LegMed - Medical Negligence Cases Digest

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Legal Medicine – Medical Negligence Digest by Bianca Beltran 1

[G.R. No. 118231. July 5, 1996]

BATIQUIN vs. COURT OF APPEALS

“At present, the primary objective of the medical profession is the

preservation of life and maintenance of the health of the people.”

FACTS

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital,

Dumaguete City. She was also the Actg. Head of the Department of Obstetrics and

Gynecology at the said Hospital.

Mrs. Villegas, a married woman, submitted herself to Dr. Batiquin for prenata

care as the latter's private patient. One morning, Dr. Batiquin, with the assistanceof Dr. Doris Teresita Sy, 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 and after 45 minutes Mrs. Villegas delivered her first

child, Rachel Acogido. Thereafter, Plaintiff remained confined at the Hospital

during which she was regularly visited by Dr. Batiquin.

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. The abdominal pains and fever kept on recurring 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.

Dr. Ma. Salud Kho 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 ovariancyst, 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 result

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 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 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.

The piece of rubber allegedly found near private respondent Flotilde Villegas

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, 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, a Progress Record, an Anesthesia Record, a

Nurse's Record, and a Physician's Discharge Summary. The trial court, however,

regarded these documentary evidence as mere hearsay.

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." This statement, the trial courtnoted, 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.

RTC - held in favor of the petitioners herein.CA – reversed the decision. It deemed Dr. Kho’s positive testimony to definitely

establish that a piece of rubber was found near private respondent Villegas’ uterus.

It further noted the fact that Villegas can no longer bear children because her

uterus and ovaries were removed by Dr. Kho is not taken into consideration as it

not shown that the removal of said organs were the direct result of the rubber left

by the appellee Dr. Batiquin near the uterus. What is establishe is that the rubber




left by appellee cause infection, placed the life of appellant Flotilde in jeopardy ad

caused appelants fear, worry and anxiety.

ISSUE

Whether or not the testimony of Dr. Kho should be given credence

Ruling

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' abdomen, and that she sent it to a laboratory and then to Cebu City for

examination by a pathologist. Not even the Pathologist's Report, although devoidof 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.

Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the

same is admissible but it carries no probative value. Nevertheless, assuming

otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a

piece of rubber near private respondent Villegas' uterus. And even if we were to

doubt Dr. Kho as to what she did to the piece of rubber. On this score, it isperfectly 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 is 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.

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' 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:

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 beliefthat 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 contro

of [the] alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an

injury permits an inference of negligence where plaintiff produces substantia

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 dispensewith the requirement of proof of culpable negligence on the party charged. It

merely determines and regulates what shall be 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.

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' 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 by-product 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' 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, 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." 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." 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, and members of the medical profession, 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.




FE CAYAO-LASAM, G.R. No. 159132

- versus - Promulgated:

SPOUSES CLARO and December 18, 2008EDITHA RAMOLETE,

FACTS

Respondent, three months pregnant Editha Ramolete (Editha) was brought to

the Lorma Medical Center (LMC) in San Fernando, La Union due to vagina

bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the

LMC on the same day. A pelvic sonogram was then conducted on Editha revealing thefetus’ weak cardiac pulsation. The following day, Editha’s repeat pelvic sonogram 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.”

Petitioner performed the D&C procedure. Editha was discharged from the hospital the

following day.

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, she was found to have a

massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to

undergo a procedure for hysterectomy and as a result, she has no more chance to bear

a child.

Editha and her husband Claro Ramolete (respondents) filed a Complaint for Gross

Negligence and Malpractice against petitioner before the Professional RegulationsCommission (PRC).

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 during her rounds; she performed an interna




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; 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; 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 which the latter failed to

do.

Petitioner contended that it was Editha’s gross negligence and/or omission in

insisting to be discharged 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;

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 abdomina

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.

Board of Medicine (the Board) of the PRC - exonerating petitioner from the

charges filed against her. The Board held that Editha’s case was 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 in the hospital 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 pregnancyis 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.

Appeal to PRC decision - reversing the findings of the Board and revoking

petitioner’s authority or license to practice her profession as a physician.

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 certiorari under Rule 65

of the Rules of Court. 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. 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. Citing Section 26 of Republic Act (R.A.) No

2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequateremedy under the ordinary course of law which petitioner should have availed herself of

was to appeal to the Office of the President.

ISSUE

1. WHETHER OR NOT PRC COMMITTED GRAVE ABUSE OF DISCRETION IN

REVOKING PETITIONER’S LICENSE TO PRACTICE MEDICINE WITHOUT ANEXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF

RESPONDENT EDITHA RAMOLETE’S INJURY;

2. WHETHER OR NOT 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]

3. WHETHER OR NOT 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.




RULING

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.

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 skil

which is ordinarily employed by the profession generally, under similar conditions, and in

like surrounding circumstances. 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 oraction caused injury to the patient.

There are four elements involved in medical negligence cases: duty, breach, injury

and proximate causation.

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 samelevel of care that any 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. As to this aspect of medical malpractice,

the determination of the reasonable level of care and the breach thereof, expert

testimony is essential. 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.

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.

From the expert witness’ 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 2176 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. 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.




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. 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 thepetitioner’s order to return for a check-up. 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 ofan 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.

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 E ditha’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. Difficulty seems to be apprehended in deciding which

acts of the injured party shall be considered immediate causes of the accident.[ Wherethe 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. 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.

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 consequences 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.




ROGELIOP. NOGALES, G.R. No. 142625

- versus -

CAPITOL MEDICAL CENTER,

DR. OSCAR ESTRADA,DR. ELY VILLAFLOR,

DR. ROSA UY,

DR. JOEL ENRIQUEZ,

DR. PERPETUA LACSON,

DR.NOE ESPINOLA, and Promulgated: December 19, 2006

NURSEJ. DUMLAO

FACTS

Pregnant with her fourth child, Corazon Nogales (“Corazon”) was under the

exclusive prenatal care of Dr. Oscar Estrada (“Dr. Estrada”) beginning on herfourth 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 edema indicating preeclampsia, which is a

dangerous complication of pregnancy.

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 request of Dr. Estrada. Upon Corazon’s

admission at the CMC, Rogelio Nogales (“Rogelio”) executed and signed the




“Consent on Admission and Agreement” and “Admission Agreement.” 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.

Around 3:00 a.m., Dr. Estrada ordered several procedures to be done to

Corazon. The following orders are:

a. for 10 mg. of valium be administered immediately by intramuscular injection

b. 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, 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 anddeliver 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.”

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.”

Petitioners filed a complaint for damages 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.




After more than 11 years of trial, the trial court rendered judgment 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.

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.

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.

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 Hospital 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. A

hospital is not responsible for the negligence of a physician who is an independent

contractor.

The Court of Appeals found the cases of Davidson v. Conole and Campbell v.

Emma Laing Stevens Hospital applicable 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. Est rada 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. While the assisting physicians and nurses may be employed by thehospital, 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 .




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.

ISSUE

Whether CMC is vicariously liable for the negligence of Dr. Estrada.

RULING

On the Liability of CMC

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 .

The Court had the occasion to determine the relationship between a hospita

and a consultant or visiting physician and the liability of such hospital for that

physician’s negligence in Ramos v. Court of Appeals, 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-pathologicalconferences, 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 toterminate 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 notrespondent 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 x

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.

The Court finds no single evidence pointing to CMC’s exercise of control over

Dr. Estrada’s treatment and management of Corazon’s condition. ThroughoutCorazon’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. CMC

merely allowed Dr. Estrada to use its facilities 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.

General Rule: A hospital is not liable for the negligence of an independent

contractor-physician.

Exception: The hospital may be liable if the physician is the “ostensible”

agent of the hospital .

This exception is also known as the “doctrine of apparent authority.” Under

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.

Elements of 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; and3. 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 carewithout 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.

Doctrine of Apparent Authority Two (2) Essential Factors To Determine The Liability

Of An Independent-Contractor Physician

1. Hospital’s manifestations. It 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. In this regard, the hospita




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.

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.”

*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. 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 independentcontractor. Significantly, no one from CMC informed the Spouses Nogales that Dr.

Estrada was an independent contractor.

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.




2. 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.

*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+.” 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.

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 surgica

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., 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, astheir 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.” xxx

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 thenature 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 thehospital. 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 2002[59] Resolutionthat the filing of petitioners’ Manifestation confined petitioners’ claim o nly 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 – Not Negligent

b) Dr. Rosa Uy – Not Negligent

c) Dr. Joel Enriquez – Not Negligent

d) Dr. Perpetua Lacson – Not Negligent

e) Dr. Noe Espinola – Not Negligent

f) Nurse J. Dumlao – Not Negligent

WHEREFORE, the Court PARTLY GRANTS the petition. The Court findsrespondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar

Estrada. The amounts of P105,000 as actual damages and P700,000 as mora

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.

http://sc.judiciary.gov.ph/jurisprudence/2006/december2006/142625.htm#_ftn58










PROFESSIONAL SERVICES, G.R. No. 126297

INC.,

- v e r s u s -

THE COURT OF APPEALS and NATIVIDAD andENRIQUE

AGANA,

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

NATIVIDAD [substituted by her G.R. No. 126467

children Marcelino Agana III,

Enrique Agana, Jr.,

Emma Agana-Andaya,

Jesus Agana and Raymund

Agana] and ENRIQUE AGANA,

- v e r s u s -

THE COURT OF APPEALS and JUAN FUENTES,

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

MIGUEL AMPIL, G.R. No. 127590

- v e r s u s -

NATIVIDAD and ENRIQUE AGANA,

Promulgated: February 2, 2010

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




FACTS

PSI, together with Dr. Miguel Ampil and Dr. Juan Fuentes, was impleaded

by Enrique Agana and Natividad Agana (later substituted by her heirs), in acomplaint for damages for the injuries suffered by Natividad when Dr. Ampil and

Dr. Fuentes neglected to remove from her body two gauzes which were used in

the surgery they performed on her on at the Medical City General Hospital. PSI

was impleaded as owner, operator and manager of the hospital.

RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for damages.

CA absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI,

subject to the right of PSI to claim reimbursement from Dr. Ampil.

ISSUE

Whether a hospital may be held liable for the negligence of physicians-consultantsallowed to practice in its premises.

RULING

This Court holds that PSI is liable to the Aganas, not under the principle

of respondeat superior for lack of evidence of an employment relationship with Dr.

Ampil but under the principle of ostensible agency for the negligence of Dr.

Ampil and, pro hac vice, under the principle of corporate negligence for its failure

to perform its duties as a hospital.

While in theory a hospital as a juridical entity cannot practice medicine, in

reality it utilizes doctors, surgeons and medical practitioners in the conduct of its




business of facilitating medical and surgical treatment. Within that reality, three

legal relationships crisscross: (1) between the hospital and the doctor practicing

within its premises; (2) between the hospital and the patient being treated or

examined within its premises and (3) between the patient and the doctor. Theexact nature of each relationship determines the basis and extent of the liability of

the hospital for the negligence of the doctor.

Where an employment relationship exists, the hospital may be held

vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or

the principle of respondeat superior. Even when no employment relationship exists

but it is shown that the hospital holds out to the patient that the doctor is its

agent, the hospital may still be vicariously liable under Article 2176 in relation to

Article 1431 and Article 1869 of the Civil Code or the principle of apparent

authority. Moreover, regardless of its relationship with the doctor, the hospita

may be held directly liable to the patient for its own negligence or failure to

follow established standard of conduct to which it should conform as a

corporation.

This Court still employs the “control test” to determine the existence of an

employer-employee relationship between hospital and doctor. In Calamba

Medical Center, Inc. v. National Labor Relations Commission, et al. it held:

Under the "control test", an employment relationship exists between a

physician and a hospital if the hospital controls both the means and the

details of the process by which the physician is to accomplish his task.




xx xx xx

As priorly stated, private respondents maintained specific work-

schedules, as determined by petitioner through its medical director,which consisted of 24-hour shifts totaling forty-eight hours each week

and which were strictly to be observed under pain of administrative

sanctions.

That petitioner exercised control over respondents gains light

from the undisputed fact that in the emergency room, the operating

room, or any department or ward for that matter, respondents' work

is monitored through its nursing supervisors, charge nurses and

orderlies. Without the approval or consent of petitioner or its medical

director, no operations can be undertaken in those areas. For control

test to apply, it is not essential for the employer to actually supervise

the performance of duties of the employee, it being enough that it has

the right to wield the power.

In the present case, it appears to have escaped the Court's attention that

both the RTC and the CA found no employment relationship between PSI and Dr.

Ampil, and that the Aganas did not question such finding. In its March 17

1993 decision, the RTC found “that defendant doctors were not employees of PSIin its hospital, they being merely consultants without any employer-employee

relationship and in the capacity of independent contractors.” The Aganas never

questioned such finding.




In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampi

had no employer-employee relationship, such finding became final and conclusive

even to this Court. There was no reason for PSI to have raised it as an issue in its

petition. Thus, whatever discussion on the matter that may have ensued waspurely academic.

Nonetheless, to allay the anxiety of the intervenors, the Court holds

that, in this particular instance, the concurrent finding of the RTC and the CA that

PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor

in testing the employer-employee relationship between doctor and hospital underwhich the hospital could be held vicariously liable to a patient in medical

negligence cases is a requisite fact to be established by preponderance of evidence.

Here, there was insufficient evidence that PSI exercised the power of control or

wielded such power over the means and the details of the specific process by

which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI

cannot be held vicariously liable for the negligence of Dr. Ampil under the

principle of respondeat superior.

There is, however, ample evidence that the hospital (PSI) held out to the

patient (Natividad) that the doctor (Dr. Ampil) was its agent . Present are the two

factors that determine apparent authority: first, the hospital's implied

manifestation to the patient which led the latter to conclude that the doctor was

the hospital's agent; and second, the patient’s reliance upon the conduct of the

hospital and the doctor, consistent with ordinary care and prudence.

The decision made by Enrique for Natividad to consult Dr. Ampil was

significantly influenced by the impression that Dr. Ampil was a staff member




of Medical City General Hospital, and that said hospital was well known and

prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally

related to Medical City. PSI's acts tended to confirm and reinforce, rather than

negate, Enrique's view. The consent forms signed by Enrique as required by PSvirtually reinforced the public impression that Dr. Ampil was a physician of its

hospital, rather than one independently practicing in it; that the medications and

treatments he prescribed were necessary and desirable; and that the hospital staff

was prepared to carry them out.

The Court cannot speculate on what could have been behind theAganas’ decision but would rather adhere strictly to the fact that, under the

circumstances at that time, Enrique decided to consult Dr. Ampil for he believed

him to be a staff member of a prominent and known hospital. After his meeting

with Dr. Ampil, Enrique advised his wife Natividad to go to

the Medical City General Hospital to be examined by said doctor, and the hospital

acted in a way that fortified Enrique's belief.

This Court must therefore maintain the ruling that PSI is vicariously liable

for the negligence of Dr. Ampil as its ostensible agent.

Moving on to the next issue, PSI made an admission in its Motion for

Reconsideration when it stated that had Natividad Agana “informed the hospital of

her discomfort and pain, the hospital would have been obliged to act on it.”

The significance of the foregoing statements is critical.




First, they constitute judicial admission by PSI that while it had no power to

control the means or method by which Dr. Ampil conducted the surgery on

Natividad Agana, it had the power to review or cause the review of what may

have irregularly transpired within its walls strictly for the purpose of determiningwhether some form of negligence may have attended any procedure done inside

its premises, with the ultimate end of protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business

as well as its prominence in the hospital industry, it assumed a duty to “tread on”

the “captain of the ship” role of any doctor rendering services within its premises

for the purpose of ensuring the safety of the patients availing themselves of its

services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct

under the circumstances of this case, specifically: (a) that it had a corporate duty

to Natividad even after her operation to ensure her safety as a patient; (b) that its

corporate duty was not limited to having its nursing staff note or record the two

missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's

role in it, bringing the matter to his attention, and correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second

motion for reconsideration that the concept of corporate responsibility was not

yet in existence at the time Natividad underwent treatment; and that if it had any

corporate responsibility, the same was limited to reporting the missing gauzes and

did not include “taking an active step in fixing the negligence

committed.” An admission made in the pleading cannot be controverted by the

party making such admission and is conclusive as to him, and all proofs submitted

by him contrary thereto or inconsistent therewith should be ignored, whether or

not objection is interposed by a party.




Given the standard of conduct that PSI defined for itself , the next relevant

inquiry is whether the hospital measured up to it.

PSI could not simply wave off the problem and nonchalantly delegate to DrAmpil the duty to review what transpired during the operation. The purpose of

such review would have been to pinpoint when, how and by whom two surgica

gauzes were mislaid so that necessary remedial measures could be taken to avert

any jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that

purpose to be achieved by merely hoping that the person likely to have mislaid the

gauzes might be able to retrace his own steps. By its own standard of corporate

conduct, PSI's duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying

Natividad about the missing gauzes, PSI imposed upon itself the separate and

independent responsibility of initiating the inquiry into the missing gauzes. The

record taken during the operation of Natividad which reported a gauze count

discrepancy should have given PSI sufficient reason to initiate a review. It shouldnot have waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and

consequently did not initiate a review of what transpired during Natividad’s

operation. Rather, it shirked its responsibility and passed it on to others – to Dr

Ampil whom it expected to inform Natividad, and to Natividad herself to complain

before it took any meaningful step. By its inaction, therefore, PSI failed its own

standard of hospital care. It committed corporate negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is

different from the medical negligence attributed to Dr. Ampil . The duties of the




hospital are distinct from those of the doctor-consultant practicing within its

premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a

hospital corporation gave rise to a direct liability to the Aganas distinct from that

of Dr. Ampil.

All this notwithstanding, we make it clear that PSI’s hospital liability based

on ostensible agency and corporate negligence applies only to this case, pro hac

vice. It is not intended to set a precedent and should not serve as a basis to hold

hospitals liable for every form of negligence of their doctors-consultants under any

and all circumstances. The ruling is unique to this case, for the liability of PSI arosefrom an implied agency with Dr. Ampil and an admitted corporate duty to

Natividad.

Other circumstances peculiar to this case warrant this ruling, not the least of

which being that the agony wrought upon the Aganas has gone on for 26 long

years, with Natividad coming to the end of her days racked in pain andagony. Such wretchedness could have been avoided had PSI simply done what

was logical: heed the report of a guaze count discrepancy, initiate a review of

what went wrong and take corrective measures to ensure the safety of

Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning

any such responsibility to its patient. Meanwhile, the options left to the Aganas

have all but dwindled, for the status of Dr. Ampil can no longer be ascertained.

Therefore, taking all the equities of this case into consideration, this Court

believes P15 million would be a fair and reasonable liability of PSI, subject to 12%

p.a. interest from the finality of this resolution to full satisfaction.




WHEREFORE, the second motion for reconsideration is DENIED and the

motions for intervention are NOTED.

Professional Services, Inc. is ORDERED pro hac vice to pay Natividad

(substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-

Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount

of P15 million, subject to 12% p.a. interest from the finality of this resolution to ful

satisfaction.




[G.R. No. 124354. April 11, 2002]

ROGELIO E. RAMOS and ERLINDA RAMOS vs. COURT OF APPEALS, DE LOS

SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA

GUTIERREZ

FACTS

Petitioner Erlinda Ramos’ was under a comatose condition after she delivered

herself to De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta

Gutierrez for their professional care and management.

Petitioner Erlinda Ramos, after seeking professional medical help, was advisedto undergo an operation for the removal of a stone in her gall bladder

(cholecystectomy ). She was referred to Dr. Hosaka, a surgeon, who agreed to

perform the operation on her. The operation was scheduled in the morning at

private respondent De Los Santos Medical Center (DLSMC). Dr. Hosaka

recommended to them the services of Dr. Gutierrez.

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled

operation. By 7:30 in the morning of the following day, petitioner Erlinda was

already being prepared for operation. Her sister-in-law, Herminda Cruz, who wasthen Dean of the College of Nursing at the Capitol Medical Center, was allowed to

accompany her inside the operating room.

9:30 am - Dr. Hosaka had not yet arrived. Dr. Gutierrez informed Cruz that the

operation might be delayed due to the late arrival of Dr. Hosaka.

10:00 am - Dr. Hosaka still not around

12:00 pm - Dr. Hosaka arrived at the hospital or more than three (3) hours after

the scheduled operation.

Cruz was then still inside the operating room, heard about Dr. Hosaka’s arrival.

While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the

patient. Cruz heard Dr. Gutierrez utter: “ang hirap ma-intubate nito, mali yata ang

pagkakapasok. O lumalaki ang tiyan.” Cruz noticed a bluish discoloration of

Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct

someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr




Calderon attempted to intubate the patient. The nailbeds of the patient remained

bluish, thus, she was placed in a trendelenburg position – a position where the

head of the patient is placed in a position lower than her feet. At this point, Cruz

went out of the operating room to express her concern to petitioner Rogelio that

Erlinda’s operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was

still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda

being wheeled to the Intensive Care Unit (ICU). The doctors explained to

petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a

month. She was released from the hospital only four months later or on November

15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition

until she died on August 3, 1999

Petitioners filed a civil case for damages against private respondents. After due

trial, the court a quo rendered judgment in favor of petitioners. Essentially, the

trial court found that private respondents were negligent in the performance of

their duties to Erlinda. On appeal by private respondents, the Court of Appeals

reversed the trial court’s decision and directed petitioners to pay their “unpaid

medical bills” to private respondents.

ISSUE

1. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS

LIABLE FOR NEGLIGENCE;

2. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR

NEGLIGENCE; AND

3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS

LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING

CONSULTANT SURGEON AND ANESTHESIOLOGIST.

We shall first resolve the issue pertaining to private respondent Dr.

Gutierrez. Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is

belied by the records of the case. It has been sufficiently established that she

failed to exercise the standards of care in the administration of anesthesia on a

patient. Dr. Egay enlightened the Court on what these standards are:




x x x What are the standards of care that an anesthesiologist should do

before we administer anesthesia? The initial step is the preparation of

the patient for surgery and this is a pre-operative evaluation because

the anesthesiologist is responsible for determining the medical status

of the patient, developing the anesthesia plan and acquainting thepatient or the responsible adult particularly if we are referring with the

patient or to adult patient who may not have, who may have some

mental handicaps of the proposed plans. We do pre-operative

evaluation because this provides for an opportunity for us to establish

identification and personal acquaintance with the patient. It also

makes us have an opportunity to alleviate anxiety, explain techniques

and risks to the patient, given the patient the choice and establishing

consent to proceed with the plan. And lastly, once this has beenagreed upon by all parties concerned the ordering of pre-operative

medications. And following this line at the end of the evaluation we

usually come up on writing, documentation is very important as far as

when we train an anesthesiologist we always emphasize this because

we need records for our protection, well, records. And it entails having

brief summary of patient history and physical findings pertinent to

anesthesia, plan, organize as a problem list, the plan anesthesia

technique, the plan post operative, pain management if appropriate,

special issues for this particular patient. There are needs for special

care after surgery and if it so it must be written down there and a

request must be made known to proper authorities that such and such

care is necessary. And the request for medical evaluation if there is an

indication. When we ask for a cardio-pulmonary clearance it is not in

fact to tell them if this patient is going to be fit for anesthesia, the

decision to give anesthesia rests on the anesthesiologist. What we ask

them is actually to give us the functional capacity of certain systems

which maybe affected by the anesthetic agent or the technique that we

are going to use. But the burden of responsibility in terms of selection

of agent and how to administer it rest on the anesthesiologist.

The conduct of a preanesthetic/preoperative evaluation prior to an operation,

whether elective or emergency, cannot be dispensed with. Such evaluation is




necessary for the formulation of a plan of anesthesia care suited to the needs of

the patient concerned.

Pre-evaluation for anesthesia involves taking the patient’s medical history,

reviewing his current drug therapy, conducting physical examination,

interpreting laboratory data, and determining the appropriate prescription ofpreoperative medications as necessary to the conduct of anesthesia.

Physical examination of the patient entails not only evaluating the patient’s

central nervous system, cardiovascular system and lungs but also the upper

airway. Examination of the upper airway would in turn include an analysis of the

patient’s cervical spine mobility, temporomandibular mobility, prominent centra

incisors, deceased or artificial teeth, ability to visualize uvula and the thyromental

distance.Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative

evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first time

on the day of the operation itself, one hour before the scheduled operation. She

auscultated the patient’s heart and lungs and checked the latter’s blood pressure

to determine if Erlinda was indeed fit for operation. However, she did not proceed

to examine the patient’s airway. Had she been able to check petitioner Erlinda’s

airway prior to the operation, Dr. Gutierrez would most probably not have

experienced difficulty in intubating the former, and thus the resultant injury couldhave been avoided. As we have stated in our Decision:

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for

the first time on the day of the operation itself, on 17 June 1985. Before this date,

no prior consultations with, or pre-operative evaluation of Erlinda was done by

her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the

physiological make-up and needs of Erlinda. She was likewise not properly

informed of the possible difficulties she would face during the administration of

anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the

first time only an hour before the scheduled 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.




Further, there is no cogent reason for the Court to reverse its finding that it was

the faulty intubation on Erlinda that caused her comatose condition. There is no

question that Erlinda became comatose after Dr. Gutierrez performed a medical

procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during

the oral arguments:CHIEF JUSTICE:

Mr. Counsel, you started your argument saying that this involves a comatose

patient?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

How do you mean by that, a comatose, a comatose after any other acts were

done by Dr. Gutierrez or comatose before any act was done by her?

ATTY. GANA:

No, we meant comatose as a final outcome of the procedure.

CHIEF JUSTICE:

Meaning to say, the patient became comatose after some intervention,

professional acts have been done by Dr. Gutierrez?ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

In other words, the comatose status was a consequence of some acts

performed by D. Gutierrez?

ATTY. GANA:

It was a consequence of the well, (interrupted)

CHIEF JUSTICE:

An acts performed by her, is that not correct?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:




Thank you.

What is left to be determined therefore is whether Erlinda’s hapless condition

was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda)

was under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and

cardiac arrest resulting in the patient’s comatose condition was brought about by

the anaphylactic reaction of the patient to Thiopental Sodium (pentothal).[18]

In

the Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In

the first place, Dr. Eduardo Jamora, the witness who was presented to support her

(Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an

authority on anesthesia practice and procedure and their complications.[19]

Secondly, there was no evidence on record to support the theory that Erlinda

developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court asto the manifestations of an allergic reaction in this wise:

DR. CAMAGAY:

All right, let us qualify an allergic reaction. In medical terminology an allergic

reaction is something which is not usual response and it is further qualified

by the release of a hormone called histamine and histamine has an effect on

all the organs of the body generally release because the substance that

entered the body reacts with the particular cell, the mass cell, and the mass

cell secretes this histamine. In a way it is some form of response to take

away that which is not mine, which is not part of the body. So, histamine has

multiple effects on the body. So, one of the effects as you will see you wil

have redness, if you have an allergy you will have tearing of the eyes, you wil

have swelling, very crucial swelling sometimes of the larynges which is your

voice box main airway, that swelling may be enough to obstruct the entry of

air to the trachea and you could also have contraction, constriction of the

smaller airways beyond the trachea, you see you have the trachea this way,

we brought some visual aids but unfortunately we do not have a projector.

And then you have the smaller airways, the bronchi and then eventually into

the mass of the lungs you have the bronchus. The difference is that these

tubes have also in their walls muscles and this particular kind of muscles is

smooth muscle so, when histamine is released they close up like this and that

phenomenon is known as bronco spasm. However, the effects of histamine

also on blood vessels are different. They dilate blood vessel open up and the

http://sc.judiciary.gov.ph/jurisprudence/2002/apr2002/124354.htm#_edn18











patient or whoever has this histamine release has hypertension or low blood

pressure to a point that the patient may have decrease blood supply to the

brain and may collapse so, you may have people who have this.[20]

These symptoms of an allergic reaction were not shown to have been extant in

Erlinda’s case. As we held in our Decision, “no evidence of stridor, skin reactions,

or wheezing – some of the more common accompanying signs of an allergic

reaction – appears on record. No laboratory data were ever presented to the

court.”[21]

Dr. Gutierrez, however, insists that she successfully intubated Erlinda as

evidenced by the fact that she was revived after suffering from cardiac arrest. Dr

Gutierrez faults the Court for giving credence to the testimony of Cruz on the

matter of the administration of anesthesia when she (Cruz), being a nurse, wasallegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s

attention to her synopsis on what transpired during Erlinda’s intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg)

given by slow IV. 02 was started by mask. After pentothal injection

this was followed by IV injection of Norcuron 4mg. After 2 minutes

02 was given by positive pressure for about one minute. Intubation

with endotracheal tube 7.5 m in diameter was done with slight

difficulty (short neck & slightly prominent upper teeth) chest wasexamined for breath sounds & checked if equal on both sides. The

tube was then anchored to the mouth by plaster & cuff

inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was

checked 120/80 & heart rate regular and normal 90/min.

12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was

discontinued & 02 given alone. Cyanosis disappeared. Blood

pressure and heart beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous

rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by

fast drip was started. Still the cyanosis was persistent. Patient was

connected to a cardiac monitor. Another ampule of of [sic]

aminophyline was given and solu cortef was given.











12:40 p.m. There was cardiac arrest. Extra cardiac massage and

intercardiac injection of adrenalin was given & heart beat

reappeared in less than one minute. Sodium bicarbonate &

another dose of solu cortef was given by IV. Cyanosis slowly

disappeared & 02 continuously given & assisted positivepressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management.[22]

From the foregoing, it can be allegedly seen that there was no withdrawal

(extubation) of the tube. And the fact that the cyanosis allegedly disappeared

after pure oxygen was supplied through the tube proved that it was properly

placed.

The Court has reservations on giving evidentiary weight to the entriespurportedly contained in Dr. Gutierrez’ synopsis. It is significant to note that the

said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of

the operating room. The standard practice in anesthesia is that every single act

that the anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she

could not account for at least ten (10) minutes of what happened during the

administration of anesthesia on Erlinda. The following exchange between Dr.

Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:

DR. ESTRELLA

You mentioned that there were two (2) attempts in the intubation period?

DR. GUTIERREZ

Yes.

Q There were two attempts. In the first attempt was the tube inserted or was

the laryngoscope only inserted, which was inserted?

A All the laryngoscope.Q All the laryngoscope. But if I remember right somewhere in the re-direct, a

certain lawyer, you were asked that you did a first attempt and the question

was – did you withdraw the tube? And you said – you never withdrew the

tube, is that right?

A Yes.








Q Yes. And so if you never withdrew the tube then there was no, there was

no insertion of the tube during that first attempt. Now, the other thing that

we have to settle here is – when cyanosis occurred, is it recorded in the

anesthesia record when the cyanosis, in your recording when did the

cyanosis occur?A (sic)

Q Is it a standard practice of anesthesia that whatever you do during that

period or from the time of induction to the time that you probably get the

patient out of the operating room that every single action that you do is so

recorded in your anesthesia record?

A I was not able to record everything I did not have time anymore because I

did that after the, when the patient was about to leave the operatingroom. When there was second cyanosis already that was the (interrupted)

Q When was the first cyanosis?

A The first cyanosis when I was (interrupted)

Q What time, more or less?

A I think it was 12:15 or 12:16.

Q Well, if the record will show you started induction at 12:15?

A Yes, Your Honor.

Q And the first medication you gave was what?

A The first medication, no, first the patient was oxygenated for around one to

two minutes.

Q Yes, so, that is about 12:13?

A Yes, and then, I asked the resident physician to start giving the pentothal

very slowly and that was around one minute.Q So, that is about 12:13 no, 12:15, 12:17?

A Yes, and then, after one minute another oxygenation was given and after

(interrupted)

Q 12:18?

A Yes, and then after giving the oxygen we start the menorcure which is a

relaxant. After that relaxant (interrupted)




Q After that relaxant, how long do you wait before you do any manipulation?

A Usually you wait for two minutes or three minutes.

Q So, if our estimate of the time is accurate we are now more or less 12:19, is

that right?

A Maybe.

Q 12:19. And at that time, what would have been done to this patient?

A After that time you examine the, if there is relaxation of the jaw which you

push it downwards and when I saw that the patient was relax because that

monorcure is a relaxant, you cannot intubate the patient or insert the

laryngoscope if it is not keeping him relax. So, my first attempt when I put

the laryngoscope on I saw the trachea was deeply interiorly. So, what I did

ask “mahirap ata ito ah.” So, I removed the laryngoscope and oxygenated

again the patient.

Q So, more or less you attempted to do an intubation after the first attempt

as you claimed that it was only the laryngoscope that was inserted.

A Yes.

Q And in the second attempt you inserted the laryngoscope and now possible

intubation?

A Yes.

Q And at that point, you made a remark, what remark did you make?

A I said “mahirap ata ito” when the first attempt I did not see the trachea right

away. That was when I (interrupted)

Q That was the first attempt?

A Yes.

Q What about the second attempt?

A On the second attempt I was able to intubate right away within two to three

seconds.

Q At what point, for purposes of discussion without accepting it, at what point

did you make the comment “na mahirap ata to intubate, mali ata ang

pinasukan”

A I did not say “mali ata ang pinasukan” I never said that.




Q Well, just for the information of the group here the remarks I am making is

based on the documents that were forwarded to me by the Supreme

Court. That is why for purposes of discussion I am trying to clarify this for

the sake of enlightenment. So, at what point did you ever make that

comment?A Which one, sir?

Q The “mahirap intubate ito” assuming that you (interrupted)

A Iyon lang, that is what I only said “mahirap intubate (interrupted)

Q At what point?

A When the first attempt when I inserted the laryngoscope for the first time.

Q So, when you claim that at the first attempt you inserted the laryngoscope,right?

A Yes.

Q But in one of the recordings somewhere at the, somewhere in the transcript

of records that when the lawyer of the other party try to inquire from you

during the first attempt that was the time when “mayroon ba kayong hinugot

sa tube, I do not remember the page now, but it seems to me it is there. So,

that it was on the second attempt that (interrupted)

A I was able to intubate.

Q And this is more or less about what time 12:21?

A Maybe, I cannot remember the time, Sir.

Q Okay, assuming that this was done at 12:21 and looking at the anesthesia

records from 12:20 to 12:30 there was no recording of the vital signs. And

can we presume that at this stage there was already some problems in

handling the patient?

A Not yet.

Q But why are there no recordings in the anesthesia record?

A I did not have time.

Q Ah, you did not have time, why did you not have time?

A Because it was so fast, I really (at this juncture the witness is laughing)




Q No, I am just asking. Remember I am not here not to pin point on anybody

I am here just to more or less clarify certainty more ore less on the record.

A Yes, Sir.

Q And so it seems that there were no recording during that span of ten (10)

minutes. From 12:20 to 12:30, and going over your narration, it seems to

me that the cyanosis appeared ten (10) minutes after induction, is that right?

A Yes.

Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?

A Yes.

Q And that the 12:25 is after the 12:20?

A We cannot (interrupted)Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going

over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that

it seems to me that there is no recording from 12:20 to 12:30, so, I am just

wondering why there were no recordings during the period and then of

course the second cyanosis, after the first cyanosis. I think that was the time

Dr. Hosaka came in?

A No, the first cyanosis (interrupted).

[23]

We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her

admission that it does not fully reflect the events that transpired during the

administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a

ten-minute gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not

recorded during that time. The absence of these data is particularly significant

because, as found by the trial court, it was the absence of oxygen supply for four

(4) to five (5) minutes that caused Erlinda’s comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of

Cruz. As we stated in the Decision, she is competent to testify on matters which

she is capable of observing such as, the statements and acts of the physician and

surgeon, external appearances and manifest conditions which are observable by

any one.[24]

Cruz, Erlinda’s sister-in-law, was with her inside the operating

room. Moreover, being a nurse and Dean of the Capitol Medical Center School of

Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated












that she heard Dr. Gutierrez remark, “ Ang hirap ma-intubate nito, mali yata ang

pagkakapasok. O lumalaki ang tiyan.” She observed that the nailbeds of Erlinda

became bluish and thereafter Erlinda was placed in trendelenburg position.[25]

Cruz

further averred that she noticed that the abdomen of Erlinda became

distended.[26]

The cyanosis (bluish discoloration of the skin or mucous membranes caused by

lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the

stomach of Erlinda indicate that the endotracheal tube was improperly inserted

into the esophagus instead of the trachea. Consequently, oxygen was delivered

not to the lungs but to the gastrointestinal tract. This conclusion is supported by

the fact that Erlinda was placed in trendelenburg position. This indicates that there

was a decrease of blood supply to the patient’s brain. The brain was thus

temporarily deprived of oxygen supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any

negligence in the administration of anesthesia and in the use of an endotracheal

tube. As was noted in our Decision, the instruments used in the administration of

anesthesia, including the endotracheal tube, were all under the exclusive control

of private respondents Dr. Gutierrez and Dr. Hosaka.[27]

In Voss vs.

Bridwell ,[28]

which involved a patient who suffered brain damage due to the

wrongful administration of anesthesia, and even before the scheduled mastoidoperation could be performed, the Kansas Supreme Court applied the doctrine

of res ipsa loquitur, reasoning that the injury to the patient therein was one which

does not ordinarily take place in the absence of negligence in the administration of

an anesthetic, and in the use and employment of an endotracheal tube. The court

went on to say that “*o+rdinarily a person being put under anesthesia is not

rendered decerebrate as a consequence of administering such anesthesia in the

absence of negligence. Upon these facts and under these circumstances, a layman

would be able to say, as a matter of common knowledge and observation, that theconsequences of professional treatment were not as such as would ordinarily have

followed if due care had been exercised.”[29]

Considering the application of the

doctrine of res ipsa loquitur , the testimony of Cruz was properly given credence in

the case at bar.

For his part, Dr. Hosaka mainly contends that the Court erred in finding him

negligent as a surgeon by applying the Captain-of-the-Ship doctrine.[30]

Dr. Hosaka

























argues that the trend in United States jurisprudence has been to reject said

doctrine in light of the developments in medical practice. He points out that

anesthesiology and surgery are two distinct and specialized fields in medicine and

as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As

anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills andknowledge in the course of her training which Dr. Hosaka, as a surgeon, does not

possess.[31]

He states further that current American jurisprudence on the matter

recognizes that the trend towards specialization in medicine has created situations

where surgeons do not always have the right to control all personnel within the

operating room,[32]

especially a fellow specialist.[33]

Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital ,[34]

which

involved a suit filed by a patient who lost his voice due to the wrongful insertion of

the endotracheal tube preparatory to the administration of anesthesia in

connection with the laparotomy to be conducted on him. The patient sued both

the anesthesiologist and the surgeon for the injury suffered by him. The Supreme

Court of Appeals of West Virginia held that the surgeon could not be held liable for

the loss of the patient’s voice, considering that the surgeon did not have a hand in

the intubation of the patient. The court rejected the application of the “Captain-of-

the-Ship Doctrine,” citing the fact that the field of medicine has become

specialized such that surgeons can no longer be deemed as having control over the

other personnel in the operating room. It held that “*a+n assignment of liability

based on actual control more realistically reflects the actual relationship which

exists in a modern operating room.”[35]

Hence, only the anesthesiologist who

inserted the endotracheal tube into the patient’s throat was held liable for the

injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-

the-Ship doctrine does not mean that this Court will ipso facto follow said

trend. Due regard for the peculiar factual circumstances obtaining in this case

justify the application of the Captain-of-the-Ship doctrine. From the facts on

record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at

the very least, supervision over the procedure then being performed on Erlinda.

First, it was Dr. Hosaka who recommended to petitioners the services of Dr.

Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the























necessary competence and skills. Drs. Hosaka and Gutierrez had worked together

since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage

the services of Dr. Gutierrez to administer the anesthesia on his patient.[36]

Second, Dr. Hosaka himself admitted that he was the attending physician of

Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gaveinstructions to call for another anesthesiologist and cardiologist to help resuscitate

Erlinda.[37]

Third, it is conceded that in performing their responsibilities to the patient, Drs.

Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate

watertight compartments because their duties intersect with each other.[38]

While the professional services of Dr. Hosaka and Dr. Gutierrez were secured

primarily for their performance of acts within their respective fields of expertisefor the treatment of petitioner Erlinda, and that one does not exercise control over

the other, they were certainly not completely independent of each other so as to

absolve one from the negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr.

Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and

while doing so, he observed that the patient’s nails had become dusky and had to

call Dr. Gutierrez’s attention thereto. The Court also notes that the counsel for Dr.

Hosaka admitted that in practice, the anesthesiologist would also have to observe

the surgeon’s acts during the surgical process and calls the attention of the

surgeon whenever necessary[39]

in the course of the treatment. The duties of Dr

Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are

therefore not as clear-cut as respondents claim them to be. On the contrary, it is

quite apparent that they have a common responsibility to treat the patient, which

responsibility necessitates that they call each other’s attention to the condition of

the patient while the other physician is performing the necessary medical

procedures.

It is equally important to point out that Dr. Hosaka was remiss in his duty of

attending to petitioner Erlinda promptly, for he arrived more than three (3) hours

late for the scheduled operation. The cholecystectomy was set for June 17, 1985

at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless

disregard for his patient’s well being, Dr. Hosaka scheduled two procedures on the

same day, just thirty minutes apart from each other, at different hospitals. Thus,


















when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed

on time, Erlinda was kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlinda’s scheduled operation subjected

her to continued starvation and consequently, to the risk of acidosis,[40]

or the

condition of decreased alkalinity of the blood and tissues, marked by sickly sweetbreath, headache, nausea and vomiting, and visual disturbances.

[41] The long

period that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety

that she must have been feeling at the time. It could be safely said that her

anxiety adversely affected the administration of anesthesia on her. As explained

by Dr. Camagay, the patient’s anxiety usually causes the outpouring of adrenaline

which in turn results in high blood pressure or disturbances in the heart rhythm:

DR. CAMAGAY:x x x Pre-operative medication has three main functions: One is to

alleviate anxiety. Second is to dry up the secretions and Third is to relieve

pain. Now, it is very important to alleviate anxiety because anxiety is

associated with the outpouring of certain substances formed in the body

called adrenalin. When a patient is anxious there is an outpouring of

adrenalin which would have adverse effect on the patient. One of it is high

blood pressure, the other is that he opens himself to disturbances in the

heart rhythm, which would have adverse implications. So, we would like toalleviate patient’s anxiety mainly because he will not be in control of his body

there could be adverse results to surgery and he will be opened up; a knife is

going to open up his body. x x x[42]

Dr. Hosaka cannot now claim that he was entirely blameless of what happened

to Erlinda. His conduct clearly constituted a breach of his professional duties to

Erlinda:

CHIEF JUSTICE:Two other points. The first, Doctor, you were talking about anxiety, would

you consider a patient's stay on the operating table for three hours sufficient

enough to aggravate or magnify his or her anxiety?

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:















In other words, I understand that in this particular case that was the case,

three hours waiting and the patient was already on the operating table

(interrupted)

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:

Would you therefore conclude that the surgeon contributed to the

aggravation of the anxiety of the patient?

DR. CAMAGAY:

That this operation did not take place as scheduled is already a source of

anxiety and most operating tables are very narrow and that patients areusually at risk of falling on the floor so there are restraints that are placed on

them and they are never, never left alone in the operating room by

themselves specially if they are already pre-medicated because they may not

be aware of some of their movement that they make which would contribute

to their injury.

CHIEF JUSTICE:

In other words due diligence would require a surgeon to come on time?

DR. CAMAGAY:

I think it is not even due diligence it is courtesy.

CHIEF JUSTICE:

Courtesy.

DR. CAMAGAY:

And care.

CHIEF JUSTICE:

Duty as a matter of fact?

DR. CAMAGAY:

Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled

operation of petitioner Erlinda is violative, not only of his duty as a physician “to








serve the interest of his patients with the greatest solicitude, giving them always

his best talent and skill,”[44]

but also of Article 19 of the Civil Code which requires a

person, in the performance of his duties, to act with justice and give everyone his

due.

Anent private respondent DLSMC’s liability for the resulting injury to petitioner

Erlinda, we held that respondent hospital is solidarily liable with respondent

doctors therefor under Article 2180 of the Civil Code[45]

since there exists an

employer-employee relationship between private respondent DLSMC and Drs

Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their

attending and visiting “consultant” staff. While “consultants” are not, technically

employees, x x x the control exercised, the hiring and the right to terminateconsultants all fulfill the important hallmarks of an employer-employee

relationship, with the exception of the payment of wages. In assessing whether

such a relationship in fact exists, the control test is determining. x x x[46]

DLSMC however contends that applying the four-fold test in determining

whether such a relationship exists between it and the respondent doctors, the

inescapable conclusion is that DLSMC cannot be considered an employer of the

respondent doctors.

It has been consistently held that in determining whether an employer-

employee relationship exists between the parties, the following elements must be

present: (1) selection and engagement of services; (2) payment of wages; (3) the

power to hire and fire; and (4) the power to control not only the end to be

achieved, but the means to be used in reaching such an end.[47]

DLSMC maintains that first, a hospital does not hire or engage the services of a

consultant, but rather, accredits the latter and grants him or her the privilege of

maintaining a clinic and/or admitting patients in the hospital upon a showing bythe consultant that he or she possesses the necessary qualifications, such as

accreditation by the appropriate board (diplomate), evidence of fellowship and

references.[48]

Second, it is not the hospital but the patient who pays the

consultant’s fee for services rendered by the latter.[49]

Third, a hospital does not

dismiss a consultant; instead, the latter may lose his or her accreditation or

privileges granted by the hospital.[50]

Lastly, DLSMC argues that when a doctor

refers a patient for admission in a hospital, it is the doctor who prescribes the


























treatment to be given to said patient. The hospital’s obligation is limited to

providing the patient with the preferred room accommodation, the nutritional diet

and medications prescribed by the doctor, the equipment and facilities necessary

for the treatment of the patient, as well as the services of the hospital staff who

perform the ministerial tasks of ensuring that the doctor’s orders are carried outstrictly.

[51]

After a careful consideration of the arguments raised by DLSMC, the Court

finds that respondent hospital’s position on this issue is meritorious. There is no

employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka

which would hold DLSMC solidarily liable for the injury suffered by petitioner

Erlinda under Article 2180 of the Civil Code.

As explained by respondent hospital, that the admission of a physician tomembership in DLSMC’s medical staff as active or visiting consultant is first

decided upon by the Credentials Committee thereof, which is composed of the

heads of the various specialty departments such as the Department of Obstetrics

and Gynecology, Pediatrics, Surgery with the department head of the particular

specialty applied for as chairman. The Credentials Committee then recommends

to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection

of the applicant physician, and said director or administrator validates the

committee's recommendation.[52]

Similarly, in cases where a disciplinary action islodged against a consultant, the same is initiated by the department to whom the

consultant concerned belongs and filed with the Ethics Committee consisting of

the department specialty heads. The medical director/hospital administrator

merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants

for medical services rendered by the latter to their respective

patients. Moreover, the contract between the consultant in respondent hospita

and his patient is separate and distinct from the contract between respondent

hospital and said patient. The first has for its object the rendition of medical

services by the consultant to the patient, while the second concerns the provision

by the hospital of facilities and services by its staff such as nurses and laboratory

personnel necessary for the proper treatment of the patient.












Further, no evidence was adduced to show that the injury suffered by

petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide

for hospital facilities and staff necessary for her treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for

the injury suffered by petitioner Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to

petitioners in view of the supervening event of petitioner Erlinda’s death. In the

assailed Decision, the Court awarded actual damages of One Million Three

Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for

petitioner Erlinda’s treatment and care from the date of promulgation of the

Decision up to the time the patient expires or survives.[53]

In addition thereto, the

Court awarded temperate damages of One Million Five Hundred Thousand Pesos(P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlinda’s

injury and the certainty of further pecuniary loss by petitioners as a result of said

injury, the amount of which, however, could not be made with certainty at the

time of the promulgation of the decision. The Court justified such award in this

manner:

Our rules on actual or compensatory damages generally assume that at the time of

litigation, the injury suffered as a consequence of an act of negligence has been

completed and that the cost can be liquidated. However, these provisions neglectto take into account those situations, as in this case, where the resulting injury

might be continuing and possible future complications directly arising from the

injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to

adequately and correctly respond to the injury caused, should be one which

compensates for pecuniary loss incurred and proved, up to the time of

trial; and one which would meet pecuniary loss certain to be suffered but which

could not, from the nature of the case, be made with certainty. In other words,

temperate damages can and should be awarded on top of actual or compensatory

damages in instances where the injury is chronic and continuing. And because of

the unique nature of such cases, no incompatibility arises when both actual and

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

distinct phases.







As it would not be equitable—and certainly not in the best interests of the

administration of justice—for the victim in such cases to constantly come before

the courts and invoke their aid in seeking adjustments to the compensatory

damages previously awarded—temperate damages are appropriate. The amount

given as temperate damages, though to a certain extent speculative, should takeinto account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care

for a comatose patient who has remained in that condition for over a

decade. Having premised our award for compensatory damages on the amount

provided by petitioners at the onset of litigation, it would be now much more in

step with the interests of justice if the value awarded for temperate damages

would allow petitioners to provide optimal care for their loved one in a facility

which generally specializes in such care. They should not be compelled by dire

circumstances to provide substandard care at home without the aid of

professionals, for anything less would be grossly inadequate. Under the

circumstances, an award of P1,500,000.00 in temperate damages would therefore

be reasonable.[54]

However, subsequent to the promulgation of the Decision, the Court was

informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.[55]

In

view of this supervening event, the award of temperate damages in addition to theactual or compensatory damages would no longer be justified since the actual

damages awarded in the Decision are sufficient to cover the medical expenses

incurred by petitioners for the patient. Hence, only the amounts representing

actual, moral and exemplary damages, attorney’s fees and costs of suit should be

awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:

(1) Private respondent De Los Santos Medical Center is hereby absolved from

liability arising from the injury suffered by petitioner Erlinda Ramos on June 17,

1985;

(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby

declared to be solidarily liable for the injury suffered by petitioner Erlinda on June

17, 1985 and are ordered to pay petitioners—

(a) P1,352,000.00 as actual damages;












(b) P2,000,000.00 as moral damages;

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorney’s fees; and

(e) the costs of the suit.SO ORDERED.

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




G.R. No. 167366 September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners,

vs.

COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R.

SERRANO, Respondents.

D E C I S I O N

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules

of Court seeking the annulment and setting aside of the 21 February 2005

decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed

decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC),

Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr.Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.

Culled from the records are the following antecedent facts:

At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere

(Raymond), a victim of a stabbing incident, was rushed to the emergency room of

the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by

Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) —

the emergency room resident physician.Subsequently, the parents of Raymond—the spouses Deogenes Olavere

(Deogenes) and Fe R. Serrano—arrived at the BRMC. They were accompanied by

one Andrew Olavere, the uncle of Raymond.

After extending initial medical treatment to Raymond, Dr. Realuyo recommended

that the patient undergo "emergency exploratory laparotomy ." Dr. Realuyo then

requested the parents of Raymond to procure 500 cc of type "O" blood needed for

the operation. Complying with the request, Deogenes and Andrew Olavere went

to the Philippine National Red Cross to secure the required blood.

At 10:30 P.M., Raymond was wheeled inside the operating room. During that time,

the hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot

victim Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina

Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that

night. Dr. Tatad also happened to be the head of Anesthesiology Department of

the BRMC.

http://www.lawphil.net/judjuris/juri2012/sep2012/gr_167366_2012.html#fnt1










Just before the operation on Maluluy-on was finished, another emergency case

involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the

operating room.

At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time,

however, Dr. Tatad was already working with the obstetricians who will performsurgery on Lilia Aguila. There being no other available anesthesiologist to assist

them, Drs. Zafe and Cereno decided to defer the operation on Raymond.

Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they

found that the latter’s blood pressure was normal and "nothing in him was

significant."3 Dr. Cereno reported that based on the xray result he interpreted, the

fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc.

At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bagcontaining the requested 500 cc type "O" blood. They handed over the bag of

blood to Dr. Realuyo.

After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners

immediately started their operation on Raymond at around 12:15 A.M. of 17

September 1995. Upon opening of Raymond’s thoracic cavity, they found that

3,200 cc of blood was stocked therein. The blood was evacuated and petitioners

found a puncture at the inferior pole of the left lung.

In his testimony, Dr. Cereno stated that considering the loss of blood suffered by

Raymond, he did not immediately transfuse blood because he had to control the

bleeders first.4

Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the

operation was on-going, Raymond suffered a cardiac arrest. The operation ended

at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M.

Raymond’s death certificate5 indicated that the immediate cause of death was

"hypovolemic shock " or the cessation of the functions of the organs of the body

due to loss of blood.6

Claiming that there was negligence on the part of those who attended to their son,

the parents of Raymond, on 25 October 1995, filed before the RTC, Branch 22,

Naga City a complaint for damages7 against Nurse Balares, Dr. Realuyo and

attending surgeons Dr. Cereno and Dr. Zafe.





















During trial, the parents of Raymond testified on their own behalf. They also

presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of

Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security

Guard Diego Reposo testified for the defense. On rebuttal, the parents of

Raymond presented Dr. Tatad, among others.On 15 October 1999, the trial court rendered a decision

8 the dispositive portion of

which reads:

WHEREFORE, premises considered, this Court hereby renders judgment:

1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for

lack of merit;

2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the

heirs of Raymond Olavere, jointly and severally the following amounts:

1. P 50,000.00 for the death of the victim;

2. P 150,000.00 as moral damages;

3. P 100,000.00 as exemplary damages;

4. P 30,000.00 for attorney’s fees; and

5. Cost of suit.9

x x x x.The trial court found petitioners negligent in not immediately conducting surgery

on Raymond. It noted that petitioners have already finished operating on Charles

Maluluy-on as early as 10:30 in the evening, and yet they only started the

operation on Raymond at around 12:15 early morning of the following day. The

trial court held that had the surgery been performed promptly, Raymond would

not have lost so much blood and, therefore, could have been saved.10

The trial court also held that the non-availability of Dr. Tatad after the operation

on Maluluy-on was not a sufficient excuse for the petitioners to not immediately

operate on Raymond. It called attention to the testimony of Dr. Tatad herself,

which disclosed the possibility of calling a standby anesthesiologist in that

situation. The trial court opined that the petitioners could have just requested for

the standby anesthesiologist from Dr. Tatad, but they did not.

Lastly, the trial court faulted petitioners for the delay in the transfusion of blood

on Raymond.















On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the

judgment rendered by the RTC finding herein petitioners guilty of gross negligence

in the performance of their duties and awarding damages to private respondents.

Hence, this petition for review on certiorari under Rule 45 of the Rules of Court

assailing the CA decision on the following grounds:

1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY

NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES;

2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL

CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD

PETITIONERS BE FOUND LIABLE FOR DAMAGES; and

3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND

EXEMPLARY DAMAGES AS WELL AS ATTORNEY’S FEES EXORBITANT OREXCESSIVE.

We grant the petition

It is well-settled that under Rule 45 of the Rules of Court, only questions of law

may be raised. The reason behind this is that this Court is not a trier of facts and

will not re-examine and re-evaluate the evidence on record.11

Factual findings of

the CA, affirming that of the trial court, are therefore generally final and conclusive

on this Court. This rule is subject to the following exceptions: (1) the conclusion isgrounded on speculations, surmises or conjectures; (2) the inference is manifestly

mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the

judgment is based on a misapprehension of facts; (5) the findings of fact are

conflicting; (6) there is no citation of specific evidence on which the factual

findings are based; (7) the findings of absence of fact are contradicted by the

presence of evidence on record; (8) the findings of the CA are contrary to those of

the trial court; (9) the CA manifestly overlooked certain relevant and undisputed

facts that, if properly considered, would justify a different conclusion; (10) thefindings of the CA are beyond the issues of the case; and (11) such findings are

contrary to the admissions of both parties.12

In this case, We find exceptions (1)

and (4) to be applicable.

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 the failure or action caused injury to the patient.13

Statedotherwise, the complainant must prove: (1) that the health care provider, either by

his act or omission, had been negligent, and (2) that such act or omission

proximately caused the injury complained of.

The best way to prove these is through the opinions of expert witnesses belonging

in the same 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 former’s realization that the latter possess unusual

technical skills which laymen in most instances are incapable of intelligently

evaluating, hence, the indispensability of expert testimonies.14

Guided by the foregoing standards, We dissect the issues at hand.

Petitioners Not Negligent

The trial court first imputed negligence on the part of the petitioners by their

failure to perform the operation on Raymond immediately after finishing the

Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad. The

trial court relied on the testimony of Dr. Tatad about a "BRMC protocol " that

introduces the possibility that a standby anesthesiologist could have been called

upon. The pertinent portions of the testimony of Dr. Tatad provides:

Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?

A: We have a protocol at the Bicol Medical Center to have a consultant who is on

call.

Q: How many of them?

A: One.

Q: Who is she?

A: Dra. Flores.

Q: What is the first name?

A: Rosalina Flores.

Q: Is she residing in Naga City?











A: In Camaligan.

Q: She is on call anytime when there is an emergency case to be attended to in the

Bicol Medical Center?

A: Yes sir.15

Dr. Tatad further testified:

Q: Alright (sic), considering that you said you could not attend to Raymond Olavere

because another patient was coming in the person of Lilia Aguila, did you not

suggest to Dr. Cereno to call the standby anesthesiologist?

A: They are not ones to do that. They have no right to call for the standby

anesthesiologist.

Q: Then, who should call for the standby anesthesiologist?A: It is me if the surgeon requested.

Q: But in this case, the surgeon did not request you?

A: No. It is their prerogative.

Q: I just want to know that in this case the surgeon did not request you to call for

the standby anesthesiologist?

A: No sir.16

From there, the trial court concluded that it was the duty of the petitioners to

request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since

petitioners failed to do so, their inability to promptly perform the operation on

Raymond becomes negligence on their part.

This Court does not agree with the aforesaid conclusion.

First . There is nothing in the testimony of Dr. Tatad, or in any evidence on the

record for that matter, which shows that the petitioners were aware of the "BRMC

protocol " that the hospital keeps a standby anesthesiologist available on call.Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves

that any such "BRMC protocol " is being practiced by the hospital’s surgeons at all.

Evidence to the effect that petitioners knew of the "BRMC protocol " is essential,

especially in view of the contrary assertion of the petitioners that the matter of

assigning anesthesiologists rests within the full discretion of the BRMC

Anesthesiology Department. Without any prior knowledge of the "BRMC












protocol ," We find that it is quite reasonable for the petitioners to assume that

matters regarding the administration of anesthesia and the assignment of

anesthesiologists are concerns of the Anesthesiology Department, while matters

pertaining to the surgery itself fall under the concern of the surgeons. Certainly,

We cannot hold petitioners accountable for not complying with something thatthey, in the first place, do not know.

Second . Even assuming ex gratia argumenti that there is such "BRMC protocol "

and that petitioners knew about it, We find that their failure to request for the

assistance of the standby anesthesiologist to be reasonable when taken in the

proper context. There is simply no competent evidence to the contrary.

From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for

a standby anaesthesiologist is not within the full discretion of petitioners. The"BRMC protocol " described in the testimony requires the petitioners to course

such request to Dr. Tatad who, as head of the Department of Anesthesiology, has

the final say of calling the standby anesthesiologist.

As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad

was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then

proceeded to examine Raymond and they found that the latter’s blood pressure

was normal and "nothing in him was significant."17

Dr. Cereno even concluded that

based on the x-ray result he interpreted, the fluid inside the thoracic cavity ofRaymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe

were never challenged and were unrebutted.

Given that Dr. Tatad was already engaged in another urgent operation and that

Raymond was not showing any symptom of suffering from major blood loss

requiring an immediate operation, We find it reasonable that petitioners decided

to wait for Dr. Tatad to finish her surgery and not to call the standby

anesthesiologist anymore. There is, after all, no evidence that shows that a

prudent surgeon faced with similar circumstances would decide otherwise.

Here, there were no expert witnesses presented to testify that the course of action

taken by petitioners were not in accord with those adopted by other reasonable

surgeons in similar situations. Neither was there any testimony given, except that

of Dr. Tatad’s, on which it may be inferred that petitioners failed to exercise the

standard of care, diligence, learning and skill expected from practitioners of their

profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of







surgical practices and diagnoses. Her expertise is in the administration of

anesthesia and not in the determination of whether surgery ought or not ought to

be performed.

Another ground relied upon by the trial court in holding petitioners negligent was

their failure to immediately transfuse blood on Raymond. Such failure allegedly ledto the eventual death of Raymond through "hypovolemic shock ." The trial court

relied on the following testimony of Dr. Tatad:

Q: In this case of Raymond Olavere was blood transfused to him while he was

inside the operating room?

A: The blood arrived at 1:40 a.m. and that was the time when this blood was

hooked to the patient.

x x x x

Q: Prior to the arrival of the blood, you did not request for blood?

A: I requested for blood.

Q: From whom?

A: From the attending physician, Dr. Realuyo.

Q: What time was that?

x x x xA: 9:30.

x x x x

Q: Had this blood been given to you before the operation you could have

transfused the blood to the patient?

A: Of course, yes.

Q: And the blood was transfused only after the operation?

A: Because that was the time when the blood was given to us.

x x x x

Q: Have you monitored the condition of Raymond Olavere?

A: I monitored the condition during the time when I would administer anesthesia.

Q: What time was that?

A: 11:45 already.




Q: What was the condition of the blood pressure at that time?

A: 60/40 initial.

Q: With that kind of blood pressure the patient must have been in critical

condition?

A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that

blood was already needed.

Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did

not decide on transfusing blood to him?

A: I was asking for blood but there was no blood available.

Q: From whom did you ask?

A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for cross-matching.

18

From the aforesaid testimony, the trial court ruled that there was negligence on

the part of petitioners for their failure to have the blood ready for transfusion. It

was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by

Raymond’s parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30

minutes had passed. Yet, the blood was not ready for transfusion as it was still

being cross-matched.19

It took another two hours before blood was finally

transfused to Raymond at 1:40 A.M. of 17 September 1995.

Again, such is a mistaken conclusion.

First , the alleged delay in the cross-matching of the blood, if there was any, cannot

be attributed as the fault of the petitioners. The petitioners were never shown to

be responsible for such delay. It is highly unreasonable and the height of injustice

if petitioners were to be sanctioned for lapses in procedure that does not fall

within their duties and beyond their control.

Second , Dr. Cereno, in his unchallenged testimony, aptly explained the apparent

delay in the transfusion of blood on Raymond before and during the operation.

Before the operation, Dr. Cereno explained that the reason why no blood

transfusion was made on Raymond was because they did not then see the need to

administer such transfusion, viz:

Q: Now, you stated in your affidavit that prior to the operation you were informed

that there was 500 cc of blood available and was still to be cross-matched. What












time was that when you were informed that 500 cc of blood was due for

crossmatching?

A: I am not sure of the time.

Q: But certainly, you learned of that fact that there was 500 cc of blood, which was

due for crossmatching immediately prior to the operation?

A: Yes, sir.

Q: And the operation was done at 12:15 of September 17?

A: Yes, sir.

Q: And that was the reason why you could not use the blood because it was being

crossmatched?

A: No, sir. That was done only for a few minutes. We did not transfuse at that timebecause there was no need. There is a necessity to transfuse blood when we saw

there is gross bleeding inside the body. 20

(Emphasis supplied)

During the operation, on the other hand, Dr. Cereno was already able to discover

that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the

puncture in the latter’s left lung. Even then, however, immediate blood

transfusion was not feasible because:

Q: Now considering the loss of blood suffered by Raymund Olavere, why did younot immediately transfuse blood to the patient and you waited for 45 minutes to

elapse before transfusing the blood?

A: I did not transfuse blood because I had to control the bleeders. If you will

transfuse blood just the same the blood that you transfuse will be lost. After

evacuation of blood and there is no more bleeding…

Q: It took you 45 minutes to evacuate the blood?

A: The evacuation did not take 45 minutes.

Q: So what was the cause of the delay why you only transfuse blood after 45

minutes?

A: We have to look for some other lesions. It does not mean that when you slice

the chest you will see the lesions already.21

(Emphasis supplied)












Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted.

The parents of Raymond were not able to present any expert witness to dispute

the course of action taken by the petitioners.

Causation Not Proven

In medical negligence cases, it is settled that the complainant has the burden of

establishing breach of duty on the part of the doctors or surgeons. It must be

proven that such breach of duty has a causal connection to the resulting death of

the patient.22

A verdict in malpractice action cannot be based on speculation or

conjecture. Causation must be proven within a reasonable medical probability

based upon competent expert testimony.

The parents of Raymond failed in this respect. Aside from their failure to prove

negligence on the part of the petitioners, they also failed to prove that it waspetitioners’ fault that caused the injury. Their cause stands on the mere

assumption that Raymond’s life would have been saved had petitioner surgeons

immediately operated on him; had the blood been cross-matched immediately

and had the blood been transfused immediately. There was, however, no proof

presented that Raymond’s life would have been saved had those things been

done. Those are mere assumptions and cannot guarantee their desired result.

Such cannot be made basis of a decision in this case, especially considering that

the name, reputation and career of petitioners are at stake.

The Court understands the parents’ grief over their son’s death.1âwphi1 That

notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who

was a victim of a stabbing incident, had multiple wounds when brought to the

hospital. Upon opening of his thoracic cavity, it was discovered that there was

gross bleeding inside the body. Thus, the need for petitioners to control first what

was causing the bleeding. Despite the situation that evening i.e. numerous

patients being brought to the hospital for emergency treatment considering that it

was the height of the Peñafrancia Fiesta, it was evident that petitioners exerted

earnest efforts to save the life of Raymond. It was just unfortunate that the loss of

his life was not prevented.

In the case of Dr. Cruz v. CA, it was held that "[d]octors 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 mishaps or unusual consequences. Furthermore, they are

not liable for honest mistake of judgment…"23











This Court affirms the ruling of the CA that the BRMC is not an indispensible party.

The core issue as agreed upon by the parties and stated in the pre-trial order is

whether petitioners were negligent in the performance of their duties. It pertains

to acts/omissions of petitioners for which they could be held liable. The cause of

action against petitioners may be prosecuted fully and the determination of theirliability may be arrived at without impleading the hospital where they are

employed. As such, the BRMC cannot be considered an indispensible party without

whom no final determination can be had of an action.24

IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is

hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CA-

G.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.JOSE PORTUGAL PEREZ

Associate Justice








Republic of the Philippines

Supreme CourtManila

THIRDDIVISION

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

http://sc.judiciary.gov.ph/jurisprudence/2012/february2012/187926.htm#_ftn1













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.

This is a petition for review under Rule 45 of the Rules of Court challengingthe August 29, 2008 Decision of the Court of Appeals (CA), and its May 19, 2009

Resolution in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the

June 14, 2005 Decision 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 Nationa

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 victim’s ankle was ordered; that the X-rayresult 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 TOSERIOUS 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.

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.

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 foregoingcircumstances 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

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 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 theinstant 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 chargedwith 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 latter’s 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 don’t 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 notoccur 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 wouldmake 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, inaddition 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 onlypractice 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 bonespecialist 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, it’s entirely different thing. Because

if you are an orthopedic resident, I am not trying to

say…but 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 Doctor’s

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 don’t *know+ why they don’t….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 applyingthe 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 hereby AFFIRMED in

toto.

SO ORDERED.

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 PHYSICALINJURY 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 PATIENT’S RIGHT LEG WAS HIT BY

A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT

THE PATIENT’S 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

PROSECUTION’S 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 PATIENT’S 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 PATIENT’S 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

PATIENT’S ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS

DUE TO HIS OWN MOTHER’S 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 LATTER’S 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 NOTACQUITTING ACCUSED-PETITIONERS OF THE CRIME CHARGED.”

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 COURT’S 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 of

The 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.




The doctrine of res ipsa loquitur as a rule of evidence is unusual 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, however, is not a rule of substantive law, but merely a

mode of proof or a mere procedural convenience. The rule, when applicable tothe 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 scholarlyassumptions of a layman like the patient’s 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 and
















Dr. Bastan’s 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, withoutmalice, an act from which material damage results by reason of an inexcusable

lack of precautionon 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 don’t

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 thetibial 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, werequest 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 don’t 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 Doctor’s 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. Nowat that time, I don’t why they don’t … 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 wouldhave 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 thepatient 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. That’s

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 thatthe delay in the application of the cast to the patient’s 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, beenough 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 fortheir 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, theyshould 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 passingby 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 neednot 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 physician–patient relationship,” the Court finds and so holds that

there was a “physician–patient” relationship in this case.

In the case of Lucas v . Tuaño,[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 theycould 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 al

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 physician’s 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 of

Damages

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 whoran 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 thesorrow 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 is REVERSED 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 annum from the finality of

judgment until fully paid.

SO ORDERED.











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

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

DECISION

VILLARAMA, JR., J .:

Challenged in this petition for review on certiorari is the Decision dated June

15, 2004 as well as the Resolution dated September 1, 2004 of the Court of

Appeals (CA) in CA-G.R. CV No. 58013 which modified the

http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/165279.htm#_ftn1







Decision dated September 5, 1997 of the Regional Trial Court of Legazpi 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. Luke’s

Medical Center (SLMC). Results showed that Angelica was suffering

from osteosarcoma, osteoblastic type, a high-grade (highly malignant) cancer of

the bone which usually afflicts teenage children. Following this diagnosis and as

primary intervention, Angelica’s 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 thedisease from spreading to other parts of the patient’s 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 broughtthe 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.”

On the other hand, the Certificate of Death 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 against petitioner, Dr

Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents




charged them with negligence and disregard of Angelica’s 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 Angelica’s untimely demise. Further, it wasspecifically averred that petitioner assured the respondents that Angelica would

recover in view of 95% chance of healing with chemotherapy (“Magiging norma

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, 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 patient’s 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 thebody 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

Angelica’s surgery and discussed with them Angelica’s 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. 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 Angelica’s 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 Angelica’s 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 Angelica’s

mother called her through long distance. 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. Those were the only side-effects of chemotherapytreatment mentioned by petitioner.

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: Angelica’s chest x-ray, ultrasound of the liver, creatinine and completeliver function tests. Petitioner proceeded with the chemotherapy by first

administering hydration fluids to Angelica.

The following day, August 19, petitioner began administering three

chemotherapy drugs – Cisplatin, Doxorubicin and Cosmegen –

intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo




Marbella and Dr. Grace Arriete. In his testimony, Dr. Marbella denied having any

participation in administering the said chemotherapy drugs.

On the second day of chemotherapy, August 20, respondents noticed reddish

discoloration on Angelica’s face. They asked petitioner about it, but she merelyquipped, “Wala yan. Epekto ng gamot .” 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.

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 Angelica’s face had extended to her neck, but petitionerdismissed it again as merely the effect of medicines. Petitioner testified that she

did not see any discoloration on Angelica’s face, nor did she notice any difficulty in

the child’s breathing. She claimed that Angelica merely complained of nausea and

was given ice chips.

On August 22, 1993, at around ten o’clock 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 paiyan. Okay, let’s observe. If pwede na, bigyan uli ng chemo.” At this point,

respondents asked petitioner’s permission to bring their child home. Later in the

evening, Angelica passed black stool and reddish urine. 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.

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 Angelica’s 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 anyimmediate problem arises.

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.

The next day, August 24, respondents claimed that Angelica still suffered

from convulsions. They also noticed that she had a fever and had difficultybreathing. 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, a synthetic antibacterial combination drug, to combat

any infection on the child’s body.

By August 26, Angelica was bleeding through the mouth. Respondents alsosaw 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 Angelica’s 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.

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 o’clock that

evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotrachea

and nasogastric tubes were inserted into her weakened body. An aspiration of thenasogastric 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. 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 Angelica’s skin was also noted to beshredding 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. At this time,

the attending physician was Dr. Marbella who was shaking his head saying that

Angelica’s platelets were down and respondents should pray for their

daughter. Reynaldo claimed that he was introduced to a pediatrician who took

over his daughter’s 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 Angelica’s 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 smelledit. 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 o’clock 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.




By petitioner’s own account, Angelica was merely irritable that day (August

31). Petitioner noted though that Angelica’s skin was indeed sloughing off. She

stressed that at 9:30 in the evening, Angelica pulled out her endotrachea

tube. On September 1, exactly two weeks after being admitted at SLMC for

chemotherapy, Angelica died. The cause of death, according to petitioner, wassepticemia, or overwhelming infection, which caused Angelica’s other organs to

fail. Petitioner attributed this to the patient’s poor defense mechanism brought

about by the cancer itself.

While he was seeking the release of Angelica’s 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.

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-

Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on

Angelica’s 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 opinedthat 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

victim’s 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 surviva

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 Angelica’s

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.

On her part, Dr. Balmaceda declared that it is the physician’s duty to informand 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 patient’s 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 patient’s condition.

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s

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 systemiccomplications. 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. Consideringthat 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.

In dismissing the complaint, the trial court held that petitioner was not liable

for damages as she observed the best known procedures and employed herhighest 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, the tria

court declared that petitioner has taken the necessary precaution against the

adverse effect of chemotherapy on the patient, adding that a wrong decision is notby itself negligence. Respondents were ordered to pay their unpaid hospital bill in

the amount ofP139,064.43.

Respondents appealed to the CA which, while concurring with the trial

court’s 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 therespondents 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 eventua

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 Li’s 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 thechemotherapy treatment. This was shown by the fact that every time

a problem would take place regarding Angelica’s 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 Linegligent 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. Attorney’s fee of P30,000.00.

SO ORDERED.

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 attorney’s

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 patient’s 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 andimmeasurable 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 anyclear 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.

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.

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

former’s realization that the latter possess unusual technical skills which laymen in

most instances are incapable of intelligently evaluating, hence the indispensability

of expert testimonies.

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 petitioner’s lack of skill, knowledge and professiona




competence in failing to observe the standard of care in her line of practice was

the proximate cause of the patient’s 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 possibleside 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 theUnited States, the seminal case was Schoendorff v.

Society of New York Hospital which involved unwanted treatment performed by adoctor. Justice Benjamin Cardozo’s 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 patient’s

consent, commits an assault, for which he is liable in damages.” 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 patientas 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.

Subsequently, in Canterbury v. Spence 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 patient’s 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. 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 physician’s 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 patient’s reliance upon the physician

is a trust of the kind which traditionally has exacted obligations beyond those

associated with armslength transactions. The physician is not expected to give the

patient a short medical education, the disclosure rule only requires of him areasonable 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. 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 patient’s 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 furthermaterialize, for otherwise the omission, however unpardonable, is without legal

consequence. And, as in malpractice actions generally, there must be a causa

relationship between the physician’s failure to divulge and damage to the patient.

Reiterating the foregoing considerations, Cobbs v. Grant deemed it as

integral part of physician’s 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 obligedto 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. The court thus concluded that the patient’s 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 physician’s

communications to the patient, then must be measured by the patient’s 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

patient’s decision.




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 physician’s 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 informationrelating to the treatment which would have altered her decision to undergo it.

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 Angelica’s parents. Respondents could not have been

unaware in the course of initial treatment and amputation of Angelica’s 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 theside 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 patient’s 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 weredealing with grave conditions such as cancer to have falsely assured patients of

chemotherapy’s 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.

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 informedconsent, “the plaintiff must prove both the duty and the breach of that duty

through expert testimony. Such expert testimony must show the customary

standard of care of physicians in the same practice as that of the defendant

doctor.

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a

Medical Specialist of the DOH’s Operational and Management Services charged

with receiving complaints against hospitals, does not qualify as expert testimonyto 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, thelaw 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 patient’s 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 whatthey perceive as the common expectation of the medical consumer—“a

reasonable person in the patient’s position when deciding to accept or

reject a recommended medical procedure.”

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

th R i l T i l C t f L i Cit B h 8 i Ci il C N 8904

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