Applicability of Respondeat Superior Doctrine
She was advised to undergo an
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and
RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this
sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the
Court of Appeals, dated 29 May 1995, which overturned
the decision4 of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages
arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court
are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon
of June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10). Except
for occasional complaints of discomfort due to
pains allegedly caused by the presence of a
stone in her gall bladder (TSN, January 13,
1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone
Company, she has three children whose names
are Rommel Ramos, Roy Roderick Ramos and
Ron Raymond Ramos (TSN, October 19, 1989,
pp. 5-6).
Because the discomforts somehow interfered
with her normal ways, she sought professional
1 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
advice.
operation for the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5). She
underwent a series of examinations which
included blood and urine tests (Exhs. "A" and
"C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she
and her husband Rogelio met for the first
time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one
of the defendants in this case, on June 10, 1985.
They agreed that their date at the operating
table at the DLSMC (another defendant), would
be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
decided that she should undergo a
"cholecystectomy" operation after examining the
documents (findings from the Capitol Medical
Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr.
Hosaka, in turn, assured Rogelio that he will get
a good anesthesiologist. Dr. Hosaka charged a
fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp.
14-15, 22-23, 31-33; TSN, February 27, 1990, p.
13; and TSN, November 9, 1989, pp. 3-4, 10,
17).
A day before the scheduled date of operation,
she was admitted at one of the rooms of the
DLSMC, located along E. Rodriguez Avenue,
Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while
still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical
Center, was also there for moral support. She
reiterated her previous request for Herminda to
be with her even during the operation. After
praying, she was given injections. Her hands
were held by Herminda as they went down from
her room to the operating room (TSN, January
13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At
the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the
other defendant, who was to administer
anesthesia. Although not a member of the
hospital staff, Herminda introduced herself as
Dean of the College of Nursing at the Capitol
 Medical Center who was to provide moral
support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a
nearby phone to look for Dr. Hosaka who was
not yet in (TSN, January 13, 1988, pp. 11-12).
Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient
who asked, "Mindy, wala pa ba ang Doctor"?
The former replied, "Huwag kang mag-alaala,
darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating
room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id.,
p. 13). When she returned to the operating
room, the patient told her, "Mindy, inip na inip na
ako, ikuha mo ako ng ibang Doctor." So, she
went out again and told Rogelio about what the
patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was
"already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody
who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his wife,
who was inside the operating room waiting for
the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka
to arrive (id., p. 21). While talking to Dr. Garcia
at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, "Nandiyan
na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby
and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was
inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here."
She then saw people inside the operating room
"moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez intubating
the hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan"
(id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr.
2 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
Gutierrez was doing. She thereafter noticed
bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the
patient. The patient's nailbed became bluish and
the patient was placed in a trendelenburg
position a position where the head of the
patient is placed in a position lower than her feet
which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-
20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos
"that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate
the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the
operating room, saw a respiratory machine
being rushed towards the door of the operating
room. He also saw several doctors rushing
towards the operating room. When informed by
Herminda Cruz that something wrong was
happening, he told her (Herminda) to be back
with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and
saw that the patient was still in trendelenburg
position (TSN, January 13, 1988, p. 20). At
almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos
was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong
during the intubation. Reacting to what was told
to him, Rogelio reminded the doctor that the
condition of his wife would not have happened,
had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked
by the hospital to explain what happened to the
patient. The doctors explained that the patient
had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
Erlinda Ramos stayed at the ICU for a month.
About four months thereafter or on November
15, 1985, the patient was released from the
hospital.
 During the whole period of her confinement, she
incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything.
She cannot move any part of her body. She
cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result
of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-
22). After being discharged from the hospital,
she has been staying in their residence, still
needing constant medical attention, with her
husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from "diffuse cerebral
parenchymal damage" (Exh. "G"; see also TSN,
December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil
case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to
the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the sustained by Erlinda was due
to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents
during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of
Dr. Eduardo Jamora, a pulmonologist, to the effect that
the cause of brain damage was Erlinda's allergic
reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the
finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to
the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for
damages. The defendants were guilty of, at the
very least, negligence in the performance of
their duty to plaintiff-patient Erlinda Ramos.
3 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
On the part of Dr. Perfecta Gutierrez, this Court
finds that she omitted to exercise reasonable
care in not only intubating the patient, but also in
not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due
regard to the fact that the patient was inside the
operating room for almost three (3) hours. For
after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and
the patient, thereafter, was placed in
trendelenburg position, because of the decrease
of blood supply to the patient's brain. The
evidence further shows that the hapless patient
suffered brain damage because of the absence
of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn,
caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds
that he is liable for the acts of Dr. Perfecta
Gutierrez whom he had chosen to administer
anesthesia on the patient as part of his
obligation to provide the patient a good
anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court
finds that it is liable for the acts of negligence of
the doctors in their "practice of medicine" in the
operating room. Moreover, the hospital is liable
for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the
defense raised by defendants that they have
acted with due care and prudence in rendering
medical services to plaintiff-patient. For if the
patient was properly intubated as claimed by
them, the patient would not have become
comatose. And, the fact that another
anesthesiologist was called to try to intubate the
patient after her (the patient's) nailbed turned
bluish, belie their claim. Furthermore, the
defendants should have rescheduled the
operation to a later date. This, they should have
done, if defendants acted with due care and
prudence as the patient's case was an elective,
not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing,
judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the
 latter are ordered to pay, jointly and severally,
the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly
expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total
sum of P632,000.00 as of April 15, 1992, subject
to its being updated;
2) the sum of P100,000.00 as reasonable
attorney's fees;
3) the sum of P800,000.00 by way of moral
damages and the further sum of P200,000,00 by
way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to
the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of
the trial court. The decretal portion of the decision of the
appellate court reads:
WHEREFORE, for the foregoing premises the
appealed decision is hereby REVERSED, and
the complaint below against the appellants is
hereby ordered DISMISSED. The counterclaim
of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are
hereby ordered to pay the unpaid hospital bills
amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy. SO
ORDERED. 8
The decision of the Court of Appeals was received on 9
June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No
copy of the decision, however, was sent nor received by
the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20
June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with
the appellate court a motion for extension of time to file
a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However,
the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995. 9Meanwhile,
petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7
August 1995 a motion to admit the motion for
4 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the
counsel on record. Despite this explanation, the appellate
court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had
already expired, to wit:
We said in our Resolution on July 25, 1995, that
the filing of a Motion for Reconsideration cannot
be extended; precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the other
hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the
decision as early as June 9, 1995. Computation
wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion
for Reconsideration, in turn, was received by the
Court of Appeals already on July 4, necessarily,
the 15-day period already passed. For that
alone, the latter should be denied.
Even assuming admissibility of the Motion for
the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of
merit, is hereby DENIED. SO ORDERED. 10
A copy of the above resolution was received by Atty.
Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for
extension of time to file the present petition
for certiorari under Rule 45. The Court granted the
motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the
fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit
the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on
the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA
LOQUITUR. 11
Before we discuss the merits of the case, we shall first
dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed
by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period.
We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received
by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus,
no copy of the decision of the counsel on record.
Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June
1995.
It is elementary that when a party is represented by
counsel, all notices should be sent to the party's lawyer
at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the
decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March
1996, which superseded the earlier resolution issued on
25 July 1995, and denied the motion for reconsideration
of petitioner, we believed that the receipt of the former
should be considered in determining the timeliness of
the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two
5 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
assigned errors shall be tackled in relation to the res
ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur'' is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiff's prima faciecase, and present a question of fact
for defendant to meet with an explanation. 13 Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants
and the accident is such as in ordinary course of things
does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in
the absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's
want of care. 14
The doctrine of res ipsa loquitur is simply a recognition
of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of
occurrences may justify an inference of negligence on
the part of the person who controls the instrumentality
causing the injury in the absence of some explanation
by the defendant who is charged with negligence. 15 It is
grounded in the superior logic of ordinary human
experience and on the basis of such experience or
common knowledge, negligence may be deduced from the
mere occurrence of the accident itself. 16 Hence, res ipsa
loquitur is applied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is
not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground
of liability. 17 Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. 18 It is regarded as a
mode of proof, or a mere procedural of convenience since
it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. 19 In other
words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke
the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the
burden of going forward with the proof. 20 Still, before resort
to the doctrine may be allowed, the following requisites
must be satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's
negligence;
 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated. 21
In the above requisites, the fundamental element is the
"control of instrumentality" which caused the
damage. 22Such element of control must be shown to be
within the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and
must establish that the essential elements of the doctrine
were present in a particular incident. 23
Medical malpractice 24 cases do not escape the
application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the
harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. 25 The
application of res ipsa loquitur in medical negligence cases
presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as
a matter of law, permit a given inference.26
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. 27 The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are
within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. 28 Ordinarily,
only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses. 29 Hence, in cases
where theres ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care. 30 Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
6 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
occurred.31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act
or omission complained of and the injury sustained while
under the custody and management of the defendant
without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an
operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence
as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the
failure to secure results, and the occurrence of something
more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that
the doctrine of res ipsa loquitur can have no application in
a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. 38 The
physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired
result. 39 Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired
result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether or
not in the process of the operation any extraordinary
incident or unusual event outside of the routine
performance occurred which is beyond the regular scope
of customary professional activity in such operations,
which, if unexplained would themselves reasonably speak
to the average man as the negligent cause or causes of
the untoward consequence. 41 If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in
the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in
applying theres ipsa loquitur stated:
The plaintiff herein submitted himself for a
mastoid operation and delivered his person over
to the care, custody and control of his physician
who had complete and exclusive control over
him, but the operation was never performed. At
the time of submission he was neurologically
sound and physically fit in mind and body, but he
suffered irreparable damage and injury
rendering him decerebrate and totally
incapacitated. The injury was one which does
not ordinarily occur in the process of a mastoid
operation or in the absence of negligence in the
administration of an anesthetic, and in the use
and employment of an endoctracheal tube.
Ordinarily a person being put under anesthesia
is not rendered decerebrate as a consequence
of administering such anesthesia in the absence
of negligence. Upon these facts and under these
circumstances a layman would be able to say,
as a matter of common knowledge and
observation, that the consequences of
professional treatment were not as such as
would ordinarily have followed if due care had
been exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under
the influence of anesthetics and unconscious,
and the circumstances are such that the true
explanation of event is more accessible to the
defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of
anesthesia.
Upon all the facts, conditions and circumstances
alleged in Count II it is held that a cause of
action is stated under the doctrine of res ipsa
loquitur. 44
Indeed, the principles enunciated in the aforequoted
case apply with equal force here. In the present case,
7 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and
prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room
already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an
injury which does not normally occur in the process of a
gall bladder operation. In fact, this kind of situation does
not in the absence of negligence of someone in the
administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because
she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient
is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical
administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a
matter of common knowledge and observation, if
negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged
failure to secure the desired results of an operation nor
on an alleged lack of skill in the diagnosis or treatment
as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine
of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine
is applicable in any and all cases where injury occurs to
a patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own
light and scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the
proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of
Appeals erred in relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private respondents, the
Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving
weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to
admit that she experienced some difficulty in the
endotracheal intubation 45 of the patient and thus, cannot
be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents
were able to show that the brain damage sustained by
Erlinda was not caused by the alleged faulty intubation but
was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate,
as testified on by their expert witness, Dr. Jamora. On the
other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of intubation. In
so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of
any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals.
We hold that private respondents were unable to
disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing
not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court
the legal nexus upon which liability is based. As will be
shown hereinafter, private respondents' own testimonies
which are reflected in the transcript of stenographic
notes are replete of signposts indicative of their
negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in
the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed
to properly intubate the patient. This fact was attested to
by Prof. Herminda Cruz, Dean of the Capitol Medical
Center School of Nursing and petitioner's sister-in-law,
8 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to
this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta
Gutierrez do, if any on the patient?
A: In particular, I could see that she was
intubating the patient.
Q: Do you know what happened to that
intubation process administered by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was
beside the stretcher holding the left hand of
the patient and all of a sudden heard some
remarks coming from Dra. Perfecta Gutierrez
herself. She was saying "Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words
"lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang
tiyan," what did you notice on the person of
the patient?
A: I notice (sic) some bluish discoloration on
the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particular time?
A: I saw him approaching the patient during
that time.
Q: When he approached the patient, what did
he do, if any?
A: He made an order to call on the
anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive
inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the
patient, after a while the patient's nailbed
became bluish and I saw the patient was
placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient
was placed in that trendelenburg position?
A: As far as I know, when a patient is in that
position, there is a decrease of blood supply to
the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in
our country will show that intubation is not taught
as part of nursing procedures and techniques.
Indeed, we take judicial notice of the fact that
nurses do not, and cannot, intubate. Even on the
assumption that she is fully capable of
determining whether or not a patient is properly
intubated, witness Herminda Cruz, admittedly,
did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the
patient or that she conducted any type of
examination to check if the endotracheal tube
was in its proper place, and to determine the
condition of the heart, lungs, and other organs.
Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly
suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation
was a success.
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony
of expert witnesses is not required. It is the accepted rule
that expert testimony is not necessary for the proof of
negligence in non-technical matters or those of which an
ordinary person may be expected to have knowledge, or
where the lack of skill or want of care is so obvious as to
render expert testimony unnecessary. 49 We take judicial
notice of the fact that anesthesia procedures have become
so common, that even an ordinary person can tell if it was
administered properly. As such, it would not be too difficult
to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree
to be acceptable.
9 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San
Pablo City; and then Dean of the Capitol Medical Center
School of Nursing. 50Reviewing witness Cruz' statements,
we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and
spontaneity which would have been difficult to fabricate.
With her clinical background as a nurse, the Court is
satisfied that she was able to demonstrate through her
testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you
were intubating at your first attempt (sic), you
did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what
were you referring to?
A: "Mahirap yata itong i-intubate," that was the
patient.
Q: So, you found some difficulty in inserting
the tube?
A: Yes, because of (sic) my first attempt, I did
not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a
person) 52 making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-
operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's
medical records and visits with the patient, traditionally,
the day before elective surgery. 53 It includes taking the
patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory
data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central
nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical spine
mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize
uvula and the thyromental distance. 56 Thus, physical
characteristics of the patient's upper airway that could
make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a
long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia
to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility.
The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the
physician's centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could
get away with it. Respondent Dra. Gutierrez tried to
muddle the difference between an elective surgery and
an emergency surgery just so her failure to perform the
required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
10 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good
medical practice to see the patient a day
before so you can introduce yourself to
establish good doctor-patient relationship and
gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it
depends on the operative procedure of the
anesthesiologist and in my case, with elective
cases and normal cardio-pulmonary clearance
like that, I usually don't do it except on
emergency and on cases that have an
abnormalities (sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that
an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to be
at the patient's beside to do a proper interview and
clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the
operation and prepare her for anesthesia. However, she
never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the
operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed
to perform pre-operative evaluation of the patient which,
in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate
cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlinda's coma was due
to bronchospasm 59 mediated by her allergic response to
the drug, Thiopental Sodium, introduced into her system.
Towards this end, they presented Dr. Jamora, a Fellow of
the Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, 60 was due
to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia
practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his
opinions on the drug not from the practical experience
gained by a specialist or expert in the administration and
use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did
you have any occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the
anesthesiologist when they have to intubate
our patient.
Q: But not in particular when you practice
pulmonology?
A: No.
Q: In other words, your knowledge about
pentothal is based only on what you have read
from books and not by your own personal
application of the medicine pentothal?
A: Based on my personal experience also on
pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into
bronchospasm during my appendectomy.
Q: And because they have used it on you and
on account of your own personal experience
you feel that you can testify on pentothal here
with medical authority?
A: No. That is why I used references to support
my claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of
11 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within
the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript,
in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority, it
is clear that the appellate court erred in giving weight to
Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. The
opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he is shown to possess, may be received
in evidence.
Generally, to qualify as an expert witness, one must
have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of
recognized authorities on the subject or by practical
experience.63 Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he lacks
the necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony
from a specialist in the wrong field, private respondents'
intentionally avoided providing testimony by competent and
independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental
Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support
in evidence. No evidence of stridor, skin reactions, or
wheezing some of the more common accompanying
signs of an allergic reaction appears on record. No
laboratory data were ever presented to the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then
every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere
afterthought. Such an explanation was advanced in
order to advanced in order to absolve them of any and
all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to
believe petitioners' stand that it was the faulty intubation
which was the proximate cause of Erlinda's comatose
condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred. 64 An injury or
damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the
act or omission played a substantial part in bringing about
or actually causing the injury or damage; and that the injury
or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the
dominant, moving or producing cause.
Applying the above definition in relation to the evidence
at hand, faulty intubation is undeniably the proximate
cause which triggered the chain of events leading to
Erlinda's brain damage and, ultimately, her comatosed
condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of
abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal
intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea.
Entry into the esophagus would certainly cause some
delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal
distention had been observed during the first intubation
suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant.
Due to the delay in the delivery of oxygen in her lungs
Erlinda showed signs of cyanosis. 66 As stated in the
testimony of Dr. Hosaka, the lack of oxygen became
apparent only after he noticed that the nailbeds of Erlinda
were already blue. 67 However, private respondents
contend that a second intubation was executed on Erlinda
and this one was successfully done. We do not think so.
No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the
12 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
trachea, the same gave no guarantee of oxygen delivery,
the hallmark of a successful intubation. In fact, cyanosis
was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could
not be claimed, as private respondents insist, that the
second intubation was accomplished. Even granting that
the tube was successfully inserted during the second
attempt, it was obviously too late. As aptly explained by the
trial court, Erlinda already suffered brain damage as a
result of the inadequate oxygenation of her brain for about
four to five minutes. 68
The above conclusion is not without basis. Scientific
studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious
injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough
evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care
been used in the pre-operative evaluation, respondent
physician could have been much more prepared to meet
the contingency brought about by the perceived anatomic
variations in the patient's neck and oral area, defects which
would have been easily overcome by a prior knowledge of
those variations together with a change in technique. 71 In
other words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would have
had little difficulty going around the short neck and
protruding teeth. 72 Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted
in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," 73 it is the surgeon's
responsibility to see to it that those under him perform their
task in the proper manner. Respondent Dr. Hosaka's
negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team) in
not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists
to show that respondent Dr. Hosaka verified if respondent
Dra. Gutierrez properly intubated the patient. Furthermore,
it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of
this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties
towards his patient. Thus, he shares equal responsibility for
the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases.
However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who
apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their
educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or
reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege
of admitting patients into the hospital. In addition to
these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees,
a point which respondent hospital asserts in denying all
responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
visiting physicians. This being the case, the question
now arises as to whether or not respondent hospital is
13 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
solidarily liable with respondent doctors for petitioner's
condition. 76
The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those
of others based on the former's responsibility under a
relationship of patria potestas. 77 Such responsibility
ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the
family to prevent damage. 78In other words, while the
burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family
to prevent damage.
In the instant case, respondent hospital, apart from a
general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which
it exercised over its physicians. In neglecting to offer
such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the
last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily
responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents.
Indeed, as shown by the above discussions, private
respondents were unable to rebut the presumption of
negligence. Upon these disquisitions we hold that
private respondents are solidarily liable for damages
under Article 2176 79 of the Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to its
being updated" covering the period from 15 November
1985 up to 15 April 1992, based on monthly expenses
for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established
by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-
based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved
by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a
proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally
made by a dietitian to provide her with the correct daily
caloric requirements and vitamin supplements.
Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a
pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of
proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy.
However, the provisions of the Civil Code on actual or
compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may
be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by
stipulation, one is entitled to an adequate
compensation only for such pecuniary loss
suffered by him as he has duly proved. Such
compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered
as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However,
these provisions neglect to take into account those
situations, as in this case, where the resulting injury
might be continuing and possible future complications
directly arising from the injury, while certain to occur, are
difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates
for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain
to be suffered but which could not, from the nature of
the case, be made with certainty. 80 In other words,
14 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
temperate damages can and should be awarded on top of
actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique
nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.
As it would not be equitable and certainly not in the
best interests of the administration of justice for the
victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who
has remained in that condition for over a decade.
Having premised our award for compensatory damages
on the amount provided by petitioners at the onset of
litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care
for their loved one in a facility which generally
specializes in such care. They should not be compelled
by dire circumstances to provide substandard care at
home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages
would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct
result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the
future. We awarded P1,000,000.00 in moral damages in
that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic amputation of
her left lower extremity at the distal left thigh just
above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory
functions of her left extremity, even with the use
of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the
 shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During
the lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size
of her lower limb effected by the biological
changes of middle-age, menopause and aging.
Assuming she reaches menopause, for
example, the prosthetic will have to be adjusted
to respond to the changes in bone resulting from
a precipitate decrease in calcium levels
observed in the bones of all post-menopausal
women. In other words, the damage done to her
would not only be permanent and lasting, it
would also be permanently changing and
adjusting to the physiologic changes which her
body would normally undergo through the years.
The replacements, changes, and adjustments
will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it
has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount
of functional restoration of the motor functions of
the lower limb. The sensory functions are
forever lost. The resultant anxiety,
sleeplessness, psychological injury, mental and
physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of
private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when
the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so
far been heroically shouldered by her husband and
children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial
cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the
victim's actual injury would not even scratch the surface
of the resulting moral damage because it would be
15 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
highly speculative to estimate the amount of emotional
and moral pain, psychological damage and injury
suffered by the victim or those actually affected by the
victim's condition. 84The husband and the children, all
petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of
recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their
long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The
family's moral injury and suffering in this case is clearly a
real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we
are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers
of life and, they rarely set out to intentionally cause
injury or death to their patients. However, intent is
immaterial in negligence cases because where
negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage
caused.
Established medical procedures and practices, though
in constant flux are devised for the purpose of
preventing complications. A physician's experience with
his patients would sometimes tempt him to deviate from
established community practices, and he may end a
distinguished career using unorthodox methods without
incident. However, when failure to follow established
procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is
made between the deviation and the injury or damage,
the physician would necessarily be called to account for
it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as
to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of
promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages
and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.
Applicability of Res Ipsa Loquitor Doctrine
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D.
ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution. Some
4,000 years ago, the Code of Hammurabi 1 then already
provided: "If a physician make a deep incision upon a man
with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet
and destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates 3 wrote what was to
become part of the healer's oath: "I will follow that method
of treatment which according to my ability and judgment, I
consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. . . . While I
continue to keep this oath unviolated may it be granted me
to enjoy life and practice the art, respected by all men at all
times but should I trespass and violate this oath, may the
reverse be my lot." At present, the primary objective of the
medical profession if the preservation of life and
maintenance of the health of the people. 4
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his
patient, he must be made to answer therefor. Although
society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and
this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision 5 of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision 6 of 21 December 1990 of Branch 30
16 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
of the Regional Trial Court (RTC) of Negros Oriental in Civil
Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the
Negros Oriental Provincial Hospital, Dumaguete
City from January 9, 1978 to September 1989.
Between 1987 and September, 1989 she was
also the Actg. Head of the Department of
Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted
to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21,
1988.
In the morning of September 21, 1988 Dr.
Batiquin, with the assistance of Dr. Doris
Teresita Sy who was also a Resident Physician
at the same Hospital, C.I. and O.R. Nurse Arlene
Diones and some student nurses performed a
simple caesarean section on Mrs. Villegas at the
Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child,
Rachel Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined at the
Hospital until September 27, 1988 during which
period of confinement she was regularly visited
by Dr. Batiquin. On September 28, 1988 Mrs.
Villegas checked out of the Hospital. . . and on
that same day she paid Dr. Batiquin, thru the
latter's secretary, the amount of P1,500.00 as
"professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas
began to suffer abdominal pains and complained
of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain
medicines. . . which she had been taking up to
December, 1988.
In the meantime, Mrs. Villegas was given a
Medical Certificate by Dr. Batiquin on October
31, 1988. . . certifying to her physical fitness to
return to her work on November 7, 1988. So, on
the second week of November, 1988 Mrs.
Villegas returned to her work at the Rural Bank
of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring
and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When
the pains became unbearable and she was
 rapidly losing weight she consulted Dr. Ma.
Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr.
Ma. Salud Kho examined Mrs. Villegas at the
Holy Child's Hospital on January 20, 1989 she
found Mrs. Villegas to be feverish, pale and was
breathing fast. Upon examination she felt an
abdominal mass one finger below the umbilicus
which she suspected to be either a tumor of the
uterus or an ovarian cyst, either of which could
be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also
took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection
inside her abdominal cavity. The results of all
those examinations impelled Dr. Kho to suggest
that Mrs. Villegas submit to another surgery to
which the latter agreed.
When Dr. Kho opened the abdomen of Mrs.
Villegas she found whitish-yellow discharge
inside, an ovarian cyst on each of the left and
right ovaries which gave out pus, dirt and pus
behind the uterus, and a piece of rubber material
on the right side of the uterus embedded on [sic]
the ovarian cyst, 2 inches by 3/4 inch in size.
This piece of rubber material which Dr. Kho
described as a "foreign body" looked like a piece
of a "rubber glove". . . and which is [sic] also
"rubber-drain like". . . . It could have been a torn
section of a surgeon's gloves or could have
come from other sources. And this foreign body
was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by
Mrs. Villegas after her delivery on September
21, 1988. 7
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented
in court, and although Dr. Ma. Salud Kho Testified that
she sent it to a pathologist in Cebu City for
examination, 8 it was not mentioned in the pathologist's
Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical
Certificate, 10 a Progress Record, 11 an Anesthesia
Record, a Nurse's Record, and a Physician's Discharge
12 13
Summary. 14 The trial court, however, regarded these
documentary evidence as mere hearsay, "there being no
showing that the person or persons who prepared them are
deceased or unable to testify on the facts therein
stated. . . . Except for the Medical Certificate (Exhibit "F"),
17 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
all the above documents were allegedly prepared by
persons other than Dr. Kho, and she merely affixed her
signature on some of them to express her agreement
thereto. . . ." 15 The trial court also refused to give weight to
Dr. Kho's testimony regarding the subject piece of rubber
as Dr. Kho "may not have had first-hand knowledge"
thereof, 16 as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic]
there is [sic] a foreign body that goes with the
tissues but unluckily I don't know where the
rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's
testimony that when she confronted Dr. Kho regarding
the piece of rubber, "Dr. Kho answered that there was
rubber indeed but that she threw it away." 18 This
statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the
whereabouts of that offending "rubber" (1)
that it was sent to the Pathologist in Cebu as
testified to in Court by Dr. Kho and (2) that Dr.
Kho threw it away as told by her to Defendant.
The failure of the Plaintiffs to reconcile these two
different versions serve only to weaken their
claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's
uterus. Thus, the Court of Appeals reversed the decision
of the trial court, holding:
4. The fault or negligence of appellee Dr.
Batiquin is established by preponderance of
evidence. The trial court itself had narrated what
happened to appellant Flotilde after the
caesarean operation made by appellee
doctor. . . . After the second operation, appellant
Flotilde became well and healthy. Appellant
Flotilde's troubles were caused by the infection
due to the "rubber" that was left inside her
abdomen. Both appellant; testified that after the
operation made by appellee doctor, they did not
go to any other doctor until they finally decided
to see another doctor in January, 1989 when
she was not getting any better under the care of
appellee Dr. Batiquin. . . . Appellee Dr. Batiquin
 admitted on the witness stand that she alone
decided when to close the operating area; that
she examined the portion she operated on
before closing the same. . . Had she exercised
due diligence, appellee Dr. Batiquin would have
found the rubber and removed it before closing
the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a
total of P17,000.00 [deposit of P7,100.00 (Exh.
G-1-A) plus hospital and medical expenses
together with doctor's fees in the total amount
P9,900.00 (Exhs. G and G-2)] for the second
operation that saved her life.
For the miseries appellants endured for more
than three (3) months, due to the negligence of
appellee Dr. Batiquin they are entitled to moral
damages in the amount of P100,000.00;
exemplary damages in the amount of
P20,000.00 and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no longer
bear children because her uterus and ovaries
were removed by Dr. Kho is not taken into
consideration as it is not shown that the removal
of said organs were the direct result of the
rubber left by appellee Dr. Batiquin near the
uterus. What is established is that the rubber left
by appellee caused infection, placed the life of
appellant Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment,
dismissing the complaint for damages is
REVERSED and SET ASIDE. Another judgment
is hereby entered ordering defendants-appellees
to pay plaintiffs-appellants the amounts of
P17,000.00 as and for actual damages;
P100,000.00 as and for moral damages;
P20,000.00 as and for exemplary damages; and
P25,000.00 as and for attorney's fees plus the
costs of litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to
this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on record,
and (2) exceeded its discretion, amounting to lack or
18 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.
While the rule is that only questions of law may be
raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings
of the trial court and the appellate court conflict, when
the appealed decision is clearly contradicted by the
evidence on record, or when the appellate court
misapprehended the facts.22
After deciphering the cryptic petition, we find that the
focal point of the instant appeal is the appreciation of Dr.
Kho's testimony. The petitioners contend that the Court
of Appeals misappreciated the following portion of Dr.
Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of
my mind, just in case this would turn out to be a
medico-legal
case, I have heard somebody that [sic] says [sic]
there is [sic] a
foreign body that goes with the tissues but unluc
kily I don't know where the rubber was. It was
not in the Lab, it was not in Cebu. 23 (emphasis
supplied)
The petitioners prefer the trial court's
interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber was
based on hearsay. The Court of Appeals, on the
other hand, concluded that the underscored
phrase was taken out of context by the trial
court. According to the Court of Appeals, the trial
court should have likewise considered the other
portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the
operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was
whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on
the left and side and there was also an
 ovarian cyst on the right which, on
opening up or freeing it up from the
uterus, turned out to be pus. Both
ovaries turned out. . . to have pus. And
then, cleaning up the uterus, at the back
of the uterus it was very dirty, it was full
of pus. And there was a [piece of]
rubber, we found a [piece of] rubber on
the right
side. 24
We agree with the Court of Appeals. The phrase relied
upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent
Villegas's abdomen, and that she sent it to a laboratory
and then to Cebu City for examination by a
pathologist. 25 Not even the Pathologist's Report, although
devoid of any mention of a piece of rubber, could alter what
Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first-hand
knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of
rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents
never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw
it away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible 27 but it
carries no probative value. 28 Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact
that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of rubber, i.e.,
whether she threw it away or sent it to Cebu City, we are
not justified in distrusting her as to her recovery of a piece
of rubber from private respondent Villegas's abdomen. On
this score, it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and
disbelieve his testimony with respect to other facts. And it
has been aptly said that even when a witness 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. 29
It is here worth noting that the trial court paid heed to the
following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, 30 and that there
was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing
19 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
her gloves. 31 Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris
Sy, Dr. Batiquin's assistant during the operation on private
respondent Villegas.32 But the trial court failed to recognize
that the assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that positive
testimony is stronger than negative testimony. 33 Of course,
as the petitioners advocate, such positive testimony must
come from a credible source, which leads us to the second
assigned error.
While the petitioners claim that contradictions and
falsities punctured Dr. Kho's testimony, a regarding of
the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was
frank throughout her turn on the witness stand.
Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness
unimpaired. 34 The trial court's following declaration shows
that while it was critical of the lack of care with which Dr.
Kho handled the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only supporting our
appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest
when she testified about her findings, but it can
also be said that she did not take the most
appropriate precaution to preserve that "piece of
rubber" as an eloquent evidence of what she
would reveal should there be a "legal problem"
which she claim[s] to have anticipated. 35
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 Villega's
abdomen] prevails over the negative testimony in favor
of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus:
"Where the thing which causes injury is shown
to be under the management of the defendant,
and the accident is such as in the ordinary
course of things does not happen in those who
have the management use proper care, it
affords reasonable evidence, in the absence of
an explanation by the defendant, that the
accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for
itself. Rebuctable presumption or
inference that defendant was negligent,
 which arises upon proof that [the]
instrumentality causing injury was in
defendant's exclusive control, and that
the accident was one which ordinary
does not happen in absence of
negligence. Res ipsa loquitur is [a] rule
of evidence whereby negligence of [the]
alleged wrongdoer may be inferred from
[the] mere fact that [the] accident
happened provided [the] character of
[the] accident and circumstances
attending it lead reasonably to belief that
in [the] absence of negligence it would
not have occurred and that thing which
caused injury is shown to have been
under [the] management and control of
[the] alleged wrongdoer. . . . Under [this]
doctrine
. . . the happening of an injury permits an
inference of negligence where plaintiff
produces substantial evidence that [the]
injury was caused by an agency or
instrumentality under [the] exclusive
control and management of defendant,
and that the occurrence [sic] was such
that in the ordinary course of things
would not happen if reasonable care had
been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a
rule of evidence is peculiar to the law of
negligence which recognizes that prima
facie negligence may be established
without direct proof and furnishes a
substitute for specific proof of
negligence. The doctrine is not a rule of
substantive law, but merely a mode of
proof or a mere procedural convenience.
The rule, when applicable to the facts
and circumstances of a particular case,
is not intended to and does not dispense
with the requirement of proof of culpable
negligence on the party charged. It
merely determines and regulates what
shall 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. 36
20 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of
Dr. Batiquin. In this light, the private respondents were
bereft of direct evidence as to the actual culprit or the
exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to
say, does not occur unless through the intersection of
negligence. Second, since aside from the caesarean
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
caesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore
liable for negligently leaving behind a piece of rubber in
private respondent Villegas's abdomen and for all the
adverse effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives of
the people, 37 and the State's compelling interest to enact
measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or
trauma." 38 Indeed, a physician is bound to serve the
interest of his patients "with the greatest of solicitude,
giving them always his best talent and skill." 39 Through her
tortious conduct, the petitioner endangered the life of
Flotilde Villegas, in violation of her profession's rigid ethical
code and in contravention of the legal standards set forth
for professionals, in general, 40 and members of the medical
profession, 41 in particular.
WHEREFORE, the challenged decision of 11 May 1994
of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
G.R. No. 130547 October 3, 2000
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY,
and minors LLOYD and KRISTINE, all surnamed
REYES, represented by their mother, LEAH ALESNA
REYES, petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE
PALACIO, DR. MARVIE BLANES, and DR. MARLYN
RICO,respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision 1 of the Court
of Appeals in CA-G.R. CV No. 36551 affirming the
decision of the Regional Trial Court, Branch IX, Cebu
City which dismissed a complaint for damages filed by
petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late
Jorge Reyes. The other petitioners, namely, Rose
Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his death
on January 8, 1987, Jorge had been suffering from a
recurring fever with chills. After he failed to get relief
from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he
decided to see the doctor.
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and
admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted that
at the time of his admission, Jorge was conscious,
ambulatory, oriented, coherent, and with respiratory
distress.2 Typhoid fever was then prevalent in the
locality, as the clinic had been getting from 15 to 20
cases of typhoid per month.3 Suspecting that Jorge
could be suffering from this disease, Dr. Rico ordered a
Widal Test, a standard test for typhoid fever, to be
performed on Jorge. Blood count, routine urinalysis,
stool examination, and malarial smear were also
made.4 After about an hour, the medical technician
submitted the results of the test from which Dr. Rico
concluded that Jorge was positive for typhoid fever. As
her shift was only up to 5:00 p.m., Dr. Rico indorsed
Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the
evening. She also took Jorges history and gave him a
physical examination. Like Dr. Rico, her impression was
that Jorge had typhoid fever. Antibiotics being the
21 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be
done on Jorge. Said test was administered by nurse
Josephine Pagente who also gave the patient a dose of
triglobe. As she did not observe any adverse reaction by
the patient to chloromycetin, Dr. Blanes ordered the first
five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second
dose was administered on Jorge about three hours later
just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
called as Jorges temperature rose to 41C. The patient
also experienced chills and exhibited respiratory
distress, nausea, vomiting, and convulsions. Dr. Blanes
put him under oxygen, used a suction machine, and
administered hydrocortisone, temporarily easing the
patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes
whether he had a previous heart ailment or had suffered
from chest pains in the past. Jorge replied he did
not.5 After about 15 minutes, however, Jorge again
started to vomit, showed restlessness, and his
convulsions returned. Dr. Blanes re-applied the
emergency measures taken before and, in addition,
valium was administered. Jorge, however, did not
respond to the treatment and slipped into cyanosis, a
bluish or purplish discoloration of the skin or mucous
membrane due to deficient oxygenation of the blood. At
around 2:00 a.m., Jorge died. He was forty years old.
The cause of his death was "Ventricular Arrythemia
Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional
Trial Court of Cebu City a complaint 6 for damages
against respondents Sisters of Mercy, Sister Rose
Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse
Josephine Pagente. On September 24, 1987, petitioners
amended their complaint to implead respondent Mercy
Community Clinic as additional defendant and to drop
the name of Josephine Pagente as defendant since she
was no longer connected with respondent hospital. Their
principal contention was that Jorge did not die of typhoid
fever.7Instead, his death was due to the wrongful
administration of chloromycetin. They contended that
had respondent doctors exercised due care and
diligence, they would not have recommended and
rushed the performance of the Widal Test, hastily
concluded that Jorge was suffering from typhoid fever,
and administered chloromycetin without first conducting
sufficient tests on the patients compatibility with said
drug. They charged respondent clinic and its directress,
Sister Rose Palacio, with negligence in failing to provide
adequate facilities and in hiring negligent doctors and
nurses.8
Respondents denied the charges. During the pre-trial
conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due
to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community
Clinic was negligent in the hiring of its employees; and
(3) whether either party was entitled to damages. The
case was then heard by the trial court during which, in
addition to the testimonies of the parties, the testimonies
of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar
Vacalares, Chief Pathologist at the Northern Mindanao
Training Hospital, Cagayan de Oro City. On January 9,
1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he
did not open the skull to examine the brain. His
findings9 showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of
typhoid fever. He also stated that he had not seen a
patient die of typhoid fever within five days from the
onset of the disease.
For their part, respondents offered the testimonies of Dr.
Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
diplomate in internal medicine whose expertise is
microbiology and infectious diseases. He is also a
consultant at the Cebu City Medical Center and an
associate professor of medicine at the South Western
University College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patients history and
positive Widal Test results ratio of 1:320 would make
him suspect that the patient had typhoid fever. As to Dr.
Vacalares observation regarding the absence of
ulceration in Jorges gastro-intestinal tract, Dr. Gotiong
said that such hyperplasia in the intestines of a typhoid
victim may be microscopic. He noted that since the toxic
effect of typhoid fever may lead to meningitis, Dr.
Vacalares autopsy should have included an
examination of the brain.10
The other doctor presented was Dr. Ibarra Panopio, a
member of the American Board of Pathology, examiner
of the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief
pathologist of the Andres Soriano Jr. Memorial Hospital
in Toledo City. Dr. Panopio stated that although he was
partial to the use of the culture test for its greater
reliability in the diagnosis of typhoid fever, the Widal Test
may also be used. Like Dr. Gotiong, he agreed that the
1:320 ratio in Jorges case was already the maximum by
22 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
which a conclusion of typhoid fever may be made. No
additional information may be deduced from a higher
dilution.11 He said that Dr. Vacalares autopsy on Jorge
was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its
decision absolving respondents from the charges of
negligence and dismissing petitioners action for
damages. The trial court likewise dismissed
respondents counterclaim, holding that, in seeking
damages from respondents, petitioners were impelled
by the honest belief that Jorges death was due to the
latters negligence.
Petitioners brought the matter to the Court of Appeals.
On July 31, 1997, the Court of Appeals affirmed the
decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR WHEN IT
RULED THAT THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE IN THE INSTANT
CASE.
II. THE HONORABLE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR WHEN IT
MADE AN UNFOUNDED ASSUMPTION THAT THE
LEVEL OF MEDICAL PRACTICE IS LOWER IN
ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT RULED FOR A
LESSER STANDARD OF CARE AND DEGREE OF
DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN
CITY WHEN IT APPRECIATE[D] NO DOCTORS
NEGLIGENCE IN THE TREATMENT OF JORGE
REYES.
Petitioners action is for medical malpractice. This is a
particular form of negligence which consists in the
failure of a physician or surgeon to apply to his practice
of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under
similar conditions, and in like surrounding
circumstances.12 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 have
done, or that he or she did something that a reasonably
prudent physician or surgeon would not have done, and
that the failure or action caused injury to the
patient.13 There are thus four elements involved in
medical negligence cases, namely: duty, breach, injury,
and proximate causation.
In the present case, there is no doubt that a physician-
patient relationship existed between respondent doctors
and Jorge Reyes. Respondents were thus duty-bound to
use at least the same level of care that any reasonably
competent doctor would use to treat a condition under
the same circumstances. It is breach of this duty which
constitutes actionable malpractice.14 As to this aspect of
medical malpractice, the determination of the
reasonable level of care and the breach thereof, expert
testimony is essential. 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.15
Res Ipsa Loquitur
There is a case when expert testimony may be
dispensed with, and that is under the doctrine of res
ipsa loquitur. As held in Ramos v. Court of Appeals:16
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitor is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The reason
is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are
within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily,
only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements
and acts of physicians and surgeons, external
appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine
the proper standard of care. Where common knowledge
and experience teach that a resulting injury would not
have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the
particular act or omission complained of and the injury
23 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
sustained while under the custody and management of
the defendant without need to produce expert medical
testimony to establish the standard of care. Resort
to res ipsa loquitor is allowed because there is no other
way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was
intended, knocking out a tooth while a patients jaw was
under anesthetic for the removal of his tonsils, and loss
of an eye while the patient was under the influence of
anesthetic, during or following an operation for
appendicitis, among others.17
Petitioners asserted in the Court of Appeals that the
doctrine of res ipsa loquitur applies to the present case
because Jorge Reyes was merely experiencing fever
and chills for five days and was fully conscious,
coherent, and ambulant when he went to the hospital.
Yet, he died after only ten hours from the time of his
admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the
application of res ipsa loquitur were present, namely: (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. 18
The contention is without merit. We agree with the ruling
of the Court of Appeals. In the Ramos case, the
question was whether a surgeon, an anesthesiologist,
and a hospital should be made liable for the comatose
condition of a patient scheduled for
cholecystectomy.19 In that case, the patient was given
anesthesia prior to her operation. Noting that the patient
was neurologically sound at the time of her operation,
the Court applied the doctrine of res ipsa loquitur as
mental brain damage does not normally occur in a
gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia
procedures had become so common that even an
ordinary person could tell if it was administered properly,
we allowed the testimony of a witness who was not an
expert. In this case, while it is true that the patient died
just a few hours after professional medical assistance
was rendered, there is really nothing unusual or
extraordinary about his death. Prior to his admission, the
patient already had recurring fevers and chills for five
days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he had
been suffering from a serious illness and professional
medical help came too late for him.
Respondents alleged failure to observe due care was
not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required
expert opinion on the alleged breach by respondents of
the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her
diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico.As held in Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine
to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice
cases where a layman is able to say, as a matter of
common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. A distinction must be made between the
failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the
service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a
physician or a surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any
particular scientific treatment did not produce the
desired result.20
Specific Acts of Negligence
We turn to the question whether petitioners have
established specific acts of negligence allegedly
committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
erroneously relied upon the Widal test, diagnosed
Jorges illness as typhoid fever, and immediately
prescribed the administration of the antibiotic
chloromycetin;21 and (2) Dr. Marvie Blanes erred in
ordering the administration of the second dose of 500
milligrams of chloromycetin barely three hours after the
first was given.22 Petitioners presented the testimony of
Dr. Apolinar Vacalares, Chief Pathologist of the Northern
Mindanao Training Hospital, Cagayan de Oro City, who
24 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
performed an autopsy on the body of Jorge Reyes. Dr.
Vacalares testified that, based on his findings during the
autopsy, Jorge Reyes did not die of typhoid fever but of
shock undetermined, which could be due to allergic
reaction or chloromycetin overdose. We are not
persuaded.
First. While petitioners presented Dr. Apolinar Vacalares
as an expert witness, we do not find him to be so as he
is not a specialist on infectious diseases like typhoid
fever. Furthermore, although he may have had
extensive experience in performing autopsies, he
admitted that he had yet to do one on the body of a
typhoid victim at the time he conducted the postmortem
on Jorge Reyes. It is also plain from his testimony that
he has treated only about three cases of typhoid fever.
Thus, he testified that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you
have never seen a patient who died of typhoid
fever?
A In autopsy. But, that was when I was a
resident physician yet.
Q But you have not performed an autopsy of a
patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a
patient who died of typhoid fever within five
days?
A I have not seen one.
Q How many typhoid fever cases had you seen
while you were in the general practice of
medicine?
A In our case we had no widal test that time so
we cannot consider that the typhoid fever is
like this and like that. And the widal test does
not specify the time of the typhoid fever.
Q The question is: how many typhoid fever
cases had you seen in your general practice
regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico
erred in her diagnosis. Both lower courts were therefore
correct in discarding his testimony, which is really
inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to
oxygen deprivation after the patient had
bronchospasms24 triggered by her allergic response to a
drug,25 and not due to faulty intubation by the
anesthesiologist. As the issue was whether the
intubation was properly performed by an
anesthesiologist, we rejected the opinion of the
pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about
anesthesia practice, procedure, and their complications;
nor (2) an allergologist who could properly advance
expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic
and toxic effects of the drug allegedly responsible for the
bronchospasms.
Second. On the other hand, the two doctors presented
by respondents clearly were experts on the subject.
They vouched for the correctness of Dr. Marlyn Ricos
diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology
and an associate professor at the Southwestern
University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a
thousand cases of typhoid fever.26 According to him,
when a case of typhoid fever is suspected, the Widal
test is normally used,27and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him
along with the patients history, his impression would
also be that the patient was suffering from typhoid
fever.28 As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. 29 He also
explained that despite the measures taken by
respondent doctors and the intravenous administration
of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as
follows:30
ATTY. PASCUAL:
Q If with that count with the test of positive for
1 is to 320, what treatment if any would be
given?
A If those are the findings that would be
presented to me, the first thing I would
consider would be typhoid fever.
Q And presently what are the treatments
commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after
you have administered chloramphenical about
3 1/2 hours later, the patient associated with
chills, temperature - 41oC, what could possibly
come to your mind?
A Well, when it is change in the clinical finding,
you have to think of complication.
Q And what will you consider on the
complication of typhoid?
25 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
A One must first understand that typhoid fever
is toximia. The problem is complications are
caused by toxins produced by the bacteria . . .
whether you have suffered complications to
think of -- heart toxic myocardities; then you
can consider a toxic meningitis and other
complications and perforations and bleeding in
the ilium.
Q Even that 40-year old married patient who
received medication of chloromycetin of 500
milligrams intravenous, after the skin test, and
received a second dose of chloromycetin of
500 miligrams, 3 hours later, the patient
developed chills . . . rise in temperature to
41oC, and then about 40 minutes later the
temperature rose to 100oF, cardiac rate of 150
per minute who appeared to be coherent,
restless, nauseating, with seizures: what
significance could you attach to these clinical
changes?
A I would then think of toxemia, which was
toxic meningitis and probably a toxic
meningitis because of the high cardiac rate.
Q Even if the same patient who, after having
given intramuscular valium, became conscious
and coherent about 20 minutes later, have
seizure and cyanosis and rolling of eyeballs
and vomitting . . . and death: what significance
would you attach to this development?
A We are probably dealing with typhoid to
meningitis.
Q In such case, Doctor, what finding if any
could you expect on the post-mortem
examination?
A No, the finding would be more on the
meninges or covering of the brain.
Q And in order to see those changes would it
require opening the skull?
A Yes.
As regards Dr. Vacalares finding during the autopsy that
the deceaseds gastro-intestinal tract was normal, Dr.
Rico explained that, while hyperplasia31 in the payers
patches or layers of the small intestines is present in
typhoid fever, the same may not always be grossly
visible and a microscope was needed to see the texture
of the cells.32
Respondents also presented the testimony of Dr. Ibarra
T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the
Philippine Board of Pathology, and chief pathologist at
the MetroCebu Community Hospital, Perpetual Succor
Hospital, and the Andres Soriano Jr. Memorial Medical
Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid
patients, although he did not encourage its use because
a single test would only give a presumption
necessitating that the test be repeated, becoming more
conclusive at the second and third weeks of the
disease.33 He corroborated Dr. Gotiongs testimony that
the danger with typhoid fever is really the possible
complications which could develop like perforation,
hemorrhage, as well as liver and cerebral
complications.34 As regards the 1:320 results of the
Widal test on Jorge Reyes, Dr. Panopio stated that no
additional information could be obtained from a higher
ratio.35 He also agreed with Dr. Gotiong that hyperplasia
in the payers patches may be microscopic.36
Indeed, the standard contemplated is not what is
actually the average merit among all known practitioners
from the best to the worst and from the most to the least
experienced, but the reasonable average merit among
the ordinarily good physicians.37 Here, Dr. Marlyn Rico
did not depart from the reasonable standard
recommended by the experts as she in fact observed
the due care required under the circumstances. Though
the Widal test is not conclusive, it remains a standard
diagnostic test for typhoid fever and, in the present
case, greater accuracy through repeated testing was
rendered unobtainable by the early death of the patient.
The results of the Widal test and the patients history of
fever with chills for five days, taken with the fact that
typhoid fever was then prevalent as indicated by the fact
that the clinic had been getting about 15 to 20 typhoid
cases a month, were sufficient to give upon any doctor
of reasonable skill the impression that Jorge Reyes had
typhoid fever.
Dr. Rico was also justified in recommending the
administration of the drug chloromycetin, the drug of
choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested
with the petitioners. As they failed to present expert
opinion on this, preponderant evidence to support their
contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie
Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of
500 milligrams of chloromycetin at an interval of less
than three hours. Petitioners claim that Jorge Reyes
died of anaphylactic shock38 or possibly from overdose
as the second dose should have been administered five
to six hours after the first, per instruction of Dr. Marlyn
Rico. As held by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is
best established by medical authority. Wilson, et. al.,
inHarrisons Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of
26 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
chloromycetin) is the drug of choice for typhoid fever
and that no drug has yet proven better in promoting a
favorable clinical response. "Chlorampenicol
(Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections,
bacteriodes infections, etc." (PIMS Annual, 1994, p.
211) The dosage likewise including the first
administration of five hundred milligrams (500 mg.) at
around nine oclock in the evening and the second dose
at around 11:30 the same night was still within medically
acceptable limits, since the recommended dose of
chloromycetin is one (1) gram every six (6)
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine
Pediatric Society, Committee on Therapeutics and
Toxicology, 1996). The intravenous route is likewise
correct. (Mansser, ONick, Pharmacology and
Therapeutics) Even if the test was not administered by
the physician-on-duty, the evidence introduced that it
was Dra. Blanes who interpreted the results remain
uncontroverted. (Decision, pp. 16-17) Once more, this
Court rejects any claim of professional negligence in this
regard.
....
As regards anaphylactic shock, the usual way of
guarding against it prior to the administration of a drug,
is the skin test of which, however, it has been observed:
"Skin testing with haptenic drugs is generally not
reliable. Certain drugs cause nonspecific histamine
release, producing a weal-and-flare reaction in normal
individuals. Immunologic activation of mast cells
requires a polyvalent allergen, so a negative skin test to
a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug." (Terr, "Anaphylaxis and
Urticaria" in Basic and Clinical Immunology, p. 349)
What all this means legally is that even if the deceased
suffered from an anaphylactic shock, this, of itself, would
not yet establish the negligence of the appellee-
physicians for all that the law requires of them is that
they perform the standard tests and perform standard
procedures. The law cannot require them to predict
every possible reaction to all drugs administered. The
onus probandi was on the appellants to establish, before
the trial court, that the appellee-physicians ignored
standard medical procedure, prescribed and
administered medication with recklessness and
exhibited an absence of the competence and skills
expected of general practitioners similarly situated. 39
Fourth. Petitioners correctly observe that the medical
profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they
assert that since the law imposes upon common carriers
the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers,40physicians and surgeons should have the
same duty toward their patients.41 They also contend
that the Court of Appeals erred when it allegedly
assumed that the level of medical practice is lower in
Iligan City, thereby reducing the standard of care and
degree of diligence required from physicians and
surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to
common carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported
by them, according to the circumstances of each
case. . . .
The practice of medicine is a profession engaged in only
by qualified individuals. It is a right earned through
1wphi1
years of education, training, and by first obtaining a
license from the state through professional board
examinations. Such license may, at any time and for
cause, be revoked by the government. In addition to
state regulation, the conduct of doctors is also strictly
governed by the Hippocratic Oath, an ancient code of
discipline and ethical rules which doctors have imposed
upon themselves in recognition and acceptance of their
great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the
observance of "extraordinary" diligence. As it is now, the
practice of medicine is already conditioned upon the
highest degree of diligence. And, as we have already
noted, the standard contemplated for doctors is simply
the reasonable average merit among ordinarily good
physicians. That is reasonable diligence for doctors or,
as the Court of Appeals called it, the reasonable "skill
and competence . . . that a physician in the same or
similar locality . . . should apply."
WHEREFORE, the instant petition is DENIED and the
decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
27 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
NATIVIDAD (Substituted by her children
MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE
AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most
important and delicate endeavors, must assume the
grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust,
however technical, complex and esoteric its character
may be, must meet standards of responsibility
commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those
placed in the hospitals keeping.1
Assailed in these three consolidated petitions for review
on certiorari is the Court of Appeals Decision 2 dated
September 6, 1996 in CA-G.R. CV No. 42062 and CA-
G.R. SP No. 32198 affirming with modification the
Decision3dated March 17, 1993 of the Regional Trial
Court (RTC), Branch 96, Quezon City in Civil Case No.
Q-43322 and nullifying its Order dated September 21,
1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the
Medical City General Hospital (Medical City Hospital)
because of difficulty of bowel movement and bloody
anal discharge. After a series of medical examinations,
Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from "cancer of the
sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical
staff4 of the Medical City Hospital, performed an anterior
resection surgery on Natividad. He found that the
malignancy in her sigmoid area had spread on her left
ovary, necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr.
Ampil took over, completed the operation and closed the
incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no
avail continue for closure."
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the
doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that the
pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist
to examine the cancerous nodes which were not
removed during the operation.
On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
treatment. After four months of consultations and
laboratory examinations, Natividad was told she was
free of cancer. Hence, she was advised to return to the
Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed about
it, Dr. Ampil proceeded to her house where he managed
to extract by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the pains
would soon vanish.
Dr. Ampils assurance did not come true. Instead, the
pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined
there, Dr. Ramon Gutierrez detected the presence of
another foreign object in her vagina -- a foul-smelling
gauze measuring 1.5 inches in width which badly
infected her vaginal vault. A recto-vaginal fistula had
formed in her reproductive organs which forced stool to
excrete through the vagina. Another surgical operation
was needed to remedy the damage. Thus, in October
1984, Natividad underwent another surgery.
28 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
On November 12, 1984, Natividad and her husband filed
with the RTC, Branch 96, Quezon City a complaint for
damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They
alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividads body and
malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed
as Administrative Case No. 1690. The PRC Board of
Medicine heard the case only with respect to Dr.
Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the
above cases, Natividad died and was duly substituted
by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in
favor of the Aganas, finding PSI, Dr. Ampil and Dr.
Fuentes liable for negligence and malpractice, the
decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the
plaintiffs ordering the defendants PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
FUENTES to pay to the plaintiffs, jointly and severally,
except in respect of the award for exemplary damages
and the interest thereon which are the liabilities of
defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency
of the total of US$19,900.00 at the rate
of P21.60-US$1.00, as reimbursement
of actual expenses incurred in the United
States of America;
b. The sum of P4,800.00 as travel taxes
of plaintiffs and their physician daughter;
c. The total sum of P45,802.50,
representing the cost of hospitalization
at Polymedic Hospital, medical fees, and
cost of the saline solution;
2. As moral damages, the sum of
P2,000,000.00;
3. As exemplary damages, the sum of
P300,000.00;
 4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2;
and 3 hereinabove, from date of filing of the
complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R.
CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision,
which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of
Dr. Ampil and sold them for P451,275.00 and delivered
the amount to the Aganas.
Following their receipt of the money, the Aganas entered
into an agreement with PSI and Dr. Fuentes to
indefinitely suspend any further execution of the RTC
Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution against
the properties of PSI and Dr. Fuentes. On September
21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition,
with prayer for preliminary injunction, docketed as CA-
G.R. SP No. 32198. During its pendency, the Court of
Appeals issued a Resolution5 dated October 29, 1993
granting Dr. Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of
Medicine rendered its Decision6 in Administrative Case
No. 1690 dismissing the case against Dr. Fuentes. The
Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze
inside Natividads body; and that he concealed such fact
from Natividad.
On September 6, 1996, the Court of Appeals rendered
its Decision jointly disposing of CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198, thus:
29 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that
defendant-appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to
the plaintiffs-appellees, the decision appealed from is
hereby AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari
and prohibition filed by herein defendant-appellant Dr.
Juan Fuentes in CA-G.R. SP No. 32198 is hereby
GRANTED and the challenged order of the respondent
judge dated September 21, 1993, as well as the alias
writ of execution issued pursuant thereto are hereby
NULLIFIED and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is
hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil
and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it
was denied in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the
Court of Appeals erred in holding that: (1) it is estopped
from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and (3)
it is not entitled to its counterclaim against the Aganas.
PSI contends that Dr. Ampil is not its employee, but a
mere consultant or independent contractor. As such, he
alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court
of Appeals erred in finding that Dr. Fuentes is not guilty
of negligence or medical malpractice, invoking the
doctrine of res ipsa loquitur. They contend that the
pieces of gauze are prima facie proofs that the operating
surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the
Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left
the two pieces of gauze in Natividads vagina. He
pointed to other probable causes, such as: (1) it was Dr.
Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses failure to
properly count the gauzes used during surgery; and (3)
the medical intervention of the American doctors who
examined Natividad in the United States of America.
For our resolution are these three vital issues: first,
whether the Court of Appeals erred in holding Dr. Ampil
liable for negligence and malpractice; second, whether
the Court of Appeals erred in absolving Dr. Fuentes of
any liability; and third, whether PSI may be held
solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the
Courts attention to other possible causes of Natividads
detriment. He argues that the Court should not discount
either of the following possibilities: first, Dr. Fuentes left
the gauzes in Natividads body after performing
hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors
were the ones who placed the gauzes in Natividads
body.
Dr. Ampils arguments are purely conjectural and without
basis. Records show that he did not present any
evidence to prove that the American doctors were the
ones who put or left the gauzes in Natividads body.
Neither did he submit evidence to rebut the correctness
of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major circumstances,
taken together, as specified by the Court of Appeals,
directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used
gauzes as sponges to control the bleeding of the
patient during the surgical operation.
Second, immediately after the operation, the
nurses who assisted in the surgery noted in their
report that the sponge count (was) lacking 2;
that such anomaly was announced to surgeon
and that a search was done but to no avail
prompting Dr. Ampil to continue for closure x x
x.
Third, after the operation, two (2) gauzes were
extracted from the same spot of the body of Mrs.
Agana where the surgery was performed.
An operation requiring the placing of sponges in the
incision is not complete until the sponges are properly
removed, and it is settled that the leaving of sponges or
other foreign substances in the wound after the incision
30 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
has been closed is at least prima facie negligence by
the operating surgeon.8 To put it simply, such act is
considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of
authorities to the effect that such act is negligence per
se.9
Of course, the Court is not blind to the reality that there
are times when danger to a patients life precludes a
surgeon from further searching missing sponges or
foreign objects left in the body. But this does not leave
him free from any obligation. Even if it has been shown
that a surgeon was required by the urgent necessities of
the case to leave a sponge in his patients abdomen,
because of the dangers attendant upon delay, still, it is
his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he
had been compelled to do. This is in order that she
might seek relief from the effects of the foreign object
left in her body as her condition might permit. The ruling
in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patients body
that should be removed as part of the operation, he
thereby leaves his operation uncompleted and creates a
new condition which imposes upon him the legal duty of
calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize
and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the
missing two pieces of gauze. Worse, he even misled her
that the pain she was experiencing was the ordinary
consequence of her operation. Had he been more
candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from
her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove that a
health care provider either failed to do something which
a reasonably prudent health care provider would have
done, or that he did something that a reasonably
prudent provider would not have done; and that failure
or action caused injury to the patient. 11 Simply put, the
elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty
to remove all foreign objects, such as gauzes, from
Natividads body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about
it. Dr. Ampil breached both duties. Such breach caused
injury to Natividad, necessitating her further examination
by American doctors and another surgery. That Dr.
Ampils negligence is the proximate cause12 of
Natividads injury could be traced from his act of closing
the incision despite the information given by the
attending nurses that two pieces of gauze were still
missing. That they were later on extracted from
Natividads vagina established the causal link between
Dr. Ampils negligence and the injury. And what further
aggravated such injury was his deliberate concealment
of the missing gauzes from the knowledge of Natividad
and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of
the case against Dr. Fuentes on the ground that it is
contrary to the doctrine of res ipsa loquitur. According to
them, the fact that the two pieces of gauze were left
inside Natividads body is a prima facie evidence of Dr.
Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for
itself." It is the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case,
and present a question of fact for defendant to meet with
an explanation.13Stated differently, where the thing which
caused the injury, without the fault of the injured, is
under the exclusive control of the defendant and the
injury is such that it should not have occurred if he,
having such control used proper care, it affords
reasonable evidence, in the absence of explanation that
the injury arose from the defendants want of care, and
the burden of proof is shifted to him to establish that he
has observed due care and diligence.14
From the foregoing statements of the rule, the requisites
for the applicability of the doctrine of res ipsa loquitur
are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and
management of the defendant; (3) the occurrence was
such that in the ordinary course of things, would not
have happened if those who had control or management
used proper care; and (4) the absence of explanation by
the defendant. Of the foregoing requisites, the most
instrumental is the "control and management of the
thing which caused the injury."15
We find the element of "control and management of the
thing which caused the injury" to be wanting. Hence, the
doctrine of res ipsa loquitur will not lie.
31 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He requested
the assistance of Dr. Fuentes only to perform
hysterectomy when he (Dr. Ampil) found that the
malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter
examined it and finding everything to be in order,
allowed Dr. Fuentes to leave the operating room. Dr.
Ampil then resumed operating on Natividad. He was
about to finish the procedure when the attending nurses
informed him that two pieces of gauze were missing. A
"diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes
was no longer in the operating room and had, in fact, left
the hospital.
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation.
Their duty is to obey his orders.16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the
"Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr.
Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting
Dr. Fuentes permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that
two pieces of gauze remained unaccounted for, that
caused injury to Natividads body. Clearly, the control
and management of the thing which caused the injury
was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of liability,
being a mere evidentiary rule.17 In other words, mere
invocation and application of the doctrine does not
dispense with the requirement of proof of negligence.
Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories
concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were
generally charitable institutions, providing medical
services to the lowest classes of society, without regard
for a patients ability to pay.18 Those who could afford
medical treatment were usually treated at home by their
doctors.19 However, the days of house calls and
philanthropic health care are over. The modern health
care industry continues to distance itself from its
charitable past and has experienced a significant
conversion from a not-for-profit health care to for-profit
hospital businesses. Consequently, significant changes
in health law have accompanied the business-related
changes in the hospital industry. One important legal
change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital
vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code, which
reads:
Art. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions,
but also for those of persons for whom one is
responsible.
x x x x
x x
The owners and managers of an establishment or
enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within the
scope of their assigned tasks even though the former
are not engaged in any business or industry.
x x x x workers. They charge patients for medical care and
x x
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.
A prominent civilist commented that professionals
engaged by an employer, such as physicians, dentists,
32 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
and pharmacists, are not "employees" under this article
because the manner in which they perform their work is
not within the control of the latter (employer). In other
words, professionals are considered personally liable for
the fault or negligence they commit in the discharge of
their duties, and their employer cannot be held liable for
such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or
operation of patients."21
The foregoing view is grounded on the traditional notion
that the professional status and the very nature of the
physicians calling preclude him from being classed as
an agent or employee of a hospital, whenever he acts in
a professional capacity.22 It has been said that medical
practice strictly involves highly developed and
specialized knowledge,23 such that physicians are
generally free to exercise their own skill and judgment in
rendering medical services sans interference. 24 Hence,
when a doctor practices medicine in a hospital setting,
the hospital and its employees are deemed to subserve
him in his ministrations to the patient and his actions are
of his own responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this view.
The "Schloendorff doctrine" regards a physician, even if
employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control
exerted over his work. Under this doctrine, hospitals are
exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians
in the discharge of their profession.
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in medical
care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and
regulating medical care to patients. No longer were a
hospitals functions limited to furnishing room, food,
facilities for treatment and operation, and attendants for
its patients. Thus, in Bing v. Thunig, 27 the New York
Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far
more than provide facilities for treatment. Rather, they
regularly employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative and manual
treatment, even collecting for such services through
legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the
universal rule of respondeat superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential
in view of our categorical pronouncement in Ramos v.
Court of Appeals28 that for purposes of apportioning
responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals
and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is more apparent than
real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who
apply for consultant slots, visiting or attending, are
required to submit proof of completion of residency, their
educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or
reject the application. x x x.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege
of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is
generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting consultant
staff. While consultants are not, technically employees,
x x x, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception
of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
visiting physicians. "
33 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
But the Ramos pronouncement is not our only basis in
sustaining PSIs liability. Its liability is also anchored
upon the agency principle of apparent authority or
agency by estoppel and the doctrine of corporate
negligence which have gained acceptance in the
determination of a hospitals liability for negligent acts of
health professionals. The present case serves as a
perfect platform to test the applicability of these
doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as
the "holding
out" theory, or doctrine of ostensible agency or agency
by estoppel,29 has its origin from the law of agency. It
imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the
actions of a principal or an employer in somehow
misleading the public into believing that the relationship
or the authority exists.30 The concept is essentially one
of estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent
to assume, or which he holds the agent out to the public
as possessing. The question in every case is whether
the principal has by his voluntary act placed the agent in
such a situation that a person of ordinary prudence,
conversant with business usages and the nature of the
particular business, is justified in presuming that such
agent has authority to perform the particular act in
question.31
The applicability of apparent authority in the field of
hospital liability was upheld long time ago in Irving v.
Doctor Hospital of Lake Worth, Inc. 32 There, it was
explicitly stated that "there does not appear to be any
rational basis for excluding the concept of apparent
authority from the field of hospital liability." Thus, in
cases where it can be shown that a hospital, by its
actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted
treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital, then
the hospital will be liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by
implication or estoppel. Article 1869 of the Civil Code
reads:
ART. 1869. Agency may be express, or implied from the
acts of the principal, from his silence or lack of action, or
his failure to repudiate the agency, knowing that another
person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the
Medical City Hospital the names and specializations of
the physicians associated or accredited by it, including
those of Dr. Ampil and Dr. Fuentes. We concur with the
Court of Appeals conclusion that it "is now estopped
from passing all the blame to the physicians whose
names it proudly paraded in the public directory leading
the public to believe that it vouched for their skill and
competence." Indeed, PSIs act is tantamount to holding
out to the public that Medical City Hospital, through its
accredited physicians, offers quality health care
services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital
created the impression that they were its agents,
authorized to perform medical or surgical services for its
patients. As expected, these patients, Natividad being
one of them, accepted the services on the reasonable
belief that such were being rendered by the hospital or
its employees, agents, or servants. The trial court
correctly pointed out:
x x x regardless of the education and status in life of the
patient, he ought not be burdened with the defense of
absence of employer-employee relationship between
the hospital and the independent physician whose name
and competence are certainly certified to the general
public by the hospitals act of listing him and his
specialty in its lobby directory, as in the case herein. The
high costs of todays medical and health care should at
least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery
within its facility by its accredited physician or surgeon,
regardless of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to
discern. Corporate entities, like PSI, are capable of
acting only through other individuals, such as
physicians. If these accredited physicians do their job
well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially.
Logically, where negligence mars the quality of its
services, the hospital should not be allowed to escape
liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence
or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-
43332 for negligence and malpractice is that PSI as
owner, operator and manager of Medical City Hospital,
"did not perform the necessary supervision nor exercise
diligent efforts in the supervision of Drs. Ampil and
Fuentes and its nursing staff, resident doctors, and
medical interns who assisted Drs. Ampil and Fuentes in
the performance of their duties as surgeons." 34 Premised
on the doctrine of corporate negligence, the trial court
held that PSI is directly liable for such breach of duty.
We agree with the trial court.
34 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Recent years have seen the doctrine of corporate
negligence as the judicial answer to the problem of
allocating hospitals liability for the negligent acts of
health practitioners, absent facts to support the
application of respondeat superior or apparent authority.
Its formulation proceeds from the judiciarys
acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The
modern hospitals have changed structure. Hospitals
now tend to organize a highly professional medical staff
whose competence and performance need to be
monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of
Illinois held that "the jury could have found a hospital
negligent, inter alia, in failing to have a sufficient number
of trained nurses attending the patient; failing to require
a consultation with or examination by members of the
hospital staff; and failing to review the treatment
rendered to the patient." On the basis of Darling, other
jurisdictions held that a hospitals corporate negligence
extends to permitting a physician known to be
incompetent to practice at the hospital. 37 With the
passage of time, more duties were expected from
hospitals, among them: (1) the use of reasonable care in
the maintenance of safe and adequate facilities and
equipment; (2) the selection and retention of competent
physicians; (3) the overseeing or supervision of all
persons who practice medicine within its walls; and (4)
the formulation, adoption and enforcement of adequate
rules and policies that ensure quality care for its
patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the
doctrine of corporate responsibility, has the duty to see
that it meets the standards of responsibilities for the
care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in
Bost v. Riley,40 the court concluded that a patient who
enters a hospital does so with the reasonable
expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to
monitor and oversee the treatment prescribed and
administered by the physicians practicing in its
premises.
In the present case, it was duly established that PSI
operates the Medical City Hospital for the purpose and
under the concept of providing comprehensive medical
services to the public. Accordingly, it has the duty to
exercise reasonable care to protect from harm all
patients admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of
the count nurse. Such failure established PSIs part in
the dark conspiracy of silence and concealment about
the gauzes. Ethical considerations, if not also legal,
dictated the holding of an immediate inquiry into the
events, if not for the benefit of the patient to whom the
duty is primarily owed, then in the interest of arriving at
the truth. The Court cannot accept that the medical and
the healing professions, through their members like
defendant surgeons, and their institutions like PSIs
hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report
of such seriousness as the one in Natividads case.
the facilities was employing a method of treatment or
care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of
Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care
furnished to patients within its walls and it must meet the
standards of responsibility commensurate with this
undertaking. Beeck v. Tucson General Hospital, 18 Ariz.
App. 165, 500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals that a
hospital has the duty of supervising the competence of
the doctors on its staff. x x x.

It is worthy to note that Dr. Ampil and Dr. Fuentes x x x x x x

operated on Natividad with the assistance of the Medical
City Hospitals staff, composed of resident doctors, In the amended complaint, the plaintiffs did plead that
nurses, and interns. As such, it is reasonable to the operation was performed at the hospital with its
conclude that PSI, as the operator of the hospital, has knowledge, aid, and assistance, and that the negligence
actual or constructive knowledge of the procedures of the defendants was the proximate cause of the
carried out, particularly the report of the attending patients injuries. We find that such general allegations
nurses that the two pieces of gauze were missing. In of negligence, along with the evidence produced at the
Fridena v. Evans,41 it was held that a corporation is trial of this case, are sufficient to support the hospitals
bound by the knowledge acquired by or notice given to liability based on the theory of negligent supervision."
its agents or officers within the scope of their authority
and in reference to a matter to which their authority
Anent the corollary issue of whether PSI is solidarily
extends. This means that the knowledge of any of the
liable with Dr. Ampil for damages, let it be emphasized
staff of Medical City Hospital constitutes knowledge of
that PSI, apart from a general denial of its responsibility,
PSI. Now, the failure of PSI, despite the attending
failed to adduce evidence showing that it exercised the
nurses report, to investigate and inform Natividad
diligence of a good father of a family in the accreditation
regarding the missing gauzes amounts to callous
and supervision of the latter. In neglecting to offer such
negligence. Not only did PSI breach its duties to
proof, PSI failed to discharge its burden under the last
oversee or supervise all persons who practice medicine
paragraph of Article 2180 cited earlier, and, therefore,
within its walls, it also failed to take an active step in
must be adjudged solidarily liable with Dr. Ampil.
fixing the negligence committed. This renders PSI, not
Moreover, as we have discussed, PSI is also directly
only vicariously liable for the negligence of Dr. Ampil
liable to the Aganas.
under Article 2180 of the Civil Code, but also directly
liable for its own negligence under Article 2176. In
Fridena, the Supreme Court of Arizona held: One final word. Once a physician undertakes the
treatment and care of a patient, the law imposes on him
certain obligations. In order to escape liability, he must
x x x In recent years, however, the duty of care owed to
possess that reasonable degree of learning, skill and
the patient by the hospital has expanded. The emerging
experience required by his profession. At the same time,
trend is to hold the hospital responsible where the
he must apply reasonable care and diligence in the
hospital has failed to monitor and review medical
exercise of his skill and the application of his knowledge,
services being provided within its walls. See Kahn
and exert his best judgment.
Hospital Malpractice Prevention, 27 De Paul . Rev. 23
(1977).
WHEREFORE, we DENY all the petitions and AFFIRM
the challenged Decision of the Court of Appeals in CA-
Among the cases indicative of the emerging trend is
G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335
(1972). In Purcell, the hospital argued that it could not
be held liable for the malpractice of a medical Costs against petitioners PSI and Dr. Miguel Ampil.
practitioner because he was an independent contractor
within the hospital. The Court of Appeals pointed out SO ORDERED.
that the hospital had created a professional staff whose
competence and performance was to be monitored and
reviewed by the governing body of the hospital, and the
court held that a hospital would be negligent where it
had knowledge or reason to believe that a doctor using

35 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E