from the fetus’ weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa."

On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day.

On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latter’s womb. After, Editha underwent laparotomy,5 she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for hysterectomy6 and as a result, she has no more chance to bear a child.

On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint7 for Gross Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC).

Respondents alleged that Editha’s hysterectomy was caused by petitioner’s unmitigated negligence and professional incompetence in conducting the D&C procedure and the petitioner’s failure to remove the fetus inside Editha’s womb.8 Among the alleged acts of negligence were: first, petitioner’s failure to check up, visit or administer medication on Editha during her first day of confinement at the LMC;9 second, petitioner recommended that a D&C procedure be performed on Editha without conducting any internal examination prior to the procedure;10 third, petitioner immediately suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.11

In her Answer,12 petitioner denied the allegations of negligence and incompetence with the following explanations: upon Editha’s confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the latter’s cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed that the latter’s cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo D&C procedure which the respondents consented to; petitioner was very vocal in the operating room about not being able to see an abortus;13 taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for check-up on August 5, 1994, which the latter failed to do.

Petitioner contended that it was Editha’s gross negligence and/or omission in insisting to be discharged on July 31, 1994 against doctor’s advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16, 1994; that Editha’s hysterectomy was brought about by her very abnormal pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the same.

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,14 exonerating petitioner from the charges filed against her. The Board held:

Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases.

When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to

determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore, a more extensive operation needed in this case of pregnancy in order to remove the fetus.15

Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a Decision16 reversing the findings of the Board and revoking petitioner’s authority or license to practice her profession as a physician.17

Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also dubbed her petition as one for certiorari18 under Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.19 PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section 2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the President.21

Hence, herein petition, assailing the decision of the CA on the following grounds:

1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY;

3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION;

4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER;

5. PRC’S GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID;

6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONER’S LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETE’S INJURY;

8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHA’S INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and]

9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22

The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied)

Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only when so allowed by law.23 Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit:

Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the revocation of license to practice a profession is penal in nature.24

The Court does not agree.

For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused.25 These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases.26

Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read:

Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 1990).27(Emphasis supplied)

Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner prescribed by law.28 In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellant’s brief or memorandum on appeal, and paying the appeal and legal research fees. x x x29

The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation.30 Words and phrases used in the statute should be given their plain, ordinary, and common usage or meaning.31

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 4332 of the Rules of Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it is not mentioned therein.34

On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides:

Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule.35 The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase "among these agencies" confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed.36

Specifically, the Court, in Yang v. Court of Appeals,37 ruled that Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:

The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP 129, appeals from the Professional Regulations Commission are now exclusively cognizable by the Court of Appeals.39 (Emphasis supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,40 lodged with the CA such jurisdiction over the appeals of decisions made by the PRC.

Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Editha’s injury. Petitioner avers that in cases of medical malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury.41

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.42 In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient.43

There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.44

A physician-patient relationship was created when Editha employed the services of the petitioner. As Editha’s physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances.45 The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice.46 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.47 Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.48

In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done.

Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.49

Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the University of the Philippines.50 According to him, his diagnosis of Editha’s case was "Ectopic Pregnancy Interstitial (also referred to as Cornual), Ruptured."51 In stating that the D&C procedure was not the proximate cause of the rupture of Editha’s uterus resulting in her hysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo:

Q:     Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not?

A:     Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about another reason- well, why I don’t think so, because it is the triggering factor for the rupture, it could have–the rupture could have occurred much earlier, right after the D&C or a few days after the D&C.

Q:     In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 ½ months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance?

A:     I don’t think so for the two reasons that I have just mentioned- that it would not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred earlier.52 (Emphases supplied)

Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not the proximate cause of the rupture of Editha’s uterus.

During his cross-examination, Dr. Manalo testified on how he would have addressed Editha’s condition should he be placed in a similar circumstance as the petitioner. He stated:

Atty. Ragonton:

Q:     Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation and curettage procedure?

A:     Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time.

Q:     If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed?

A:     From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So there’s no way.

Q:     There was [sic] some portions of the fetal parts that were removed?

A:     No, it was described as scanty scraping if I remember it right–scanty.

Q:     And you would not mind checking those scant or those little parts that were removed?

A:     Well, the fact that it was described means, I assume that it was checked, ‘no. It was described as scanty and the color also, I think was described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. It’s in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely.

Q:     As a matter of fact, doctor, you also give telephone orders to your patients through telephone?

A:     Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is.

Q:     But, doctor, do you discharge patients without seeing them?

A:     Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients

whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, that’s when I make this telephone orders. And, of course before giving that order I ask about how she feels.53 (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 217654 of the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:

Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.55 An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.56

In the present case, the Court notes the findings of the Board of Medicine:

When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in complainant’s Discharge Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her thoroughly.57 x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would have been rectified if Editha followed the petitioner’s order to return for a check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 ½ months, including the emergence of suggestive ones.58

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioner’s advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing

about Editha’s own injury. Had Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to determine Editha’s health condition and applied the corresponding treatment which could have prevented the rupture of Editha’s uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it is clear that Editha’s omission was the proximate cause of her own injury and not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendant’s negligence, is the proximate cause of the injury.59 Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident.60 Where the immediate cause of an accident resulting in an injury is the plaintiff’s own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury.61 Again, based on the evidence presented in the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Editha’s injury was her own omission when she did not return for a follow-up check up, in defiance of petitioner’s orders. The immediate cause of Editha’s injury was her own act; thus, she cannot recover damages from the injury.

Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or by the PRC that an appeal was pending before the PRC.62 Petitioner claims that a verification with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach the actual registry receipt but was merely indicated therein.63

Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal, PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other party.64 Also, the registry receipt could not be appended to the copy furnished to petitioner’s former counsel, because the registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.65

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence.66 In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC.

In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,67 in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.

All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps or unusual consequences68 specially so if the patient herself did not exercise the proper diligence required to avoid the injury.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board

of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

THIRD DIVISION

G.R. No. 142625             December 19, 2006

ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY, ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all surnamed NOGALES, petitioners, vs.CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J. DUMLAO, respondents.

D E C I S I O N

CARPIO, J.:

The Case

This petition for review1 assails the 6 February 1998 Decision2 and 21 March 2000 Resolution3 of the Court of Appeals in CA-G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners' motion for reconsideration.

The Facts

Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as early as December 1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of leg edema5 indicating preeclampsia,6 which is a dangerous complication of pregnancy.7

Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical Center ("CMC").

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission request8 of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the "Consent on Admission and Agreement"9 and "Admission Agreement."10 Corazon was then brought to the labor room of the CMC.

Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings.

Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon admixed with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-drops per minute.

According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was notified at 4:15 a.m. of Corazon's admission. Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water ruptured spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to experience convulsions.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate.

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazon's baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition. Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo.

At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazon's blood pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of dextrose.

At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver the blood.

At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology Department of the CMC, was apprised of Corazon's condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate hysterectomy. Rogelio was made to sign a "Consent to Operation."13

Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be administered. Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was "hemorrhage, post partum."14

On 14 May 1980, petitioners filed a complaint for damages15 with the Regional Trial Court16 of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment and management of Corazon's condition. Petitioners charged CMC with negligence in the selection and supervision of defendant physicians and hospital staff.

For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying and opposing the allegations in the complaint. Subsequently, trial ensued.

After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows:

The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the profuse bleeding which he also failed to control with the application of inadequate injection of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior obstetrician at an early stage of the problem.

On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification to find them civilly liable.

On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose the true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the cervical area of the patient's internal organ.

On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what was probably the orders of Dr. Estrada.

While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was not with Dr. Estrada when the patient was brought to the hospital at 2:30 o'clock a.m. So, whatever errors that Dr. Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event.

On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them. Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the Court to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell on conjectures and speculations.

On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse of 30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs would want the Court to believe.

Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical Center, had knowledge of the mismanagement of the patient Corazon Nogales, and that notwithstanding such knowledge, she tolerated the same to happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased. In other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency case and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground to apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment of the deceased on the part of the attending physicians who were employed by the family of the deceased, such civil liability should be borne by the attending physicians under the principle of "respondeat superior".

WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in the amount of P100,000.00 and to pay the costs of suit.

For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience and slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the remaining defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason defendants' counterclaims are hereby ordered dismissed.

SO ORDERED.18

Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondent's alleged liability.

On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.19 Petitioners filed a motion for reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000.20

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April 200221 stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are absolutely not involved in the issue raised before the [Court], regarding the liability of [CMC]."22 Petitioners stressed that the subject matter of this petition is the liability of CMC for the negligence of Dr. Estrada.23

The Court issued a Resolution dated 9 September 200224 dispensing with the requirement to submit the correct and present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of petitioners' Manifestation, it should be understood that they are claiming only against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.

The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's judgment, is already final as against Dr. Oscar Estrada.

Petitioners filed a motion for reconsideration25 of the Court's 9 September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses. Petitioners reiterated their imputation of negligence on these respondents. The Court denied petitioners' Motion for Reconsideration in its 18 February 2004 Resolution.26

The Court of Appeals' Ruling

In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals rejected petitioners' view that the doctrine in Darling v. Charleston Community Memorial Hospital27 applies to this case. According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractor-physician whereas the Darling case involved a physician and a nurse who were employees of the hospital.

Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician to practice medicine and use its facilities is not sufficient to render the hospital liable for the physician's negligence.28 A hospital is not responsible for the negligence of a physician who is an independent contractor.29

The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v. Emma Laing Stevens Hospital31applicable to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was an employee of defendant hospital or that defendant hospital had reason to know that any acts of malpractice would take place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient between defendant physician and plaintiff.

On the liability of the other respondents, the Court of Appeals applied the "borrowed servant" doctrine considering that Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon.32 While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior.33

The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any liability for malpractice must be Dr. Estrada's sole responsibility.

While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be imposed on unliquidated claims or damages.

The Issue

Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court also believes that a determination of the extent of liability of the other respondents is inevitable to finally and completely dispose of the present controversy.

The Ruling of the Court

The petition is partly meritorious.

On the Liability of CMC

Dr. Estrada's negligence in handling the treatment and management of Corazon's condition which ultimately resulted in Corazon's death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr. Estrada's negligence is already final.

Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in relation to Article 2176 of the Civil Code. These provisions pertinently state:

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

x x x x

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

x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant, or agent, may be held liable for the physician's negligence under the doctrine of respondeat superior.34

In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should be liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though he discovered later that Dr. Estrada was not a salaried employee of the CMC.35 Rogelio further claims that he was dealing with CMC, whose primary concern was the treatment and management of his wife's condition. Dr. Estrada just happened to be the specific person he talked to representing CMC.36 Moreover, the fact that CMC made Rogelio sign a Consent on Admission and Admission Agreement37 and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr. Estrada as a member of its medical staff.

On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted Corazon because her physical condition then was classified an emergency obstetrics case.38

CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC would be a total stranger." CMC maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession.

The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and the liability of such hospital for that physician's negligence in Ramos v. Court of Appeals,39 to wit:

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

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

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending

and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition.

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas. x x x40(Emphasis supplied)

While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment relationship exists between a physician and a hospital based on the exercise of control over the physician as to details. Specifically, the employer (or the hospital) must have the right to control both the means and the details of the process by which the employee (or the physician) is to accomplish his task.41

After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to CMC's exercise of control over Dr. Estrada's treatment and management of Corazon's condition. It is undisputed that throughout Corazon's pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazon's admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There was no showing that CMC had a part in diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC.42 CMC merely allowed Dr. Estrada to use its facilities43 when Corazon was about to give birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but an independent contractor.

The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractor-physician.

In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital.44This exception is also known as the "doctrine of apparent authority."45 In Gilbert v. Sycamore Municipal Hospital,46 the Illinois Supreme Court explained the doctrine of apparent authority in this wise:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows:

"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence."

The element of "holding out" on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors.

The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician.

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor physician.

The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital.47 In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied.48

The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that "[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon." Estoppel rests on this rule: "Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it."49

In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority.

First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's admission, CMC, through its personnel, readily accommodated Corazon and updated Dr. Estrada of her condition.

Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon's admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio's belief that Dr. Estrada was a member of CMC's medical staff.50 The Consent on Admission and Agreement explicitly provides:

KNOW ALL MEN BY THESE PRESENTS:

I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt, or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules, regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or intervention of said physician, the Capitol Medical Center and/or its staff.

x x x x51 (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical Centerand/or whatever succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or emergency measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff.52 (Emphasis supplied)

Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a member of CMC Board of Directors, testified that Dr. Estrada was part of CMC's surgical staff.53

Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola, who was then the Head of the Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMC's medical staff was collaborating with other CMC-employed specialists in treating Corazon.

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.54

The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr. Estrada's services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only because of their friend's recommendation, but more importantly because of Dr. Estrada's "connection with a reputable hospital, the [CMC]."55 In other words, Dr. Estrada's relationship with CMC played a significant role in the Spouses Nogales' decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for Corazon's delivery. Moreover, as earlier stated, there is no showing that before and during Corazon's confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was not an employee of CMC.

Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazon's delivery. The Court notes that prior to Corazon's fourth pregnancy, she used to give birth inside a clinic. Considering Corazon's age then, the Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the best hospitals at the time.56 This is precisely because the Spouses Nogales feared that Corazon might experience complications during her delivery which would be better addressed and treated in a modern and big hospital such as CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelio's confidence in CMC's surgical staff.

CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the business of treatment. In this

regard, the Court agrees with the observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,57 to wit:

"The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility." x x x (Emphasis supplied)

Likewise unconvincing is CMC's argument that petitioners are estopped from claiming damages based on the Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The second part of the documents, which may properly be described as the releasing part, releases CMC and its employees "from any and all claims" arising from or by reason of the treatment and operation.

The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazon's death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals "from any and all claims," which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void.

Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate liability depending on the circumstances.58 When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon.

On the Liability of the Other Respondents

Despite this Court's pronouncement in its 9 September 200259 Resolution that the filing of petitioners' Manifestation confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more than two-decade old controversy.

a) Dr. Ely Villaflor

Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's bleeding and to suggest the correct remedy to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the administration of hemacel.

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a dangerous level.61 At that moment, Dr. Estrada instructed Dr.

Villaflor to reduce the dosage of magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's act of administering a lower dosage of magnesium sulfate was not out of her own volition or was in contravention of Dr. Estrada's order.

b) Dr. Rosa Uy

Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlao's wrong method of hemacel administration.

The Court believes Dr. Uy's claim that as a second year resident physician then at CMC, she was merely authorized to take the clinical history and physical examination of Corazon.62 However, that routine internal examination did not ipso facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners' imputation of negligence rests on their baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in delivering Corazon's baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of a more experienced specialist, if ever she was present at the delivery room.

c) Dr. Joel Enriquez

Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their errors.63 Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify such errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estrada's errors. Besides, there was no evidence of Dr. Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act upon such observation.

d) Dr. Perpetua Lacson

Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed.64Petitioners claim that Dr. Lacson was remiss in her duty of supervising the blood bank staff.

As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until the transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be given to the patient.65 Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take approximately 45-60 minutes before blood could be ready for transfusion.66 Further, no evidence exists that Dr. Lacson neglected her duties as head of the blood bank.

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying cause of Corazon's bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a thorough examination of the cervix, instead of believing outright Dr. Estrada's diagnosis that the cause of bleeding was uterine atony.

Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not negligence. The Court agrees with the trial court's observation that Dr. Espinola, upon hearing

such information about Corazon's condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push through because upon Dr. Espinola's arrival, it was already too late. At the time, Corazon was practically dead.

f) Nurse J. Dumlao

In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2) the nurse injected medicine intravenously; and (3) such injection was the proximate cause of his injury.

In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow Dr. Estrada's specific instructions. Even assuming Nurse Dumlao defied Dr. Estrada's order, there is no showing that side-drip administration of hemacel proximately caused Corazon's death. No evidence linking Corazon's death and the alleged wrongful hemacel administration was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence.

On the Award of Interest on Damages

The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court.68

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages andP700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641.

SO ORDERED.

G.R. No. 160889             April 27, 2007

DR. MILAGROS L. CANTRE, Petitioner, vs.SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.

D E C I S I O N

QUISUMBING, J.:

For review on certiorari are the Decision1 dated October 3, 2002 and Resolution2 dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision3 dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

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

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner and the assisting resident physician performed various medical procedures to stop the bleeding and to restore Nora’s blood pressure. Her blood pressure was frequently monitored with the use of a sphygmomanometer. While petitioner was massaging Nora’s uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby.4 Nora remained unconscious until she recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ½) by three and a half (3 ½) inches in the inner portion of her left arm, close to the armpit.5 He asked the nurses what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for investigation.6 In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal officer later testified that Nora’s injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn.8 He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the arm.9

On May 22, 1992, Nora’s injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin grafting.10 Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as well. About a year after, on April 30, 1993, scar revision had to be performed at the same hospital.11 The surgical operation left a healed linear scar in Nora’s left arm about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the hospital.12

Unfortunately, Nora’s arm would never be the same. 1a\ /̂phi1.net Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint13 for damages against petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and against the defendants, directing the latters, (sic) jointly and severally –

(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;

(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary damages;

(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;

(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorney’s fees; and

(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.14

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

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the following MODIFICATIONS:

1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages;

2. Deleting the award [of] exemplary damages, attorney’s fees and expenses of litigation; 1awphi1.nét

3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.;

4. Dismissing the counterclaims of defendants-appellants for lack of merit; and

5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

SO ORDERED.15

Petitioner’s motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning the following as errors and issues:

I.

WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

II.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

III.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;

IV.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE RESPONDENT’S INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO;

V.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO;

VI.

WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF;

VII.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE;

VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS’ CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.16

Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists the droplight could not have touched Nora’s body. She maintains the injury was due to the constant taking of Nora’s blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic surgery was not intended to restore respondent’s injury to its original state but rather to prevent further complication.

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

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

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

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

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go?

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused.17

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

1. The accident is of a kind which ordinarily does not occur in the absence of 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.18

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

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

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

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

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

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

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.…

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.

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

We note, however, that petitioner has served well as Nora’s obstetrician for her past three successful deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her profession. The fact that petitioner promptly took care of Nora’s wound before infection and other complications set in is also indicative of petitioner’s good intentions. We also take note of the fact that Nora was suffering from a critical condition when the injury happened, such that saving her life became petitioner’s elemental concern. Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the assailed decision and resolution of the Court of Appeals. Further, we rule that the

Court of Appeals’ award of Two Hundred Thousand Pesos (P200,000) as moral damages in favor of respondents and against petitioner is just and equitable.21

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION

 

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs.COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.

 

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

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 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. 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. 9Meanwhile, 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 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 faciecase, 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. 22Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23

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

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

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

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

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the doctrine of res ipsa loquitur. 44

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

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. 50Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day.

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

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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

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

Q: So, you found some difficulty in inserting the tube?

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

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 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 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 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 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. 84The 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 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.

  

Republic of the PhilippinesSupreme Court

Manila

 

THIRD DIVISION 

 

DR. EMMANUEL JARCIA, JR.and DR. MARILOU BASTAN,

Petitioners,

- versus -

PEOPLE OF THEPHILIPPINES,

Respondent.

G.R. No. 187926

Present:

CARPIO,* J.,

PERALTA,** Acting Chairperson,

ABAD,

PEREZ,*** and

MENDOZA, JJ.

Promulgated:

February 15, 2012

 

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

 

D E C I S I O N

 

MENDOZA, J.:

  

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This Court, as this case would show, cannot and will not let the act go unpunished.[1]

This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision[2] of the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries.  THE   FACTS  

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

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No. 01-196646.

 On June 14, 2005, the RTC found the petitioners guilty beyond reasonable

doubt of the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:

 WHEREFORE, premises considered, the Court finds

accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount of ₱3,850.00 representing medical expenses without subsidiary imprisonment in case of insolvency and to pay the costs.

 It appearing that Dr. Pamittan has not been apprehended

nor voluntarily surrendered despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension.

 SO ORDERED.[6]

 The RTC explained: 

After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.  However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows. 

1.      that there is lack of precaution on the part of the offender; and

 2.      that the damage impending to be caused is not

immediate of the danger is not clearly manifest. Considering all the evidence on record, The Court finds

the accused guilty for simple imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period.[7]

  

Dissatisfied, the petitioners appealed to the CA. 

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads:

 This Court holds concurrently and finds the foregoing

circumstances sufficient to sustain a judgment of conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the treatment of their patient is to be determined according to the standard of care observed by other members of the profession in good standing under similarcircumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent

doctor would use to treat a condition under the same circumstances. In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy. We are not convinced. The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the accused-appellants to correctly diagnose the extent of the injury sustained by Roy. For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with negligence.It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

 The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the hospital. She testified as follows:

 Fiscal Formoso:

 Q: Now, he is an intern did you not consult the

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

A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the wounds of my son.

 Q: And what did she [tell] you?A: They told me they will call a resident doctor, sir. x x x x x x x x x Q: Was there a resident doctor [who] came?A: Yes, Sir. Dra. Bastan arrived.Q: Did you tell her what you want on you to be

done?A: Yes, sir. Q: What did you [tell] her?A: I told her, sir, while she was cleaning the wounds

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

 Q: And what did she tell you?A: According to Dra. Bastan, there is no need to x-

ray because it was the ankle part that was run over.

 Q: What did you do or tell her?A: I told her, sir, why is it that they did not

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

 Q: So you mean to say there was no treatment made

at all?A: None, sir.

 x x x x x x x x x A: I just listened to them, sir. And I just asked if I

will still return my son. x x x x x x x x x Q: And you were present when they were called?A: Yes, sir. Q: And what was discussed then by Sis. Retoria?A: When they were there they admitted that they

have mistakes, sir. 

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 

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

 2.      It is caused by an instrumentality within the

exclusive control of the defendant or defendants; and

 3. The possibility of contributing conduct which

would make the plaintiff responsible is eliminated.

 In the above requisites, the fundamental element is the control of the instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the accused-appellants. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable and must establish that the essential elements of the doctrine were present in a particular incident. The early treatment of the leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical attention. As junior residents who only practice general surgery and without specialization with the case consulted before them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg,

they refused to do so. The mother would not have asked them if they had no exclusive control or prerogative to request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician. The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:

 Fiscal Macapagal:

 Q: And was that the correct respon[se] to the

medical problem that was presented to Dr. Jarcia and Dra. Bastan?

A: I would say at that stage, yes. Because they have presented the patient and the history. At sabi nila, nadaanan lang po ito. And then, considering their year of residency they are still junior residents, and they are not also orthopedic residents but general surgery residents, its entirely different thing. Because if you are an orthopedic resident, I am not trying to saybut if I were an orthopedic resident, there would be more precise and accurate decision compare to a general surgery resident in so far as involved.

 Q: You mean to say there is no supervisor attending

the emergency room?A: At the emergency room, at the Manila Doctors

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

 Ordinarily, only physicians and surgeons of skill and

experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians, external appearances, and manifest conditions which are observable by any one may be given by non-expert

witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order. WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is herebyAFFIRMED in toto. SO ORDERED.[8]

  

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.

 Hence, this petition. 

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following

GROUNDS- 1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE

COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

 2. THE COURT OF APPEALS ERRED IN DISREGARDING

ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.

 3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE

FAILURE OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD.

 4. ASSUMING ARGUENDO THAT THE PATIENT

EXPERIENCED PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.

 5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT

NO PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN

PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH.

 6. THE COURT OF APPEALS GRAVELY ERRED IN NOT

ACQUITTING ACCUSED-PETITIONERS OF THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence.

 THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case.

 As to the Application ofThe Doctrine of Res Ipsa Loquitur 

This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus: 

The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under the

management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.[10]

  

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

 The requisites for the application of the doctrine of res ipsa

loquitur are: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.[12]

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

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

requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion. As to Dr. Jarcia andDr. Bastans negligence 

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

 Negligence is defined as the failure to observe for the protection of the

interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.[14]

 Reckless imprudence consists of voluntarily doing or failing to do, without

malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.[15]

 The elements of simple negligence are: (1) that there is lack of precaution on

the part of the offender, and (2) that the damage impending to be caused is not immediate or the danger is not clearly manifest.[16]

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

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

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

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

 

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

A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two (2) years.

 Q: In June 1998, doctor, what was your position and what was

your specialization at that time?A: Since 1980, I have been specialist in pediatric orthopedic. Q: When Alfonso Santiago, Jr. was brought to you by his mother,

what did you do by way of physicians as first step?A: As usual, I examined the patient physically and, at that time

as I have said, the patient could not walk so I [began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved leg, I dont know if that is left or right, the involved leg then was swollen and the patient could not walk, so I requested for the x-ray of [the] lower leg.

 Q: What part of the leg, doctor, did you request to be examined?A: If we refer for an x-ray, usually, we suspect a fracture whether in

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

 Q: And what was the result?A: Well, I can say that it was a spiral fracture of the mid-tibial, it

is the bigger bone of the leg. Q: And when you say spiral, doctor, how long was this fracture?A: When we say spiral, it is a sort of letter S, the length was

about six (6) to eight (8) centimeters. Q: Mid-tibial, will you please point to us, doctor, where the tibial

is?(Witness pointing to his lower leg)A: The tibial is here, there are two bones here, the bigger one is

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

 Q: And in the course of your examination of Alfonso Santiago, Jr.

did you ask for the history of such injury?A: Yes, actually, that was a routine part of our examination that

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

 

Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?

A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

 Q: Who did you interview?A: The mother. Q: How about the child himself, Alfonso Santiago, Jr.?A: Normally, we do not interview the child because, usually, at

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

 Q: And were you informed also of his early medication that was

administered on Alfonso Santiago, Jr.?A: No, not actually medication. I was informed that this patient

was seen initially at the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who were [on] duty at the emergency room.

 x x x x A: At the emergency room, at the Manila Doctors Hospital, the

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

 x x x Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not

even an orthopedic specialist.A: They are general surgeon residents. You have to man[x] the emergency

room, including neurology, orthopedic, general surgery, they see everything at the emergency room.

 x x x x Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at

the emergency room, you would have subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same?

A: I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if we think that the damaged was only the leg.

 Q: Not the entire body but the entire leg?A: I think, if my examination requires it, I would. Q: So, you would conduct first an examination?A: Yes, sir. Q: And do you think that with that examination that you would have

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

A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally happens that the actual fractured bone do not get swollen.

 x x x x 

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told to you is the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray?

A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of fracture that the patient sustained would you say the exact mechanism of injury. For example spiral, paikot yung bale nya, so it was possible that the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to be fractured.[17] [Emphases supplied]

 It can be gleaned from the testimony of Dr. Tacata that a thorough

examination was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the patients fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications. Any person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that

opinion, even how logical it may seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt.

 Although the Court sympathizes with the plight of the mother and the child

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

 Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who

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

 In failing to perform an extensive medical examination to determine the

extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with sufficient training and experience instead of assuring him and his mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been settled that issues raised for the first time on appeal cannot be considered because a party is

not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair play, justice and due process. [18] Stated differently, basic considerations of due process dictate that theories, issues and arguments not brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court.[19]

 Assuming again for the sake of argument that the petitioners may still raise

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

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

engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances.

 Indubitably, a physician-patient relationship exists between the petitioners

and patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER).[21] They obliged and examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physician-patient relationship was established between the petitioners and the patient Roy Jr.

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

they were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical attention that placed

him in a more dangerous situation than he was already in. What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries.

 All told, the petitioners were, indeed, negligent but only civilly, and not

criminally, liable as the facts show. Article II, Section 1 of the Code of Medical Ethics of the Medical Profession

in the Philippines states: 

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

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

 As to the Award ofDamages

 While no criminal negligence was found in the petitioners failure to

administer the necessary medical attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.

 It appears undisputed that the amount of ₱3,850.00, as expenses incurred by

patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages.

 The Court is aware that no amount of compassion can suffice to ease the

sorrow felt by the family of the child at that time. Certainly, the award of moral

and exemplary damages in favor of Roy Jr. in the amount of ₱100,000.00 and ₱50,000.00, respectively, is proper in this case.         

It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the award of moral damages is designed to compensate emotional injury suffered, not to impose a penalty on the wrongdoer.[23]

 The Court, likewise, finds the petitioners also liable for exemplary damages

in the said amount. Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good.  

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008 isREVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of:

  

(1)   ₱3,850.00 as actual damages;(2)   ₱100,000.00 as moral damages;(3)   ₱50,000.00 as exemplary damages; and(4)   Costs of the suit. 

with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per annumfrom the finality of judgment until fully paid.