LegMed Cases

G.R. No.
178763
April 21, 2009
Republic of the Philippines
SUPREME COURT
Manila THIRD DIVISION
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS,
Petitioners,vs.DR. PROSPERO MA. C. TUAO, Respondent.
DECISION
CHICO-NAZARIO, J.:In this petition for review on certiorari1 under Rule 45 of the
Revised Rules of Court, petitioners Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27
September 2006
Decision2 and 3 July 2007 Resolution,3 both of the Court of Appeals in CA-G.R. CV No.
68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas v. Prospero Ma. C. Tuao."
In the questioned decision and resolution, the Court of Appeals affirmed the 14 July
2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the
complaint filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao," docketed as
Civil Case No. 92-2482.
From the record of the case, the established factual antecedents of the present petition
are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore
eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made
use of his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare),
for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter
to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St.
Lukes Medical Center, for an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since
the problem with his right eye began; and that he was already taking Maxitrol to
address the problem in his eye. According to Dr. Tuao, he performed "ocular routine
examination" on Peters eyes, wherein: (1) a gross examination of Peters eyes and their
surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes were
palpated to check the intraocular pressure of each; (4) the motility of Peters eyes was
observed; and (5) the ophthalmoscopy4 on Peters eyes was used. On that particular
consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis5 or "sore
eyes." Dr. Tuao then prescribed Spersacet-C6 eye drops for Peter and told the latter to
return for follow-up after one week.
As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination,
Dr. Tuao told Peter that the "sore eyes" in the latters right eye had already cleared up
and he could discontinue the Spersacet-C. However, the same eye developed Epidemic
Kerato Conjunctivitis (EKC),7 a viral infection. To address the new problem with Peters
right eye, Dr. Tuao prescribed to the former a steroid-based eye drop called Maxitrol, 8
a dosage of six (6) drops per day.9 To recall, Peter had already been using Maxitrol prior
to his consult with Dr. Tuao.
On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After
examining both of Peters eyes, Dr. Tuao instructed the former to taper down 10 the
dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao
specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn
gradually; otherwise, the EKC might recur.11
Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao
for another checkup on 6 October 1988. Dr. Tuao examined Peters eyes and found
that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter to
resume the use of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock.
Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide12 another
steroid-based medication, but with a lower concentration, as substitute for the
unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a
day for five (5) days; and then just once a day.13
Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging
severe eye pain, feeling as if his eyes were about to "pop-out," a headache and blurred
vision. Dr. Tuao examined Peters eyes and discovered that the EKC was again present
in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of
Blephamide.
Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos
examination showed that only the periphery of Peters right eye was positive for EKC;
hence, Dr. Tuao prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the
accompanying literature of Maxitrol and found therein the following warning against
the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual
acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use
may suppress the host response and thus increase the hazard of secondary ocular
infractions, in those diseases causing thinning of the cornea or sclera, perforations have
been known to occur with the use of topical steroids. In acute purulent conditions of the
eye, steroids may mask infection or enhance existing infection. If these products are
used for 10 days or longer, intraocular pressure should be routinely monitored even
though it may be difficult in children and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex requires great

caution. xxxxADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination drugs which

can be attributed to the steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available since no denominator of treated
patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients are
allergic sensitizations. The reactions due to the steroid component in decreasing order
to frequency are elevation of intra-ocular pressure (IOP) with possible development of
glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation;
and delayed wound healing.
Secondary infection: The development of secondary has occurred after use of

combination containing steroids and antimicrobials. Fungal infections of the correa are
particularly prone to develop coincidentally with long-term applications of steroid. The
possibility of fungal invasion must be considered in any persistent corneal ulceration
where steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host responses also

occurs.
On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of "feeling

worse."14 It appeared that the EKC had spread to the whole of Peters right eye yet
again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners
averred that Peter already made mention to Dr. Tuao during said visit of the
above-quoted warning against the prolonged use of steroids, but Dr. Tuao supposedly
brushed aside Peters concern as mere paranoia, even assuring him that the former was
taking care of him (Peter).
Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter
continued to suffer pain in his right eye, which seemed to "progress," with the ache
intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye.
Fatima observed that Peters right eye appeared to be bloody and swollen.15 Thus,
spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr. Tuao
that he had been suffering from constant headache in the afternoon and blurring of
vision.
Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a
tonometer16 to verify the exact intraocular pressure17 (IOP) of Peters eyes, Dr. Tuao
discovered that the tension in Peters right eye was 39.0 Hg, while that of his left was
17.0 Hg.18 Since the tension in Peters right eye was way over the normal IOP, which
merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuao ordered20 him to immediately
discontinue the use of Maxitrol and prescribed to the latter Diamox 21 and
Normoglaucon, instead.22 Dr. Tuao also required Peter to go for daily check-up in
order for the former to closely monitor the pressure of the latters eyes.
On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal
level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue using Diamox and
Normoglaucon. But upon Peters complaint of "stomach pains and tingling sensation in
his fingers,"23 Dr. Tuao discontinued Peters use of Diamox.24Peter went to see
another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December
1988, who allegedly conducted a complete ophthalmological examination of Peters
eyes. Dr. Batungbacals diagnosis was Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peters right eye.
When Peter returned to Dr. Tuao on 23 December 1988,28 the tonometer measured
the IOP of Peters right eye to be 41.0 Hg,29 again, way above normal. Dr. Tuao
addressed the problem by advising Peter to resume taking Diamox along with
Normoglaucon.During the Christmas holidays, Peter supposedly stayed in bed most of
the time and was not able to celebrate the season with his family because of the
debilitating effects of Diamox.30
On 28 December 1988, during one of Peters regular followups with Dr. Tuao, the
doctor conducted another ocular routine examination of Peters eyes. Dr. Tuao noted
the recurrence of EKC in Peters right eye. Considering, however, that the IOP of Peters
right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the
treatment of Peters EKC visvis the presence of glaucoma in the same eye. Dr. Tuao,
thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist
specializing in the treatment of glaucoma.31 Dr. Tuaos letter of referral to Dr. Agulto
stated that:
Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw
him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC
for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1
month of steroid treatment, he noted blurring of vision & pain on the R. however, I
continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I
took the IOP and it was definitely elevated. I stopped the steroids immediately and has
(sic) been treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at the moment, the
EKC has recurred and Im in a fix whether to resume the steroid or not considering that
the IOP is still uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests
were conducted thereat to evaluate the extent of Peters condition. Dr. Agulto wrote Dr.
Tuao a letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and
20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD &
Diamox 12 tab every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was
circumferential peripheral iris atrophy, OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest
that we do a baseline visual fields and push medication to lowest possible levels. If I may
suggest further, I think we should prescribe Timolol37 BID38 OD in lieu of
Normoglaucon. If the IOP is still inadequate, we may try Depifrin39 BID OD (despite low
PAS). Im in favor of retaining Diamox or similar CAI.40
If fields show further loss in say 3 mos. then we should consider trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter.41
Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned
letter. Though Peters right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg,
respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so
Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in the
meantime.
Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at
21.0 Hg,42 as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field study43 of Peters eyes, which
revealed that the latter had
tubular vision44 in his right eye, while that of his left eye remained normal. Dr. Tuao
directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the
latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the
meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again,
Dr. Tuao advised Peter to come for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January
1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second medical
opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an
ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino),
another ophthalmologist who specializes in the treatment of glaucoma and who could
undertake the long term care of Peters eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters

eyes, the said doctor informed Peter that his eyes were relatively normal, though the
right one sometimes manifested maximum borderline tension. Dr. Aquino also
confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners
claimed that Dr. Aquino essentially told Peter that the latters condition would require
lifetime medication and followups.
In May 1990 and June 1991, Peter underwent two (2) procedures of laser
trabeculoplasty to attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuao for the same,
Peter, joined by: (1) Fatima, his
spouse46; (2) Abbeygail, his natural child47; and (3) Gillian, his legitimate child48 with
Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr.
Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case
No. 92-2482.
In their Complaint, petitioners specifically averred that as the "direct consequence of
[Peters] prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which
caused the elevation of his intra-ocular pressure. The elevation of the intra-ocular
pressure of [Peters right eye] caused the impairment of his vision which impairment is
not curable and may even lead to total blindness."49
Petitioners additionally alleged that the visual impairment of Peters right eye caused
him and his family so much grief. Because of his present condition, Peter now needed
close medical supervision forever; he had already undergone two (2) laser surgeries,
with the possibility that more surgeries were still needed in the future; his career
in sports casting had suffered and was continuing to suffer;50 his anticipated income
had been greatly reduced as a result of his "limited" capacity; he continually suffered
from "headaches, nausea, dizziness, heart palpitations,
rashes, chronic rhinitis, sinusitis,"51 etc.; Peters relationships with his spouse and
children continued to be strained, as his condition made him highly irritable and
sensitive; his mobility and social life had suffered; his spouse, Fatima,
became the breadwinner in the family;52 and his two children had been deprived of the
opportunity for a better life and educational prospects. Collectively, petitioners lived in
constant fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for their supposed pain and suffering,
which were ultimately brought about by Dr. Tuaos grossly negligent conduct in
prescribing to Peter the medicine Maxitrol for a period of three (3) months, without
monitoring Peters IOP, as required in cases of prolonged use of said medicine, and
notwithstanding Peters constant complaint of intense eye pain while using the same.
Petitioners particularly prayed that Dr. Tuao be adjudged liable for the following
amounts:
1. The amount of 2,000,000.00 to plaintiff Peter Lucas as and by way of compensation

for his impaired vision.
2. The amount of 300,000.00 to spouses Lucas as and by way of actual damages plus
such additional amounts that may be proven during trial.
3. The amount of 1,000,000.00 as and by way of moral damages.4. The amount of

500,000.00 as and by way of exemplary damages.
5. The amount of 200,000.00 as and by way of attorneys fees plus costs of suit. 54In
rebutting petitioners complaint, Dr. Tuao asserted that the "treatment made by [him]
more than three years ago
has no causal connection to [Peters] present glaucoma or condition."55 Dr. Tuao
explained that "[d]rug-induced glaucoma is temporary and curable, steroids have the
side effect of increasing intraocular pressure. Steroids are prescribed to treat Epidemic
Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of
conjunctivitis or sore eyes."56 Dr. Tuao also clarified that (1) "[c]ontrary to
[petitioners] fallacious claim, [he] did NOT continually prescribe the drug Maxitrol
which contained steroids for any prolonged period"57 and "[t]he truth
was the Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed
only when EKC
reappeared"58; (2) the entire time he was treating Peter, he "continually monitored the
intraocular pressure of [Peters eyes] by palpating the eyes and by putting pressure on
the eyeballs," and no hardening of the same could be detected, which meant that there
was no increase in the tension or IOP, a possible side reaction to the use of steroid
medications; and (3) it was only on 13 December 1988 that Peter complained of a
headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it
was determined for the first time that the IOP of the right eye had an elevated value.
But granting for the sake of argument that the "steroid treatment of [Peters] EKC
caused the steroid induced glaucoma,"59 Dr. Tuao argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake
of steroids is discontinued, the intraocular pressure automatically is reduced. Thus,
[Peters] glaucoma can only be due to other causes not attributable to steroids, certainly
not attributable to [his] treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current examination of [Peter], the
latters glaucoma can only be long standing glaucoma, open angle glaucoma, because of
the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as
[Peter] remained asymptomatic prior to steroid application. Hence, the steroid
treatment was in fact beneficial to [Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for
insufficiency of evidence."61 The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for insufficiency of

evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith or
malice on the part of plaintiff in filing the suit.62
The RTC opined that petitioners failed to prove by preponderance of evidence that Dr.
Tuao was negligent in his treatment of Peters condition. In particular, the record of
the case was bereft of any evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned
that the "recognized standards of the medical community has not been established in
this case, much less has
causation been established to render [Tuao] liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a medical practitioner against which
Peter Pauls treatment by defendant can be compared with. They did not present any
medical expert or even a medical doctor to convince and expertly explain to the court
the established norm or duty required of a physician treating a patient, or whether the
non taking (sic) by Dr. Tuao of Peter Pauls pressure a deviation from the norm or his
non-discovery of the glaucoma in the course of treatment constitutes negligence. It is
important and indispensable to establish such a standard because once it is established,
a medical practitioner who departed thereof breaches his duty and commits negligence
rendering him liable. Without such testimony or enlightenment from an expert, the
court is at a loss as to what is then the established norm of duty of a physician against
which defendants conduct can be compared with to
determine negligence.64The RTC added that in the absence of "any medical evidence
to the contrary, this court cannot accept [petitioners]
claim that the use of steroid is the proximate cause of the damage sustained by [Peters]
eye."65
Correspondingly, the RTC accepted Dr. Tuaos medical opinion that "Peter Paul must
have been suffering from normal tension glaucoma, meaning, optic nerve damage was
happening but no elevation of the eye pressure is manifested, that the steroid
treatment actually unmasked the condition that resulted in the earlier treatment of the
glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiffs
Exhibit S even tends to support them."
Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals.
Their appeal was docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No.

68666 denying petitioners recourse and affirming the appealed RTC Decision. The fallo
of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED.66
The Court of Appeals faulted petitioners because they
[D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol
and Blephamide for the treatment of EKC on Peters right eye was not proper and that
his palpation of Peters right eye was not enough to detect adverse reaction to steroid.
Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for
the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is
only a viral infection which will cure by itself. However, Dr. Agulto was not presented by
[petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the
latters testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness
can testify only to those facts which he knows of his own personal knowledge, x x x.
Familiar and fundamental is the rule that hearsay testimony is inadmissible as

evidence.67Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical
judgment, specifically the latters explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not the latter would
react adversely to the use of steroids, that it was only on December 13, 1989, when
Peter complained for the first time of headache and blurred vision that he observed that
the pressure of the eye of Peter was elevated, and it was only then that he suspected
that Peter belongs to the 5% of the population who reacts adversely to

steroids.68Petitioners Motion for Reconsideration was denied by the Court of Appeals
in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court
premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE

DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF
EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE

PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND
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THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR

CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE
RESPONDENT LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY
DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly committed by the Court of

Appeals in its Decision and Resolution would reveal that petitioners are fundamentally
assailing the finding of the Court of Appeals that the evidence on record is insufficient to
establish petitioners entitlement to any kind of damage. Therefore, it could be said that
the sole issue for our resolution in the Petition at bar is whether the Court of Appeals
committed reversible error in affirming the judgment of the RTC that petitioners failed
to prove, by preponderance of evidence, their claim for damages against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the
factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners
would have us sift through the evidence on record and pass upon whether there is
sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye
condition. This question clearly involves a factual inquiry, the determination of which is
not within the ambit of this Courts
power of review under Rule 45 of the 1997 Rules Civil Procedure, as

amended.70Elementary is the principle that this Court is not a trier of facts; only errors
of law are generally reviewed in petitions
for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact
are not entertained.71
Nonetheless, the general rule that only questions of law may be raised on appeal in a
petition for review under Rule 45 of the Rules of Court admits of certain exceptions,
including the circumstance when the finding of fact of the Court of Appeals is premised
on the supposed absence of evidence, but is contradicted by the evidence on record.
Although petitioners may not explicitly invoke said exception, it may be gleaned from
their allegations and arguments in the instant Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals,
[they] were more than able to establish that: Dr. Tuao ignored the standard medical
procedure for ophthalmologists, administered medication
with recklessness, and exhibited an absence of competence and skills expected from
him."72 Petitioners reject the necessity of presenting expert and/or medical testimony
to establish (1) the standard of care respecting the treatment of the disorder affecting
Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment of Peter,
because, in their words
That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a
simple case of cause and effect. With mere documentary evidence and based on the
facts presented by the petitioners, respondent can readily be held liable for damages
even without any expert testimony. In any case, however, and contrary to the finding of
the trial court and the Court of Appeals, there was a medical expert presented by the
petitioner showing the recklessness committed by [Dr. Tuao] Dr. Tuao himself.
[Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient evidence to establish his gross
negligence that ultimately caused
the impairment of the vision of Peters right eye,73 i.e., that "[d]espite [Dr. Tuaos]
knowledge that 5% of the population reacts adversely to Maxitrol, [he] had no qualms
whatsoever in prescribing said steroid to Peter without
first determining whether or not the (sic) Peter belongs to the 5%."74We are not
convinced. The judgments of both the Court of Appeals and the RTC are in accord with
the evidence on
record, and we are accordingly bound by the findings of fact made therein.
Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos
negligence in his improper administration of the drug Maxitrol; "thus, [the latter] should
be liable for all the damages suffered and to be suffered
by [petitioners]."75 Clearly, the present controversy is a classic illustration of a medical

negligence case against a physician based on the latters professional negligence. In this
type of suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill,
care, and learning possessed by other persons in the same profession; and that as a
proximate result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence committed by members
of the medical profession, such claim for damages is almost always anchored on the
alleged violation of Article 2176 of the Civil Code, which states that:
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.
In medical negligence cases, also called medical malpractice suits, there exist a
physician-patient relationship between the doctor and the victim. But just like any other
proceeding for damages, four essential (4) elements i.e.,
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(1) duty; (2) breach; (3) injury; and (4) proximate causation,76 must be established by
the plaintiff/s. All the four (4) elements must co-exist in order to find the physician
negligent and, thus, liable for damages.
When a patient engages the services of a physician, a physician-patient relationship is

generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and
surgeons practicing in the same field; and that he will employ such training, care, and
skill in the
treatment of the patient.77 Thus, in treating his patient, a physician is under a duty to
[the former] to exercise that degree of care, skill and diligence which physicians in the
same general neighborhood and in the same general line
of practice ordinarily possess and exercise in like cases.78 Stated otherwise, the
physician has the duty to use at least the same level of care that any other reasonably
competent physician would use to treat the condition under similar circumstances.
This standard level of care, skill and diligence is a matter best addressed by expert
medical testimony, because the standard of care in a medical malpractice case is a
matter peculiarly within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the improper performance of such
duty, by the attending
physician when the patient is injured in body or in health [and this] constitutes the
actionable malpractice.80 Proof of such breach must likewise rest upon the testimony of
an expert witness that the treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which physicians in the same general
neighborhood and in the same general line of practice ordinarily possess and exercise in
like cases.
Even so, proof of breach of duty on the part of the attending physician is insufficient, for
there must be a causal connection between said breach and the resulting injury
sustained by the patient. Put in another way, in order that there may be a recovery for
an injury, it must be shown that the "injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the negligence and
the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes";81 that is, the
negligence must be the proximate cause of the injury. And the proximate cause of an
injury is that cause, which, in the natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result
would not have occurred.82
Just as with the elements of duty and breach of the same, in order to establish the
proximate cause [of the injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use expert testimony, because the
question of whether the alleged professional negligence caused [the patients] injury is
generally one for specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his field, the experts role is
to present to the [court] a realistic assessment of the likelihood that [the
physicians] alleged negligence caused [the patients] injury.83
From the foregoing, it is apparent that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in the
same general line of practice as defendant physician or surgeon. The deference of
courts to the expert opinion of qualified physicians [or surgeons] stems from the
formers realization that the latter possess unusual technical skills which laymen in most
instances are incapable of
intelligently evaluating;84 hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient relationship developed

between Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988,
seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao, an
ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC.
Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective
steroid combination in sterile form for topical application.85 It is the drug which
petitioners claim to have caused Peters glaucoma.
However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on
the patient to establish before the trial court that the 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."86 Unfortunately, in this case, there was absolute failure
on the part of petitioners to present any expert testimony to establish: (1) the standard
of care to be implemented by competent physicians in treating the same condition as
Peters under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed
in his duty to exercise said standard of care that any other competent physician would
use in treating the same condition as Peters under similar circumstances; and (3) that
the injury or damage to Peters right eye, i.e., his glaucoma, was the result of his use of
Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element alone
is already fatal to their cause.
Petitioners maintain that Dr. Tuao failed to follow in Peters case the required
procedure for the prolonged use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be precise, what is the standard
operating procedure when ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuao under the
circumstances, we have no means to determine whether he was able to comply with the
same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to
evaluate or weigh the attendant facts of this case to be able to state with confidence
that the acts complained of, indeed, constituted negligence and, thus, should be the
subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined
first whether Peter was a
"steroid responder."87 Yet again, petitioners did not present any convincing proof that
such determination is actually part of the standard operating procedure which
ophthalmologists should unerringly follow prior to prescribing steroid medications.
In contrast, Dr. Tuao was able to clearly explain that what is only required of
ophthalmologists, in cases such as
Peters, is the conduct of standard tests/procedures known as "ocular routine

examination,"88 composed of five (5) tests/procedures specifically, gross examination
of the eyes and the surrounding area; taking of the visual acuity of the patient; checking
the intraocular pressure of the patient; checking the motility of the eyes; and using
ophthalmoscopy on the patients eye and he did all those tests/procedures every time
Peter went to see him for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he
cannot determine immediately whether the latter would react adversely to the use of
steroids; all the doctor can do is map out a course of treatment recognized as correct by
the standards of the medical profession. It must be remembered that a physician is not
an insurer of the good result of treatment. The mere fact that the patient does not get
well or that a bad result occurs
does not in itself indicate failure to exercise due care.89 The result is not determinative
of the performance [of the physician] and he is not required to be infallible. 90
Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the
fact that the latter was already using the same medication when he first came to see Dr.
Tuao on 2 September 1988 and had exhibited no previous untoward reaction to that
particular drug. 91
Also, Dr. Tuao categorically denied petitioners claim that he never monitored the
tension of Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he
palpated Peters eyes every time the latter came for a checkup as part of the doctors
ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular
conduct of examinations and tests to ascertain the state of Peters eyes negate the very
basis of petitioners complaint for damages. As to whether Dr. Tuaos actuations
conformed to the standard of care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of evidence to the contrary.
Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of
Peters condition, the causal connection between Dr. Tuaos supposed negligence and
Peters injury still needed to be established. The critical and clinching factor in a medical
negligence case is proof of the causal connection between the negligence which the
evidence established and the plaintiffs injuries.92 The plaintiff must plead and prove
not only that he has been injured and defendant has been at fault, but also that the
defendants fault caused the injury. A verdict in a malpractice action cannot be based on
speculation or conjecture. Causation must be proven within a reasonable medical
probability based upon competent expert testimony.93
The causation between the physicians negligence and the patients injury may only be
established by the presentation of proof that Peters glaucoma would not have occurred
but for Dr. Tuaos supposed negligent conduct. Once more, petitioners failed in this
regard.
Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a
patients IOP. In fact, this was the reason why he made it a point to palpate Peters eyes
every time the latter went to see him so he could monitor the tension of Peters eyes.
But to say that said medication conclusively caused Peters glaucoma is purely
speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is
characterized by an almost
complete absence of symptoms and a chronic, insidious course.94 In open-angle

glaucoma, halos around lights and
blurring of vision do not occur unless there has been a sudden increase in the
intraocular vision.95 Visual acuity
remains good until late in the course of the disease.96 Hence, Dr. Tuao claims that
Peters glaucoma "can only be
long standing x x x because of the large C:D97 ratio," and that "[t]he steroids provoked
the latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuao is in a better position to determine and
evaluate the necessity of using Maxitrol to cure Peters EKC visvis the attendant risks
of using the same?
That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond
cavil. Petitioners do not dispute Dr. Tuaos qualifications that he has been a physician
for close to a decade and a half at the time Peter first came to see him; that he has had
various medical training; that he has authored numerous papers in the field of
ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts (at the time of the filing of the
present complaint, he was the Chair of the Department of Ophthalmology and an
Associate Professor at the University of the Philippines-Philippine General Hospital and
St. Lukes Medical Center, respectively); and that he held an assortment of positions in
numerous medical organizations like the Philippine Medical Association, Philippine
Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of
Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a physician are admitted, as in

the instant case, there is an inevitable presumption that in proper cases, he takes the
necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the contrary is sufficiently
established.98 In making the judgment call of treating Peters EKC with Maxitrol, Dr.
Tuao took the necessary precaution by palpating Peters
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eyes to monitor their IOP every time the latter went for a check-up, and he employed
the best of his knowledge and skill earned from years of training and practice.
In contrast, without supporting expert medical opinions, petitioners bare assertions of

negligence on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant credit.
Our disposition of the present controversy might have been vastly different had
petitioners presented a medical expert to establish their theory respecting Dr. Tuaos
socalled negligence. In fact, the record of the case reveals that petitioners counsel
recognized the necessity of presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no
follow-through on said undertaking was made. 1avvphi1
The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the
issue. However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of
plaintiff.99 The party having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance of evidence" refers to
evidence which is of greater weight or more convincing than that
which is offered in opposition to it;101 in the last analysis, it means probability of truth.
It is evidence which is more convincing to the court as worthy of belief than that which
is offered in opposition thereto.102 Rule 133, Section 1 of
the Revised Rules of Court provides the guidelines for determining preponderance of
evidence, thus:
In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior
weight of evidence on the issues involved lies the court may consider all the facts and
circumstances of the case, the witnesses manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying, the nature of
the facts to which they testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far as the same
legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court,
to establish their case by a preponderance of evidence showing a reasonable connection
between Dr. Tuaos alleged breach of duty and the damage sustained by Peters right
eye. This, they did not do. In reality, petitioners complaint for damages is merely
anchored on a statement in the literature of Maxitrol identifying the risks of its use, and
the purported comment of Dr. Agulto another doctor not presented as witness before
the RTC concerning the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a medical question
that should have been presented to experts. If no standard is established through expert
medical witnesses, then courts have no standard by which to gauge the basic issue of
breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this
Court, could not be expected to determine on its own what medical technique should
have been utilized for a certain disease or injury. Absent expert medical opinion, the
courts would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or
malpractice where there is no evidence, in the nature of expert testimony, to establish
that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill
generally required in medical practice. Dr. Tuaos testimony, that his treatment of
Peter conformed in all respects to standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had
no basis at all to rule that petitioners were deserving of the various damages prayed for
in their Complaint.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The
assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of
the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.
SO ORDERED.
SUPREME COURT
Manila EN BANC
June 7, 2011SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased

Angelica Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:Challenged in this petition for review on certiorari is the Decision1
dated June 15, 2004 as well as the Resolution2 dated September 1, 2004 of the Court of
Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision3 dated September 5,
1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11year old daughter, Angelica Soliman, underwent a

biopsy of the mass located in her lower extremity at the St. Lukes Medical Center
(SLMC). Results showed that Angelica was suffering from
osteosarcoma, osteoblastic type,4 a high-grade (highly malignant) cancer of the bone

which usually afflicts teenage children. Following this diagnosis and as primary
intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to
remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and
hence minimize the chances of recurrence and prevent the disease from spreading to
other parts of the patients body (metastasis), chemotherapy was suggested by Dr.
Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr.
Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on September
1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of
the chemotherapy regimen. Because SLMC refused to release a death certificate
without full payment of their hospital bill, respondents brought the cadaver of Angelica
to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for
post-mortem examination. The Medico- Legal Report issued by said institution indicated
the cause of death as "Hypovolemic shock secondary to multiple
organ hemorrhages and Disseminated Intravascular Coagulation."5
On the other hand, the Certificate of Death6 issued by SLMC stated the cause of death
as follows: Immediate cause : a. Osteosarcoma, Status Post AKAAntecedent cause : b.
(above knee amputation)Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit7 against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them
with negligence and disregard of Angelicas safety, health and welfare by their careless
administration of the chemotherapy drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal blood platelet decrease and
stopping early on the chemotherapy, which bleeding led to hypovolemic shock that
caused Angelicas untimely demise. Further, it was specifically averred that petitioner
assured the respondents that Angelica would recover in view of 95% chance of healing
with chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang
healing") and when asked regarding the side effects, petitioner mentioned only slight
vomiting, hair loss and weakness ("Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina"). Respondents thus claimed that they would not have given their consent
to chemotherapy had petitioner not falsely assured them of its side effects.
In her answer,8 petitioner denied having been negligent in administering the

chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the
capacity to compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis
or septicemia) that may lead to bleeding in the form of Disseminated Intravascular
Coagulation (DIC), as what the autopsy report showed in the case of Angelica.
G.R. No. 165279
DR. RUBI LI, Petitioner, vs.
Since the medical records of Angelica were not produced in court, the trial and appellate
courts had to rely on testimonial evidence, principally the declarations of petitioner and
respondents themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery
and discussed with them Angelicas condition. Petitioner told respondents that Angelica
should be given two to three weeks to recover from the operation before starting
chemotherapy. Respondents were apprehensive due to financial constraints as
Reynaldo earns only from 70,000.00 to 150,000.00 a year from his jewelry and watch
repairing business.9 Petitioner, however, assured them not to worry about her
professional fee and told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is
removed, there are still small lesions undetectable to the naked eye, and that adjuvant
chemotherapy is needed to clean out the small lesions in order to lessen the chance of
the cancer to recur. She did not give the respondents any assurance that chemotherapy
will cure Angelicas cancer. During these consultations with respondents, she explained
the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2)
nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red
blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas
ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially
when exposed to sunlight. She actually talked with respondents four times, once at the
hospital after the surgery, twice at her clinic and the fourth
time when Angelicas mother called her through long distance.10 This was disputed by
respondents who countered that petitioner gave them assurance that there is 95%
chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair loss. 11
Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.12
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be
readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing
with them the results of the laboratory tests requested by petitioner: Angelicas chest
x-ray, ultrasound of the liver, creatinine and complete liver
function tests.13 Petitioner proceeded with the chemotherapy by first administering

hydration fluids to Angelica.14
The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,15 Doxorubicin16 and Cosmegen17 intravenously. Petitioner was
supposedly assisted by her trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his
testimony, Dr. Marbella denied having any participation in administering the said
chemotherapy drugs.20
On the second day of chemotherapy, August 20, respondents noticed reddish

discoloration on Angelicas face.21 They asked petitioner about it, but she merely
quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled noticing
the skin rashes on the nose and cheek area of Angelica. At that moment, she
entertained the possibility that Angelica also had systemic lupus and consulted Dr.
Victoria Abesamis on the matter.23
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was
thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on
Angelicas face had extended to her neck, but petitioner
dismissed it again as merely the effect of medicines.24 Petitioner testified that she did
not see any discoloration on Angelicas face, nor did she notice any difficulty in the
childs breathing. She claimed that Angelica merely
complained of nausea and was given ice chips.25

1avvphi1
On August 22, 1993, at around ten oclock in the morning, upon seeing that their child
could not anymore bear the pain, respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, lets
observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked
petitioners permission to bring their child home. Later in the evening, Angelica passed
black stool and reddish
urine.26 Petitioner countered that there was no record of blackening of stools but only
an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica
complained of was carpo-pedal spasm, not convulsion or epileptic attack, as
respondents call it (petitioner described it in the vernacular as "naninigas ang kamay at
paa"). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given
calcium gluconate, the spasm and numbness subsided.27
The following day, August 23, petitioner yielded to respondents request to take
Angelica home. But prior to discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents that the chemotherapy will
be temporarily stopped while she observes Angelicas muscle twitching and serum
calcium level. Take-home medicines were also prescribed for Angelica, with instructions
to respondents that the serum calcium test will have to be repeated after seven days.
Petitioner told respondents that she will see Angelica
again after two weeks, but respondents can see her anytime if any immediate problem
arises.28However, Angelica remained in confinement because while still in the
premises of SLMC, her "convulsions" returned
and she also had LBM. Angelica was given oxygen and administration of calcium
continued.29The next day, August 24, respondents claimed that Angelica still suffered
from convulsions. They also noticed that
she had a fever and had difficulty breathing.30 Petitioner insisted it was carpo-pedal
spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica
developed difficulty in breathing and had fever. She then
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requested for an electrocardiogram analysis, and infused calcium gluconate on the

patient at a "stat dose." She further ordered that Angelica be given Bactrim,31 a
synthetic antibacterial combination drug,32 to combat any infection on the childs
body.33
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood
on her anus and urine. When Lina asked petitioner what was happening to her
daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units of platelet
concentrates were then transfused to Angelica. Petitioner prescribed Solucortef.
Considering that Angelicas fever was high and her white blood cell count was low,
petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed
red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica.
For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it
was lesser in
amount and in frequency. Petitioner also denied that there were gadgets attached to
Angelica at that time.34
On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood
clots that should not be removed. Respondents claimed that Angelica passed about half
a liter of blood through her anus at around seven oclock that evening, which petitioner
likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given
more platelet concentrate and fresh whole blood, which petitioner claimed improved
her
condition. Petitioner told Angelica not to remove the endotracheal tube because this
may induce further bleeding.35 She was also transferred to the intensive care unit to
avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood and
her body turned black. Part of Angelicas skin was also noted to be shredding by just
rubbing cotton on it. Angelica was so restless she removed those gadgets attached to
her, saying "Ayaw ko na"; there were tears in her eyes and she kept turning her head.
Observing her daughter to be at the point of death, Lina asked for a doctor but the latter
could not answer her
anymore.36 At this time, the attending physician was Dr. Marbella who was shaking his
head saying that Angelicas platelets were down and respondents should pray for their
daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his
daughters case, Dr. Abesamis who also told him to pray for his daughter. Angelica
continued to have difficulty in her breathing and blood was being suctioned from her
stomach. A nurse was posted inside Angelicas room to assist her breathing and at one
point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed
that Angelica already experienced difficulty in urinating and her bowel consisted of
blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff
attempted to take blood samples from Angelica but were unsuccessful because they
could not even locate her vein. Angelica asked for a fruit but when it was given to her,
she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or
Dr. Marbella. That night, Angelica became hysterical and started removing those
gadgets attached to her. At three oclock in the morning of September 1, a priest came
and they prayed before Angelica expired. Petitioner finally came back and supposedly
told respondents that there was "malfunction" or bogged-down machine.37
By petitioners own account, Angelica was merely irritable that day (August 31).
Petitioner noted though that Angelicas skin was indeed sloughing off.38 She stressed
that at 9:30 in the evening, Angelica pulled out her endotracheal tube.39 On September
1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died. 40
The cause of death, according to petitioner, was septicemia, or overwhelming infection,
which caused Angelicas other organs to fail.41 Petitioner attributed this to the patients
poor defense mechanism brought about by the cancer itself.42
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed
that petitioner acted arrogantly and called him names. He was asked to sign a
promissory note as he did not have cash to pay the
hospital bill.43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal

Officer of the PNPCrime Laboratory who conducted the autopsy on Angelicas cadaver,
and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the
Department of Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower
portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5)
kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of
"hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation." Dr. Vergara opined that this can be attributed to the
chemical agents in the drugs given to the victim, which caused platelet reduction
resulting to bleeding sufficient to cause the victims death. The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was
too short, considering the survival rate of about 3 years. The witness conceded that the
victim will also die of osteosarcoma even with amputation or chemotherapy, but in this
case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is
not a pathologist but her statements were based on the opinion of an oncologist whom
she had interviewed. This oncologist supposedly said
that if the victim already had DIC prior to the chemotherapy, the hospital staff could
have detected it.44
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On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain
to the patient or his relatives every known side effect of the procedure or therapeutic
agents to be administered, before securing the consent of the patient or his relatives to
such procedure or therapy. The physician thus bases his assurance to the patient on his
personal assessment of the patients condition and his knowledge of the general effects
of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed
that the patient or relatives must be informed
of all known side effects based on studies and observations, even if such will aggravate
the patients condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower
extremity, testified for the defendants. He explained that in case of malignant tumors,
there is no guarantee that the ablation or removal of the amputated part will
completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at
80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other
vital organs like the liver, causing systemic complications. The modes of therapy
available are the removal of the primary source of the cancerous growth and then the
residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo
further explained that patients with osteosarcoma have poor defense mechanism due
to the cancer cells in the blood stream. In the case of Angelica, he had previously
explained to her parents that after the surgical procedure, chemotherapy is imperative
so that metastasis of these cancer cells will hopefully be addressed. He referred the
patient to petitioner because he felt that petitioner is a competent oncologist.
Considering that this type of cancer is very aggressive and will metastasize early, it will
cause the demise of the patient should there be no early intervention (in this case, the
patient developed sepsis which caused her death). Cancer cells in the blood cannot be
seen by the naked eye nor detected through bone scan. On cross-examination, Dr.
Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he
had handled, he thought that probably all of them died within six months from
amputation because he did not see
them anymore after follow-up; it is either they died or had seen another doctor.46
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest skill
and knowledge in the administration of chemotherapy drugs on Angelica but despite all
efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he
considered petitioner one of the most proficient in the treatment of cancer and that the
patient in this case was afflicted with a very aggressive type of cancer necessitating
chemotherapy as adjuvant treatment. Using the standard of negligence
laid down in Picart v. Smith,47 the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of chemotherapy on the patient, adding
that a wrong decision is not by itself negligence.
Respondents were ordered to pay their unpaid hospital bill in the amount of
139,064.43.48
Respondents appealed to the CA which, while concurring with the trial courts finding
that there was no negligence committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as her attending physician
failed to fully explain to the respondents all the known side effects of chemotherapy.
The appellate court stressed that since the respondents have been told of only three
side effects of chemotherapy, they readily consented thereto. Had petitioner made
known to respondents those other side effects which gravely affected their child -- such
as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections
and eventual death -- respondents could have decided differently or adopted a different
course of action which could have delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffsappellants child was suffering from a malignant disease. The attending

physician recommended that she undergo chemotherapy treatment after surgery in
order to increase her chances of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Lis representation that the deceased
would have a strong chance of survival after chemotherapy and also because of the
representation of appellee Dr. Rubi Li that there were only three possible side-effects of
the treatment. However, all sorts of painful side-effects resulted from the treatment
including the premature death of Angelica. The appellants were clearly and totally
unaware of these other side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem would take place
regarding Angelicas condition (like an unexpected sideeffect manifesting itself), they
would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected
side-effects culminating in the loss of a love[d] one caused the appellants so much
trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would
entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision
is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay
the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses; 2. Moral

damages of P200,000.00;3. Exemplary damages of P50,000.00;4. Attorneys fee of
P30,000.00.
SO ORDERED.49 (Emphasis supplied.)
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Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in
holding her liable for actual, moral and exemplary damages and attorneys fees.
Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures
and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including

death, petitioner argues that it was foolhardy to imagine her to be
all-knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent doctor,
petitioner cannot possibly predict how a particular patients genetic makeup, state of
mind, general health and body constitution would respond to the treatment. These are
obviously dependent on too many known, unknown and immeasurable variables, thus
requiring that Angelica be, as she was, constantly and closely monitored during the
treatment. Petitioner asserts that she did everything within her professional
competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her current
position as co-director for clinical affairs of the Medical Oncology, Department of
Medicine of SLMC, petitioner contends that in the absence of any clear showing or
proof, she cannot be charged with negligence in not informing the respondents all the
side effects of chemotherapy or in the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion
but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding
and death. She explains that the response rate to chemotherapy of patients with
osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner
then points to some probable consequences if Angelica had not undergone
chemotherapy. Thus, without chemotherapy, other medicines and supportive
treatment, the patient might have died the next day because of massive infection, or
the cancer cells might have spread to the brain and brought the patient into a coma, or
into the lungs that the patient could have been hooked to a respirator, or into her
kidneys that she would have to undergo dialysis. Indeed, respondents could have spent
as much because of these complications. The patient would have been deprived of the
chance to survive the ailment, of any hope for life and her "quality of life" surely
compromised. Since she had not been shown to be at fault, petitioner maintains that
the CA erred in holding her liable for the
damages suffered by the respondents.50
The issue to be resolved is whether the petitioner can be held liable for failure to fully
disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was negligent
in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has caused bodily harm. In
order to successfully pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that
that failure or action caused injury to the patient.51
This Court has recognized that medical negligence cases are best proved by opinions of
expert witnesses belonging in the same general neighborhood and in the same general
line of practice as defendant physician or surgeon. The deference of courts to the expert
opinion of qualified physicians stems from the formers realization that the latter
possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating, hence the
indispensability of expert testimonies.52
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to respondents
child was not proven considering that Drs. Vergara and Balmaceda, not being
oncologists or cancer specialists, were not qualified to give expert opinion as to whether
petitioners lack of skill, knowledge and professional competence in failing to observe
the standard of care in her line of practice was the proximate cause of the patients
death. Furthermore, respondents case was not at all helped by the nonproduction of
medical records by the hospital (only the biopsy result and medical bills were submitted
to the court). Nevertheless, the CA found petitioner liable for her failure to inform the
respondents on all possible side effects of chemotherapy before securing their consent
to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. As early as 1767, doctors were charged with the
tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not
gained the consent of their patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff v. Society of New York Hospital53
which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos
oft-quoted opinion upheld the basic right of a patient to give consent to any medical
procedure or treatment: "Every human being of adult years and sound mind has a right
to determine what shall be done with his own body; and a surgeon who performs an
operation without his
patients consent, commits an assault, for which he is liable in damages." 54 From a

purely ethical norm, informed consent evolved into a general principle of law that a
physician has a duty to disclose what a reasonably prudent physician in the medical
community in the exercise of reasonable care would disclose to his patient as to
whatever
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grave risks of injury might be incurred from a proposed course of treatment, so that a
patient, exercising ordinary care for his own welfare, and faced with a choice of
undergoing the proposed treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably balancing the probable risks against
the probable
benefits.55
Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to the
physician alone. Thus, respect for the patients right of selfdetermination on particular
therapy demands a standard set by law for physicians rather than one which
physicians may or may not impose upon themselves.57 The scope of disclosure is
premised on the fact that patients ordinarily are persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians
responsibility. It is also his duty to warn of the dangers lurking in the proposed
treatment and to impart information which the patient has every right to expect.
Indeed, the patients reliance upon the physician is a trust of the kind which traditionally
has exacted obligations beyond those associated with armslength
transactions.58 The physician is not expected to give the patient a short medical
education, the disclosure rule only requires of him a reasonable explanation, which
means generally informing the patient in nontechnical terms as to what is at stake; the
therapy alternatives open to him, the goals expectably to be achieved, and the risks that
may
ensue from particular treatment or no treatment.59 As to the issue of demonstrating

what risks are considered material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a patients decision on
treatment, or to the reasonably, expectable effect of risk disclosure on the decision.
Such unrevealed risk that should have been made known must further materialize, for
otherwise the omission, however unpardonable, is without legal consequence. And, as
in malpractice actions generally, there must be a causal relationship between the
physicians failure to divulge and damage to the patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part of

physicians overall obligation to patient, the duty of reasonable disclosure of available
choices with respect to proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that such risks inherent
in procedure of very low incidence. Cited as exceptions to the rule that the patient
should not be denied the opportunity to weigh the risks of surgery or treatment are
emergency cases where it is evident he cannot evaluate data, and where the patient is a
child or incompetent.62 The court thus concluded that the patients right of selfdecision
can only be effectively exercised if the patient possesses adequate information to
enable him in making an intelligent choice. The scope of the physicians communications
to the patient, then must be measured by the patients need, and that need is whatever
information is material to the decision. The test therefore for determining whether a
potential peril must be divulged is its materiality to the patients decision.63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for
liability of the physician for failure to inform patient, there must be causal relationship
between physicians failure to inform and the injury to patient and such connection
arises only if it is established that, had revelation been made, consent to treatment
would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent: "(1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a
direct and proximate result of the failure to disclose, the patient consented to
treatment she otherwise would not have consented to; and (4) plaintiff was injured by
the proposed treatment." The gravamen in an informed consent case requires the
plaintiff to "point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it. 64
Examining the evidence on record, we hold that there was adequate disclosure of
material risks inherent in the chemotherapy procedure performed with the consent of
Angelicas parents. Respondents could not have been unaware in the course of initial
treatment and amputation of Angelicas lower extremity, that her immune system was
already weak on account of the malignant tumor in her knee. When petitioner informed
the respondents beforehand of the side effects of chemotherapy which includes
lowered counts of white and red blood cells, decrease in blood platelets, possible kidney
or heart damage and skin darkening, there is reasonable expectation on the part of the
doctor that the respondents understood very well that the severity of these side effects
will not be the same for all patients undergoing the procedure. In other words, by the
nature of the disease itself, each patients reaction to the chemical agents even with
pre-treatment laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying cancer
itself, immediately or sometime after the administration of chemotherapy drugs, is a
risk that cannot be ruled out, as with most other major medical procedures, but such
conclusion can be reasonably drawn from the general side effects of chemotherapy
already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the
variables in the recommended treatment for their daughter afflicted with a
lifethreatening illness. On the other hand, it is difficult to give credence to respondents
claim that petitioner told them of 95% chance of recovery for their daughter, as it was
unlikely for doctors like petitioner who were dealing with grave conditions such as
cancer to have falsely assured patients of chemotherapys success rate. Besides,
informed consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical data, may not
be legally
necessary.65
The element of ethical duty to disclose material risks in the proposed medical treatment
cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a
medical malpractice action based on lack of informed
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consent, "the plaintiff must prove both the duty and the breach of that duty through
expert testimony.66 Such expert testimony must show the customary standard of care
of physicians in the same practice as that of the defendant
doctor.67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOHs Operational and Management Services charged with receiving
complaints against hospitals, does not qualify as expert testimony to establish the
standard of care in obtaining consent for chemotherapy treatment. In the absence of
expert testimony in this regard, the Court feels hesitant in defining the scope of
mandatory disclosure in cases of malpractice based on lack of informed consent, much
less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be
an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining "adequate" disclosure
has undergone a dynamic evolution. A standard once guided solely by the ruminations
of physicians is now dependent on what a reasonable person in the patients position
regards as significant. This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever encountering
new and heretofore unimagined treatments for currently incurable diseases or ailments.
An adaptable standard is needed to account for this constant progression.
Reasonableness analyses permeate our legal system for the very reason that they are
determined by social norms, expanding and contracting with the ebb and flow of
societal evolution.
As we progress toward the twenty-first century, we now realize that the legal standard
of disclosure is not subject to construction as a categorical imperative. Whatever
formulae or processes we adopt are only useful as a foundational starting point; the
particular quality or quantity of disclosure will remain inextricably bound by the facts of
each case. Nevertheless, juries that ultimately determine whether a physician properly
informed a patient are inevitably guided by what they perceive as the common
expectation of the medical consumer"a reasonable
person in the patients position when deciding to accept or reject a recommended

medical procedure."68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June
15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R.
CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch
8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
G.R. No. 177407
February 9, 2011
SUPREME COURT
Manila SECOND DIVISION
RICO ROMMEL ATIENZA, Petitioner,vs.BOARD OF MEDICINE and EDITHA SIOSON,

Respondents.
DECISION
NACHURA, J.:Before us is a petition for review on certiorari under Rule 45 of the Rules
of Court, assailing the Decision1 dated
September 22, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA
dismissed the petition for
certiorari filed by petitioner Rico Rommel Atienza (Atienza), which, in turn, assailed the
Orders2 issued by public respondent Board of Medicine (BOM) in Administrative Case
No. 1882.
The facts, fairly summarized by the appellate court, follow.
Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center
(RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same problem,
she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered several
diagnostic laboratory tests. The tests revealed that her right kidney is normal. It was
ascertained, however, that her left kidney is non-functioning and non-visualizing. Thus,
she underwent kidney operation in September, 1999.
On February 18, 2000, private respondents husband, Romeo Sioson (as complainant),
filed a complaint for gross negligence and/or incompetence before the [BOM] against
the doctors who allegedly participated in the fateful kidney operation, namely: Dr. Judd
dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico
Rommel Atienza.
It was alleged in the complaint that the gross negligence and/or incompetence
committed by the said doctors, including petitioner, consists of the removal of private
respondents fully functional right kidney, instead of the left nonfunctioning and
non-visualizing kidney.
The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his
evidence, private respondent Editha Sioson, also named as complainant there, filed her
formal offer of documentary evidence. Attached to the formal offer of documentary
evidence are her Exhibits "A" to "D," which she offered for the purpose of proving that
her kidneys were both in their proper anatomical locations at the time she was
operated. She described her exhibits, as follows:
"EXHIBIT A the certified photocopy of the X-ray Request form dated December 12,
1996, which is also marked as Annex 2 as it was actually originally the Annex to x x x Dr.
Pedro Lantin, IIIs counter affidavit filed with the City Prosecutor of Pasig City in
connection with the criminal complaint filed by [Romeo Sioson] with the said office, on
which are handwritten entries which are the interpretation of the results of the
ultrasound examination. Incidentally, this exhibit happens to be the same as or identical
to the certified photocopy of the document marked as Annex 2 to the
Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4,
2000, with this Honorable Board in answer to this complaint;
"EXHIBIT B the certified photo copy of the X-ray request form dated January 30,
1997, which is also marked as Annex 3 as it was actually likewise originally an Annex to
x x x Dr. Pedro Lantin, IIIs counter affidavit filed with the Office of the City Prosecutor
of Pasig City in connection with the criminal complaint filed by the herein complainant
with the said office, on which are handwritten entries which are the interpretation of
the results of the examination. Incidentally, this exhibit happens to be also the same as
or identical to the certified photo copy of the document marked as Annex 3 which is
likewise dated January 30, 1997, which is appended as such Annex 3 to the
counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4,
2000, with this Honorable Board in answer to this complaint.
"EXHIBIT C the certified photocopy of the X-ray request form dated March 16, 1996,
which is also marked as Annex 4, on which are handwritten entries which are the
interpretation of the results of the examination.
"EXHIBIT D the certified photocopy of the X-ray request form dated May 20, 1999,
which is also marked as Annex 16, on which are handwritten entries which are the
interpretation of the results of the examination.
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Incidentally, this exhibit appears to be the draft of the typewritten final report of the
same examination which is the document appended as Annexes 4 and 1 respectively
to the counter-affidavits filed by x x x Dr. Judd dela Vega and Dr. Pedro Lantin, III in
answer to the complaint. In the case of Dr. dela Vega however, the document which is
marked as Annex 4 is not a certified photocopy, while in the case of Dr. Lantin, the
document marked as Annex 1 is a certified photocopy. Both documents are of the
same date and typewritten contents are the same as that which are written on Exhibit
D.
Petitioner filed his comments/objections to private respondents [Editha Siosons]

formal offer of exhibits. He alleged that said exhibits are inadmissible because the same
are mere photocopies, not properly identified and authenticated, and intended to
establish matters which are hearsay. He added that the exhibits are incompetent to
prove the purpose for which they are offered.
Dispositions of the Board of Medicine
The formal offer of documentary exhibits of private respondent [Editha Sioson] was
admitted by the [BOM] per its Order dated May 26, 2004. It reads:
"The Formal Offer of Documentary Evidence of [Romeo Sioson], the

Comments/Objections of [herein petitioner] Atienza, [therein respondents] De la Vega
and Lantin, and the Manifestation of [therein] respondent Florendo are hereby
ADMITTED by the [BOM] for whatever purpose they may serve in the resolution of this
case.
"Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence
of the respondents. "SO ORDERED."
Petitioner moved for reconsideration of the abovementioned Order basically on the

same reasons stated in his comment/objections to the formal offer of exhibits.
The [BOM] denied the motion for reconsideration of petitioner in its Order dated
October 8, 2004. It concluded that it should first admit the evidence being offered so
that it can determine its probative value when it decides the case. According to the
Board, it can determine whether the evidence is relevant or not if it will take a look at it
through the
process of admission. x x x.3
Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for
certiorari with the CA, assailing the BOMs Orders which admitted Editha Siosons
(Edithas) Formal Offer of Documentary Evidence. The CA dismissed the petition for
certiorari for lack of merit.
Hence, this recourse positing the following issues: I. PROCEDURAL ISSUE:
WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED THE
PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF APPEALS
UNDER RULE 65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004
AND 08 OCTOBER 2004 OF RESPONDENT BOARD.
II. SUBSTANTIVE ISSUE:
WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND

DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND
THE APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE
ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD,
WHICH CAN RESULT IN THE DEPRIVATION OF
PROFESSIONAL LICENSE A PROPERTY RIGHT OR ONES LIVELIHOOD.4
We find no reason to depart from the ruling of the CA.
Petitioner is correct when he asserts that a petition for certiorari is the proper remedy
to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the
assailed Orders were interlocutory, these cannot be the
subject of an appeal separate from the judgment that completely or finally disposes of
the case.5 At that stage, where there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, the only and remaining remedy left to petitioner
is a petition for certiorari under Rule 65 of the Rules of Court on the ground of grave
abuse of discretion amounting to lack or excess of jurisdiction.
However, the writ of certiorari will not issue absent a showing that the BOM has acted
without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the
CAs finding that the BOM did not exceed its jurisdiction or act in grave abuse of
discretion is the issue of whether the exhibits of Editha contained in her Formal Offer of
Documentary Evidence are inadmissible.
Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the
best evidence rule; (2) have not been properly identified and authenticated; (3) are
completely hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner
contends that the exhibits are inadmissible evidence.
We disagree.
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To begin with, it is well-settled that the rules of evidence are not strictly applied in
proceedings before administrative
bodies such as the BOM.6 Although trial courts are enjoined to observe strict
enforcement of the rules of evidence,7 in connection with evidence which may appear
to be of doubtful relevancy, incompetency, or admissibility, we have held that:
[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds,
but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason
that their rejection places them beyond the consideration of the court, if they are
thereafter found relevant or competent; on the other hand, their admission, if they turn
out
later to be irrelevant or incompetent, can easily be remedied by completely discarding

them or ignoring them.8From the foregoing, we emphasize the distinction between the
admissibility of evidence and the probative weight to
be accorded the same pieces of evidence. PNOC Shipping and Transport Corporation v.
Court of Appeals9 teaches: Admissibility of evidence refers to the question of whether
or not the circumstance (or evidence) is to be considered
at all. On the other hand, the probative value of evidence refers to the question of
whether or not it proves an issue.
Second, petitioners insistence that the admission of Edithas exhibits violated his
substantive rights leading to the loss of his medical license is misplaced. Petitioner
mistakenly relies on Section 20, Article I of the Professional Regulation Commission
Rules of Procedure, which reads:
Section 20. Administrative investigation shall be conducted in accordance with these

Rules. The Rules of Court shall only apply in these proceedings by analogy or on a
suppletory character and whenever practicable and convenient. Technical errors in the
admission of evidence which do not prejudice the substantive rights of either party shall
not
vitiate the proceedings.10
As pointed out by the appellate court, the admission of the exhibits did not prejudice
the substantive rights of petitioner because, at any rate, the fact sought to be proved
thereby, that the two kidneys of Editha were in their proper anatomical locations at the
time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court:
Sec. 3. Disputable presumptions. The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:
xxxx
(y) That things have happened according to the ordinary course of nature and the
ordinary habits of life.
The exhibits are certified photocopies of X-ray Request Forms dated December 12,
1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with
Edithas medical case. The documents contain handwritten entries interpreting the
results of the examination. These exhibits were actually attached as annexes to Dr.
Pedro Lantin IIIs counter affidavit filed with the Office of the City Prosecutor of Pasig
City, which was investigating the criminal complaint for negligence filed by Editha
against the doctors of Rizal Medical Center (RMC) who handled her surgical procedure.
To lay the predicate for her case, Editha offered the exhibits in evidence to prove that
her "kidneys were both in their proper anatomical locations at the time" of her
operation.
The fact sought to be established by the admission of Edithas exhibits, that her "kidneys
were both in their proper anatomical locations at the time" of her operation, need not
be proved as it is covered by mandatory judicial
notice.11Unquestionably, the rules of evidence are merely the means for ascertaining
the truth respecting a matter of fact.12
Thus, they likewise provide for some facts which are established and need not be
proved, such as those covered by judicial notice, both mandatory and discretionary. 13
Laws of nature involving the physical sciences, specifically
biology,14 include the structural make-up and composition of living things such as
human beings. In this case, we may take judicial notice that Edithas kidneys before, and
at the time of, her operation, as with most human beings, were in their proper
anatomical locations.
Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable. 1awphil
Section 3 of Rule 130 provides: 1. Best Evidence Rule
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry
is the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
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(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.
The subject of inquiry in this case is whether respondent doctors before the BOM are
liable for gross negligence in removing the right functioning kidney of Editha instead of
the left nonfunctioning kidney, not the proper anatomical locations of Edithas kidneys.
As previously discussed, the proper anatomical locations of Edithas kidneys at the time
of her operation at the RMC may be established not only through the exhibits offered in
evidence.
Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of
Edithas kidneys. To further drive home the point, the anatomical positions, whether left
or right, of Edithas kidneys, and the removal of one or both, may still be established
through a belated ultrasound or x-ray of her abdominal area.
In fact, the introduction of secondary evidence, such as copies of the exhibits, is

allowed.15 Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer
had the originals of the exhibits "because [it] transferred
from the previous building, x x x to the new building."16 Ultimately, since the originals
cannot be produced, the BOM properly admitted Edithas formal offer of evidence and,
thereafter, the BOM shall determine the probative value thereof when it decides the
case.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP
No. 87755 is AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 187926 February 15, 2012
SUPREME COURT
Manila
Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners, vs.PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their doctors. Time and
again, it can be said that the most important goal of the medical profession is the
preservation of life and health of the people. Corollarily, when a physician departs from
his sacred duty and endangers instead the life of his patient, he must be made liable for
the resulting injury. This Court, as this case would show, cannot and will not let the act
go unpunished.1
This is a petition for review under Rule 45 of the Rules of Court challenging the August
29, 2008 Decision2 of the Court of Appeals (CA), and its May 19, 2009 Resolution3 in
CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June 14, 2005
Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty
beyond reasonable doubt of simple imprudence resulting to serious physical injuries.
THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr.
Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which caused
her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon
investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the
Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the
victims ankle was ordered; that the Xray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own
examination of the victim, informed Mrs. Santiago that since it was only the ankle that
was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr.
developed fever, swelling of the right leg and misalignment of the right foot; that Mrs.
Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial
fracture and a linear hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila for
preliminary investigation. Probable cause was found and a criminal case for reckless
imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
and Dr. Pamittan,5 before the RTC, docketed as Criminal Case No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the
crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal portion
of the RTC decision reads:
WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR.
and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE
IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to
suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to
indemnify MRS. BELINDA SANTIAGO the amount of 3,850.00 representing medical
expenses without subsidiary imprisonment in case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered
despite warrant issued for her arrest, let warrant be issued for her arrest and the case
against her be ARCHIVED, to be reinstated upon her apprehension.
SO ORDERED.6
The RTC explained:
After a thorough and in depth evaluation of the evidence adduced by the prosecution
and the defense, this court finds that the evidence of the prosecution is the more
credible, concrete and sufficient to create that moral certainty in the mind of the Court
that accused herein [are] criminally responsible. The Court believes that accused are
negligent when both failed to exercise the necessary and reasonable prudence in
ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not approximate negligence
of a reckless nature but merely amounts to simple imprudence. Simple imprudence
consists in the lack of precaution displayed in those
Custom Search
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cases in which the damage impending to be caused is not the immediate nor the danger
clearly manifest. The elements of simple imprudence are as follows.
1. that there is lack of precaution on the part of the offender; and
2. that the damage impending to be caused is not immediate of the danger is not clearly
manifest.
Considering all the evidence on record, The Court finds the accused guilty for simple
imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code,
the penalty provided for is arresto mayor in its minimum period.7
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision
of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances sufficient to sustain
a judgment of conviction against the accused-appellants for the crime of simple
imprudence resulting in serious physical injuries. The elements of imprudence are: (1)
that the offender does or fails to do an act; (2) that the doing or the failure to do that
act is voluntary; (3) that it be without malice; (4) that material damage results from the
imprudence; and (5) that there is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time and
place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of
precaution" in the treatment of their patient is to be determined according to the
standard of care observed by other members of the profession in good standing under
similar circumstances, bearing in mind the advanced state of the profession at the time
of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda
v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the
same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of establishing
accusedappellants negligence, and for a reasonable conclusion of negligence, there
must be proof of breach of duty on the part of the physician as well as a causal
connection of such breach and the resulting injury of his patient. The connection
between the negligence and the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of. The
proximate cause of an injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which the
result would not have occurred.
In the case at bench, the accused-appellants questioned the imputation against them
and argued that there is no causal connection between their failure to diagnose the
fracture and the injury sustained by Roy.
We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of
Roy and not on the failure of the accused-appellants to correctly diagnose the extent of
the injury sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the applicability
of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase
which literally means "the thing or the transaction speaks for itself. The doctrine of res
ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality
causing the injury in the absence of some explanation by the accused-appellant who is
charged with negligence. It is grounded in the superior logic of ordinary human
experience and, on the basis of such experience or common knowledge, negligence may
be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son
during the latters ordeal at the hospital. She testified as follows:
Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to
confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home
and you dont even clean the wounds of my son.
Q: And what did she [tell] you?A: They told me they will call a resident doctor, sir.
xxx xxx xxx
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Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her?

A: I told her, sir, while she was cleaning the wounds of my son, are you not going to
x-ray up to the knee because my son was complaining pain from his ankle up to the
middle part of the right leg.
Q: And what did she tell you?A: According to Dra. Bastan, there is no need to x-ray
because it was the ankle part that was run over. Q: What did you do or tell her?A: I told
her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of
my son. Q: So you mean to say there was no treatment made at all?A: None, sir.
xxx xxx xxx
xxx xxx xxx A: I just listened to them, sir. And I just asked if I will still return my son.
xxx xxx xxx
xxx xxx xxx Q: And you were present when they were called?
A: Yes, sir.Q: And what was discussed then by Sis. Retoria?A: When they were there
they admitted that they have mistakes, sir.Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence; 2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and 3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.
In the above requisites, the fundamental element is the "control of the instrumentality"
which caused the damage. Such element of control must be shown to be within the
dominion of the accused-appellants. In order to have the benefit of the rule, a plaintiff,
in addition to proving injury or damage, must show a situation where it is applicable and
must establish that the essential elements of the doctrine were present in a particular
incident. The early treatment of the leg of Roy would have lessen his suffering if not
entirely relieve him from the fracture. A boy of tender age whose leg was hit by a
vehicle would engender a well-founded belief that his condition may worsen without
proper medical attention. As junior residents who only practice general surgery and
without specialization with the case consulted before them, they should have referred
the matter to a specialist. This omission alone constitutes simple imprudence on their
part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part
of his leg, they refused to do so. The mother would not have asked them if they had no
exclusive control or prerogative to request an x-ray test. Such is a fact because a
radiologist would only conduct the x-ray test upon request of a physician.
The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He
further testified based on his personal knowledge, and not as an expert, as he examined
himself the child Roy. He testified as follows:
Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical problem that was presented to
Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and the
history. "At sabi nila, nadaanan lang po ito." And then, considering their year of
residency they are still junior residents, and they are not also orthopedic residents but
general surgery residents, its entirely different thing. Because if you are an orthopedic
resident, I am not trying to say...but if I were an orthopedic resident, there would be
more precise and accurate decision compare to a general surgery resident in so far as
involved.
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Q: You mean to say there is no supervisor attending the emergency room?
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain patient
have to go and then if they cannot manage it, they refer it to the consultant on duty.
Now at that time, I dont [know] why they dont....Because at that time, I think, it is the
decision. Since the x-rays....
Ordinarily, only physicians and surgeons of skill and experience are competent to testify
as to whether a patient has been treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements and acts of physicians, external
appearances, and manifest conditions which are observable by any one may be given by
non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred. In the
case at bench, we give credence to the testimony of Mrs. Santiago by applying the
doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to
be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care were
not as such as would ordinarily have followed if due care had been exercised. A
distinction must be made between the failure to secure results and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. The latter
circumstance is the primordial issue that confronted this Court and we find application
of the doctrine of res ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and
the assailed decision of the trial court finding accused-appellants guilty beyond
reasonable doubt of simple imprudence resulting in serious physical injuries is hereby
AFFIRMED in toto.
SO ORDERED.8The petitioners filed a motion for reconsideration, but it was denied by

the CA in its May 19, 2009 Resolution. Hence, this petition.The petitioners pray for the
reversal of the decision of both the RTC and the CA anchored on the following
GROUNDS-
1. IN AFFIRMING ACCUSEDPETITIONERS CONVICTION, THE COURT OF APPEALS

ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE
CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR
TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS
AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE
SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT
LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN XRAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY

NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE
COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE
PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT
GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO

SUBJECT THE PATIENTS WHOLE LEG TO AN XRAY EXAMINATION PROLONGED THE
PAIN AND SUFFERING OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY,
AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND

SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN
AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER,
A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS
ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT
LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE
HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND
SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT

RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO,
JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE
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MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT
WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-

PETITIONERS OF THE CRIME CHARGED."9
The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine
of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are
liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on the part of the petitioners.
After a perusal of the records, however, the Court is not convinced that the petitioners
are guilty of criminal negligence complained of. The Court is also of the view that the CA
erred in applying the doctrine of res ipsa loquitur in this particular case.
As to the Application of The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown
to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." The Black's Law Dictionary
defines the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that the instrumentality causing injury was in
defendant's exclusive control, and that the accident was one which ordinarily does not
happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred from the mere fact that the
accident happened provided the character of the accident and circumstances attending
it lead reasonably to belief that in the absence of negligence it would not have occurred
and that thing which caused injury is shown to have been under the management and
control of the alleged wrongdoer. Under this doctrine, the happening of an injury
permits an inference of negligence where plaintiff produces substantial evidence that
the injury was caused by an agency or instrumentality under the exclusive control and
management of defendant, and that the occurrence was such that in the ordinary
course of things would not happen if reasonable care had been used.10
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence
which recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence. The doctrine, however, is not
a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a given case, is
not meant to and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and regulates what shall be
prima facie evidence thereof and helps the plaintiff in proving a breach of the duty. The
doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.11
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident
was of a kind which does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive control of the
person in charge; and (3) the injury suffered must not have been due to any voluntary
action or contribution of the person injured.12
In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests
that were supposed to be undergone by him to determine the extent of the injury
suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time
who attended to the victim at the emergency room.13 While it may be true that the
circumstances pointed out by the courts below seem doubtless to constitute reckless
imprudence on the part of the petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the patients mother, but by the
unquestionable knowledge of expert witness/es. As to whether the petitioners have
exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a
matter of expert opinion.
As to Dr. Jarcia and Dr. Bastans negligence
The totality of the evidence on record clearly points to the negligence of the petitioners.
At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and
Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.14
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on
the part of the person performing or failing to perform such act. 15
The elements of simple negligence are: (1) that there is lack of precaution on the part of
the offender, and (2) that the damage impending to be caused is not immediate or the
danger is not clearly manifest.16
In this case, the Court is not convinced with moral certainty that the petitioners are
guilty of reckless imprudence or simple negligence. The elements thereof were not
proved by the prosecution beyond reasonable doubt.
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The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic,
although pointing to some medical procedures that could have been done by Dr. Jarcia
and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries suffered
by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their
diagnosis or appreciation of the condition of the victim at the time they assessed him.
Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special

training in pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and what was your specialization at that
time?A: Since 1980, I have been specialist in pediatric orthopedic.Q: When Alfonso
Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as
first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient
could not walk so I [began] to suspect that probably he sustained a fracture as a result
of a vehicular accident. So I examined the patient at that time, the involved leg, I dont
know if that is left or right, the involved leg then was swollen and the patient could not
walk, so I requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?

A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle
or lebistal tinial, we usually x- ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the
leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8)
centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the
smaller one is the fibula. The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the
history of such injury?
A: Yes, actually, that was a routine part of our examination that once a patient comes in,
before we actually examine the patient, we request for a detailed history. If it is an
accident, then, we request for the exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury that was told
to you? A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular
accident.Q: Who did you interview?A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the answers are
not accurate. So, it was the mother that I interviewed.
Q: And were you informed also of his early medication that was administered on
Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the
emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra.
Bastan, that time who happened to be my residents who were [on] duty at the
emergency room.
xxxx
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain patient
have to go and then if they cannot manage it, they refer it to the consultant on duty.
Now at that time, I dont why they dont ... Because at that time, I think, it is the
decision. Since the x-rays...
xxxQ: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic
specialist.
A: They are general surgeon residents. You have to man[x] the emergency room,
including neurology, orthopedic, general surgery, they see everything at the
emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the
emergency room, you would have subjected the entire foot to x-ray even if the history
that was given to Dr. Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my examination, we
cannot subject the whole body for x-ray if we think that the damaged was only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have conducted you
would discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not
the leg, which sometimes normally happens that the actual fractured bone do not get
swollen.
xxxx
Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the
foot and the history that was told to you is the region that was hit is the region of the
foot, will the doctor subject the entire leg for x- ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you
have to consider the kind of fracture that the patient sustained would you say the
exact mechanism of injury. For example spiral, "paikot yung bale nya," so it was
possible that the leg was run over, the patient fell, and it got twisted. Thats why the
leg seems to be fractured.17 [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not
performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr.
Bastan were expected to know the medical protocol in treating leg fractures and in
attending to victims of car accidents. There was, however, no precise evidence and
scientific explanation pointing to the fact that the delay in the application of the cast to
the patients fractured leg because of failure to immediately diagnose the specific injury
of the patient, prolonged the pain of the child or aggravated his condition or even
caused further complications. Any person may opine that had patient Roy Jr. been
treated properly and given the extensive X-ray examination, the extent and severity of
the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have
been detected early on and the prolonged pain and suffering of Roy Jr. could have been
prevented. But still, that opinion, even how logical it may seem would not, and could
not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the
petitioners guilt.
Although the Court sympathizes with the plight of the mother and the child in this case,
the Court is bound by the dictates of justice which hold inviolable the right of the
accused to be presumed innocent until proven guilty beyond reasonable doubt. The
Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently
attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a
criminal conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. Taken into account also was the fact that
there was no bad faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim.
It may be true that the actual, direct, immediate, and proximate cause of the injury
(fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he was hit
by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse
themselves from any liability. If this would be so, doctors would have a ready defense
should they fail to do their job in attending to victims of hit-and-run, maltreatment, and
other crimes of violence in which the actual, direct, immediate, and proximate cause of
the injury is indubitably the act of the perpetrator/s.
In failing to perform an extensive medical examination to determine the extent of Roy

Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the
medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring him
and his mother that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners contention that no
physician-patient relationship existed between them and patient Roy Jr., since they
were not his attending physicians at that time. They claim that they were merely
requested by the ER nurse to see the patient while they were passing by the ER for their
lunch. Firstly, this issue was never raised during the trial at the RTC or even before the
CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first
time on appeal with this Court. It has been settled that "issues raised for the first time
on appeal cannot be considered because a party is not permitted to change his theory
on appeal. To allow him to do so is unfair to the other party and offensive to the rules of
fair play, justice and
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due process."18 Stated differently, basic considerations of due process dictate that
theories, issues and arguments not brought to the attention of the trial court need not
be, and ordinarily will not be, considered by a reviewing court.19
Assuming again for the sake of argument that the petitioners may still raise this issue of
"no physicianpatient relationship," the Court finds and so holds that there was a
"physicianpatient" relationship in this case.
In the case of Lucas v. Tuao,20 the Court wrote that "[w]hen a patient engages the
services of a physician, a physician-patient relationship is generated. And in accepting a
case, the physician, for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing in the same field; and
that he will employ such training, care, and skill in the treatment of the patient. Thus, in
treating his patient, a physician is under a duty to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same general
line of practice ordinarily possess and exercise in like cases. Stated otherwise, the
physician has the obligation to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar
circumstances."
Indubitably, a physician-patient relationship exists between the petitioners and patient

Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical
attention. The petitioners allegedly passed by and were requested to attend to the
victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on
duty at the ER).21 They obliged and examined the victim, and later assured the mother
that everything was fine and that they could go home. Clearly, a physician-patient
relationship was established between the petitioners and the patient Roy Jr.
To repeat for clarity and emphasis, if these doctors knew from the start that they were
not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of
diligence and commitment expected of every doctor in a case like this, they should have
not made a baseless assurance that everything was all right. By doing so, they deprived
Roy Jr. of adequate medical attention that placed him in a more dangerous situation
than he was already in. What petitioners should have done, and could have done, was
to refer Roy Jr. to another doctor who could competently and thoroughly examine his
injuries.
All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable
as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the
Philippines states:
A physician should attend to his patients faithfully and conscientiously. He should secure
for them all possible benefits that may depend upon his professional skill and care. As
the sole tribunal to adjudge the physicians failure to fulfill his obligation to his patients
is, in most cases, his own conscience, violation of this rule on his part is discreditable
and inexcusable.22
Established medical procedures and practices, though in constant instability, are devised
for the purpose of preventing complications. In this case, the petitioners failed to
observe the most prudent medical procedure under the circumstances to prevent the
complications suffered by a child of tender age.
As to the Award of Damages
While no criminal negligence was found in the petitioners failure to administer the
necessary medical attention to Roy Jr., the Court holds them civilly liable for the
resulting damages to their patient. While it was the taxi driver who ran over the foot or
leg of Roy Jr., their negligence was doubtless contributory.
It appears undisputed that the amount of 3,850.00, as expenses incurred by patient

Roy Jr., was adequately supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual damages.
The Court is aware that no amount of compassion can suffice to ease the sorrow felt by
the family of the child at that time. Certainly, the award of moral and exemplary
damages in favor of Roy Jr. in the amount of 100,000.00 and 50,000.00, respectively,
is proper in this case.
It is settled that moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo ante, the award of moral
damages is designed to compensate emotional injury suffered, not to impose a penalty
on the wrongdoer.23
The Court, likewise, finds the petitioners also liable for exemplary damages in the said
amount. Article 2229 of the Civil Code provides that exemplary damages may be
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imposed by way of example or correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals
dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is entered
ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime of reckless
imprudence resulting to serious physical injuries but declaring them civilly liable in the
amounts of:
(1) 3,850.00 as actual damages; (2) 100,000.00 as moral damages;
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(3) 50,000.00 as exemplary damages; and
(4) Costs of the suit.with interest at the rate of 6% per annum from the date of the
filing of the Information. The rate shall be 12% interest
per annum from the finality of judgment until fully paid.
SO ORDERED.
G.R. No. 167366
September 26, 2012
SUPREME COURT
DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners,vs.COURT OF

APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of
Court seeking the annulment and setting aside of the 21 February 2005 decision 2 of the
Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed decision, the CA affirmed
in toto the decision of the Regional Trial Court (R TC), Branch 22, Nag a City finding
herein petitioners Dr. Pedro Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe)
liable for damages.
Culled from the records are the following antecedent facts:
At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a

victim of a stabbing incident, was rushed to the emergency room of the Bicol Regional
Medical Center (BRMC). There, Raymond was attended to by Nurse Arlene Balares
(Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) the emergency room resident
physician.
Subsequently, the parents of Raymondthe spouses Deogenes Olavere (Deogenes) and

Fe R. Serranoarrived at the BRMC. They were accompanied by one Andrew Olavere,
the uncle of Raymond.
After extending initial medical treatment to Raymond, Dr. Realuyo recommended that
the patient undergo "emergency exploratory laparotomy." Dr. Realuyo then requested
the parents of Raymond to procure 500 cc of type "O" blood needed for the operation.
Complying with the request, Deogenes and Andrew Olavere went to the Philippine
National Red Cross to secure the required blood.
At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the
hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim Charles
Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr. Tatad), who
was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also
happened to be the head of Anesthesiology Department of the BRMC.
Just before the operation on Maluluy-on was finished, another emergency case
involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the
operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however,
Dr. Tatad was already working with the obstetricians who will perform surgery on Lilia
Aguila. There being no other available anesthesiologist to assist them, Drs. Zafe and
Cereno decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found
that the latters blood pressure was normal and "nothing in him was significant." 3 Dr.
Cereno reported that based on the xray result he interpreted, the fluid inside the
thoracic cavity of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag
containing the requested 500 cc type "O" blood. They handed over the bag of blood to
Dr. Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately
started their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon
opening of Raymonds thoracic cavity, they found that 3,200 cc of blood was stocked
therein. The blood was evacuated and petitioners found a puncture at the inferior pole
of the left lung.
In his testimony, Dr. Cereno stated that considering the loss of blood suffered by
Raymond, he did not immediately transfuse blood because he had to control the
bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation
was on-going, Raymond suffered a cardiac arrest. The operation ended at 1:50 A.M. and
Raymond was pronounced dead at 2:30 A.M.
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Raymonds death certificate5 indicated that the immediate cause of death was
"hypovolemic shock" or the cessation of the functions of the organs of the body due to
loss of blood.6
Claiming that there was negligence on the part of those who attended to their son, the
parents of Raymond, on 25 October 1995, filed before the RTC, Branch 22, Naga City a
complaint for damages7 against Nurse Balares, Dr. Realuyo and attending surgeons Dr.
Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own behalf. They also presented
the testimonies of Andrew Olavere and one Loira Oira, the aunt of Raymond. On the
other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego Reposo
testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad,
among others.
On 15 October 1999, the trial court rendered a decision 8 the dispositive portion of which
reads: WHEREFORE, premises considered, this Court hereby renders judgment:
1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of merit;
2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of
Raymond Olavere, jointly and severally the following amounts:
1. 50,000.00 for the death of the victim; 2. 150,000.00 as moral damages;3.

100,000.00 as exemplary damages; 4. 30,000.00 for attorneys fees; and
5. Cost of suit.9 x x x x.
The trial court found petitioners negligent in not immediately conducting surgery on
Raymond. It noted that petitioners have already finished operating on Charles
Maluluy-on as early as 10:30 in the evening, and yet they only started the operation on
Raymond at around 12:15 early morning of the following day. The trial court held that
had the surgery been performed promptly, Raymond would not have lost so much blood
and, therefore, could have been saved.10
The trial court also held that the non-availability of Dr. Tatad after the operation on
Maluluy-on was not a sufficient excuse for the petitioners to not immediately operate
on Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed
the possibility of calling a standby anesthesiologist in that situation. The trial court
opined that the petitioners could have just requested for the standby anesthesiologist
from Dr. Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on
Raymond.
On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the judgment
rendered by the RTC finding herein petitioners guilty of gross negligence in the
performance of their duties and awarding damages to private respondents.
Hence, this petition for review on certiorari under Rule 45 of the Rules of Court assailing
the CA decision on the following grounds:
1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN

THE PERFORMANCE OF THEIR DUTIES;
2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL CENTER AS
AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND
LIABLE FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY
DAMAGES AS WELL AS ATTORNEYS FEES EXORBITANT OR EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of Court, only questions of law may be
raised. The reason behind this is that this Court is not a trier of facts and will not
re-examine and re-evaluate the evidence on record.11 Factual findings of the CA,
affirming that of the trial court, are therefore generally final and conclusive on this
Court. This rule is subject to the following exceptions: (1) the conclusion is grounded on
speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd
or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation
of specific evidence on which the factual findings are based; (7) the findings of absence
of fact are contradicted by the presence of evidence on record; (8) the findings of the CA
are contrary to those of the trial court; (9) the CA manifestly overlooked certain relevant
and undisputed facts that, if properly considered, would justify a different
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conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such
findings are contrary to the admissions of both parties.12 In this case, We find exceptions
(1) and (4) to be applicable.
The type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has caused bodily harm. In
order to successfully pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that the failure or action
caused injury to the patient.13 Stated otherwise, the complainant must prove: (1) that
the health care provider, either by his act or omission, had been negligent, and (2) that
such act or omission proximately caused the injury complained of.
The best way to prove these is through the opinions of expert witnesses belonging in
the same neighborhood and in the same general line of practice as defendant physician
or surgeon. The deference of courts to the expert opinion of qualified physicians stems
from the formers realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating, hence, the
indispensability of expert testimonies.14
Guided by the foregoing standards, We dissect the issues at hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of the petitioners by their failure to
perform the operation on Raymond immediately after finishing the Maluluy-on
operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court relied
on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the possibility
that a standby anesthesiologist could have been called upon. The pertinent portions of
the testimony of Dr. Tatad provides:
Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?
A: We have a protocol at the Bicol Medical Center to have a consultant who is on call.
Q: How many of them?
A: One.
Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency case to be attended to in the Bicol
Medical Center?
A: Yes sir.15
Dr. Tatad further testified:
Q: Alright (sic), considering that you said you could not attend to Raymond Olavere
because another patient was coming in the person of Lilia Aguila, did you not suggest to
Dr. Cereno to call the standby anesthesiologist?
A: They are not ones to do that. They have no right to call for the standby
anesthesiologist. Q: Then, who should call for the standby anesthesiologist?A: It is me
if the surgeon requested.Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.Q: I just want to know that in this case the surgeon did not
request you to call for the standby anesthesiologist? A: No sir.16
From there, the trial court concluded that it was the duty of the petitioners to request
Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since petitioners
failed to do so, their inability to promptly perform the operation on Raymond becomes
negligence on their part.
This Court does not agree with the aforesaid conclusion.
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First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the record for
that matter, which shows that the petitioners were aware of the "BRMC protocol" that
the hospital keeps a standby anesthesiologist available on call. Indeed, other than the
testimony of Dr. Tatad, there is no evidence that proves that any such "BRMC protocol"
is being practiced by the hospitals surgeons at all.
Evidence to the effect that petitioners knew of the "BRMC protocol" is essential,
especially in view of the contrary assertion of the petitioners that the matter of
assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology
Department. Without any prior knowledge of the "BRMC protocol," We find that it is
quite reasonable for the petitioners to assume that matters regarding the
administration of anesthesia and the assignment of anesthesiologists are concerns of
the Anesthesiology Department, while matters pertaining to the surgery itself fall under
the concern of the surgeons. Certainly, We cannot hold petitioners accountable for not
complying with something that they, in the first place, do not know.
Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and that
petitioners knew about it, We find that their failure to request for the assistance of the
standby anesthesiologist to be reasonable when taken in the proper context. There is
simply no competent evidence to the contrary.
From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for a
standby anaesthesiologist is not within the full discretion of petitioners. The "BRMC
protocol" described in the testimony requires the petitioners to course such request to
Dr. Tatad who, as head of the Department of Anesthesiology, has the final say of calling
the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was
already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to
examine Raymond and they found that the latters blood pressure was normal and
"nothing in him was significant."17 Dr. Cereno even concluded that based on the x-ray
result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at
around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged and
were unrebutted.
Given that Dr. Tatad was already engaged in another urgent operation and that
Raymond was not showing any symptom of suffering from major blood loss requiring an
immediate operation, We find it reasonable that petitioners decided to wait for Dr.
Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There
is, after all, no evidence that shows that a prudent surgeon faced with similar
circumstances would decide otherwise.
Here, there were no expert witnesses presented to testify that the course of action
taken by petitioners were not in accord with those adopted by other reasonable
surgeons in similar situations. Neither was there any testimony given, except that of Dr.
Tatads, on which it may be inferred that petitioners failed to exercise the standard of
care, diligence, learning and skill expected from practitioners of their profession. Dr.
Tatad, however, is an expert neither in the field of surgery nor of surgical practices and
diagnoses. Her expertise is in the administration of anesthesia and not in the
determination of whether surgery ought or not ought to be performed.
Another ground relied upon by the trial court in holding petitioners negligent was their
failure to immediately transfuse blood on Raymond. Such failure allegedly led to the
eventual death of Raymond through "hypovolemic shock." The trial court relied on the
following testimony of Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused to him while he was inside the
operating room? A: The blood arrived at 1:40 a.m. and that was the time when this
blood was hooked to the patient.xxxxQ: Prior to the arrival of the blood, you did not
request for blood?
A: I requested for blood.Q: From whom?A: From the attending physician, Dr.
Realuyo.Q: What time was that?xxxxA: 9:30.xxxxQ: Had this blood been given to
you before the operation you could have transfused the blood to the patient? A: Of
course, yes.Q: And the blood was transfused only after the operation?A: Because that
was the time when the blood was given to us.xxxx
Q: Have you monitored the condition of Raymond Olavere?
A: I monitored the condition during the time when I would administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have been in critical condition?
A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood
was already needed.
Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did not
decide on transfusing blood to him?
A: I was asking for blood but there was no blood available.Q: From whom did you
ask?A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for
cross-matching.18
From the aforesaid testimony, the trial court ruled that there was negligence on the part
of petitioners for their failure to have the blood ready for transfusion. It was alleged
that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by Raymonds parents.
At 11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes had passed. Yet, the
blood was not ready for transfusion as it was still being cross-matched.19 It took another
two hours before blood was finally transfused to Raymond at 1:40 A.M. of 17
September 1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood, if there was any, cannot be
attributed as the fault of the petitioners. The petitioners were never shown to be
responsible for such delay. It is highly unreasonable and the height of injustice if
petitioners were to be sanctioned for lapses in procedure that does not fall within their
duties and beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in
the transfusion of blood on Raymond before and during the operation.
Before the operation, Dr. Cereno explained that the reason why no blood transfusion
was made on Raymond was because they did not then see the need to administer such
transfusion, viz:
Q: Now, you stated in your affidavit that prior to the operation you were informed that
there was 500 cc of blood available and was still to be cross-matched. What time was
that when you were informed that 500 cc of blood was due for crossmatching?
A: I am not sure of the time.
Q: But certainly, you learned of that fact that there was 500 cc of blood, which was due
for crossmatching immediately prior to the operation?
A: Yes, sir.Q: And the operation was done at 12:15 of September 17?A: Yes, sir.Q:
And that was the reason why you could not use the blood because it was being
crossmatched?
A: No, sir. That was done only for a few minutes. We did not transfuse at that time
because there was no need. There is a necessity to transfuse blood when we saw there
is gross bleeding inside the body. 20 (Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was already able to discover that
3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the puncture in
the latters left lung. Even then, however, immediate blood transfusion was not feasible
because:
Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not
immediately transfuse blood to the patient and you waited for 45 minutes to elapse
before transfusing the blood?
A: I did not transfuse blood because I had to control the bleeders. If you will transfuse
blood just the same the blood that you transfuse will be lost. After evacuation of
blood and there is no more bleeding...
Q: It took you 45 minutes to evacuate the blood?
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A: The evacuation did not take 45 minutes.Q: So what was the cause of the delay why
you only transfuse blood after 45 minutes?
A: We have to look for some other lesions. It does not mean that when you slice the
chest you will see the lesions already.21
(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted. The
parents of Raymond were not able to present any expert witness to dispute the course
of action taken by the petitioners.
Causation Not Proven
In medical negligence cases, it is settled that the complainant has the burden of
establishing breach of duty on the part of the doctors or surgeons. It must be proven
that such breach of duty has a causal connection to the resulting death of the patient. 22
A verdict in malpractice action cannot be based on speculation or conjecture. Causation
must be proven within a reasonable medical probability based upon competent expert
testimony.
The parents of Raymond failed in this respect. Aside from their failure to prove
negligence on the part of the petitioners, they also failed to prove that it was
petitioners fault that caused the injury. Their cause stands on the mere assumption that
Raymonds life would have been saved had petitioner surgeons immediately operated
on him; had the blood been cross-matched immediately and had the blood been
transfused immediately. There was, however, no proof presented that Raymonds life
would have been saved had those things been done. Those are mere assumptions and
cannot guarantee their desired result. Such cannot be made basis of a decision in this
case, especially considering that the name, reputation and career of petitioners are at
stake.
The Court understands the parents grief over their sons death. That notwithstanding, it
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cannot hold petitioners liable. It was noted that Raymond, who was a victim of a
stabbing incident, had multiple wounds when brought to the hospital. Upon opening of
his thoracic cavity, it was discovered that there was gross bleeding inside the body.
Thus, the need for petitioners to control first what was causing the bleeding. Despite
the situation that evening i.e. numerous patients being brought to the hospital for
emergency treatment considering that it was the height of the Peafrancia Fiesta, it was
evident that petitioners exerted earnest efforts to save the life of Raymond. It was just
unfortunate that the loss of his life was not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special law.
They are not guarantors of care. They do not even warrant a good result. They are not
insurers against mishaps or unusual consequences. Furthermore, they are not liable for
honest mistake of judgment..."23
This Court affirms the ruling of the CA that the BRMC is not an indispensible party. The
core issue as agreed upon by the parties and stated in the pre-trial order is whether
petitioners were negligent in the performance of their duties. It pertains to
acts/omissions of petitioners for which they could be held liable. The cause of action
against petitioners may be prosecuted fully and the determination of their liability may
be arrived at without impleading the hospital where they are employed. As such, the
BRMC cannot be considered an indispensible party without whom no final
determination can be had of an action.24
IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is
hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CA-G.R. CV
No. 65800 is hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.
G.R. No. 163753
January 15, 2014

SUPREME COURT
Manila FIRST DIVISION
DR. ENCARNACION C. LUMANTAS, M.D., Petitioner,vs.HANZ CALAPIZ, REPRESENTED

BY HIS PARENTS, HILARIO CALAPIZ, JR. and HERLITA CALAPIZ, Respondent.
DECISION
BERSAMIN, J.:The acquittal of the accused does not necessarily mean his absolution
from civil liability.
The Case
In this appeal, an accused desires the reversal of the decision promulgated on February
20, 2003,1 whereby the Court of Appeals (CA) affirmed the judgment rendered on
August 6, 1999 by the Regional Trial Court (RTC), Branch 13, in Oroquieta City ordering
him to pay moral damages despite his acquittal of the crime of reckless imprudence
resulting in serious physical injuries charged against him.2
Antecedents
On January 16, 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their
8-year-old son, Hanz Calapiz (Hanz), to the Misamis Occidental Provincial Hospital,
Oroquieta City, for an emergency appendectomy. Hanz was attended to by the
petitioner, who suggested to the parents that Hanz also undergo circumcision at no
added cost to spare him the pain. With the parents consent, the petitioner performed
the coronal type of circumcision on Hanz after his appendectomy. On the following day,
Hanz complained of pain in his penis, which exhibited blisters. His testicles were
swollen. The parents noticed that the child urinated abnormally after the petitioner
forcibly removed the catheter, but the petitioner dismissed the abnormality as normal.
On January 30, 1995, Hanz was discharged from the hospital over his parents
protestations, and was directed to continue taking antibiotics.
On February 8, 1995, Hanz was confined in a hospital because of the abscess formation
between the base and the shaft of his penis. Presuming that the ulceration was brought
about by Hanzs appendicitis, the petitioner referred him to Dr. Henry Go, an urologist,
who diagnosed the boy to have a damaged urethra. Thus, Hanz underwent cystostomy,
and thereafter was operated on three times to repair his damaged urethra.
When his damaged urethra could not be fully repaired and reconstructed, Hanzs
parents brought a criminal charge against the petitioner for reckless imprudence
resulting to serious physical injuries. On April 17, 1997, the information3 was filed in the
Municipal Trial Court in Cities of Oroquieta City (MTCC), to which the latter pleaded not
guilty on May 22, 1998.4 Under the order of April 30, 1999, the case was transferred to
the RTC pursuant to Supreme Court Circular No. 11-99.5
At the trial, the Prosecution presented several witnesses, including Dr. Rufino Agudera
as an expert witness and as the physician who had operated on Hanz twice to repair the
damaged urethra. Dr. Agudera testified that Hanz had been diagnosed to have urethral
stricture and cavernosal injury left secondary to trauma that had necessitated the
conduct of two operations to strengthen and to lengthen the urethra. Although
satisfactorily explaining that the injury to the urethra had been caused by trauma, Dr.
Agudera could not determine the kind of trauma that had caused the injury.
In his defense, the petitioner denied the charge. He contended that at the time of his
examination of Hanz on January 16, 1995, he had found an accumulation of pus at the
vicinity of the appendix two to three inches from the penis that had required immediate
surgical operation; that after performing the appendectomy, he had circumcised Hanz
with his parents consent by using a congo instrument, thereby debunking the parents
claim that their child had been cauterized; that he had then cleared Hanz on January 27,
1995 once his fever had subsided; that he had found no complications when Hanz
returned for his follow up check-up on February 2, 1995; and that the abscess formation
between the base and the shaft of the penis had been brought about by Hanzs burst
appendicitis.
Ruling of the RTC
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In its decision rendered on August 6, 1999,6 the RTC acquitted the petitioner of the
crime charged for insufficiency of the evidence. It held that the Prosecutions evidence
did not show the required standard of care to be observed by other members of the
medical profession under similar circumstances. Nonetheless, the RTC ruled that the
petitioner was liable for moral damages because there was a preponderance of
evidence showing that Hanz had received the injurious trauma from his circumcision by
the petitioner. The decision disposed as follows:
WHEREFORE, for insufficiency of evidence, this court renders judgment acquitting the
accused, Dr. Encarnacion Lumantas, of reckless imprudence resulting in serious physical
injuries, but ordering him to pay Hanz Calapiz 50,000.00 as moral damages. No costs.
SO ORDERED.
Ruling of the CA
On appeal, the CA affirmed the RTC,7 sustaining the award of moral damages. It opined
that even if the petitioner had been acquitted of the crime charged, the acquittal did
not necessarily mean that he had not incurred civil liability considering that the
Prosecution had preponderantly established the sufferings of Hanz as the result of the
circumcision.
The petitioner moved for reconsideration, but the CA denied the motion on April 28,
2004.8 Hence, this appeal.
Issue
Whether the CA erred in affirming the petitioners civil liability despite his acquittal of
the crime of reckless imprudence resulting in serious physical injuries.
Ruling
The petition for review lacks merit.
It is axiomatic that every person criminally liable for a felony is also civilly liable.9
Nevertheless, the acquittal of an accused of the crime charged does not necessarily
extinguish his civil liability. In Manantan v. Court of Appeals, 10 the Court elucidates on
the two kinds of acquittal recognized by our law as well as on the different effects of
acquittal on the civil liability of the accused, viz:
Our law recognizes two kinds of acquittal, with different effects on the civil liability of
the accused. First is an acquittal on the ground that the accused is not the author of the
1wphi1
act or omission complained of. This instance closes the door to civil liability, for a person
who has been found to be not the perpetrator of any act or omission cannot and can
never be held liable for such act or omission. There being no delict, civil liability ex
delicto is out of the question, and the civil action, if any, which may be instituted must
be based on grounds other than the delict complained of. This is the situation
contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal
based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of
the accused has not been satisfactorily established, he is not exempt from civil liability
which may be proved by preponderance of evidence only.
The Rules of Court requires that in case of an acquittal, the judgment shall state
"whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the
judgment shall determine if the act or omission from which the civil liability might arise
did not exist."11
Conformably with the foregoing, therefore, the acquittal of an accused does not prevent
a judgment from still being rendered against him on the civil aspect of the criminal case
unless the court finds and declares that the fact from which the civil liability might arise
did not exist.
Although it found the Prosecutions evidence insufficient to sustain a judgment of

conviction against the petitioner for the crime charged, the RTC did not err in
determining and adjudging his civil liability for the same act complained of based on
mere preponderance of evidence.12 In this connection, the Court reminds that the
acquittal for insufficiency of the evidence did not require that the complainants
recovery of civil liability should be through the institution of a separate civil action for
that purpose.13
The petitioners contention that he could not be held civilly liable because there was no
proof of his negligence deserves scant consideration. The failure of the Prosecution to
prove his criminal negligence with moral certainty did not forbid a finding against him
that there was preponderant evidence of his negligence to hold him civilly liable.14 With
the RTC and the CA both finding that Hanz had sustained the injurious trauma from the
hands of the petitioner on the occasion of or incidental to the circumcision, and that the
trauma could have been avoided, the Court must concur with their uniform findings. In
that regard, the Court need not analyze and weigh again the evidence considered in the
proceedings a quo. The Court, by virtue of its not being a trier of facts, should now
accord the highest respect to the factual findings of the trial court as affirmed by the CA
in the absence of a clear showing by the petitioner that such findings were tainted with
arbitrariness, capriciousness or palpable error.
Every person is entitled to the physical integrity of his body. Although we have long
1wphi1
advocated the view that any physical injury, like the loss or diminution of the use of any
part of ones body, is not equatable to a pecuniary loss, and is not susceptible of exact
monetary estimation, civil damages should be assessed once that integrity has been
violated. The assessment is but an imperfect estimation of the true value of ones body.
The usual practice is to award moral damages for the physical injuries sustained. 15 In
Hanzs case, the undesirable outcome of the circumcision performed by the petitioner
forced the young child to endure several other procedures on his penis in order to repair
his damaged urethra. Surely, his physical and moral sufferings properly warranted the
amount of 50,000.00 awarded as moral damages.
Many years have gone by since Hanz suffered the injury. Interest of 6% per annum
should then be imposed on the award as a sincere means of adjusting the value of the
award to a level that is not only reasonable but just and commensurate. Unless we
make the adjustment in the permissible manner by prescribing legal interest on the
award, his sufferings would be unduly compounded. For that purpose, the reckoning of
interest should be from the filing of the criminal information on April 17, 1997, the
making of the judicial demand for the liability of the petitioner.
WHEREFORE, the Court AFFIRMS the decision promulgated on February 20, 2003, with
the modification that legal interest of 6% per annum to start from April 17, 1997 is
imposed on the award of:50,000.00 as moral damages; and ORDERS the petitioner to
pay the costs of suit.
SO ORDERED.
G.R. No. 163879
July 30, 2014
SUPREME COURT
DR. ANTONIO P. CABUGAO, Petitioner,vs.PEOPLE OF THE PHILIPPINES and SPOUSES

RODOLFO M. PALMA and ROSARIO F. PALMA, Respondents.
x-----------------------x
G.R. No. 165805
DR. CLENIO YNZON, Petitioner,vs.PEOPLE OF THE PHILIPPINES and SPOUSES

RODOLFO M. PALMA AND ROSARIO F. PALMA, Respondents.
DECISION
PERALTA, J.:
Before this Court are appeals via Rule 45 from the Decision 1 dated June 4, 2004 of the
Court of Appeals in CA-G.R. CR No. 27293, affirming the Decision2 dated February
28,2003 of the Regional Trial Court (RTC), convicting appellant Dr. Antonio P. Cabugao
(Dr. Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the crime of Reckless Imprudence
Resulting to Homicide.
The Information3 alleged
That on or about June 17, 2000in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, DR. ANTONIO
P.CABUGAO and DR. CLENIO YNZON, being then the attending physicians of one
RODOLFO PALMA, JR., a minor 10 years old, confederating and acting jointly with one
another, did, then and there, willfully, unlawfully and feloniously fail through
negligence, carelessness and imprudence to perform immediate operation upon their
patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said physicians,
should have been done so considering that examinations conducted upon their patient
Rodolfo Palma, Jr. seriously manifest todo so, causing by such negligence, carelessness,
and imprudence the victim, RODOLFO PALMA JR., to die due to:
"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, SEPTICEMIA (ACUTE

APPENDICITIS), CEREBRAL ANEURYSM RUPTURED (?)"
As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage
and prejudice of the legal heirs of said deceased RODOLFO PALMA, JR. and other
consequential damages relative thereto.
CONTRARY to Article 365, 1st par. of the Revised Penal Code. Dagupan City, Philippines,
January 29, 2001.
Arising from the same events, the Court resolved to consolidate these cases. 4 The facts,
as culled from the records, are as follows:
On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F.
Palma, Jr. (JR) complained of abdominal pain to his mother, Rosario Palma. At 5 oclock
that sameafternoon, Palma's mother and father, Atty. Rodolfo Palma Sr., brought JR to
the clinic of accused Dr. Cabugao. Dr. Cabugao, a general practitioner, specializing in
familymedicine gave medicines for the pain and told Palma's parents to call him up if his
stomach pains continue. Due to persistent abdominal pains, at 4:30 in the early morning
of June 15, 2000, they returnedto Dr. Cabugao, who advised them to bring JR to the
Nazareth General Hospital in Dagupan City, for confinement. JR was admitted at the said
hospital at 5:30 in the morning.5
Blood samples were taken from JR for laboratory testing. The complete blood count
conveyed the following result: wbc 27.80 x 10 9/L; lymphocytes 0.10 and neutrophils
0.90. Diagnostic ultrasound was likewise conducted on the patient's lower abdomen
by radiologist, Dr. Ricky V. Querubin, with the following findings:
Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.
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There is no free peritoneal fluid.
There is localized tenderness in the paraumbilical region, more so in the supra and right
paraumbilical areas.
There is a vague elongated hypoechoic focus in the right periumbilical region roughly
about 47 x 18 mm surrounded by undistended gas-filled bowels. This is suggestive of an
inflammatory process wherein appendiceal or periappendiceal pathology cannot be
excluded. Clinical correlation is essential."6
Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter,
negative tenderness, negative mass." The initial impression was Acute Appendicitis,7 and
hence, he referred the case to his co-accused, Dr. Ynzon, a surgeon. 8 In the later part of
the morning of June 15, 2000, Dr. Ynzon went to the hospital and readthe CBC and
ultrasound results. The administration of massive antibiotics and pain reliever to JRwere
ordered. Thereafter, JR was placed on observation for twenty-four (24) hours.
In the morning of June 16, 2000, JR complained again of abdominal pain and his parents
noticeda swelling in his scrotum. In the afternoon of the same day, JR vomitted out
greenish stuff three (3) times and had watery bowels also three (3) times. The nurses
on-duty relayed JR's condition to Dr. Ynzon who merely gaveorders via telephone. 9
Accused continued medications to alleviate JR's abdominal spasms and diarrhea. By
midnight, JR again vomitted twice, had loose bowel movements and was unable to
sleep. The following morning, June 17,2000, JR's condition worsened, he had a running
fever of 38C. JR's fever remained uncontrolled and he became unconscious, he was
given Aeknil (1 ampule) and Valium (1 ampule). JR's condition continued to deteriorate
that by 2 o'clock in the afternoon, JR's temperature soared to 42C, had convulsions and
finally died.
The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao indicated the
following causes of death: Immediate cause: CARDIORESPIRATORY ARREST
Antecedent cause: METABOLIC ENCEPHALOPATHY Underlying cause: SEPTICEMIA

(ACUTE APPENDICITIS)
Other significant conditionscontributing to death:
CEREBRAL ANEURYSM RUPTURED (?)
No post-mortem examination was conducted on JR. On February 1, 2001, an

Information was filed against accused for reckless imprudence resulting to homicide. At
their arraignment, both accused, duly assisted by counsel, pleaded not guilty to the
charge.
On February 28, 2003, in convicting both the accused, the trial court found the following
circumstances as sufficient basis to conclude that accused were indeed negligent in the
performance of their duties:
It is unquestionable that JR was under the medical care of the accused from the time of
his admission for confinement at the Nazareth General Hospital until his death. Upon his
admission, the initial working diagnosis was to consider acute appendicitis. To assist the
accused in the consideration of acute appendicitis, Dr. Cabugao requested for a
complete blood count (CBC) and a diagnostic ultrasound on JR. The findings of the CBC
and ultrasound showed that an inflammatory process or infection was going on inside
the body of JR. Said inflammatory process was happening in the periumbilical region
where the appendix could be located. The initial diagnosis of acute appendicitis appears
to be a distinct possibility. x x x.
Dr. Ynzon ordered medications to treat the symptoms being manifested by JR.
Thereafter, he ordered that JR be observed for 24 hours. However, the accused, as the
attending physicians, did not personally monitor JR in order to check on subtle changes
that may occur. Rather, they left the monitoring and actual observation to resident
physicians who are just on residency training and in doing so, they substituted their own
expertise, skill and competence with those of physicians who are merely new doctors
still on training. Not having personally observed JR during this 24-hour critical period of
observation, the accused relinquished their duty and thereby were unable to give the
proper and correct evaluation as to the real condition of JR. In situations where massive
infection is going on as shown by the aggressive medication of antibiotics, the condition
of the patient is serious which necessitated personal, not delegated, attention of
attending physicians, namely JR and the accused in this case.
xxxx
Throughout the course of the hospitalization and treatment of JR, the accused failed to
address the acute appendicitis which was the initial diagnosis. They did not take steps to
find out if indeed acute appendicitis was what was causing the massive infection that
was ongoing inside the body of JR even when the inflammatory process was located at
the paraumbilical region where the appendix can be located. x x x
There may have been other diseases but the records do not show that the accused took
steps to find outwhat disease exactly was plaguing JR. It was their duty to find out the
disease causing the health problem of JR, but they did not perform any process of
elimination. Appendicitis, according to expert testimonies, could be eliminated only by
surgery but no surgery was done by the accused. But the accused could not have found
out the real disease of JR because they were treating merely and exclusively the
symptoms by means of the different medications to arrest the manifested symptoms. In
fact, by treating the symptoms alone, the accused were recklessly and wantonly
ignoring the same as signs of the graver health problem of JR. This gross negligence on
the part of the accused
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allowed the infection to spread inside the body of JR unabated. The infection obviously
spread so fastand was so massive that within a period of only two and a half (2 12) days
from the day of admission to the hospital on June 15, 2000, JR who was otherwise
healthy died [of] Septicemia (Acute Appendicitis) on June 17, 2000.11
On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave similar
observations, to wit:
The foregoing expert testimony clearly revealed such want of reasonable skill and care
on the part of JR's attending physicians, appellants Dr. Cabugao and Dr. Ynzon in
neglecting to monitor effectively and sufficiently the developments/changes during the
observation period and act upon the situation after said 24-hour period when his
abdominal pain subsisted, his condition even worsened with the appearance of more
serious symptoms of nausea, vomiting and diarrhea. Considering the brief visit only
made on regular rounds, the records clearly show such gross negligence in failing to take
appropriate steps to determine the real cause of JR's abdominal pain so that the crucial
decision to perform surgery (appendectomy) had even been ruled out precisely because
of the inexcusable neglect to undertake suchefficient diagnosis by process of
elimination, as correctly pointed out by the trial court. As has been succinctly
emphasized by Dr. Mateo, acute appendicitis was the working diagnosis, and with the
emergence of symptoms after the 24-hour observation (high fever, vomiting, diarrhea)
still, appellants ruled out surgery, not even considering exploratory laparoscopy. Dr.
Mateo also expressed the opinion that the decision to operate could have been made
after the result of the ultrasound test, considering that acute appendicitis was the initial
diagnosis by Dr. Cabugao after he had conducted a rectal examination.
Medical records buttress the trial court's finding that in treating JR, appellants have
demonstrated indifference and neglect of the patient's condition as a serious case.
Indeed, appendicitis remains a clinical emergencyand a surgical disease, as correctly
underscored by Dr. Mateo, a practicing surgeon who has already performed over a
thousand appendectomy. In fact, appendectomy is the only rational therapy for acute
appendicitis; it avoids clinical deterioration and may avoid chronic or recurrent
appendicitis. Although difficult, prompt recognition and immediate treatment of the
disease prevent complications. Under the factual circumstances, the inaction, neglect
and indifference of appellants who, after the day of admission and after being apprised
of the ongoing infection from the CBC and initial diagnosis as acute appendicitis from
rectal examination and ultrasound testand only briefly visited JR once during regular
rounds and gave medication orders by telephone constitutes gross negligenceleading
to the continued deterioration of the patient, his infection having spread in sofast a
pace that he died within just two and a half (2 12) days stay inthe hospital. Authorities
state that if the clinical picture is unclear a short period of 4 to 6 hours of watchful
waiting and a CT scan may improve diagnostic accuracy and help to hasten
diagnosis.Even assuming that JR's case had an atypical presentation in view of the
location of his appendix, laboratory tests could have helped to confirm diagnosis, as Dr.
Mateo opined thatthe possibility of JR having a retrocecal appendicitis should have been
a strong consideration. Lamentably, however, as found by the trial court, appellants had
not taken steps towards correct diagnosis and demonstrated laxity even when JR was
already running a high fever in the morning of June 17, 2000 and continued vomiting
with diarrhea, his abdominal pain becoming more intense. This is the reason why
private complainants were not even apprised of the progress of appellants' diagnosis
appellants have nothing to report because they did nothing towards the end and merely
gave medications to address the symptoms.12
Thus, these appeals brought beforethis Court raising the following arguments: I
WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE INFORMATION IS

"FAILURE TO PERFORM IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO PALMA
JR. OF ACUTE APPENDICITIS;
II
WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED BOTH ACCUSED

DOCTORS OF CONSPIRACY AND THE APPEALED DECISION SEEMS TO HAVE TREATED
BOTH ACCUSED DOCTORS TO BE IN CONSPIRACY;
III
WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER (NOT A SURGEON)

AND HAVE EXCLUDED SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT WAS NOT
AND NEVER HIS DUTY TO OPERATE THE PATIENT RODOLFO PALMA JR., THAT WAS WHY
HE REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;
IV
WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE THAT DOING
SURGERY WOULD HAVE SAVED THE PATIENT;
WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING PROSECUTION'S EXPERT

WITNESSES EVER DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO HAD THE DUTY
TO PERFORM IMMEDIATE OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED TO
STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS ACUTE APPENDICITIS;
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VI
WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION EVER
QUESTIONED THE MANAGEMENT AND CARE APPLIED BY PETITIONER DR. CABUGAO;
VII
WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE UNANIMOUS IN

APPROVING THE METHOD OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS ON
SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE
SUBJECT THE PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM IMMEDIATE
OPERATION;
VIII
WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS ESTABLISHED WITH THE
REQUIRED QUANTUM OF PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT WAS
SPECIFICALLY SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and
IX
WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL OPERATION KNOWN AS

APPENDECTOMY CONSTITUTED CRIMINAL NEGLIGENCE.
In a nutshell, the petition brought before this Court raises the issue of whether or not
petitioners' conviction of the crime of reckless imprudence resulting in homicide, arising
from analleged medical malpractice, is supported by the evidence on record.
Worth noting is that the assigned errors are actually factual in nature, which as a
general rule, findings of factof the trial court and the Court of Appeals are binding and
conclusiveupon this Court, and we will not normally disturb such factual findings unless
the findings of the court are palpably unsupported by the evidence on record or unless
the judgment itself is based on misapprehension of facts. Inthe instant case, we find the
need to make certain exception.
AS TO DR. YNZON'S LIABILITY:
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precautionon
the part of the person performing or failing to perform such act. 13 The elements of
reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it bewithout malice; (4) that
material damage results from the reckless imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking into consideration his employment
or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.14
With respect to Dr. Ynzon, all the requisites of the offense have been clearly established
by the evidence on record. The court a quoand the appellate court were one in
concluding that Dr. Ynzon failed to observe the required standard of care expected from
doctors.
In the instant case, it was sufficiently established that to prevent certain death, it was
necessary to perform surgery on JR immediately. Even the prosecutions own expert
witness, Dr. Antonio Mateo,15 testified during cross- examination that he would perform
surgery on JR:
ATTY. CASTRO:
Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C
which is the ultrasound result, with that laboratory would you operate the patient?
A Yes, I would do surgery.
Q And you should have done surgery with this particular case?"
A Yes, sir.16
xxxx
COURT:
Q You stated a while ago doctor thatyou are going to [do] surgery to the patient, why
doctor, if you are notgoing to do surgery, what will happen?
A If this would be appendicitis, the usual progress would be that it would be ruptured
and generalized peritonitis and eventually septicemia, sir.
Q What do you mean by that doctor?
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A That means that infection would spread throughout the body, sir. Q If unchecked
doctor, what will happen?A It will result to death.17xxxx
Q And what would have you doneif you entertain other considerations from the time
the patient was admitted?
A From the time the patient was admitted until the report of the sonologist, I would
have made a decision by then.
Q And when to decide the surgery would it be a particular exact time, would it be the
same for all surgeons?
A If you are asking acute appendicitis, it would be about 24 hours because acute
appendicitis is a 24-hour disease, sir.
Q. And would it be correct to say that it depends on the changes on the condition of the
patient?A. Yes, sir.Q. So, are you saying more than 24 hours when there are
changes?A. If there are changes in the patient pointing towards appendicitis then you
have to decide right there and then, sir. Q. So if there are changes in the patient
pointing to appendicitis?
A. It depends now on what you are trying to wait for in the observation period, sir.
Q. So precisely if the change is a condition which bring you in doubt that there is
something else other than appendicitis, would you extend over a period of 24 hours?
A. It depends on the emergent development, sir.
Q. That is the point, if you are the attending physician and there is a change not pointing
to appendicitis, would you extend over a period of 24 hours?
A. In 24 hours you have to decide, sir.
xxxx
Q. And that is based on the assessment of the attending physician?
A. Yes, sir.18
Dr. Mateo further testified on cross-examination:
ATTY. CASTRO:
Q: So you will know yourself, as far as the record is concerned, because if you will agree
with me, you did not even touch the patient?
A. Yes, I based my opinion on what is put on record, sir. The records show that after the
observation period, the abdominal pain is still there plus there are already other signs
and symptoms which are not seen or noted.
Q. But insofar as you yourself not having touched the abdomen of the patient, would
you give a comment on that?
A. Yes, based on the record, after 24 hours of observation, the pain apparently was still
there and there was more vomiting and there was diarrhea. In my personal opinion, I
think the condition of the patient was deteriorating.
Q. Even though you have not touched the patient?
A. I based on what was on the record, sir.19
From the foregoing, it is clear that if JRs condition remained unchecked it would
ultimately result in his death, as what actually happened in the present case. Another
expert witness for the defense, Dr. Vivencio Villaflor, Jr. testified on direct examination
that he would perform a personal and thorough physical examination of the patient as
frequent as every 4 to 6 hours, to wit:
ATTY. CASTRO:
Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea,
vomiting, fever, anurecia (sic), elevated white blood cell count, physical examination of
a positive psoas sign, observation of the sonologist of abdominal tenderness and the
ultrasound findings of the probability of appendiceal (sic) pathology, what will you do if
you have faced these problems, Doctor?
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A. I will examine the patient thoroughly and it will depend on my physical examination
and that isprobably every 4 to 6 hours, sir.20
On cross-examination, Dr. Villaflor affirmed: Cross Exam. By Atty. Marteja:
Q. x x x However, there are corrections and admissions made at that time, your Honor,
do I understand thatT/C does not mean ruled out but rather to consider the matter?
A. Yes, now that I have seen the records of the patient, it says here, impression and T/C
means to consider the appendicitis.
Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo Palma,
Jr., otherwise known as JR, to whom I shall now refer to as JR, the primary consideration
then is acute appendicitis, is that correct to say Doctor?
A. I think so, that is the impression.
Q. x x x Now if it is to be considered as the primary consideration in the initial working

diagnosis, isn't it a fact that it has tobe ruled out in order to consider it as not the
disease of JR?
A. Yes. Sir.
Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or
operation must be done, isn't it Doctor?
A. You have to correlate all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an
operation, that is right Doctor?
A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis, you have to
operate.21 xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that
causes pain, considering that JR likewise was feverish and that he was vomiting, does
that not show a disease of acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have
earlier mentioned that the only way to rule out the suspect which is acute appendicitis
is by surgery, you have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.22
Verily, whether a physician or surgeon has exercised the requisite degree of skill and
care in the treatment of his patient is, in the generality of cases, a matter of expert
opinion. The deference of courts to the expert opinions of qualified physicians stems
from its realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating.23 From the testimonies of the expert
witnesses presented, it was irrefutably proven that Dr. Ynzon failed to practice that
degree of skill and care required in the treatment of his patient.
As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable skill
and care in attending to the needs of JR by neglecting to monitor effectively the
developmentsand changes on JR's condition during the observation period, and to act
upon the situation after the 24-hour period when his abdominal pain persisted and his
condition worsened. Lamentable, Dr. Ynzon appeared to have visited JRbriefly only
during regular rounds in the mornings. He was not there during the crucial times on
June 16, 2000 when JR's condition started to deteriorate until JR's death. As the
attending surgeon, he should be primarily responsible in monitoring the condition of JR,
as he is in the best position considering his skills and experience to know if the patient's
condition had deteriorated. While the resident-doctors-onduty could likewise monitor
the patientscondition, he is the one directly responsible for the patient as the attending
surgeon. Indeed, it is reckless and gross negligence of duty to relegate his personal
responsibility to observe the condition of the patient. Again, acute appendicitis was the
working diagnosis, and with the emergence of graver symptoms after the 24-hour
observation, Dr. Ynzon ruled out surgery for no apparent reason. We, likewise, note that
the records are devoid of showing of any reasonable cause which would lead Dr. Ynzon
tooverrule appendectomy despite the initial diagnosis of appendicitis. Neitherwas there
any showing that he was entertaining another diagnosis nor he took appropriate steps
towards another diagnosis.
Among the elements constitutive of reckless imprudence, what perhaps is most central
to a finding of guilt is the conclusive determination that the accused has exhibited, by
his voluntary act without malice, an inexcusable lack of
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precaution. It is that which supplies the criminal intent so indispensable as tobring an

act of mere negligence and imprudence under the operation of the penal law. This is
because a conscious indifference to the consequences of the conduct is all that is
required from the standpoint of the frame of mind of the accused.24 Quasioffenses
penalize the mental attitudeor condition behind the act, the dangerous recklessness,
the lack of care or foresight, the "imprudencia punible," unlike willful offenses which
punish the intentional criminal act.25 This is precisely where this Court found Dr. Ynzon
to be guilty of - his seemingly indifference to the deteriorating condition of JR that he as
a consequence, failed to exercise lack of precaution which eventually led to JR's death.
To be sure, whether or not a physician has committed an "inexcusable lack of

precaution" in the treatment of his patient is to be determined according to the
standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time
of treatment or the present state of medical science. In accepting a case, a doctor in
effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He, therefore, has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the
same circumstances.26 Sadly, Dr. Ynzon did not display that degree of care and
precaution demanded by the circumstances.
AS TO DR. CABUGAO'S LIABILITY:
Every criminal conviction requires of the prosecution to prove two things the fact of
the crime, i.e., the presence of all the elements of the crime for which the accused
stands charged, and the fact that the accused is the perpetrator of the crime. Based on
the above disquisitions, however, the prosecution failed to prove these two things. The
Court is not convinced with moral certainty that Dr. Cabugao isguilty of reckless
imprudence as the elements thereof were not proven by the prosecution beyond a
reasonable doubt.
Both the trial court and the appellate court bewail the failure to perform appendectomy
on JR, or the failure to determine the source of infection which caused the deterioration
of JR's condition. However, a review of the records fail to show that Dr. Cabugao is in
any position to perform the required appendectomy.
Immediately apparent from a review of the records of this case is the fact that Dr.
Cabugao is not a surgeon,but a general practitioner specializing in family medicine; 27
thus, even if he wanted to, he cannot do an operation, much less an appendectomy on
JR. It is precisely for this reason why he referred JR to Dr. Ynzon after he suspected
appendicitis. Dr. Mateo, the prosecutions expert witness, emphasized the role of the
surgeon during direct examination, to wit:
ATTY. MARTEJA:
Q. You had mentioned that under this circumstances and condition, you have
mentioned that surgery is the solution, would you have allowed then a 24 hour
observation?
A. If there is a lingering doubt, inshort period of observation of 18-24 hours can be

allowed provided that there would be close monitoring of the patient, sir.
Q. Would you please tell us who would be doing the monitoring doctor? A. The best
person should be the first examiner, the best surgeon, sir.
Q. So that would you say that it is incumbent on the surgeon attending to the case to
have been the one to observe within the period of observation?
A. Yes, because he will be in the best position to observe the sudden changes in the
condition of the patient, sir.
Q. And how often would in your experience doctor, how often would the surgeon
re-assist (sic) the condition of the patient during the period of observation?
A. Most foreign authors would recommend every four (4) hours, some centers will
recommend hourly or every two hours but here in the Philippines, would recommend
for 4 to 6 hours, sir.28
Dr. Cabugaos supervision does not cease upon his endorsement of his patient to the
surgeon. Here, Dr. Cabugao has shown to have exerted all efforts to monitor his patient
and under these circumstances he did not have any cause to doubt Dr. Ynzons
competence and diligence. Expert testimonies have been offered to prove the
circumstances surrounding the case of JR and the need to perform an operation.
Defense witness, Dr. Villaflor, on cross examination testified, to wit:
Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, surgery or
operation mustbe done, isn't it Doctor?
A. You have to [correlate] all the findings. Q. Is it yes or no, Doctor?A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an
operation, that is right Doctor?
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A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you have
to operate.29 xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that
causes pain, considering that JR likewise was feverish and that he was vomitting, does
that not show a disease of acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have
earlier mentioned that the only way to rule out the suspect which is acute appendicitis
is by surgery, you have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.30
Neither do we find evidence that Dr. Cabugao has been negligent or lacked the
necessary precaution in his performance of his duty as a family doctor. On the contrary,
a perusal ofthe medical records would show that during the 24-hour monitoring on JR, it
was Dr. Cabugao who frequently made orders on the administration of antibiotics and
pain relievers. There was also repetitive instructions from Dr. Cabugao to refer JR to Dr.
Ynzon as it appeared that he is suspecting appendicitis. The referral of JR to Dr. Ynzon, a
surgeon, is actually an exercise of precaution as he knew that appendicitis is not within
his scope of expertise. This clearly showed that he employed the best of his knowledge
and skill in attending to JR's condition, even after the referral of JR to Dr. Ynzon. To be
sure, the calculated assessment of Dr. Cabugao to refer JRto a surgeon who has
sufficient training and experience to handle JRs case belies the finding that he displayed
inexcusable lack of precaution in handling his patient.31
We likewise note that Dr. Cabugao was out of town when JR's condition began to
deteriorate. Even so, before he left, he made endorsement and notified the
resident-doctor and nurses-on-duty that he will be on leave.
Moreover, while both appeared to be the attending physicians of JR during his hospital
confinement, it cannot be said that the finding of guilt on Dr. Ynzon necessitates the
same finding on the co-accused Dr. Cabugao. Conspiracy is inconsistent with the idea of
a felony committed by means of culpa.32 Thus, the accused-doctors to be found guilty of
reckless imprudence resulting in homicide, it must be shown that both accused-doctors
demonstratedan act executed without malice or criminal intent but with lack of
foresight, carelessness, or negligence. Noteworthy, the evidence on record clearly
points to the reckless imprudence of Dr. Ynzon; however, the same cannot be said in Dr.
Cabugao's case.
AS TO CIVIL LIABILITY
While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court
that the latter died on December 23, 2011 due to "multiorgan failure" as evidenced by a
copy of death certificate.33 Thus, the effect of death, pending appeal of his conviction of
petitioner Dr. Ynzon with regard to his criminal and pecuniary liabilities should be in
accordance to People v. Bayotas,34 wherein the Court laid down the rules in case the
accused dies prior to final judgment:
1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice Regalado,
in this regard, "the death of the accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from and based solely on the offense
committed, i.e.,civil liability ex delictoin senso strictiore."
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if
the same may also be predicated on a source of obligation other than delict. Article
1157 of the Civil Code enumerates these other sources of obligation fromwhich the civil
liability may arise as a result of the same act or omission:
a) Lawb) Contractsc) Quasi-contracts d) x x x x x x x x x e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and
subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This
separate civil action may be enforced either againstthe executor/administrator or the
estate of the accused, depending on the source of obligation upon which the same is
based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-offended party instituted together
therewith the civil action. In such case, the statute of limitationson the civil liability is
deemed interrupted during the pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension
on a possible privation of right by prescription.35
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In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending
appeal of his conviction extinguishes his criminal liability. However, the recovery of civil
liability subsists as the same is not based on delictbut by contract and the reckless
imprudence he was guilty of under Article 365 of the Revised Penal Code. For this 1wphi1
reason, a separate civil action may be enforced either against the

executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based,36 and in accordance with Section 4, Rule 111
of the Rules on Criminal Procedure, we quote:
Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and
during the pendency of the criminal action shall extinguish the civil liability arising from
the delict. However, the independent civil action instituted under section 3 of this Rule
or which thereafter is instituted to enforce liability arising from other sources of
obligation may be continued against the estate or legal representative of the accused
after proper substitution or against said estate, as the case may be. The heirs of the
accused may besubstituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives to appear
and be substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these rules for prosecuting claims against the estate of the
deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to
any civil action the offended party may file against the estate of the deceased.
(Emphases ours)
In sum, upon the extinction of the criminal liability and the offended party desires to
recover damages from the same act or omission complained of, the party may file a
separate civil action based on the other sources of obligation in accordance with Section
4, Rule 111.37 If the same act or omission complained of arises from quasi-delict,as in
this case, a separate civil action must be filed against the executor or administrator of
the estate of the accused, pursuant to Section 1, Rule 87 of the Rules of Court:38
Section 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debtor interest
thereon shall be commenced against the executor or administrator; but to recover real
or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real or
personal, may be commenced against him. (Emphases ours)
Conversely, if the offended party desires to recover damages from the same act or
omission complained of arising from contract, the filing of a separate civil action must
be filed against the estate, pursuant to Section 5, Rule 86 of the Rules of Court, to wit:
Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions.
All claims for money against the decent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses and
expense for the last sickness of the decedent, and judgment for money against the
decent, must be filed within the time limited in the notice; otherwise they are barred
forever, except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants. Where an executor or
administrator commencesan action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by answer the claims he has against
the decedent, instead of presenting them independently to the court as herein
provided, and mutual claims may be set off against each other in such action; and if final
judgment is rendered in favor of the defendant, the amount so determined shall be
considered the true balance against the estate, as though the claim had been presented
directly beforethe court in the administration proceedings. Claims not yet due, or
contingent, may be approved at their present value.
As a final note, we reiterate thatthe policy against double recovery requires that only
one action be maintained for the same act or omission whether the action is brought
against the executor or administrator, or the estate.39 The heirs of JR must choose which
of the available causes of action for damages they will bring.
WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is hereby

ACQUITTEDof the crime of reckless imprudence resulting to homicide.
Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his
criminal liability is extinguished; however, his civil liability subsists. A separate civil
action may be filed either against the executor/administrator, or the estateof Dr. Ynzon,
depending on the source of obligation upon which the same are based.
SO ORDERED.
G.R. No. 171127
March 11, 2015
x-----------------------x
G.R. No. 171217
DRA. RUBY SANGA-MIRANDA, Petitioner, vs.NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171228
SAN JUAN DEDIOS HOSPITAL, Petitioner, vs.NELSON CORTEJO, Respondent.
BRION, J.:
DECISION
SUPREME COURT
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS HOSPITAL,

Petitioners, vs.NELSON CORTEJO, Respondent.
We resolve the three (3) consolidated petitions for review on Certiorari1 involving
medical negligence, commonly assailing the October 29, 2004 decision2 and the January
12, 2006 resolution3 of the Court of Appeals (CA) in CA- G.R. CV No. 56400. This CA
decision affirmed en totothe ruling of the Regional Trial Court (RTC), Branch 134, Makati
City.
The RTC awarded Nelson Cortejo (respondent) damages in the total amount of
595,000.00, for the wrongful death of his son allegedly due to the medical negligence
of the petitioning doctors and the hospital.
Factual Antecedents The common factual antecedents are briefly summarized below.
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her
11-year old son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de
Dios Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain, and
fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her
testimony, Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had
developed a slight fever that lasted for one day; a few hours upon discovery, she
brought Edmer to their family doctor; and two hours after administering medications,
Edmers fever had subsided.5
After taking Edmers medical history, Dr. Livelo took his vital signs, body temperature,
and blood pressure.6 Based on these initial examinations and the chest x-ray test that
followed, Dr. Livelo diagnosed Edmer with "bronchopneumonia.7 " Edmers blood was
also taken for testing, typing, and for purposes of administering antibiotics. Afterwards,
Dr. Livelo gave Edmer an antibiotic medication to lessen his fever and to loosen his
phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was
referred to an accredited Fortune Care coordinator, who was then out of town. She was
thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also
accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined
Edmer in his room. Using only a stethoscope, he confirmed the initial diagnosis of
"Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctors diagnosis.
She immediately advised Dr. Casumpang that Edmer had a high fever, and had no colds
or cough10 but Dr. Casumpang merely told her that her sons "blood pressure is just
being active,"11 and remarked that "thats the usual bronchopneumonia, no colds, no
phlegm."12 Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the
following day.13 Still suspicious about his sons illness, Mrs. Cortejo again called Dr.
Casumpangs attention and stated that Edmer had a fever, throat irritation, as well as
chest and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of
blood in Edmers sputum. Despite these pieces of information, however, Dr. Casumpang
simply nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that
Edmers illness is bronchopneumonia.14
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood
streak"15 prompting the respondent (Edmers father) to request for a doctor at the
nurses station.16 Forty-five minutes later, Dr. Ruby Miranda-Sanga (Dr. Sanga), one of
the resident physicians of SJDH, arrived. She claimed that although aware that Edmer
had vomited "phlegm with blood streak," she failed to examine the blood specimen
because the respondent washed it away. She then advised the respondent to preserve
the specimen for examination.
Thereafter, Dr. Sanga conducted a physical checkup covering Edmers head, eyes, nose,
throat, lungs, skin and abdomen; and found that Edmer had a low-grade non-continuing
fever, and rashes that were not typical of dengue fever.17 Her medical findings state:
the patients rapid breathing and then the lung showed sibilant and the patients nose is
flaring which is a sign that the patient is in respiratory distress; the abdomen has
negative finding; the patient has low grade fever and not continuing; and the rashes in
the patients skin were not
"Hermans Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Sanga, the
respondent showed her Edmers blood specimen, and reported that Edmer had
complained of severe stomach pain and difficulty in moving his right leg. 19
Dr. Sanga then examined Edmers "sputum with blood" and noted that he was bleeding.
Suspecting that he could be afflicted with dengue, she inserted a plastic tube in his nose,
drained the liquid from his stomach with ice cold normal saline solution, and gave an
instruction not to pull out the tube, or give the patient any oral medication.
Dr. Sanga thereafter conducted a tourniquet test, which turned out to be negative. 20 She
likewise ordered the monitoring of the patients blood pressure and some blood tests.
Edmers blood pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his clinic and told him
about Edmers condition.22 Upon being informed, Dr. Casumpang ordered several
procedures done including: hematocrit, hemoglobin, blood typing, blood transfusion
and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Sanga advised Edmers parents that the blood test results showed that Edmer was
suffering from "Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang arrived at
Edmers room and he recommended his transfer to the Intensive Care Unit (ICU), to
which the respondent consented. Since the ICU was then full, Dr. Casumpang suggested
to the respondent that they hire a private nurse. The respondent, however, insisted on
transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked
Edmers condition, found that his blood pressure was stable, and noted that he was
"comfortable." The respondent requested for an ambulance but he was informed that
the driver was nowhere to be found. This prompted him to hire a private ambulance
that cost him 600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was
transferred to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the patients clinical history
and laboratory exam results. Upon examination, the attending physician diagnosed
"Dengue Fever Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated the
cause of death as "Hypovolemic Shock/hemorrhagic shock;" "Dengue Hemorrhagic
Fever Stage IV."
Believing that Edmers death was caused by the negligent and erroneous diagnosis of his
doctors, the respondent instituted an action for damages against SJDH, and its attending
physicians: Dr. Casumpang and Dr. Sanga (collectively referred to as the "petitioners")
before the RTC of Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and
awarded actual and moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC found untenable the
petitioning doctors contention that Edmers initial symptoms did not indicate dengue
fever. It faulted them for heavily relying on the chest x-ray result and for not considering
the other manifestations that Edmers parents had relayed. It held that in diagnosing
and treating an illness, the physicians conduct should be judged not only by what
he/she saw and knew, but also by what he/she could have reasonably seen and known.
It also observed that based on Edmers signs and symptoms, his medical history and
physical examination, and also the information that the petitioning doctors gathered
from his family members, dengue fever was a reasonably foreseeable illness; yet, the
petitioning doctors failed to take a second look, much less, consider these indicators of
dengue.
The trial court also found that aside from their self-serving testimonies, the petitioning
doctors did not present other evidence to prove that they exercised the proper medical
attention in diagnosing and treating the patient, leading it to conclude that they were
guilty of negligence. The RTC also held SJDH solidarily liable with the petitioning doctors
for damages based on the following findings of facts: first, Dr. Casumpang, as
consultant, is an ostensible agent of SJDH because before the hospital engaged his
medical services, it scrutinized and determined his fitness, qualifications, and
competence as a medical practitioner; and second, Dr. Sanga, as resident physician, is
an employee of SJDH because like Dr. Casumpang, the hospital, through its screening
committee, scrutinized and determined her qualifications, fitness,and competence
before engaging her services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, ordering the latter to pay solidarily and severally plaintiff the following:
(1) Moral damages in the amount of 500,000.00;(2) Costs of burial and funeral in the
amount of 45,000.00; (3) Attorneys fees of 50,000.00; and(4) Cost of this suit.
SO ORDERED.The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en toto the RTCs ruling, finding
that SJDH and its attending physicians failed to exercise the minimum medical care,
attention, and treatment expected of an ordinary doctor under like circumstances.
The CA found the petitioning doctors failure to read even the most basic signs of
"dengue fever" expected of an ordinary doctor as medical negligence. The CA also
considered the petitioning doctors testimonies as selfserving, noting that they
presented no other evidence to prove that they exercised due diligence in diagnosing
Edmers illness.
The CA likewise found Dr. Rodolfo Jaudians (Dr. Jaudian) testimony admissible. It gave
credence to his opinion26 that: (1) given the exhibited symptoms of the patient, dengue
fever should definitely be considered, and bronchopneumonia could be reasonably
ruled out; and (2) dengue fever could have been detected earlier than 7:30 in the
evening of April 23, 1988 because the symptoms were already evident; and agreed with
the RTC that the petitioning doctors should not have solely relied on the chest-x-ray
result, as it was not conclusive.
On SJDHs solidary liability, the CA ruled that the hospitals liability is based on Article
2180 of the Civil Code. The CA opined that the control which the hospital exercises over
its consultants, the hospitals power to hire and terminate their services, all fulfill the
employer-employee relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and the supervision of its physicians.
The petitioners separately moved to reconsider the CA decision, but the CA denied their
motion in its resolution of January 12, 2006; hence, the present consolidated petitions
pursuant to Rule 45 of the Rules of Court.
The Petitions
I. Dr. Casumpangs Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical treatment and care to the
best of his abilities, and within the proper standard of care required from physicians
under similar circumstances. He claims that his initial diagnosis of bronchopneumonia
was supported by the chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only after several days of
confinement. He alleged that when he had suspected that Edmer might be suffering
from dengue fever, he immediately attended and treated him.
Dr. Casumpang likewise raised serious doubts on Dr. Jaudians credibility, arguing that
the CA erred in appreciating his testimony as an expert witness since he lacked the
necessary training, skills, and experience as a specialist in dengue fever cases.
II. Dr. Sangas Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her responsible for Edmers wrong
diagnosis, stressing that the function of making the diagnosis and undertaking the
medical treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer, and
who confirmed "bronchopneumonia."
Dr. Sanga also alleged that she exercised prudence in performing her duties as a
physician, underscoring that it was her professional intervention that led to the correct
diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmers Complete Blood Count
(CBC) showed leukopenia and an increase in balance as shown by the differential count,
demonstrating that Edmers infection, more or less, is of bacterial and not viral in
nature.
Dr. Sanga as well argued that there is no causal relation between the alleged erroneous
diagnosis and medication for "Bronchopneumonia," and Edmers death due to "Dengue
Hemorrhagic Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since he never
presented any evidence of formal residency training and fellowship status in Pediatrics.
III. SJDHs Position (G.R. No. 171228)
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr.
Sanga are mere independent contractors and "consultants" (not employees) of the
hospital. SJDH alleges that since it did not exercise control or supervision over the
consultants exercise of medical profession, there is no employeremployee relationship
between them, and consequently, Article 2180 of the Civil Code does not apply.
SJDH likewise anchored the absence of employer-employee relationship on the

following circumstances: (1) SJDH does not hire consultants; it only grants them
privileges to admit patients in the hospital through accreditation; (2) SJDH does not pay
the consultants wages similar to an ordinary employee; (3) the consultants earn their
own professional fees directly from their patients; SJDH does not fire or terminate their
services; and (4) SJDH does not control or interfere with the manner and the means the
consultants use in the treatment of their patients. It merely provides them with
adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test when it
treated the hospitals practice of accrediting consultants as an exercise of control. It
explained that the control contemplated by law is that which the employer exercises
over the: (i) end result; and the (ii) manner and means to be used to reach this end, and
not any kind of control, however significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors are considered employees
and not merely consultants of the hospital, SJDH cannot still be held solidarily liable
under Article 2180 of the Civil Code because it observed the diligence of a good father of
a family in their selection and supervision as shown by the following: (1) the adequate
measures that the hospital undertakes to ascertain the petitioning doctors
qualifications and medical competence; and (2) the documentary evidence that the
petitioning doctors presented to prove their competence in the field of pediatrics. 27
SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming
that this theory, aside from being inconsistent with the CAs finding of employment
relationship, is unfounded because: first, the petitioning doctors are independent
contractors, not agents of SJDH; and second, as a medical institution, SJDH cannot
practice medicine, much more, extend its personality to physicians to practice medicine
on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced
and correct diagnosis. It claimed that based on Edmer's signs and symptoms at the time
of admission (i.e., one day fever,28 bacterial infection,29 and lack of hemorrhagic
manifestations30), there was no reasonable indication yet that he was suffering from
dengue fever, and accordingly, their failure to diagnose dengue fever, does not
constitute negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the issues the petitioners raised are
mainly factual in nature, which a petition for review on certiorari under Rule 45 of the
Rules of Courts does not allow.
In any case, he contends that the petitioning doctors were negligent in conducting their
medical examination and diagnosis based on the following: (1) the petitioning doctors
failed to timely diagnose Edmers correct illness due to their non-observance of the
proper and acceptable standard of medical examination; (2) the petitioning doctors
medical examination was not comprehensive, as they were always in a rush; and (3) the
petitioning doctors employed a guessing game in diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection between the petitioning
doctors negligence and Edmers untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was not equipped
with proper paging system, has no bronchoscope, and its doctors are not proportionate
to the number of its patients. He also pointed out that out of the seven resident
physicians in the hospital, only two resident physicians were doing rounds at the time of
his sons confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had committed "inexcusable lack of

precaution" in diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is solidarily liable with the petitioning doctors;
3. Whether or not there is a causal connection between the petitioners negligent

act/omission and the patients resulting death; and
4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian
as an expert witness. Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited to
Questions of Law.
The settled rule is that the Courts jurisdiction in a petition for review on certiorari
under Rule 45 of the Rules of Court is limited only to the review of pure questions of
law. It is not the Courts function to inquire on the veracity of the appellate courts
factual findings and conclusions; this Court is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a certain state of
facts, while there is a question of fact when the doubt arises as to the truth or falsity of
the alleged facts.32
These consolidated petitions before us involve mixed questions of fact and law. As a
rule, we do not resolve questions of fact. However, in determining the legal question of
whether the respondent is entitled to claim damages under Article 2176 of the Civil
Code for the petitioners alleged medical malpractice, the determination of the factual
issues i.e., whether the petitioning doctors were grossly negligent in diagnosing the
patients illness, whether there is causal relation between the petitioners act/omission
and the patients resulting death, and whether Dr. Jaudian is qualified as an expert
witness must necessarily be resolved. We resolve these factual questions solely for the
purpose of determining the legal issues raised.
Medical Malpractice Suit as a Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors negligence in diagnosing and
treating the deceased Edmer, the child of the respondent. It is a medical malpractice
suit, an action available to victims to redress a wrong committed by medical
professionals who caused bodily harm to, or the death of, a patient. 33 As the term is
used, the suit is brought whenever a medical practitioner or health care provider fails to
meet the standards demanded by his profession, or deviates from this standard, and
causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the
deceased patients heir) must prove that the doctor either failed to do what a
reasonably prudent doctor would have done, or did what a reasonably prudent doctor
would not have done; and the act or omission had caused injury to the patient.34 The
patients heir/s bears the burden of proving his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4)
proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's conduct. 35 It
requires proof of professional relationship between the physician and the patient.
Without the professional relationship, a physician owes no duty to the patient, and
cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a

physician,36 and the latter accepts or agrees to provide care to the patient. 37 The
establishment of this relationship is consensual,38 and the acceptance by the physician
essential. The mere fact that an individual approaches a physician and seeks diagnosis,
advice or treatment does not create the duty of care unless the physician agrees. 39
The consent needed to create the relationship does not always need to be express.40 In
the absence of an express agreement, a physician-patient relationship may be implied
from the physicians affirmative action to diagnose and/or treat a patient, or in his
participation in such diagnosis and/or treatment.41 The usual illustration would be the
case of a patient who goes to a hospital or a clinic, and is examined and treated by the
doctor. In this case, we can infer, based on the established and customary practice in
the medical community that a patient-physician relationship exists.
Once a physician-patient relationship is established, the legal duty of care follows. The
doctor accordingly becomes duty-bound to use at least the same standard of care that a
reasonably competent doctor would use to treat a medical condition under similar
circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly performs his
duties under professional standards. This determination is both factual and legal, and is
specific to each individual case.42
If the patient, as a result of the breach of duty, is injured in body or in health, actionable
malpractice is committed, entitling the patient to damages.43
To successfully claim damages, the patient must lastly prove the causal relation
between the negligence and the injury. This connection must be direct, natural, and
should be unbroken by any intervening efficient causes. In other words, the negligence
must be the proximate cause of the injury.44 The injury or damage is proximately caused
by the physicians negligence when it appears, based on the evidence and the expert
testimony, that the negligence played an integral part in causing the injury or damage,
and that the injury or damage was either a direct result, or a reasonably probable
consequence of the physicians negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between Dr. Casumpang and
Edmer was created when the latters parents sought the medical services of Dr.
Casumpang, and the latter knowingly accepted Edmer as a patient. Dr. Casumpangs
acceptance is implied from his affirmative examination, diagnosis and treatment of
Edmer. On the other hand, Edmers parents, on their sons behalf, manifested their
consent by availing of the benefits of their health care plan, and by accepting the
hospitals assigned doctor without objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with Edmer arose when she
assumed the obligation to provide resident supervision over the latter. As second year
resident doctor tasked to do rounds and assist other physicians, Dr. Sanga is deemed to
have agreed to the creation of physicianpatient relationship with the hospitals patients
when she participated in the diagnosis and prescribed a course of treatment for Edmer.
The undisputed evidence shows that Dr. Sanga examined Edmer twice (at around 12:00
and 3:30 in the afternoon of April 23, 1988),and in both instances, she prescribed
treatment and participated in the diagnosis of Edmers medical condition. Her
affirmative acts amounted to her acceptance of the physician-patient relationship, and
incidentally, the legal duty of care that went with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely
passed by and were requested to attend to the patient, liable for medical malpractice. It
held that a physician-patient relationship was established when they examined the
patient, and later assured the mother that everything was fine.
In the US case of Mead v. Legacy Health System,47 the Court also considered the
rendering of an opinion in the course of the patients care as the doctors assent to the
physician-patient relationship. It ruled that the relationship was formed because of the
doctors affirmative action. Likewise, in Wax v. Johnson,48 the court found that a
physician patient relationship was formed between a physician who "contracts, agrees,
undertakes, or otherwise assumes" the obligation to provide resident supervision at a
teaching hospital, and the patient with whom the doctor had no direct or indirect
contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required standard of
care involves a question of mixed fact and law; it is factual as medical negligence cases
are highly technical in nature, requiring the presentation of expert witnesses to provide
guidance to the court on matters clearly falling within the domain of medical science,
and legal, insofar as the Court, after evaluating the expert testimonies, and guided by
medical literature, learned treatises, and its fund of common knowledge, ultimately
determines whether breach of duty took place. Whether or not Dr. Casumpang and Dr.
Sanga committed a breach of duty is to be measured by the yardstick of professional
standards observed by the other members of the medical profession in good standing
under similar circumstances.49 It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the professional standards observed in the
medical community, but also that the physicians conduct in the treatment of care falls
below such standard.50
In the present case, expert testimony is crucial in determining first, the standard medical
examinations, tests, and procedures that the attending physicians should have
undertaken in the diagnosis and treatment of dengue fever; and second, the dengue
fever signs and symptoms that the attending physicians should have noticed and
considered.
Both the RTC and the CA relied largely on Dr. Jaudians expert testimony on dengue
diagnosis and management to support their finding that the petitioning doctors were
guilty of breach of duty of care.
Dr. Jaudian testified that Edmers rapid breathing, chest and stomach pain, fever, and
the presence of blood in his saliva are classic symptoms of dengue fever. According to
him, if the patient was admitted for chest pain, abdominal pain, and difficulty in
breathing coupled with fever, dengue fever should definitely be considered; 51 if the
patient spits coffee ground with the presence of blood, and the patients platelet count
drops to 47,000, it becomes a clear case of dengue fever, and bronchopneumonia can
be reasonably ruled out.52
Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen

inhalation, analgesic, and fluid infusion or dextrose.53 If the patient had twice vomited
fresh blood and thrombocytopenia has already occurred, the doctor should order blood
transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding,
and oxygen if there is difficulty in breathing.54
We find that Dr. Casumpang, as Edmers attending physician, did not act according to
these standards and, hence, was guilty of breach of duty. We do not find Dr. Sanga liable
for the reasons discussed below.
Dr. Casumpangs Negligence
a. Negligence in the Diagnosis
At the trial, Dr. Casumpang declared that a doctors impression regarding a patients
illness is 90% based on the physical examination, the information given by the patient or
the latters parents, and the patients medical history.55 He testified that he did not
consider either dengue fever or dengue hemorrhagic fever because the patients history
showed that Edmer had low breath and voluntary submission, and that he was up and
about playing basketball.56 He based his diagnosis of bronchopneumonia on the
following observations: "difficulty in breathing, clearing run nostril, harsh breath sound,
tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpangs first and second visits to Edmer, he
already had knowledge of Edmers laboratory test result (CBC), medical history, and
symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain, throat irritation,
difficulty in breathing, and traces of blood in the sputum). However, these information
did not lead Dr. Casumpang to the possibility that Edmer could be suffering from either
dengue fever, or dengue hemorrhagic fever, as he clung to his diagnosis of broncho
pneumonia. This means that given the symptoms exhibited, Dr. Casumpang already
ruled out the possibility of other diseases like dengue.
In other words, it was lost on Dr. Casumpang that the characteristic symptoms of
dengue (as Dr. Jaudian testified) are: patients rapid breathing; chest and stomach pain;
fever; and the presence of blood in his saliva. All these manifestations were present and
known to Dr. Casumpang at the time of his first and second visits to Edmer. While he
noted some of these symptoms in confirming bronchopneumonia, he did not seem to
have considered the patients other manifestations in ruling out dengue fever or dengue
hemorrhagic fever.58 To our mind, Dr. Casumpang selectively appreciated some, and not
all of the symptoms; worse, he casually ignored the pieces of information that could
have been material in detecting dengue fever. This is evident from the testimony of Mrs.
Cortejo:
TSN, Mrs. Cortejo, November 27, 1990Q: Now, when Dr. Casumpang visited your son
for the first time at 5:30 p.m., what did he do, if any?
A: He examined my son by using stethoscope and after that, he confirmed to me that

my son was suffering from broncho pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say
if any?A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my
son has no cough or colds. Q: What was the answer of Dr. Casumpang to your
statement?
xxxx
A: And then, Dr. Casumpang answered "THATS THE USUAL BRONCHO PNEUMONIA, NO
COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your sons room? A: He stayed for a minute or 2.
xxxxQ: When Dr. Casumpang arrived at 9:00 oclock a.m. on April 23, what did you tell
him, if any?
xxxx
A: I told Dr. Casumpang... After examining my son using stethoscope and nothing more, I
told Dr. Casumpang about the traces of blood in my sons sputum and I told him what is
all about and he has throat irritation.
Q: What did he tell you?A: He just nodded his head but he did not take the initiative of
looking at the throat of my son. Q: So what happened after that?A: I also told Dr.
Casumpang about his chest pain and also stomach pain.Q: So what did Dr. Casumpang
do after you have narrated all these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my son was almost
moving because of rapid breathing and he is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang when you told him that your
son is experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said none.Q: So how long
did Dr. Casumpang stay and attended your son on April 23?A: More or less two (2)
minutes then I followed him up to the door and I repeated about the fever of my son. Q:
What did he tell you, if any, regarding that information you gave him that your son had
a fever?A: He said, that is broncho pneumonia, Its only being active now. [Emphasis
supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmers throat
despite knowing that as early as 9:00 in the morning of April 23, 1988, Edmer had blood
streaks in his sputum. Neither did Dr. Casumpang order confirmatory tests to confirm
the source of bleeding. The Physicians Progress Notes59 stated: "Blood streaks on
phlegm can be due to bronchial irritation or congestion," which clearly showed that Dr.
Casumpang merely assumed, without confirmatory physical examination, that
bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpangs medical examination was not
comprehensive enough to reasonably lead to a correct diagnosis.60 Dr. Casumpang only
used a stethoscope in coming up with the diagnosis that Edmer was suffering from
bronchopneumonia; he never confirmed this finding with the use of a bronchoscope.
Furthermore, Dr. Casumpang based his diagnosis largely on the chest x-ray result that is
generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmers
third episode of bleeding) that Dr. Casumpang ordered the conduct of hematocrit,
hemoglobin, blood typing, blood transfusion and tourniquet tests. These tests came too
late, as proven by: (1) the blood test results that came at about 6:00 in the evening,
confirming that Edmers illness had developed to "Dengue Hemorrhagic Fever;" and (2)
Dr. Jaudians testimony that "dengue fever could have been detected earlier than 7:30
in the evening of April 23, 1988 because the symptoms were already evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the
Court ruled that the petitioner doctors were negligent because they failed to
immediately order tests to confirm the patients illness. Despite the doctors suspicion
that the patient could be suffering from diabetes, the former still proceeded to the D&C
operation. In that case, expert testimony showed that tests should have been ordered
immediately on admission to the hospital in view of the symptoms presented. The Court
held:
When a patient exhibits symptoms typical of a particular disease, these symptoms

should, at the very least, alert the physician of the possibility that the patient may be
afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm. However, the petitioner doctors failed to take
this into consideration and proceeded with the D&C operation. Thus, the Court ruled
that they failed to comply with their duty to observe the standard of care to be given to
hyperglycemic/diabetic patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise

reasonable prudence in ascertaining the extent of the patients injuries, this Court
declared that:
In failing to perform an extensive medical examination to determine the extent of Roy

Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the
medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring him
and his mother that everything was all right. [Emphasis supplied]
Even assuming that Edmers symptoms completely coincided with the diagnosis of
bronchopneumonia (so that this diagnosis could not be considered "wrong"), we still
find Dr. Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctors diagnosis, or the
accuracy of the medical findings and treatment. Our duty in medical malpractice cases is
to decide based on the evidence adduced and expert opinion presented whether a
breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical malpractice. 65

Physicians are generally not liable for damages resulting from a bona fide error of
judgment. Nonetheless, when the physicians erroneous diagnosis was the result of
negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests,
failure to recognize symptoms), it becomes an evidence of medical malpractice.
Third, we also note that medicine is not an exact science;66 and doctors, or even
specialists, are not expected to give a 100% accurate diagnosis in treating patients who
come to their clinic for consultations. Error is possible as the exercise of judgment is
called for in considering and reading the exhibited symptoms, the results of tests, and in
arriving at definitive conclusions. But in doing all these, the doctor must have acted
according to acceptable medical practice standards.
In the present case, evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the
symptoms presented, and failed to promptly conduct the appropriate tests to confirm
his findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which failure,
especially when reasonable prudence would have shown that indications of dengue
were evident and/or foreseeable, constitutes negligence.
a. Negligence in the Treatment and Management of Dengue
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to
promptly undertake the proper medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited
the classic symptoms of dengue fever should have been: oxygen inhalation, use of
analgesic, and infusion of fluids or dextrose;67 and once the patient had twice vomited
fresh blood, the doctor should have ordered: blood transfusion, monitoring of the
patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in
breathing.68
Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests
that he ordered a transfusion of platelet concentrate instead of blood transfusion. The
tourniquet test was only conducted after Edmers second episode of bleeding, and the
medical management (as reflected in the records) did not include antibiotic therapy and
complete physical examination. Dr. Casumpangs testimony states:
Q: Now, after entertaining After considering that the patient Edmer Cortero was
already suffering from dengue hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory
rate of the patient. Q: Now, was your instructions carried on?A: Yes, sir.Q: What was
the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those
times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission
had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the
patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were _____; his blood pressure was
normal so we continued with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988, I stayed in the hospital and I was informed by the
pediatric resident on duty at around 11:15 in the evening that the blood pressure of the
patient went down to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from
the present fluid which was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the
volume and to bring back the blood pressure, to increase the blood pressure. [Emphasis
supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr.
Ellewelyn Pasion (Dr. Pasion), Personnel Officer and Medical Director of SJDH,
respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the radiologist who
read Edmers chest xray result), these witnesses failed to dispute the standard of action
that Dr. Jaudian established in his expert opinion. We cannot consider them expert
witnesses either for the sole reason that they did not testify on the standard of care in
dengue cases.69
On the whole, after examining the totality of the adduced evidence, we find that the
lower courts correctly did not rely on Dr. Casumpangs claim that he exercised prudence
and due diligence in handling Edmers case. Aside from being selfserving, his claim is
not supported by competent evidence. As the lower courts did, we rely on the
uncontroverted fact that he failed, as a medical professional, to observe the most
prudent medical procedure under the circumstances in diagnosing and treating Edmer.
Dr. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, the junior resident physician who was on-duty at
the time of Edmers confinement, we see the need to draw distinctions between the
responsibilities and corresponding liability of Dr. Casumpang, as the attending physician,
and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of
medicine licensed to practice in the Philippines and who would like to pursue a
particular specialty.70 They are usually the front line doctors responsible for the first
contact with the patient. During the scope of the residency program, 71 resident
physicians (or "residents")72 function under the supervision of attending physicians73 or
of the hospitals teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made
and on the action to be taken.
The attending physician, on the other hand, is primarily responsible for managing the
residents exercise of duties. While attending and resident physicians share the
collective responsibility to deliver safe and appropriate care to the patients, 74 it is the
attending physician who assumes the principal responsibility of patient care. 75 Because
he/she exercises a supervisory role over the resident, and is ultimately responsible for
the diagnosis and treatment of the patient, the standards applicable to and the liability
of the resident for medical malpractice is theoretically less than that of the attending
physician. These relative burdens and distinctions, however, do not translate to
immunity from the legal duty of care for residents,76 or from the responsibility arising
from their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care
in medical malpractice cases involving first-year residents was that of a reasonably
prudent physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one
but of physicians in general in the community. In order to establish medical malpractice,
it must be shown by a preponderance of the evidence that a physician did some
particular thing or things that a physician or surgeon of ordinary skill, care and diligence
would not have done under like or similar conditions or circumstances, or that he failed
or omitted to do some particular thing or things that a physician or surgeon of ordinary
skill, care and diligence would have done under like or similar conditions or
circumstances, and that the inquiry complained of was the direct result of such doing or
failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a proper one. It
clearly informed the jury that the medical care required is that of reasonably careful
physicians or hospital emergency room operators, not of interns or residents. [Emphasis
supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and
first-year residents are "practitioners of medicine required to exercise the same
standard of care applicable to physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year resident practices under a temporary
medical permit, he/she impliedly contracts that he/she has the reasonable and ordinary
qualifications of her profession and that he/she will exercise reasonable skill, diligence,
and care in treating the patient.
We find that Dr. Sanga was not independently negligent. Although she had greater
patient exposure, and was subject to the same standard of care applicable to attending
physicians, we believe that a finding of negligence should also depend on several
competing factors, among them, her authority to make her own diagnosis, the degree of
supervision of the attending physician over her, and the shared responsibility between
her and the attending physicians.
In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr. Casumpang
had diagnosed Edmer with bronchopneumonia. In her testimony, Dr. Sanga admitted
that she had been briefed about Edmers condition, his medical history, and initial
diagnosis;79 and based on these pieces of information, she confirmed the finding of
bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted receiving updates
regarding Edmers condition.80 There is also evidence supporting Dr. Sangas claim that
she extended diligent care to Edmer. In fact, when she suspected during Edmers
second episode of bleeding that Edmer could be suffering from dengue fever, she
wasted no time in conducting the necessary tests, and promptly notified Dr. Casumpang
about the incident. Indubitably, her medical assistance led to the finding of dengue
fever.
We note however, that during Edmers second episode of bleeding,81 Dr. Sanga failed to
immediately examine and note the cause of the blood specimen. Like Dr. Casumpang,
she merely assumed that the blood in Edmers phlegm was caused by
bronchopneumonia. Her testimony states:
TSN, June 8, 1993:Q: Let us get this clear, you said that the father told you the patient
cocked [sic] out phlegm. A: With blood streak.Q: Now, you stated specimen, were you
not able to examine the specimen?A: No, sir, I did not because according to the father
he wash [sic] his hands. xxxxQ: Now, from you knowledge, what does that indicate if
the patient expels a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the
lung alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father that
Edmer Cortejo had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product of
broncho pneumonia. xxxx
Q: So what examination did you specifically conduct to see that there was no internal
bleeding? A: At that time I did not do anything to determine the cause of coughing of
the blood because I presumed that it was a mucous (sic) produced by broncho
pneumonia, And besides the patient did not even show any signs of any other illness at
that time.83
Based on her statements we find that Dr. Sanga was not entirely faultless. Nevertheless,
her failure to discern the import of Edmers second bleeding does not necessarily
amount to negligence as the respondent himself admitted that Dr. Sanga failed to
examine the blood specimen because he wash edit away. In addition, considering the
diagnosis previously made by two doctors, and the uncontroverted fact that the burden
of final diagnosis pertains to the attending physician (in this case, Dr. Casumpang), we
believe that Dr. Sangas error was merely an honest mistake of judgment influenced in
no small measure by her status in the hospital hierarchy; hence, she should not be held
liable for medical negligence.
Dr. Jaudians Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before the lower
court and before this Court was Dr. Jaudians competence and credibility as an expert
witness. The petitioners tried to discredit his expert testimony on the ground that he
lacked the proper training and fellowship status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to decide upon in the
exercise of its discretion. The test of qualification is necessarily a relative one,
depending upon the subject matter of the investigation, and the fitness of the expert
witness.84 In our jurisdiction, the criterion remains to be the expert witness special
knowledge experience and practical training that qualify him/her to explain highly
technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a
pulmonologist, not qualified to testify on the field of anesthesiology. Similarly, in Cereno
v. Court of Appeals,86 a 2012 case involving medical negligence, the Court excluded the
testimony of an expert witness whose specialty was anesthesiology, and concluded that
an anesthesiologist cannot be considered an expert in the field of surgery or even in
surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a
pediatrician but a practicing physician who specializes in pathology.87 He likewise does
not possess any formal residency training in pediatrics. Nonetheless, both the lower
courts found his knowledge acquired through study and practical experience sufficient
to advance an expert opinion on dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court primarily based the
witnesses disqualification to testify as an expert on their incapacity to shed light on the
standard of care that must be observed by the defendant- physicians. That the expert
witnesses specialties do not match the physicians practice area only constituted, at
most, one of the considerations that should not be taken out of context. After all, the
sole function of a medical expert witness, regardless of his/her specialty, is to afford
assistance to the courts on medical matters, and to explain the medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno that the expert
witnesses possess a sufficient familiarity with the standard of care applicable to the
physicians specialties. US jurisprudence on medical malpractice demonstrated the trial
courts wide latitude of discretion in allowing a specialist from another field to testify
against a defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony

regarding a gynecologist's standard of pre-surgical care. In that case, the court held that
since negligence was not predicated on the gynecologists negligent performance of the
operation, but primarily on the claim that the pre-operative histories and physicals were
inadequate, the neurosurgeon was competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist
in a medical malpractice action. The court considered that the orthopedic surgeons
opinion on the "immediate need for decompression" need not come from a specialist in
neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical doctor cannot be

excluded simply because he is not a specialist x x x." The matter of "x x x training and
specialization of the witness goes to the weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist in
neurosurgery to express the opinions permitted to be expressed by plaintiffs doctors,
e.g., the immediate need for a decompression in the light of certain neurological deficits
in a post-laminectomy patient. As stated above, there was no issue as to the proper
execution of the neurosurgery. The medical testimony supported plaintiffs theory of
negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialists knowledge of the requisite
subject matter, rather than his/her specialty that determines his/her qualification to
testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the
required professional knowledge, learning and skill of the subject under inquiry
sufficient to qualify him to speak with authority on the subject; and (2) is familiar with
the standard required of a physician under similar circumstances; where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the
question of the degree of his knowledge goes more to the weight of the evidence than
to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a specialist so long

as he exhibits knowledge of the subject. Where a duly licensed and practicing physician
has gained knowledge of the standard of care applicable to a specialty in which he is not
directly engaged but as to which he has an opinion based on education, experience,
observation, or association wit that specialty, his opinion is competent.(Emphasis
supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness familiarity, and
not the classification by title or specialty, which should control issues regarding the
expert witness qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a
specialist in a particular branch within a profession will not be required." Most courts
allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that "it
is the scope of the witness knowledge and not the artificial classification by title that
should govern the threshold question of admissibility. (Citations omitted)
Application to the Present CaseIn the case and the facts before us, we find that Dr.
Jaudian is competent to testify on the standard of care in
dengue fever cases. 1avvphi1
Although he specializes in pathology, it was established during trial that he had

attended not less than 30 seminars held by the Pediatric Society, had exposure in
pediatrics, had been practicing medicine for 16 years, and had handled not less than 50
dengue related cases.
As a licensed medical practitioner specializing in pathology, who had practical and

relevant exposure in pediatrics and dengue related cases, we are convinced that Dr.
Jaudian demonstrated sufficient familiarity with the standard of care to be applied in
dengue fever cases. Furthermore, we agree that he possesses knowledge and
experience sufficient to qualify him to speak with authority on the subject.
The Causation Between Dr. Casumpangs Negligent Act/Omission, and the Patients
Resulting Death was Adequately Proven
Dr. Jaudians testimony strongly suggests that due to Dr. Casumpangs failure to timely
diagnose Edmer with dengue, the latter was not immediately given the proper
treatment. In fact, even after Dr. Casumpang had discovered Edmers real illness, he still
failed to promptly perform the standard medical procedure. We agree with these
findings.
As the respondent had pointed out, dengue fever, if left untreated, could be a life
threatening disease. As in any fatal diseases, it requires immediate medical attention.93
With the correct and timely diagnosis, coupled with the proper medical management,
dengue fever is not a life threatening disease and could easily be cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of
dengue fever should fall to less than 2%. Hence, the survival of the patient is directly
related to early and proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite
the presence of its characteristic symptoms; and as a consequence of the delayed
diagnosis, he also failed to promptly manage Edmers illness. Had he immediately
conducted confirmatory tests, (i.e., tourniquet tests and series of blood tests)and
promptly administered the proper care and management needed for dengue fever, the
risk of complications or even death, could have been substantially reduced.
Furthermore, medical literature on dengue shows that early diagnosis and management
of dengue is critical in reducing the risk of complications and avoiding further spread of
the virus.96 That Edmer later died of "Hypovolemic Shock/hemorrhagic shock," "Dengue
Hemorrhagic Fever Stage IV," a severe and fatal form of dengue fever, established the
causal link between Dr. Casumpangs negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the
element of causation. Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only be held vicariously liable for the
petitioning doctors negligence but also for its own negligence. He claims that SJDH fell
short of its duty of providing its patients with the necessary facilities and equipment as
shown by the following circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmers oxygen was removed, the medical staff did not immediately provide
him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDHs was not ready
and had no driver; and
(f) despite Edmers critical condition, there was no doctor attending to him from 5:30
p.m. of April 22, to 9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are
not its employees but are mere consultants and independent contractors.
We affirm the hospitals liability not on the basis of Article 2180 of the Civil Code, but on
the basis of the doctrine of apparent authority or agency by estoppel.
There is No Employer-Employee Relationship
Between SJDH and the Petitioning Doctors
In determining whether an employer-employee relationship exists between the parties,

the following elements must be present: (1) selection and engagement of services; (2)
payment of wages; (3) the power to hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used in reaching such an end.97
Control, which is the most crucial among the elements, is not present in this case.
Based on the records, no evidence exists showing that SJDH exercised any degree of
control over the means, methods of procedure and manner by which the petitioning
doctors conducted and performed their medical profession. SJDH did not control their
diagnosis and treatment. Likewise, no evidence was presented to show that SJDH
monitored, supervised, or directed the petitioning doctors in the treatment and
management of Edmers case. In these lights, the petitioning doctors were not
employees of SJDH, but were mere independent contractors.
SJDH is Solidarily Liable Basedon The Principle of Agency or Doctrine of Apparent

Authority
Despite the absence of employer-employee relationship between SJDH and the

petitioning doctors, SJDH is not free from liability.98
As a rule, hospitals are not liable for the negligence of its independent contractors.
However, it may be found liable if the physician or independent contractor acts as an
ostensible agent of the hospital. This exception is also known as the "doctrine of
apparent authority."99
The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals

immunity to vicarious liability of independent contractor physicians. In that case, the
Illinois Supreme Court held that under the doctrine of apparent authority, hospitals
could be found vicariously liable for the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be
held vicariously liable for the negligent acts of a physician providing care at the hospital,
regardless of whether the physician is an independent contractor, unless the patient
knows, or should have known, that the physician is an independent contractor. The
elements of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must
show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that the hospital had knowledge
of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of
the hospital or its agent, consistent with ordinary care and prudence. (Emphasis
supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court,
through the ponencia of Associate Justice Antonio T. Carpio, discussed the two factors in
determining hospital liability as follows:
The first factor focuses on the hospitals manifestations and is sometimes described as
an inquiry whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital need not make express
representations to the patient that the treating physician is an employee of the hospital;
rather a representation may be general and implied.
xxxx
The second factor focuses on the patient's reliance. It is sometimes characterized as an

inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or
an independent contractor) providing care at the hospital if the plaintiff can prove these
two factors: first, the hospitals manifestations; and second, the patients reliance.
a. Hospitals manifestations
It involves an inquiry on whether the hospital acted in a manner that would lead a
reasonable person to conclude that the individual alleged to be negligent was an
employee or agent of the hospital. As pointed out in Nogales, the hospital need not
make express representations to the patient that the physician or independent
contractor is an employee of the hospital; representation may be general and
implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the
hospital or its agent are sufficient to lead a reasonable person to conclude that the
individual was an agent of the hospital." In ruling that the hospitals manifestations can
be proven without the express representation by the hospital, the court relied on
several cases from other jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing to advise patients that
they were being treated by the hospitals agent and not its employee, has created the
appearance of agency; and
(2) patients entering the hospital through the emergency room, could properly assume
that the treating doctors and staff of the hospital were acting on its behalf.
1wphi1
In this case, the court considered the act of the hospital of holding itself out as provider
of complete medical care, and considered the hospital to have impliedly created the
appearance of authority.
b. Patients relianceIt involves an inquiry on whether the plaintiff acted in reliance on

the conduct of the hospital or its agent, consistent
with ordinary care and prudence.104
In Pamperin, the court held that the important consideration in determining the
patients reliance is: whether the plaintiff is seeking care from the hospital itself or
whether the plaintiff is looking to the hospital merely as a place for his/her personal
physician to provide medical care.105 Thus, this requirement is deemed satisfied if the
plaintiff can prove that he/she relied upon the hospital to provide care and treatment,
rather than upon a specific physician. In this case, we shall limit the determination of
the hospitals apparent authority to Dr. Casumpang, in view of our finding that Dr. Sanga
is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the
respondent to believe that he is an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang,
to care and treat his son Edmer. His testimony during trial showed that he and his wife
did not know any doctors at SJDH; they also did not know that Dr. Casumpang was an
independent contractor. They brought their son to SJDH for diagnosis because of their
family doctors referral. The referral did not specifically point to Dr. Casumpang or even
to Dr. Sanga, but to SJDH. Significantly, the respondent had relied on SJDHs
representation of Dr. Casumpangs authority. To recall, when Mrs. Cortejo presented
her Fortune Care card, she was initially referred to the Fortune Care coordinator, who
was then out of town. She was thereafter referred to Dr. Casumpang, who is also
accredited with Fortune Care. In both instances, SJDH through its agent failed to advise
Mrs. Cortejo that Dr. Casumpang is an independent contractor.
Mrs. Cortejo accepted Dr. Casumpangs services on the reasonable belief that such were
being provided by SJDH or its employees, agents, or servants. By referring Dr.
Casumpang to care and treat for Edmer, SJDH impliedly held out Dr. Casumpang, not
only as an accredited member of Fortune Care, but also as a member of its medical
staff. SJDH cannot now disclaim liability since there is no showing that Mrs. Cortejo or
the respondent knew, or should have known, that Dr. Casumpang is only an
independent contractor of the hospital. In this case, estoppel has already set in.
We also stress that Mrs. Cortejos use of health care plan (Fortune Care) did not affect
SJDHs liability. The only effect of the availment of her Fortune Care card benefits is that
her choice of physician is limited only to physicians who are accredited with Fortune
Care. Thus, her use of health care plan in this case only limited the choice of doctors (or
coverage of services, amount etc.) and not the liability of doctors or the hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated

petitions. The Court finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarily
liable for negligent medical practice. We SET ASIDE the finding of liability as to Dr. Ruby
MirandaSanga. The amounts of 45,000.00 as actual damages and 500,000.00 as
moral damages should each earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court. The Court AFFIRMS the rest
of the Decision dated October 29, 2004 and the Resolution dated January 12, 2006 in
CA-G.R. CV No. 56400.
SO ORDERED.
G.R. No. 204095
June 15, 2015
SUPREME COURT
DECISION
DR. JAIME T. CRUZ, Petitioner,vs.FELICISIMO V. AGAS, JR., Respondent.
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court assails the May
22, 2012 Decision1 and October 18, 2012 Resolution2 of the Court of Appeals (CA), in
CA-G.R. SP No. 111910, which affirmed the March 2, 20073 and September 23, 20094
Resolutions of the Secretary of Justice. The said resolutions let stand the February 16,
2004 Resolution of the Office of the Prosecutor of Quezon City, dismissing the complaint
of petitioner Dr. Jaime T. Cruz (Dr. Cruz) for Serious Physical Injuries through Reckless
Imprudence and Medical Malpractice against respondent, Dr. Felicisimo V. Agas, Jr. (Dr.
Agas).
The Antecedents
In his Complaint-Affidavit5 for Serious Physical Injuries through Reckless Imprudence and
Medical Malpractice against Dr. Agas, Dr. Cruz alleged, among others, that sometime in
May 2003, he engaged the services of St. Lukes Medical Center (SLMC)for a medical
check-up; that after being admitted in SLMC on May 28, 2003,he underwent stool,
urine, blood, and other body fluid tests conducted by the employees and doctors of the
said hospital; that on May 29, 2003, he was sent to the Gastro-Enterology Department
for a scheduled gastroscopy and colonoscopy; that because the specialist assigned to
perform the procedure was nowhere to be found, he gave the colonoscopy results to
the attending female anesthesiologist for the information and consideration of the
assigned specialist; that, thereafter, he was sedated and the endoscopic examination
was carried out; that when he regained consciousness, he felt that something went
wrong during the procedure because he felt dizzy, had cold clammy perspiration and
experienced breathing difficulty; that he could not stand or sit upright because he felt so
exhausted and so much pain in his abdomen; that when he was about to urinate in the
comfort room, he collapsed; that he tried to consult the specialist who performed the
colonoscopy but he was nowhere to be found; and that his cardiologist, Dra. Agnes Del
Rosario, was able to observe his critical condition and immediately referred him to the
surgical department which suspected that he had hemorrhage in his abdomen and
advised him to undergo an emergency surgical operation.
Dr. Cruz further averred that he agreed to the operation and upon waking up at the ICU
on May 30, 2003, he found out that the doctors did an exploratory laparatomy because
of the internal bleeding; that he learned that the doctors cut a portion of the left side of
his colon measuring 6-8 inches because it had a partial tear of the colonic wall which
caused the internal bleeding; that despite the painkillers, he was under tremendous
pain in the incision area during his recovery period in the ICU and had fever; and that he
had intravenous tubes attached to his arms, subclavian artery on the left part of his
chest and a nasogastric tube through his nose.
Dr. Cruz claimed that Dr. Agas admitted that he was the one who performed the
colonoscopy procedure but the latter insisted that nothing went wrong. On June 7,
2003,he was discharged from SLMC. Nevertheless, he complained that he had a hard
time digesting his food; that he was frequently fed every two hours because he easily
got full; that he had fresh blood stools every time he moved his bowel; that he had lost
his appetite and had gastric acidity; that he slept most of the day; and that he was in
good physical condition before the colonoscopy procedure. He asserted that at the time
of the filing of the complaint, he was still weak, tired and in pain.
Defense of Dr. Agas
Dr. Agas, on the other hand, countered that Dr. Cruz failed to prove the basic elements
of reckless imprudence or negligence. He averred that Dr. Cruz unfairly made it appear
that he did not know that he would perform the procedure. He explained that before
the start of the colonoscopy procedure, he was able to confer with Dr. Cruz and review
his medical history which was taken earlier by a fellow gastrointestinal physician. He
claimed that the gastroscopy and colonoscopy procedures conducted on Dr. Cruz were
completely successful considering that the latter did not manifest any significant
adverse reaction or body resistance during the procedures and that his vital signs were
normal throughout the procedure.6
Custom Search
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9/4/2017 G.R. No. 204095
Dr. Agas added that certifications and sworn statements were submitted by the
Assistant Medical Director for Professional Services, the Director of the Institute of
Digestive Diseases, the anesthesiologist, and the hospital nurse attesting to the fact that
the intraperitonial bleeding which developed after the colonoscopy procedure, was
immediately recognized, evaluated, carefully managed, and corrected; that he provided
an adequate and reasonable standard of care to Dr. Cruz; that the endoscopist followed
all precautionary measures; that the colonoscopy procedure was done properly; that he
was not negligent or reckless in conducting the colonoscopy procedure; that he did not
deviate from any standard medical norm, practice or procedure; and that he exercised
competence and diligence in rendering medical services to Dr. Cruz.7
Antecedents at the Prosecution Level
On February 16, 2004, the Office of the City Prosecutor (OCP) issued a resolution
dismissing the complaint for Serious Physical Injuries through Reckless Imprudence and
Medical Malpractice. Aggrieved, Dr. Cruz filed a petition for review with the Department
of Justice (DOJ)but the same was dismissed in its March 2, 2007 Resolution. Dr. Cruz
filed a motion for reconsideration but it was denied by the DOJ in its September 23,
2009 Resolution.8
At the Court of Appeals
Not satisfied, Dr. Cruz filed a petition for certiorari before the CA questioning the
unfavorable DOJ resolutions. On May 22, 2012, the CA rendered a decision affirming the
said DOJ resolutions. The CA explained that, as a matter of sound judicial policy, courts
would not interfere with the public prosecutors wide discretion of determining
probable cause in a preliminary investigation unless such executive determination was
tainted with manifest error or grave abuse of discretion. It stated that the public
prosecutors finding of lack of probable cause against Dr. Agas was in accordance with
law and that his alleged negligence was not adequately established by Dr. Cruz.
The CA also declared that Dr. Cruz failed to state in his Complaint-Affidavit the specific
procedures that Dr. Agas failed to do which a reasonable prudent doctor would have
done, or specific norms he failed to observe which a reasonably prudent doctor would
have complied with. The CA pointed out that Dr. Agas was able to satisfactorily explain
in his Counter-Affidavit that the complications suffered by Dr. Cruz was not caused by
his negligence or was the result of medical malpractice. Dr. Agas explained as follows:
That the complication was due to the abnormal condition and configuration of the
digestive system, colon in particular, of the complainant and not from any negligent act
in connection with the conduct of colonoscopy. The surgical findings (xxx) revealed
marked adhesions in the sigmoid colon which is not and never within my control. That
the tear in the serosa (the outermost layer of the colonic wall which has 4 layers)
happened likely because of the marked interloop adhesions and tortuousity of the
sigmoid segment of the colon. These adhesions that connect the serosa to the
peritoneal lining of each loop detached from the serosa during the procedure. It is not
possible to detect the presence of marked adhesions prior to the endoscopic procedure
because no clinical findings, laboratory tests or diagnostic imaging such as x-ray,
ultrasound or computed tomography (CT scan) of the abdomen can diagnose these
conditions. This can only be detected by surgically opening up the abdomen. Moreover,
marked adhesions and serosal tear, in particular, cannot likewise be detected by
colonoscopy because they are in the outer wall of the colon and only the inner lining of
the colon is within the view of the colonoscope (camera).9
The CA further wrote that the counter-affidavit of Dr. Agas was supported by the sworn
affidavit of Dr. Jennifel S. Bustos, an anesthesiologist at the SLMC and the affidavit of
Evelyn E. Daulat, a nurse at SLMC, both swearing under oath that Dr. Agas was not
negligent in conducting a gastroscopy and colonoscopy procedure on Dr. Cruz and the
certification issued by the Hospital Ethics Committee which stated that Dr. Cruz was
given an adequate and reasonable standard of care; that Dr. Agas followed all
precautionary measures in safeguarding Dr. Cruz from any possible complications; and
that the colonoscopy was done properly.
Hence, this petition.
ISSUE
WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING THE DECISION OF THE DOJ
THAT NO PROBABLE CAUSE EXISTS FOR FILING AN INFORMATION AGAINST THE
RESPONDENT, THAT THE RESPONDENT WAS NOT NEGLIGENT AND THAT THERE WAS NO
DENIAL OF DUE PROCESS.
Non-interference with Executive Determination of Probable Cause in Preliminary

Investigations
Under the doctrine of separation of powers, courts have no right to directly decide on
matters over which full discretionary authority has been delegated to the Executive
Branch of the Government, or to substitute their own judgment for that of the Executive
Branch, represented in this case by the Department of Justice. The settled policy is that
the courts will not interfere with the executive determination of probable cause for the
purpose of filing an Information, in the absence of grave abuse of discretion. That abuse
of discretion must be so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of
law, such as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.
Medical Negligence and Malpractice Not Established
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In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in
finding that there was lack of probable cause and dismissing the complaint against Dr.
Agas for Serious Physical Injuries through Reckless Imprudence and Medical
Malpractice.
A medical negligence case can prosper if the patient can present solid proof that the
doctor, like in this case, either failed to do something which a reasonably prudent
doctor would have done, or that he did something that a reasonably prudent doctor
would not have done, and such failure or action caused injury to the patient.
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. Simply put, the
elements are duty, breach, injury and proximate causation.10
In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr.
Agas. Although there is no dispute that Dr. Cruz sustained internal hemorrhage due to a
tear in the serosa of his sigmoid colon, he failed to show that it was caused by Dr. Agass
negligent and reckless conduct of the colonoscopy procedure. In other words, Dr. Cruz
failed to show and explain that particular negligent or reckless act or omission
committed by Dr. Agas. Stated differently, Dr. Cruz did not demonstrate that there was
"inexcusable lack of precaution" on the part of Dr. Agas.
Res Ipsa Loquitur Doctrine
Not Applicable Against Respondent
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. 11
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.12
In this case, the Court agrees with Dr. Agas that his purported negligence in performing
the colonoscopy on Dr. Cruz was not immediately apparent to a layman to justify the
application of res ipsa loquitur doctrine.
Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was due
to the abnormal condition and configuration of his sigmoid colon which was beyond his
control considering that the said condition could not be detected before a colonoscopic
procedure. Dr. Agas adequately explained that no clinical findings, laboratory tests, or
diagnostic imaging, such as x-rays, ultrasound or computed tomography (CT) scan of the
abdomen, could have detected this condition prior to an endoscopic procedure.
Specifically, Dr. Agas wrote:
On the other hand, in the present case, the correlation between petitioners injury, i.e.,
tear in the serosa of sigmoid colon, and the colonoscopy conducted by respondent to
the petitioner clearly requires the presentation of an expert opinion considering that no
perforation of the sigmoid colon was ever noted during the laparotomy. It cannot be
overemphasized that the colonoscope inserted by the respondent only passed through
the inside of petitioners sigmoid colon while the damaged tissue, i.e., serosa, which
caused the bleeding, is located in the outermost layer of the colon. It is therefore
impossible for the colonoscope to touch, scratch, or even tear the serosa since the said
membrane is beyond reach of the colonoscope in the absence of perforation on the
colon.13
Dr. Cruz failed to rebut this.
WHEREFORE, the petition is DENIED.
G.R. No. 192973
September 29, 2014
SUPREME COURT
PEDRITO DELA TORRE, Petitioner,vs.DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO

in their capacity as owners and operators of DIVINE SPIRIT GENERAL HOSPITAL and/or
DR. NESTOR PASAMBA, Respondents.
RESOLUTION
REYES, J.:
This resolves the petition for review on certiorari1 filed by petitioner Pedrito Dela Torre
(Pedrito) assailing the Decision2 dated December 15, 2009 and Resolution3 dated July 27,
2010 of the Court of Appeals (CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages filed by Pedrito against herein
respondents Dr. ArturoImbuido and Dr. Norma Imbuido (Dr. Norma), in their capacity as
the ownersand operators of the Divine Spirit General Hospital in Olongapo City, and Dr.
Nestor Pasamba (Dr. Nestor) (respondents). Pedrito alleged in his complaint that he was
married to one Carmen Castillo Dela Torre(Carmen), who died while admitted at the
Divine Spirit General Hospital on February 13, 1992. Carmen was due to give birth on
February 2,1992 and was brought at around 11:30 p.m. on that day by Pedrito to the
Divine Spirit General Hospital. When Carmen still had not delivered her baby at the
expected time, Dr. Norma discussed with Pedrito the possibility of a caesarean section
operation.5
At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospitals
operating room for her caesarian section operation, which was to be performed by Dr.
Nestor. By 5:30 p.m. of the same day, Pedrito was informed of his wifes delivery of a
baby boy. In the early morning of February 4, 1992, Carmen experienced abdominal
pain and difficulty in urinating. She was diagnosed to be suffering from urinary tract
infection (UTI), and was prescribed medications by Dr. Norma. On February 10, 1992,
Pedrito noticed that Carmens stomach was getting bigger, but Dr. Norma dismissed the
patients condition as mere flatulence (kabag).6
When Carmens stomach still grewbigger despite medications, Dr. Norma advised
Pedrito of the possibility of a second operation on Carmen. Dr. Norma, however,
provided no detailson its purpose and the doctor who would perform it. At around 3:00
p.m. on February 12, 1992, Carmen had her second operation. Later in the evening, Dr.
Norma informed Pedrito that "everything was going on fine with [his] wife." 7
The condition of Carmen, however, did not improve. It instead worsened that on
February 13, 1992, she vomited dark red blood. At 9:30 p.m. on the same day, Carmen
died.8 Per her certificate of death upon information provided by the hospital,the
immediate cause of Carmens death was "cardiorespiratory arrest secondary to cerebro
vascular accident, hypertension and chronic nephritis induced by pregnancy." 9 An
autopsy Report10 prepared by Dr. Richard Patilano(Dr. Patilano), Medico-Legal
OfficerDesignate of Olongapo City, however, provided that the cause of Carmens death
was "shock due to peritonitis, severe, with multiple intestinal adhesions; Status post
C[a]esarian Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents "failed to exercise the degree of
diligence required of them" as members of the medical profession, and were "negligent
for practicing surgery on [Carmen] in the most unskilled, ignorant and cruel manner, x x
x[.]"11
In their answer12 to the complaint, the respondents argued that they "observed the
required standard of medical care in attending to the needs of Carmen."13 The
respondents explained that Carmen was admitted in Divine Spirit General Hospital for
"pregnancy in labor and pre-eclampsia." Her condition was closely monitored during her
confinement. A caesarian section operation became necessary, as she manifested no
significant progress for the spontaneous delivery of her baby.14 No unusual events were
observed during the course of Carmens caesarian section operation. The second
surgery, however, became necessary due to suspected intestinal obstruction and
adhesions. This procedure was fully explained to Carmen and Pedrito prior to its
conduct. During the second operation, the diagnosis of intestinal obstruction and
adhesion was confirmed but resolved by her doctors. Despite the observance of due
care by the doctors, however, Carmen died on February 13, 1992.15
The respondents included in their answer a counterclaim for 48,515.58 as unpaid

hospital charges, professional fees and medicines, 3,000,000.00 for moral damages,
1,500,000.00 for exemplary damages, and attorneys fees.16
Custom Search
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9/4/2017 G.R. No. 192973
After the pre-trial conference, trial proper ensued. To support his claim, Pedrito
presented the testimony of Dr. Patilano, the medicolegal officer who conducted an
autopsy on the body of Carmen upon a telephone request made by the City Health
Officer of Olongapo City, Dr. Generoso Espinosa. Among Dr. Patilanos observations, as
narrated in the lower courts decision, were as follows:
In the intestines, [Dr. Patilano] found outthat it was more reddish than the normal
condition which is supposed to bepinkish. There was presence of adhesions, meaning, it
sticks to each other and these areas were dilated. There were constricted areas. He
concluded that there might have been foreign organic matters in the intestines. He did
not see any swelling but assuming that there was, it would be concomitant to the
enlargement. x x x He came to the conclusion that the cause of death was peritonitis,
with the multiple adhesions status in the post caesarian section. In connection with
peritonitis, this is the inflammation of the abdomen. This peritonitis in the abdominal
cavity may be caused by several conditions which are supposed to be infections,
entrance of foreign bodies in the intestines in connection with ruptured peptic ulcer or
[may be] somewhere in the spleen. The entrance of foreign object in the abdominal
cavities may cause severe infections of the intra-abdominal cavities resulting [in]
multiple adhesions of the intestines. In cases of surgical operation, it [may be] due to
the conditions of the instruments used, the materials used in the operating room being
not aseptic and the ladies assisting the operation were not in uniform. x x x. 17
Dr. Patilano claimed that peritonitis could have been prevented through proper medical
procedures and medicines. He also stated that if the cause of Carmens death was
actually cerebro-vascular accident, there would have been ruptured blood vessels and
blood clot in her head; but there were none in Carmens case.18
Among those who testified to refutePedritos claim was Dr. Nestor. He claimed that
when Carmen was referred to him on February 3, 1992, she was in full term uterine
pregnancy, with pre-eclampsia, fetal distress and active labor pains. A caesarian section
operation became necessary to terminate the pregnancy for her safety. Carmen was
ready to go home four days after giving birth, but was advised by the doctors to stay
more because of her persistent hypertension.19
The second surgery performed on Carmen was necessary after she showed symptoms of
intestinal obstruction, which happens as the intestines get twisted due to adhesions and
the normal flow of intestinal contents are obstructed. For Dr. Nestor, this occurrence
was not preventable since any interference of the abdominal cavity would irritate the
serosa of the intestines, inviting adhesions that could cause obstruction. Surgery could
remedy the adhesions and obstruction.20 Both Carmen and Pedrito gave their written
consent to this second procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of the
Philippine National Police (PNP) Crime Laboratory Service,22 also testified for the
respondents.He claimed that based on Dr. Patilanos report, vital internal organs of
Carmen, such as her brain, lungs, kidneys, liver and adrenal glands, were not examined
during the autopsy.23
On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City, Branch 75,
rendered its Decision24 in favor of Pedrito. The trial court gave greater weight to the
testimony of Dr. Patilano and thus disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff

and against the defendants, ordering the latter to pay jointly and severally, the former,
the following sums of money, to wit:
1.) the sum of Php 28,759.46 as actual damages;2.) the sum of Fifty Thousand (Php
50,000.00) Pesos as indemnity for the death of Carmen dela Torre;
3.) the sum of Fifty Thousand (Php 50,000.00) Pesos as moral damages and the further
sum of Twenty Thousand (Php 20,000.00) Pesos as exemplary damages;
4.) the sum of Twenty Thousand (Php 20,000.00) Pesos as attorneys fees; and
5.) the costs of [suit]. SO ORDERED.25
Dissatisfied with the RTC ruling, the respondents appealed to the CA. On December 15,
2009, the CA rendered its Decision reversing and setting aside the decision of the RTC.
For the appellate court, it was not established that the respondents failed to exercisethe
degree of diligence required of them by their profession as doctors. The CA also granted
the respondents counterclaim for the amount of 48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial Court of Olongapo City dated January 28,
2003 in Civil Case No. 165-0-92 is hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for hospital bills, professional
fees and other expenses in the amount of [P]48,515.58.
SO ORDERED.26Hence, this petition for review on certiorariin which Pedrito insists that
the respondents should be held liable for the
death of Carmen.The petition is denied.
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9/4/2017 G.R. No. 192973
"[M]edical malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a medical
professionalwhich has caused bodily harm." In order to successfully pursue such a claim,
a patient, or his or her family as in this case, "must prove that a health care provider, in
most cases a physician, either failed to do something which a reasonably prudent health
care provider would have done, or that he or she did something that a reasonably
prudent provider would not have done; and that failure or action caused injury to the
patient."27
The Court emphasized in Lucas, et al. v. Tuao28 that in medical negligence cases, there
is a physician-patient relationship between the doctor and the victim, but just like in any
other proceeding for damages, four essential elements must be established by the
plaintiff, namely: (1) duty; (2) breach; (3) injury; and (4) proximate causation. All four
elements must be present in order to find the physician negligent and, thus, liable for
damages.29
It is settled that a physicians duty tohis patient relates to his exercise of the degree of
care, skill and diligence which physicians in the same general neighborhood, and in the
same general line of practice, ordinarily possess and exercise in like cases. There is
breach of this duty when the patient is injured in body or in health. Proof of this breach
rests upon the testimony of an expert witness that the treatment accorded to the
patient failed to meet the standard level of care, skill and diligence. To justify an award
of damages, the negligence of the doctor must be established to be the proximate cause
of the injury.30
Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC
whose finding of the respondents medical negligence depended mainly on the
testimony of Dr. Patilano. Upon review, however, the Court agrees with the CA that the
report and testimony of Dr. Patilano failed to justify Pedritos entitlement to the
damages awarded by the RTC.
For the trial court to give weightto Dr. Patilanos report, it was necessary to show first
Dr. Patilanos specialization and competence to testify on the degree of care, skill and
diligence needed for the treatment of Carmens case. Considering that it was not duly
established that Dr. Patilano practiced and was an expert inthe fields that involved
Carmens condition, he could not have accurately identified the said degree of care, skill,
diligence and the medical procedures that should have been applied by her attending
physicians.
Similarly, such duty, degree of care, skill and diligence were not sufficiently established
in this case because the testimony of Dr. Patilano was based solely on the results of his
autopsy on the cadaver of Carmen. His study and assessment were restrictedby
limitations that denied his full evaluation of Carmens case. He could have only deduced
from the injuries apparent in Carmens body, and in the condition when the body was
examined. Judging from his testimony, Dr. Patilano did not even take full consideration
of the medical history of Carmen, her actual health condition at the time of hospital
admission, and her condition as it progressed while she was being monitored and
treated by the respondents. There was also no reference to the respondents defense
that the emergency caesarian section operation had to be performed in order to protect
the lives and safety of Carmen and her then unborn child. For lack of sufficient
information on Carmens health condition while still alive, Dr. Patilano could not have
fully evaluated the suitability of the respondents decisions in handling Carmens
medical condition as it turned critical.
On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the
reasonable degree of learning, skill and experience required by his profession for the
treatment ofCarmen. The respondents also emphasized in their pleadings beforethe RTC
that Dr. Nestor had his training and experience in surgery and obstetrics since 1970. 1wphi1
Without sufficient proof from the claimant on a different degree of care, skill and
diligence that should be expected from the respondents, it could not be said with
certainty that a breachwas actually committed.
Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be due
to the poor state of the hospital equipment and medical supplies used during her
operation, there was no sufficient proof that any such fault actually attended the
surgery of Carmen, caused her illness and resulted in her death. It is also significant that
the Chief of the Medico-Legal Division of the PNP Crime Laboratory Service, Dr. Torres,
testified before the trial court that based on the autopsy report issued by Dr. Patilano,
the latter did not comply with the basic autopsy procedure when he examined the
cadaver of Carmen. Dr. Patilano did not appear to have thoroughly examined Carmens
vital organs such as her heart, lungs, uterus and brain during the autopsy. His findings
were then inconclusive on the issue of the actual cause of Carmen's death, and the
claim of negligence allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda, et al.,31 the critical and clinching
factor in a medical negligence case is proof of the causal connection between the
negligence and the injuries. The claimant must prove not only the injury but also the
defendant's fault, and that such fault caused the injury. A verdict in a malpractice action
cannot be based on speculation or conjecture. Causation must be proven within a
reasonable medical probability based upon competent expert testimony, 32 which the
Court finds absent in the case at bar. As regards the respondents' counterclaim, the CA's
award of 48,515.58 is sustained, considering that among the parties' stipulations
during the pre-trial indicated:
5. That at the time of the death of the patient Carmen C. dela Torrell there was an
unpaid balance for hospital bills, professional fees and other expenses in the amount of
48,515.58, incurred by plaintiff when the patient was confined at said hospital from
February 3 to 13, 1992.33
WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and
Resolution dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No. 78534 are
AFFIRMED.
SO ORDERED.
9/4/2017 G.R. No. 192123
G.R. No. 192123
March 10, 2014
SUPREME COURT
Manila FIRST DIVISION
DECISION
DR. FERNANDO P. SOLIDUM, Petitioner,vs.PEOPLE OF THE PHILIPPINES, Respondent.

BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of

reckless imprudence resulting in serious physical injuries by the Regional Trial Court
(RTC) and the Court of Appeals (CA). He had been part of the team of anesthesiologists
during the surgical pull-through operation conducted on a three-year old patient born
with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus.
Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one
end of the large intestine out through the abdominal wall,3 enabling him to excrete
through a colostomy bag attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila
for a pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and
was assisted by Dr. Joselito Luceo, Dr. Donatella Valea and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr.
Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced
bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see, hear or move.11
Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged
a complaint for reckless imprudence resulting in serious physical injuries with the City
Prosecutors Office of Manila against the attending physicians.12
Upon a finding of probable cause, the City Prosecutors Office filed an information solely
against Dr. Solidum,13 alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said accused,
being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such
was tasked to administer the anesthesia on three-year old baby boy GERALD ALBERT
GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born
with an imperforate anus [no anal opening] and was to undergo an operation for anal
opening [pull through operation], did then and there willfully, unlawfully and feloniously
fail and neglect to use the care and diligence as the best of his judgment would dictate
under said circumstance, by failing to monitor and regulate properly the levels of
anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his said carelessness and
negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a
defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain,
thereby rendering said GERALD ALBERT GERCAYO incapable of moving his body, seeing,
speaking or hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred
to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of
1997),15 where it was docketed as Criminal Case No. 01-190889.
Judgment of the RTCOn July 19, 2004, the RTC rendered its judgment finding Dr.
Solidum guilty beyond reasonable doubt of reckless imprudence resulting to serious
physical injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM
GUILTY beyond reasonable doubt as principal of the crime charged and is hereby
sentenced to suffer the indeterminate penalty of
TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE
(1) MONTH and TEN (10) DAYS of prision correccional as maximum and to indemnify,
jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella,
private complainant Luz Gercayo, the amount of 500,000.00 as moral damages and
100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
CANCELLED. SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary
liability,18 the RTC excluded them from solidary liability as to the damages, modifying its
decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty
beyond reasonable doubt as principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of two (2) months and one (1) day of arresto mayor as
minimum to one (1) year, one (1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital ng Maynila, private
complainant Luz Gercayo the amount of 500,000.00 as moral damages and 100,000
as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
cancelled.19 Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating
and ruling: The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major
operation. As noted by the OSG, the accused himself testified that pre-operation tests
were conducted to ensure that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other procedures failed to reveal
that he was suffering from any known ailment or disability that could turn into a
significant risk. There was not a hint that the nature of the operation itself was a
causative factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable hypothesis except to attribute
the accident to a failure in the proper administration of anesthesia, the gravamen of the
charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321 SCRA
584
In cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care.
Where common knowledge and experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how
and why it occurred. When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort to res ipsa
loquitur is allowed because there is no other way, under usual and ordinary conditions,
by which the patient can obtain redress for injury suffered by him.
The lower court has found that such a nexus exists between the act complained of and
the injury sustained, and in line with the hornbook rules on evidence, we will afford the
factual findings of a trial court the respect they deserve in the absence of a showing of
arbitrariness or disregard of material facts that might affect the disposition of the case.
People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases. Although it
creates a presumption of negligence, it need not offend due process, as long as the
accused is afforded the opportunity to go forward with his own evidence and prove that
he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.SO
ORDERED.21Dr. Solidum filed a motion for reconsideration, but the CA denied his
motion on May 7, 2010.22 Hence, this appeal.
Dr. Solidum avers that:
Issues
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

LOWER COURT IN UPHOLDING THE PETITIONERS CONVICTION FOR THE CRIME
CHARGED BASED ON THE TRIAL COURTS OPINION, AND NOT ON THE BASIS OF THE
FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF
FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER.
FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE
LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND
REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION
THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS
AND THE LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE
BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD
IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL
ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL
AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or not the
doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum
was liable for criminal negligence.
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Ruling
Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself."
The doctrine res ipsa loquitur means that "where the thing which causes injury is shown
to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care."24 It is simply "a recognition of the
postulate that, as a matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such experience or
common knowledge, negligence may be deduced from the mere occurrence of the
accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law,
but merely a mode of proof or a mere procedural convenience. The doctrine, when
applicable to the facts and circumstances of a given case, is not meant to and does not
dispense with the requirement of proof of culpable negligence against the party
charged. It merely determines and regulates what shall be prima facie evidence thereof,
and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked
when and only when, under the circumstances involved, direct evidence is absent and
not readily available.27
The applicability of the doctrine of res ipsa loquitur in medical negligence cases was
significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the Court
said
Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because the injury itself provides
the proof of negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and
not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of
skill and experience are competent to testify as to whether a patient has been treated
or operated upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the doctrine of
res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the doctrine is appropriate, all that
the patient must do is prove a nexus between the particular act or omission complained
of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations:
leaving of a foreign object in the body of the patient after an operation, injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of
the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that
the consequences of professional care were not as such as would ordinarily have
followed if due care had been exercised. A distinction must be made between the
failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves
the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur
is not available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real question, therefore, is whether
or not in the process of the operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the
untoward consequence. If there was such extraneous intervention, the doctrine of res
ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the following essential requisites
must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency that caused the
injury was under the exclusive control of the person charged; and (3) the injury suffered
must not have been due to any voluntary action or contribution of the person injured. 29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the second and
third elements were present, considering that the anesthetic agent and the instruments
were exclusively within the control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been guilty of contributory
negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of his
submission to the physicians. Yet, he experienced bradycardia during the operation,
causing loss of his senses and rendering him immobile. Hypoxia, or the insufficiency of
oxygen supply to the brain that caused the slowing of the heart rate, scientifically
termed as bradycardia, would not ordinarily occur in the process of a pull-through
operation, or during the administration of anesthesia to the patient, but such fact alone
did not prove that the negligence of any of his attending physicians, including the
anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him
had sensed in the course of the operation that the lack of oxygen could have been
triggered by the vago- vagal reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31

relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for
the treatment of infectious mononucleosis. The patient's symptoms had included a
swollen throat and some breathing difficulty. Early in the morning of January 9 the
patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection
of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m.
Dr. Brigham received a telephone call from the hospital, advising him that the patient
was having respiratory difficulty. The doctor ordered that oxygen be administered and
he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a
second time to advise the doctor that the patient was not responding. The doctor
ordered that a medicine be administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital had begun attempts to revive
the patient. Dr. Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died between 4:25
a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage.
He also found that the air passage had been adequate to maintain life up to 2 or 3
minutes prior to death. He did not know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of

infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res
ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the injury
was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474
P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the
doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The
Negligence Case Res Ipsa Loquitur 24:10 (1972). The evidence presented is
insufficient to establish the first element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patients air passage and his resultant asphyxiation
took place over a very short period of time. Under these circumstances it would not be
reasonable to infer that the physician was negligent. There was no palpably negligent
act. The common experience of mankind does not suggest that death would not be
expected without negligence. And there is no expert medical testimony to create an
inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next
determines whether the CA correctly affirmed the conviction of Dr. Solidum for criminal
negligence.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance that the circumstances
justly demand, whereby such other person suffers injury.32 Reckless imprudence, on the
other hand, consists of voluntarily doing or failing to do, without malice, an act from
which material damage results by reason of an inexcusable lack of precaution on the
part of the person performing or failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to monitor and
properly regulate the level of anesthetic agent administered on Gerald by overdosing at
100% halothane. In affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the
findings and conclusions in his report except for an observation which, to all intents and
purposes, has become the storm center of this dispute. He wanted to correct one piece
of information regarding the dosage of the anesthetic agent administered to the child.
He declared that he made a mistake in reporting a 100% halothane and said that based
on the records it should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the record was marked as Exhibit
1-A and 1-B to indicate the administration at intervals of the anesthetic agent.
(b) the clinical abstract A portion of this record that reads as follows was marked
Exhibit 3A. 3B Approximately 1 hour and 45 minutes through the operation, patient
was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately
administered. However, the bradycardia persisted, the inhalational agent was shut off,
and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg
was given. However, the patient did not respond until no cardiac rate can be
auscultated and the surgeons were immediately told to stop the operation. The patient
was put on a supine position and CPR was initiated. Patient was given 1 amp of
epinephrine initially while continuously doing cardiac massage still with no cardiac
rate appreciated; another ampule of epinephrine was given and after 45 secs, patients
vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins.
The surgeons were then told to proceed to the closure and the childs vital signs
throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR =
20-22 cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the patient was
ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia
persisted, but for one reason or another, he read it as 100% halothane. He was asked to
read the anesthesia record on the percentage of the dosage indicated, but he could only
sheepishly note I cant understand the number. There are no clues in the clinical
abstract on the quantity of the anesthetic agent used. It only contains the information
that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and
45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be
apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100%
halothane was the pure oxygen introduced after something went amiss in the operation
and the halothane itself was reduced or shut off.
The key question remains what was the quantity of halothane used before bradycardia
set in?
The implication of Dr. Vertidos admission is that there was no overdose of the
anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this
conclusion. He made the assurance that he gave his patient the utmost medical care,
never leaving the operating room except for a few minutes to answer the call of nature
but leaving behind the other members of his team Drs. Abella and Razon to monitor the
operation. He insisted that he administered only a point 1% not 100% halothane,
receiving corroboration from Dr. Abella whose initial MA in the record should be enough
to show that she assisted in the operation and was therefore conversant of the things
that happened. She revealed that they were using a machine that closely monitored the
concentration of the agent during the operation.
But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as he
takes the bull by the horns, so to speak. In his affidavit, he says, reading from the record,
that the quantity of halothane used in the operation is one percent (1%) delivered at
time intervals of 15 minutes. He studiedly mentions the concentration of halothane as
reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one
percent (1%) The numbers indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the patient Gerard Gercayo for
his entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated
by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued that the
volte-face of Dr. Vertido on the question of the dosage of the anesthetic used on the
child would not really validate the non-guilt of the anesthesiologist. Led to agree that
the halothane used was not 100% as initially believed, he was nonetheless unaware of
the implications of the change in his testimony. The court observed that Dr. Vertido had
described the condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of consciousness, decrease in heart
rate, loss of usual acuity and abnormal motor function, are manifestations of this
condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen
to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was
the object of mistake, the detrimental effects of the operation are incontestable, and
they can only be led to one conclusion if the application of anesthesia was really
closely monitored, the event could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond reasonable
doubt because the circumstances cited by the CA were insufficient to establish that Dr.
Solidum had been guilty of inexcusable lack of precaution in monitoring the
administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of precaution" in the

treatment of his patient is to be determined according to the standard of care observed
by other members of the profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L.
Pacasio, et. al., this Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training, care and skill in the treatment
of his patients. He therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant's negligence and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well as a causal connection of such
breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc.,
where the attending physician was absolved of liability for the death of the
complainants wife and newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be shown that the
injury for which recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a direct and
natural sequence of events, unbroken by intervening efficient causes. In other words,
the negligence must be the proximate cause of the injury. For, negligence, no matter in
what it consists, cannot create a right of action unless it is the proximate cause of the
injury complained of. And the proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred."
An action upon medical negligence whether criminal, civil or administrative calls for
the plaintiff to prove by competent evidence each of the following four elements,
namely: (a) the duty owed by the physician to the patient, as created by the
physician-patient relationship, to act in accordance with the specific norms or standards
established by his profession; (b) the breach of the duty by the physicians failing to act
in accordance with the applicable standard of care; (3) the causation, i.e., there must be
a reasonably close and causal connection between the negligent act or omission and the
resulting injury; and (4) the damages suffered by the patient.36
In the medical profession, specific norms or standards to protect the patient against
unreasonable risk, commonly referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no clear definition of the duty
of a particular physician in a particular case exists. Because most medical malpractice
cases are highly technical, witnesses with special medical qualifications must provide
guidance by giving the knowledge necessary to render a fair and just verdict. As a result,
the standard of medical care of a prudent physician must be determined from expert
testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly
possessed and exercised by similar specialists under similar circumstances. The specialty
standard of care may be higher than that required of the general practitioner.37
The standard of care is an objective standard by which the conduct of a physician sued
for negligence or malpractice may be measured, and it does not depend, therefore, on
any individual physicians own knowledge either. In attempting to fix a standard by
which a court may determine whether the physician has properly performed the
requisite duty toward the patient, expert medical testimony from both plaintiff and
defense experts is required. The judge, as the trier of fact, ultimately determines the
standard of care, after listening to the testimony of all medical experts.38
Here, the Prosecution presented no witnesses with special medical qualifications in

anesthesia to provide guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not impossible, to determine
whether the first three elements of a negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself
who served as the Chairman of the Committee on Ethics and Malpractice of the
Philippine Society of Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had conducted the
investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40
to wit:
Presented for review by this committee is the case of a 3 year old male who underwent
a pull-thru operation and was administered general anesthesia by a team of anesthesia
residents. The patient, at the time when the surgeons was manipulating the
recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia.
The anesthesiologists, sensing that the cause thereof was the triggering of the
vago-vagal reflex, administered atropine to block it but despite the administration of the
drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative
measures were administered and spontaneous cardiac function re-established in less
than five (5) minutes and that oxygen was continuously being administered throughout,
unfortunately, as later become manifest, patient suffered permanent irreversible brain
damage.
In view of the actuations of the anaesthesiologists and the administration of

anaesthesia, the committee find that the same were all in accordance with the
universally accepted standards of medical care and there is no evidence of any fault or
negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of

Investigation, was also presented as a Prosecution witness, but his testimony
concentrated on the results of the physical examination he had conducted on Gerald, as
borne out by the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia

and in this case, halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after one
hour and 45 minutes after the operation, the patient experienced a bradycardia or
slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court as
to what cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of
time because is some reason one way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility,
were talking about possibility here.
Q What other possibility do you have in mind, doctor?A Well, because it was an
operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the slowing of
heart rate, now what is the immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why there is slowing of the heart rate is
when you do a vagal reflex in the neck wherein the vagal receptors are located at the
lateral part of the neck, when you press that, you produce the slowing of the heart rate
that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency in the
supply of oxygen by the patient, would that also cause the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a
hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is to
pump or to do not a bradycardia but a ... to counter act the Hypoxia that is being
experienced by the patient
(sic).
Q Now, you made mention also doctor that the use of general anesthesia using 100%
halothane and other anesthetic medications probably were contributory to the
production of hypoxia.
A Yes, sir in general sir.41On cross-examination, Dr. Vertido expounded more specifically
on his interpretation of the anesthesia record and
the factors that could have caused Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to
this Honorable court your last paragraph and if you will affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be
contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor? WITNESS
Based on the records, I know the - - -Q 100%?A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you
kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0, will you
kindly look at this Doctor, this Xerox copy if you can show to this Honorable Court and
even to this representation the word "one hundred" or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is,
you just call me and even the attention of the Presiding Judge of this Court. Okay, you
read one by one.
WITNESS Well, are you only asking 100%, sir?ATTY. COMIA Im asking you, just answer
my question, did you see there 100% and 100 figures, tell me, yes or no? WITNESS Im
trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the fiscal, that the
percentage here that the Halothane administered by Dr. Solidum to the patient is 1%
only so may we request that this portion, temporarily your Honor, we are marking this
anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and the
same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are so many
factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that contributed to
what you call hypoxia and according to you, when this Gerald suffered hypoxia, there
are other factors that might lead to this Hypoxia at the time of this operation is that
correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might be
due to operations being conducted by the doctor at the time when the operation is
being done might also contribute to that hypoxia is that correct?
A That is a possibility also.
xxxxATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there is a
possibility that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.Q And which according to you that Gerald suffered hypoxia is
that correct? A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his crossexamination, Dr. Vertido maintained that Geralds

operation for his imperforate anus, considered a major operation, had exposed him to
the risk of suffering the same condition.43 He then corrected his earlier finding that
100% halothane had been administered on Gerald by saying that it should be 100%
oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate properly the
levels of anesthesia administered to said Gerald Albert Gercayo and using 100%
halothane and other anesthetic medications."45 However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt that Dr. Solidum had been
recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr.
Vertidos findings did not preclude the probability that other factors related to Geralds
major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to
experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine and precautionary
procedures, still hypoxia and its corresponding side effects did occur."46
The existence of the probability about other factors causing the hypoxia has engendered
in the mind of the Court a reasonable doubt as to Dr. Solidums guilt, and moves us to
acquit him of the crime of reckless imprudence resulting to serious physical injuries. "A
reasonable doubt of guilt," according to United States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious
doubt; not a doubt engendered merely by sympathy for the unfortunate position of the
defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having
weighed the evidence on both sides, you reach the conclusion that the defendant is
guilty, to that degree of certainty as would lead you to act on the faith of it in the most
important and crucial affairs of your life, you may properly convict him. Proof beyond
reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond
the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him
from civil liability. But we cannot now find and declare him civilly liable because the
1wphi1
circumstances that have been established here do not present the factual and legal
bases for validly doing so. His acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to Gerard had been caused.
That meant that the manner of administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard.
Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of
the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation
but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we have to
address the unusual decree of the RTC, as affirmed by the CA, of expressly holding
Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was
flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is deemed
instituted with the criminal action refers only to that arising from the offense charged. 48
It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng
Maynila jointly and severally liable with Dr. Solidum for the damages despite the
obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged
along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically,
which rendered their judgment against Ospital ng Maynila void as the product of grave
abuse of discretion amounting to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the RTC and the
CA overlooked. We deem it important, then, to express the following observations for
the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its
fundamental right to be heard was not respected from the outset. The R TC and the CA
should have been alert to this fundamental defect. Verily, no person can be prejudiced
by a ruling rendered in an action or proceeding in which he was not made a party. Such
a rule would enforce the constitutional guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability
would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But
the subsidiary liability seems far-fetched here. The conditions for subsidiary liability to
attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article
103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation
"engaged in any kind of industry." The term industry means any department or branch
of art, occupation or business, especially one that employs labor and capital, and is
engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not
engaged in industry conducted for profit but purely in charitable and humanitarian
work.50 Secondly, assuming that Ospital ng Maynila was engaged in industry for profit,
Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the
discharge of his duties during the operation on Gerald. Yet, he definitely was not such
employee but a consultant of the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND
SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
Solidum of the crime of reckless imprudence resulting to serious physical injuries; and
MAKES no pronouncement on costs of suit.
SO ORDERED.

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G.R. No.

April 21, 2009

Republic of the Philippines

Manila THIRD DIVISION

Petitioners,vs.DR. PROSPERO MA. C. TUAO, Respondent.

Employment of steroid medication in the treatment of herpes simplex requires great

Adverse reactions have occurred with steroid/anti-infective combination drugs which

Secondary infection: The development of secondary has occurred after use of

Secondary bacterial ocular infection following suppression of host responses also

On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of "feeling

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters

not curable and may even lead to total blindness."49

1. The amount of 2,000,000.00 to plaintiff Peter Lucas as and by way of compensation

3. The amount of 1,000,000.00 as and by way of moral damages.4. The amount of

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of

causation been established to render [Tuao] liable."63 According to the RTC:

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No.

WHEREFORE, the Decision appealed from is AFFIRMED.66

The Court of Appeals faulted petitioners because they

Familiar and fundamental is the rule that hearsay testimony is inadmissible as

that Peter belongs to the 5% of the population who reacts adversely to

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE

9/4/2017 G.R. No. 178763

THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR

A reading of the afore-quoted reversible errors supposedly committed by the Court of

power of review under Rule 45 of the 1997 Rules Civil Procedure, as

by [petitioners]."75 Clearly, the present controversy is a classic illustration of a medical

9/4/2017 G.R. No. 178763

When a patient engages the services of a physician, a physician-patient relationship is

would not have occurred.82

physicians] alleged negligence caused [the patients] injury.83

intelligently evaluating;84 hence, the indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed

Peters, is the conduct of standard tests/procedures known as "ocular routine

complete absence of symptoms and a chronic, insidious course.94 In open-angle

It must be remembered that when the qualifications of a physician are admitted, as in

9/4/2017 G.R. No. 178763

In contrast, without supporting expert medical opinions, petitioners bare assertions of

June 7, 2011SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased

The factual antecedents:

On July 7, 1993, respondents 11year old daughter, Angelica Soliman, underwent a

osteosarcoma, osteoblastic type,4 a high-grade (highly malignant) cancer of the bone

organ hemorrhages and Disseminated Intravascular Coagulation."5

In her answer,8 petitioner denied having been negligent in administering the

G.R. No. 165279

DR. RUBI LI, Petitioner, vs.

function tests.13 Petitioner proceeded with the chemotherapy by first administering

On the second day of chemotherapy, August 20, respondents noticed reddish

complained of nausea and was given ice chips.25

calcium gluconate, the spasm and numbness subsided.27

9/4/2017 G.R. No. 165279

requested for an electrocardiogram analysis, and infused calcium gluconate on the

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal

9/4/2017 G.R. No. 165279

The CA thus declared:

Plaintiffsappellants child was suffering from a malignant disease. The attending

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses; 2. Moral

SO ORDERED.49 (Emphasis supplied.)

9/4/2017 G.R. No. 165279

Hence, this petition.

On her supposed non-disclosure of all possible side effects of chemotherapy, including

damages suffered by the respondents.50

The petition is meritorious.