G.R. No. 86890 January 21, 1994 LEANDRO CARILLO vs. PEOPLE OF THE PHIL. THIRD DIVISION [G.R. No. 86890. January 21, 1994.] LEANDRO CARILLO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR REVIEW ON CERTIORARI; ONLY QUESTIONS OF LAW MAY BE RAISED THEREOF. Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and resolve question(s) of fact which would have a decisive significance for the disposition of this case. The rule is too firmly settled to require much documentation that only questions of law may be raised before this Court in a petition for review on certiorari, subject to certain well-known exceptions. After careful scrutiny of petitioner's contentions before us and the record of this case, we do not believe that petitioner has shown "misapprehension of facts" on the part of the Court of Appeals which would require this Court to overturn the judgment reached by the former. 2. CRIMINAL LAW; SIMPLE NEGLIGENCE; DEFINED; APPLICATION IN CASE AT BAR. As early as in People v. Vistan, the Court defined simple negligence, penalized under what is now Article 365 of the Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of simple negligence is the failure to exercise the diligence necessitated or called for by the situation which was not immediately life-destructive but which culminated, in the present case, in the death of a human being three (3) days later. Such failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense charged. The rule in such cases is that while the prosecution must prove the negative ingredient of the offense, it needs only to present the best evidence procurable under the circumstances, in order to shift the burden of disproving or countering the proof of the negative ingredient to the accused, provided that such initial evidence establishes at least on a prima facie basis the guilt of the accused. This rule is particularly applicable where the negative ingredient of the offense is of such a nature or character as, under the circumstances, to be specially within the knowledge or control of the accused. In the instant case, the Court is bound to observe that the events which occurred during the surgical procedure (including whether or not Nubain had in fact been administered as an anaesthesia immediately before or during the surgery) were peculiarly within the knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2) accused to overturn the prima facie case which the prosecution had

established, by reciting the measures which they had actually taken to prevent or to counter the obviously serious condition of Catherine Acosta which was evident right after surgery. This they failed or refused to do. Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform the parents of their minor patient of the nature of her illness, or to explain to them either during the surgery (if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her condition immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation to the parents was a duty imposed upon them by the canons of their profession. Petitioner should have explained to Catherine's parents the actual circumstances surrounding Catherine's death, how, in other words, a simple appendectomy procedure upon an ambulatory patient could have led to such fatal consequences. By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the failure of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to monitor her condition and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist after the patient's heart attack on the very evening that the surgery was completed; (3) the low level of care and diligence exhibited by petitioner in failing to correct Dr. Madrid's prescription of Nubain for post-operative pain; (4) the extraordinary failure or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of her true condition after surgery, in disregard of the requirements of the Code of Medical Ethics; and (5) the failure of petitioner and Dr. Madrid to prove that they had in fact exercised the necessary and appropriate degree of care and diligence to prevent the sudden decline in the condition of Catherine Acosta and her death three (3) days later, leads the Court to the conclusion, with moral certainty, that petitioner and Dr. Madrid were guilty of simple negligence resulting in homicide. 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF DUE PROCESS OF LAW AND RIGHT TO COUNSEL; OBSERVED IN CASE AT BAR. In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of denial of due process. He contends that he was deprived of his right to have competent representation at trial, and to have his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was "incompetent" and exhibited "gross negligence" by manifesting an intent to file a demurrer to the evidence, in failing to present evidence in his behalf and in omitting to file a defense memorandum for the benefit of Judge Yuzon, after the latter took over the case at the end of trial and before the Judge rendered his decision. Petitioner submits he is entitled to a new trial. These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented petitioner during trial with reasonable competence. Except for the two hearing sessions when witnesses

Domingo Acosta was cross-examined and recross-examined by Atty. Puerto, petitioner was present during all the sessions when the other prosecution witnesses were presented and during which Atty. Puerto extensively crossexamined them in behalf of petitioner and Dr. Madrid. This counsel elicited from the two (2) expert witnesses for the prosecution testimony favorable to petitioner and which was relied upon by the latter in this proceeding. The record further indicates that if petitioner indeed entertained substantial doubts about the capability of Atty. Puerto, he could have easily terminated the services of that counsel and retained a new one, or sought from the trial court the appointment of counsel de oficio, during the ample opportunity given him from the time Atty. Puerto manifested his intent to file a demurrer on 16 October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation of judgment on 19 September 1986. During all this time, petitioner could have obtained leave of court to present evidence in his behalf in lieu of a demurrer, or to submit a memorandum for the defense. After promulgation of the judgment of conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial court to continue on bail during the pendency of the proceedings before the Court of Appeals. Indeed, petitioner replaced Atty. Puerto as counsel only upon institution of the present petition. DECISION FELICIANO, J p: Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the Court of Appeals dated 28 November 1988, which affirmed his conviction by the Regional Trial Court of the crime of simple negligence resulting in homicide, for the death of his thirteen (13) year old patient Catherine Acosta. The trial court had sentenced him to suffer the penalty of arresto mayor in its medium period (four [4] months' imprisonment), as well as to pay the heirs of his patient an indemnity of P30,000.00 for her death, P10,000.00 as reimbursement for actual expenses incurred, P50,000.00 as moral damages and to pay the costs of the suit. The information filed against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the following: Cdpr "That on or about the 31st day of May 1981, in the municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding with one another, without taking the necessary care and precaution to avoid injury to person, did then and there willfully, unlawfully and feloniously operate, in a reckless, careless and imprudent manner and neglected to exercise their respective medical knowhow and tasks and/or departed from the recognized standard in their treatment, diagnosis of the condition, and operation of the patient, one Catherine Acosta, 13 years old, which negligence caused the death of the said Catherine Acosta."

Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the case proceeded to trial with Judge Job B. Madayag presiding. The prosecution presented as its principal evidence the testimony of four (4) witnesses, namely : 1) Yolanda Acosta, Catherine's mother, who was able to observe the conduct of the accused outside the operating theater before, during and after the appendectomy procedure carried out on her daughter; 4 2) Domingo Acosta, Catherine's father, who corroborated some parts of his wife's testimony; 3) Dr. Horacio Buendia, an expert witness who described before the trial court the relationship between a surgeon and an anesthetist in the course of a surgical operation, as well as define the likelihood of cardiac arrest as a post operative complication; and 4) Dr. Nieto Salvador, an expert witness who analyzed and explained the significance of the results of the pathological study and autopsy conducted on Catherine's body by one Dr. Alberto Reyes. After the prosecution had rested its case, the defense was granted leave to file a demurrer to the evidence. 8 After failing to file the demurrer within the reglementary period, Judge Manuel Yuzon, who had in the meantime taken over as presiding judge of the sala where this case was pending, denied the defense motion for extension of time to file demurrer and declared the case submitted for decision. On 19 September 1985, the trial court promulgated its decision convicting both accused of the crime charged. On appeal, the Court of Appeals affirmed the judgment of conviction, and specified that the civil liability of the two (2) accused was solidary in nature. Petitioner Dr. Carillo alone filed the present Petition for Review with the Court, seeking reversal of his conviction, or in the alternative, the grant of a new trial. Dr. Madrid did not try to appeal further the Court of Appeals Decision. Accordingly, the judgment of conviction became final insofar as the accused surgeon Dr. Madrid is concerned. The facts of the case as established by the Court of Appeals are as follows: "The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and Yolanda Acosta, complained to her father at about 10:30 o'clock in the morning of May 31, 1981 of pains in the lower part of her abdomen. Catherine was then brought to Dr. Elva Pea. Dra. Pea called for Dr. Emilio Madrid and the latter examined Catherine Acosta. According to Dr. Madrid, his findings might be appendicitis. Then Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so that the child will be observed. At the Baclaran General Hospital, a nurse took blood sample from the child. The findings became known at around 3:00 o'clock in the afternoon and the child was scheduled for operation at 5:00 o'clock in the afternoon. The operation took place at 5:45 P.M. because Dr. Madrid arrived only at that time. When brought inside the operating room, the child was feeling very well and they did not subject the child to ECG (electrocardiogram) and X-ray.

The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was assisted by appellant, Dr. Leandro Carillo, an anesthesiologist. During the operation, while Yolanda Acosta, Catherine's mother, was staying outside the operating room, she 'noticed something very unfamiliar.' The three nurses who assisted in the operation were going in and out of the operating room, they were not carrying anything, but in going out of the operating room, they were already holding something. Yolanda asked one of the nurses if she could enter the operating room but she was refused. Cdpr At around 6:30 P.M., Dr. Emilio Madrid went outside the operating room and Yolanda Acosta was allowed to enter the first door. The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr. Madrid, they might be wondering because he was going to install drainage near the operating (sic) portion of the child. When asked, the doctor told them the child is already out of danger but the operation was not yet finished. It has also been established that the deceased was not weighed before the administration of anesthesia on her. The operation was finished at 7:00 o'clock in the evening and when the child was brought out from the operating room, she was observed to be shivering (nanginginig); her heart beat was not normal; she was asleep and did not wake up; she was pale; and as if she had difficulty in breathing and Dr. Emilio Madrid suggested that she be placed under oxygen tank; that oxygen was administered to the child when she was already in the room. Witness Yolanda Acosta further testified that shortly before her child was transferred from the operating room to her room, she (witness) was requested by the anesthesiologist to go home and get a blanket. A portion of Yolanda Acosta's testimony on what happened when she returned to the hospital are reproduced hereunder as follows: 'Q. What happened afterward? A. When I arrived in the hospital, my child was being transferred to her bed. Q. What else happened? A. I noticed that the heartbeat of my daughter was not normal. And I noticed that her hospital gown was rising up and down. Q. What transpired after that? A. I asked Dr. Madrid why it was like that, that the heartbeat of my daughter is not normal. Q. And did the doctor make any reply? A. The doctor said because of the lesion of the child. Q. What else happened? A. After they have revived the heartbeat of the child, Dr. Carillo and Dr. Madrid left.

Q. Now do you remember what time was it when Dr. Carillo stepped out? A. Only a minute after they have transferred the child to the bed. Q. What happened later on after Dr. Carillo and Dr. Madrid stepped out of the hospital? A. After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child developed convulsion and stiffening of the body. Q. When you observed convulsion and stiffening of the body, did you do anything? A. We requested the nurse who was attending to her to call for a doctor. cdphil Q. And the nurse who was attending to the patient called for a doctor? A. They called for Dra. Pea, their family physician. Q. What transpired afterwards? A. What Dra. Pea did was to call for Dr. Madrid and the cardiologist. Q. Did this doctor arrive? A. Yes. Q. What transpired after the doctor arrived? A. They examined the child. Q. After they examined the child, did they inform you of the result of the examination? A. The cardiologist was the one who informed us after he stepped out of the room when we followed him. The doctor told us that she suffered severe infection which went up to her head. Q. After you were informed of the result of his examination, what transpired next? A. According to them, they will do their best for the child and that they will call for Dr. Carillo. Q. Did Dr. Carillo arrive? A. At around 10:30 in the evening. Q. Did Dr. Carillo do anything when he arrived on 31 May 1981? A. When he arrived, he noticed that there were two small bottles and big bottles of dextrose which were hanging above the bed of the child. Then he said, 'What is this? Christmas tree or what?' He told us that one bottle of dextrose be removed. And the big one will remain. Q. What happened after that? A. After that we talked to Dr. Carillo and asked him how did this happen to the child. Q. What did Dr. Carillo reply (sic) to you? A. He answered 'that is nothing, the child will regain consciousness and if the child will not regain consciousness, I will resigned (sic) as a doctor.'" 12 (Underscoring supplied).

When Catherine remained unconscious until noontime the next day, a neurologist examined her and she was diagnosed as comatose. 13 Three (3) days later, Catherine died without regaining consciousness. 14 The Court of Appeals held that Catherine had suffered from an overdose of, or an adverse reaction to, anaesthesia, particularly the arbitrary administration of Nubain, a pain killer, without benefit of prior weighing of the patient's body mass, which weight determines the dosage of Nubain which can safely be given to a patient. 15 The Court of Appeals held that this condition triggered off a heart attack as a post-operative complication, depriving Catherine's brain of oxygen, leading to the brain's hemorrhage. 16 The Court of Appeals identified such cardiac arrest as the immediate cause of Catherine's death. The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo and his co-accused Dr. Madrid, holding that both had failed to observe the required standard of diligence in the examination of Catherine prior to the actual administration of anaesthesia; 18 that it was "a bit rash" on the part of the accused Dr. Carillo "to have administered Nubain without first weighing Catherine"; 19 and that it was an act of negligence on the part of both doctors when, (a) they failed to monitor Catherine's heartbeat after the operation and (b) they left the hospital immediately after reviving Catherine's heartbeat, depriving the latter of immediate and expert medical assistance when she suffered a heart attack approximately fifteen (15) to thirty (30) minutes later. Since neither petitioner nor his co-accused presented evidence in their own behalf, the present Petition seeks to question the soundness of the factual conclusions drawn by the Court of Appeals, upon which the affirmance of petitioner's conviction was based. LibLex Close examination of the instant Petition for Review shows that petitioner's main arguments are two-fold : (1) the Court of Appeals "completely brushed aside" and "misapprehended" Catherine's death certificate and biopsy report which allegedly showed that the cause of death was a ruptured appendix, which led to blood poisoning, rather than faulty anaesthetic treatment; and (2) there was no direct evidence of record showing that Nubain was administered to Catherine either during the appendectomy procedure or after such operation. Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and resolve question(s) of fact which would have a decisive significance for the disposition of this case. The rule is too firmly settled to require much documentation that only questions of law may be raised before this Court in a petition for review on certiorari, subject to certain well-known exceptions. 23 After careful scrutiny of petitioner's contentions before us and the record of this case, we do not believe that petitioner has shown "misapprehension of

facts" on the part of the Court of Appeals which would require this Court to overturn the judgment reached by the former. The second issue is whether or not the findings of fact of the Court of Appeals adequately support the conclusion that petitioner Dr. Carillo was, along with Dr. Madrid, guilty of simple negligence which resulted in homicide. Our review of the record leads us to an affirmative answer. Petitioner contends that the Court of Appeals seriously erred in finding that an overdose of, or an allergic reaction to, the anaesthetic drug Nubain had led to the death of Catherine Acosta and that the true cause of Catherine's death was that set out in the death certificate of Catherine : "Septicemia (or blood poisoning) due to perforated appendix with peritonitis." 24 The concept of causation in general, and of the cause of death in human beings in particular, are complex and difficult notions. What is fairly clear is that death, understood as a physical condition involving cessation of vital signs in the brain and heart, is preceded by a series of physiological events, any one of which events can, with equal cogency, be described as a "cause of death." The Court of Appeals found that an overdose of, or an adverse reaction to, Nubain, an anaesthetic or pain-killing drug the appropriate dose of which depends on the body weight or mass of the patient, had generated or triggered off cardiac arrest, which in turn led to lack of oxygen in Catherine's brain, which then brought about hemorrhaging in the brain. Vital activity in the brain thereupon ceased. The medical evidence presented at the trial was quite consistent with the findings of the Court of Appeals which concluded that cardiac arrest was the cause of Catherine's death. For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-starvation of the brain, that septicemia with peritonitis or severe infection which had "gone up to the head" of Catherine was an equally efficient cause of deprivation of the brain of oxygen and hence of brain hemorrhage. The medical testimony of the expert witnesses for the prosecution on which petitioner relies is also consistent with petitioner's theory that septicemia with peritonitis was, or at least could have been, the cause of Catherine's death. Indeed, it appears to the Court that there was no medical proof submitted to the trial court to show that one or the other "cause" was necessarily an exclusive cause of death in the case of Catherine Acosta; that an overdose of or allergic reaction to Nubain could not have combined with septicemia and peritonitis in bringing about Catherine's death. Cdpr What is of critical importance for present purposes is not so much the identification of the "true cause" or "real cause" of Catherine's death but rather the set of circumstances which both the trial court and the Court of Appeals found constituted simple (as distinguished from reckless) negligence on the part of the two accused Dr. Madrid and Dr. Carillo leading to the death of Catherine.

When the patient was wheeled out of the operating room after completion of surgery, she manifested signs of medical instability (i.e., shivering, paleness, irregular breathing and weak heart beat). She was not brought to a properly equipped recovery room, or intensive care unit which the hospital lacked. Such facilities and their professional staffs, of which an anaesthetist is commonly a part, are essential for providing close observation and patient care while a post-surgery patient is recovering from the effects of anaesthesia and while the normal protective mechanisms are still dull or obtunded. Instead, the patient was merely brought to her assigned hospital bed and was provided oxygen on the instructions of Dr. Madrid and where both petitioner and Dr. Madrid then "revived" her heartbeat. 30 Both doctors then left their patient and the hospital; approximately fifteen minutes later, she suffered convulsions and cardiac arrest. The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their patient in view of her vulnerable condition. Both doctors failed to appreciate the serious condition of their patient whose adverse physical signs were quite manifest right after surgery. And after reviving her heartbeat, both doctors failed to monitor their patient closely or extend further medical care to her; such conduct was especially necessary in view of the inadequate, post-operative facilities of the hospital. We do not, of course, seek to hold petitioner responsible for the inadequate facilities of the Baclaran General Hospital. We consider, however, that the inadequate nature of those facilities did impose a somewhat higher standard of professional diligence upon the accused surgeon and anaesthetist personally than would have been called for in a modern fully-equipped hospital. While Dr. Madrid and a cardiologist were containing the patient's convulsions, and after the latter had diagnosed that infection had reached the patient's head, these two (2) apparently after consultation, decided to call-in the petitioner. 32 There is here a strong implication that the patient's postoperative condition must have been considered by the two (2) doctors as in some way related to the anaesthetic treatment she had received from the petitioner either during or after the surgical procedure. Once summoned, petitioner anaesthesiologist could not be readily found. When he finally appeared at 10:30 in the evening, he was evidently in a bad temper, commenting critically on the dextrose bottles before ordering their removal. 33 This circumstance indicated he was not disposed to attend to this unexpected call, in violation of the canons of his profession that as a physician, he should serve the interest of his patient "with the greatest of solicitude, giving them always his best talent and skill." 34 Indeed, when petitioner finally saw his patient, he offered the unprofessional bluster to the parents of Catherine that he would resign if the patient will not regain consciousness. 35 The canons of medical ethics require a physician to "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 physician's failure to fulfill his obligation to his patient is, in most cases, his own conscience, violation of this rule on his part is "discreditable and inexcusable." Nubain was an experimental drug for anaesthesia and post-operative pain and the medical literature required that a patient be weighed first before it is administered and warned that there was no (or inadequate) experience relating to the administration thereof to a patient less than eighteen (18) years of age. 37 Yet, the doctor's order sheet (Exhibit "C") did not contain this precaution but instead directed a reader to apply the drug only when warranted by the circumstances. 38 During the offer of Exhibit "C" by the prosecution, Dr. Madrid admitted that this prescription, which was unsigned, was made in his own handwriting. 39 It must be observed that the instruction was open-ended in that some other individual still had to determine if circumstances existed warranting administration of the drug to the patient. The document thus indicated the abdication of medical responsibility on an extremely critical matter. Since petitioner anaesthesiologist entered subsequent prescriptions or orders in the same order sheet, which were signed by him, at 7:15 P.M. on the same evening of 31 May 1981, he was in a position to appreciate the dangers inherent in the prior prescription, which was within his (petitioner's) area of specialization, and to order measures to correct this anomaly and protect his patient's well-being. So far as the condition of the evidence shows, he failed to do so. In sum, only a low level of diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication for their patient. As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-examination of the expert witnesses for the prosecution to show that blood poisoning resulting from a ruptured appendix could also be responsible for the patient's death. No suggestion has been made that the rupture of the patient's occurred prior to surgery. After her blood sample was examined, the patient was merely diagnosed as a case of appendicitis, without further elaboration. 40 No intensive preoperative preparations, like the immediate administration of antibiotics, was thereafter undertaken on the patient. This is a standard procedure for patients who are, after being diagnosed, suspected of suffering from a perforated appendix and consequent peritonitis. The mother also testified that petitioner anaesthesiologist merely injected a drug, "preanaesthesia" intended to put the patient to sleep, into the container of fluids being administered to her daughter intravenously at her room, prior to surgery. We note further that the surgeon Dr. Madrid was forty-five minutes late in arriving at the operating theater. Considering that delay in treatment of appendicitis increases the morbidity of the patient, Dr. Madrid's conduct can only be explained by a pre-operative diagnosis on his part that the condition of appendicitis was not yet attended by complications (i.e., a ruptured appendix and peritonitis).

The above circumstances do strongly indicate that the rupture of the patient's appendix occurred during the appendectomy procedure, that is, at a time and place the operating room where the two (2) accused were in full control of the situation and could determine decisively what needed to be done in respect of the patient. 45 This circumstance must be considered in conjunction with other related circumstances which the prosecution had proven: that the patient was ambulatory when brought to the operating room; 46 that she left the operating room two (2) hours later in obviously serious condition; and that an appendectomy accompanied or followed by sustained antibiotic treatment is a fairly common and generally accepted medical procedure for dealing with ruptured appendix and peritonitis, a fact of which judicial notice may be taken. As early as in People v. Vistan, the Court defined simple negligence, penalized under what is now Article 365 of the Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of simple negligence is the failure to exercise the diligence necessitated or called for by the situation which was not immediately life-destructive but which culminated, in the present case, in the death of a human being three (3) days later. Such failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense charged. The rule in such cases is that while the prosecution must prove the negative ingredient of the offense, it needs only to present the best evidence procurable under the circumstances, in order to shift the burden of disproving or countering the proof of the negative ingredient to the accused, provided that such initial evidence establishes at least on a prima facie basis the guilt of the accused. This rule is particularly applicable where the negative ingredient of the offense is of such a nature or character as, under the circumstances, to be specially within the knowledge or control of the accused. In the instant case, the Court is bound to observe that the events which occurred during the surgical procedure (including whether or not Nubain had in fact been administered as an anaesthesia immediately before or during the surgery) were peculiarly within the knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2) accused to overturn the prima facie case which the prosecution had established, by reciting the measures which they had actually taken to prevent or to counter the obviously serious condition of Catherine Acosta which was evident right after surgery. This they failed or refused to do. Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform the parents of their minor patient of the nature of her illness, or to explain to them either during the surgery (if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her condition immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation to

the parents was a duty imposed upon them by the canons of their profession. Petitioner should have explained to Catherine's parents the actual circumstances surrounding Catherine's death, how, in other words, a simple appendectomy procedure upon an ambulatory patient could have led to such fatal consequences. By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the failure of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to monitor her condition and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist after the patient's heart attack on the very evening that the surgery was completed; (3) the low level of care and diligence exhibited by petitioner in failing to correct Dr. Madrid's prescription of Nubain for post-operative pain; (4) the extraordinary failure or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of her true condition after surgery, in disregard of the requirements of the Code of Medical Ethics; and (5) the failure of petitioner and Dr. Madrid to prove that they had in fact exercised the necessary and appropriate degree of care and diligence to prevent the sudden decline in the condition of Catherine Acosta and her death three (3) days later, leads the Court to the conclusion, with moral certainty, that petitioner and Dr. Madrid were guilty of simple negligence resulting in homicide. In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of denial of due process. He contends that he was deprived of his right to have competent representation at trial, and to have his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was "incompetent" and exhibited "gross negligence" by manifesting an intent to file a demurrer to the evidence, in failing to present evidence in his behalf and in omitting to file a defense memorandum for the benefit of Judge Yuzon, after the latter took over the case at the end of trial and before the Judge rendered his decision. Petitioner submits he is entitled to a new trial. These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented petitioner during trial with reasonable competence. Except for the two hearing sessions when witnesses Domingo Acosta was cross-examined and recross-examined by Atty. Puerto, petitioner was present during all the sessions when the other prosecution witnesses were presented and during which Atty. Puerto extensively cross-examined them in behalf of petitioner and Dr. Madrid. This counsel elicited from the two (2) expert witnesses for the prosecution testimony favorable to petitioner and which was relied upon by the latter in this proceeding. 54 The record further indicates that if petitioner indeed entertained substantial doubts about the capability of Atty. Puerto, he could have easily terminated the services of that counsel and retained a new one, or sought from the trial

court the appointment of counsel de oficio, during the ample opportunity given him from the time Atty. Puerto manifested his intent to file a demurrer on 16 October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation of judgment on 19 September 1986. 55 During all this time, petitioner could have obtained leave of court to present evidence in his behalf in lieu of a demurrer, or to submit a memorandum for the defense. After promulgation of the judgment of conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial court to continue on bail during the pendency of the proceedings before the Court of Appeals. 56 Indeed, petitioner replaced Atty. Puerto as counsel only upon institution of the present petition. Petitioner's constitutional objection is plainly an afterthought. prcd WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is hereby AFFIRMED, subject only to the modification that the indemnity for the death of Catherine Acosta is hereby increased to P50,000.00, in line with current jurisprudence. SO ORDERED.

G.R. No. 118231 July 5, 1996 VICTORIA L. BATIQUIN, ET AL. vs. COURT OF APPEALS THIRD DIVISION Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." Subsequently, Hippocrates wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patents, and abstain from whatever is deleterious and mischievous . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. The petitioners appeal from the decision of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492. The facts, as found by the trial court, are as follows: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple cesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first Child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas

checked out of the Hospital . . . and on the same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee" . . . Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines . . . which she had been taking up to December, 1988. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988 . . . certifying to her physical fitness to return to her work on November 7, 1988. So on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental. The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and despite the medications administered by Dr. Batiquin. When the pains become unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989. The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas ' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of the uterus embedded on [sic] the ovarian cyst. 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and although Dr. Ma. Salud Kho testified that she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in the pathologist's Surgical Pathology Report. Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared

them are deceased or unable to testify on the facts therein stated . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto . . . " 15 The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could be gleaned from her statement, thus: A . . . I have heard somebody that [sic] say [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. 17 The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away. " 18 This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude: There are now two different versions on the whereabouts of that offending "rubber" (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. 19 All told, the trial court held in favor of the petitioners herein. The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding: 4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the cesarean operation made by appellee doctor . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellants testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the some . . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area. The appellate court then ruled: Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with

doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life. For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00. The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee cause infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear, worry and anxiety . . . WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amount of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the cost of litigation. SO ORDERED. From the above judgment, the petitioners appealed to this Court claiming that the appellate court; (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities. The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's testimony. The petitioner contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony: Q What is the purpose of the examination? A Just in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied) The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored

phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony, especially the following: Q So you did actually conduct the operation on her? A Yes, I did. Q And what was the result? A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out . . . to have pus. And the, cleaning up the uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber we found a [piece of] rubber on the right side. 24 We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court: Q But you are sure you have seen [the piece of rubber]? A Oh yes. I was not the only one who saw it. 26 The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness it found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 29 It is here worth nothing that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves.

Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Wellsettled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness: This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villegas's abdomen] prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "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." Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer . . . Under [this] doctrine . . . the happening of an injury permits an

inference of negligence where the plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx xxx xxx The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall the prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved direct evidence is absent and not readily available. 36 In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a byproduct of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, 37 and State's compelling interest to enact measures to protect the public from " the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill. " 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in the general, 40 and members of the medical profession, 41 in particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED.

G.R. No. 118141 September 5, 1997 LEONILA GARCIA-RUEDA vs. WILFRED L. PASCASIO, ET AL. SECOND DIVISION May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated in Ocampo v. Ombudsman 1 which states: LLjur "In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form." Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a preliminary investigation to each other with contradictory recommendations, "ping-pong" style, perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her complaint against said City Prosecutors on the ground of lack of evidence. Much as we sympathize with the bereaved widow, however, this Court is of the opinion that the general rule still finds application in instant case. In other words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against filing the necessary information against public respondents of the Office of the City Prosecutor. The following facts are borne out by the records. Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST Hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of "unknown cause," according to officials of the UST Hospital. Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy on her husband's body. Consequently, the NBI ruled that Florencio's death was due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed. The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the "interest of justice and peace of mind of the parties," recommended that the case be re-raffled on the ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba. Pending the resolution of petitioner's motion for reconsideration regarding Prosecutor Dimagiba's resolution, the investigative "pingpong" continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero. Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 3 against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack of evidence. In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019. Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following: investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain

information, and function to adopt, institute and implement preventive measures. As protector of the people, the Office of the Ombudsman has the power, function and duty "to act promptly on complaints filed in any form or manner against public officials" and "to investigate any act or omission of any public official when such act or omission appears to be illegal, unjust, improper or inefficient." While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this Court is not precluded from reviewing the Ombudsman's action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987 Constitution. 6 In this regard, "grave abuse of discretion" has been defined as "where a power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. 7 From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have been more vigilant and assiduous in determining the reasons behind the "buck passing" to ensure that no irregularity took place. Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would have expected the Ombudsman, however, to inquire into what could hardly qualify as "standard operating procedure," given the surrounding circumstances of the case. While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover who may be charged with a crime, its function is merely to determine the existence of probable cause. 8 Probable cause has been defined as "the existence of such fact and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecution, that the person charged was guilty of the crime for which he was prosecuted." 9 "Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so." The term does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission

complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. 10 In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed negligence on the part of the attending physicians in administering the anaesthesia. 11 The fact of want of competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not in a competent position to pass judgment on such a technical matter, especially when there are conflicting evidence and findings. The bases of a party's accusation and defenses are better ventilated at the trial proper than at the preliminary investigation. A word on medical malpractice or negligence cases. "In its simplest terms, 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 failure or action caused injury to the patient." 12 Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients. 13 They have 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. 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. 14 Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence. 15 Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper anaesthesia. 16 Essentially, it requires two-pronged evidence: evidence as to the recognized standards of

the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment. 17 Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctor's actions in fact caused the harm to the patient and whether these were the proximate cause of the patient's injury. 18 Indeed here, a causal connection is discernible from the occurrence of the victim's death after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. 19 Why these precautionary measures were disregarded must be sufficiently explained. The City Prosecutors were charged with violating Section 3(e) of the AntiGraft and Corrupt Practices Act which requires the following facts: "1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties." 20 Why did the complainant, petitioner in instant case, elect to charge respondents under the above law? While a party who feels himself aggrieved is at liberty to choose the appropriate "weapon from the armory," it is with no little surprise that this Court views the choice made by the complainant widow. To our mind, the better and more logical remedy under the circumstances would have been to appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justice's Order No. 223, 21 otherwise known as the "1993 Revised Rules on Appeals From Resolutions in Preliminary Investigations/Reinvestigations," as amended by Department Order No. 359, Section 1 of which provides: "Section 1. What May Be Appealed. Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof."

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: "The Secretary of Justice may reverse, affirm or modify the appealed resolution." On the other hand, "He may motu propio or on motion of the appellee, dismiss outright the appeal on specified grounds." 22 In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in dismissing the complaint against the Prosecutors and this Court will not interfere with the same. cdlex WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the respondent City Prosecutors. No costs. SO ORDERED.

G.R. No. 122445 November 18, 1997 NINEVETCH CRUZ vs. COURT OF APPEALS, ET AL. THIRD DIVISION "Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment. . . ." 1 The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. 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 Dra. 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. dctai 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 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 the 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: ". . . , 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 Dra. 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 "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: ". . . 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. Cdpr 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 a 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. Pascasio, 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 te