G.R. No.

L-14160 June 30, 1960

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
ANUNCIACION VDA. DE GOLEZ, defendant-appellee.

Assistant Solicitor General Antonio A. Torres and Solicitor Jorge R. Coquia for appellant.
Aniceto V. Zezobrado for appellee.

REYES, J. B. L., J.:

On October 2, 1957, the provincial fiscal of Negros Occidental filed an information in the Court of First Instance of that
province charging Anunciacion Vda. de Golez with the crime of homicide through reckless imprudence, as follows:

That on or about the period comprised from December 12, 1956 to December 24, 1956, in the municipality of
San Carlos, province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the
herein accused, without being duly licensed to practice medicine and with reckless negligence and without
taking due precaution, did, then and there, wilfully, unlawfully, and feloniosly diagnose, prescribe, and treat
one Susana Tam, who had been suffering for sometime with bodily ailment, knowing fully well that she is
incompetent and not possessing the necessary technical or scientific knowledge or skill, and as a consequence
of such negligence and carelessness and lack of medical skill, said Susana Tam died thereafter.

The accused pleaded not guilty to the information.

When the case was called for trial, the assistant fiscal made a manifestation that the accused had also been charged
with the crime of illegal practice of medicine before another sala of the same court. In view of this manifestation, the
trial court motu proprio dismissed the information for being fatally defective, without prejudice to the filing of the
proper information against the same accused. The grounds given for the dismissal were the following:

In view of the foregoing manifestation of the Fiscal, the Court finds that the information is fatally defective
and, therefore, should be dismissed under Par. (a), Sec. 2 of Rule 113 of the Rules of Court inasmuch as the
facts charged do not constitute the offense of homicide thru reckless imprudence because illegal practice of
medicine is malicious per se, and when the accused practiced medicine without academical preparation and
without a license to do so, then she is per se committing a criminal act for which the criminal intent is
presumed. Although the crime of homicide thru reckless imprudence can be committed by a duly licensed
physician when in the practice of his profession he fails to exercise due care and diligence from which the
criminal act arises, this crime cannot be imputed to a person who has no authority to practice this profession,
which act is malicious per se. The crime described in Article 365 of the Revised Penal Code results from the
performance of a lawful act which was done without exercising the care and diligence that is required by the
circumstances, and not from the performance of an unlawful act which is the subject of the information in this
case because a quack doctor who practices medicine does so against the law, and, therefore, his act is
necessarily malicious and criminal.

From the above order, the provincial fiscal appealed to this Court, and, through the Solicitor General, urges that the
court below erred in dismissing the information for being fatally defective because the facts charged therein allegedly
do not constitute the crime of homicide thru reckless imprudence.

We agree with appellant that the order of dismissal is erroneous, in that the crime of illegal practice of medicine is a
statutory offense wherein criminal intent is taken for granted, so that a person may be convicted thereof irrespective
of his intention and in spite of his having acted in good faith and without malice; i.e., even if he was not motivated by
an evil desire to injure or hurt another, but by an honest desire to cure or alleviate the pain of a patient. In fact, as
defined by Section 2678 of the Revised Administrative Code (the law then in force), the offense consists in the mere
act of practicing medicine in violation of the Medical Law, even if no injury to another, much less death, results from
such malpractice. When, therefore, the patient dies, the illegal practitioner should be equally responsible for the death
of his patient, an offense independent of and distinct from the illegal practice of medicine.

The allegations in the information in this case that the accused acted with reckless negligence in diagnosing,
prescribing for, and treating the deceased Susana Tam, knowing that she did not possess the necessary technical
knowledge or skill to do so, thus causing her death, sufficiently charge the crime of homicide through reckless
imprudence, since ordinary diligence counsels one not to tamper with human life by trying to treat a sick man when
he knows that he does not have the special skill, knowledge, and competence to attempt such treatment and cure,
and may consequently reasonably foresee harm or injury to the latter, said accused was found guilty and convicted by
this Court of physical injuries through imprudence under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175).

However, in view of the error of the lower court in dismissing the information, we cannot sustain this appeal for the
reason that it would place the accused in double jeopardy. The present information being valid and sufficient in form
and substance to sustain a conviction, the dismissal thereof by the court after the accused had pleaded not guilty to
the charge and without his consent constitutes jeopardy as to bar further proceedings upon the case (U. S vs. Yam
Tung Way, 21 Phil., 67; People vs. Hernandez, 94 Phil., 49; 49 Off. Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil.,
124; 55 Off. Gaz. [4] 620). The failure of the accused to file a brief and raise the question of double jeopardy in this
appeal does not mean that section 2, Rule 118, providing that the People can not appeal if the defendant would be
placed in double jeopardy would no longer apply (People vs. Bao, 106 Phil., 243; 56 Off. Gaz. [51] 7768).
The unfortunate result in this case could have been avoided if the trial court had proceeded more deliberately, without
allowing its judgment to be influenced by preconceived notions or undue haste in dispatching cases.

The appeal is, therefore, dismissed, with costs de oficio.

G.R. No. L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner,

vs.
ELENA FERNANDEZ, et al., respondent.

Jose W. Diokno for petitioner.

Jose G. Gatchalian for respondents.

MAKALINTAL, J.:

The facts are stated in the decision of the Court of Appeals as follows:

The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M. Teague
was a vocational school for hair and beauty culture situated on the second floor of the Gil-Armi
Building, a two-storey, semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the corner
of Quezon Boulevard and Soler Street, Quiapo, Manila. The said second floor was unpartitioned, had a
total area of about 400 square meters, and although it had only one stairway, of about 1.50 meters in
width, it had eight windows, each of which was provided with two fire-escape ladders (Exh. "4"), and
the presence of each of said fire-exits was indicated on the wall (Exh. "5").

At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for surplus
materials located about ten meters away from the institute. Soler Street lay between that store and
the institute. Upon seeing the fire, some of the students in the Realistic Institute shouted 'Fire! Fire!'
and thereafter, a panic ensued. Four instructresses and six assistant instructress of the Institute were
present and they, together with the registrar, tried to calm down the students, who numbered about
180 at the time, telling them not to be afraid because the Gil-Armi Building would not get burned as it
is made of concrete, and that the fire was anyway, across the street. They told the students not to
rush out but just to go down the stairway two by two, or to use the fire-escapes. Mrs. Justitia Prieto,
one of the instructresses, took to the microphone so as to convey to the students the above
admonitions more effectively, and she even slapped three students in order to quiet them down. Miss
Frino Meliton, the registrar, whose desk was near the stairway, stood up and tried with outstretched
arms to stop the students from rushing and pushing their way to the stairs. The panic, however, could
not be subdued and the students, with the exception of the few who made use of fire-escapes kept on
rushing and pushing their way through the stairs, thereby causing stampede therein.

Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four students,
including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and several others
injured on account of the stampede.

xxx xxx xxx

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper lip, contused
abrasions in different parts of the body, internal hemorrhage and fractures in the second and third right ribs. The
cause of death, according to the autopsy report, was "Shock due to traumatic fractures of the ribs with perinephric
hematoma and lacerations of the conjunctiva of both eyes."

The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague as owner and
operator of Realistic Institute. The Court of First Instance of Manila found for the defendant and dismissed the case.
The plaintiffs thereupon appealed to the Court of Appeals, which by a divided vote of 3 to 2 (a special division of five
members having been constituted) rendered a judgment of reversal and sentenced the defendant to pay damages to
the plaintiffs in the sum of P11,000.00, plus interest at the legal rate from the date the complaint was filed.

The case came up to this Court on a petition for review filed by the defendant below.

The decision of the appellate court declared that the defendant, hereinafter to be referred to as the petitioner, was
negligent and that such negligence was the proximate cause of the death of Lourdes Fernandez. This finding of
negligence is based primarily on the fact that the provision of Section 491 Of the Revised Ordinances of the City of
Manila had not been complied with in connection with the construction and use of the Gil-Armi building where the
petitioner's vocational school was housed. This provision reads as follows:

Sec. 491. Firepro of partitions, exits and stairways. ... All buildings and separate sections of
buildings or buildings otherwise known as accessorias having less than three stories, having one or
more persons domiciled therein either temporarily or permanently, and all public or quasi-public
buildings having less than three stories, such as hospitals, sanitarium, schools, reformatories, places
of human detention, assembly halls, clubs, restaurants or panciterias, and the like, shall be provided
with at least two unobstructed stairways of not less than one meter and twenty centimeters in width
and an inclination of not less than forty degrees from the perpendicular, in case of large buildings
more than two stairways shall likewise be provided when required by the chief of the fire department,
said stairways shall be placed as far apart as possible.

The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of the Gil-Armi
building had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters each, although at the time of
the fire the owner of the building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was an act of negligence and that such negligence was
the proximate cause of the death of Lourdes Fernandez, reliance is based on a number of authorities in the American
jurisdiction, thus: .

The mere fact of violation of a statute is not sufficient basis for an inference that such violation was
the proximate cause of the injury complained. However, if the very injury has happened which was
intended to be prevented by the statute, it has been held that violation of the statute will be deemed
to be proximate cause of the injury. (65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as
a matter or law, or, according to the decisions on the question, negligence per se for the reason that
non-observance of what the legislature has prescribed as a suitable precaution is failure to observe
that care which an ordinarily prudent man would observe, and, when the state regards certain acts as
so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of
duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when
the standard of care is fixed by law, failure to conform to such standard is negligence, negligence per
se or negligence in and of itself, in the absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the act or omission constituting such violation
would have been regarded as negligence in the absence of any statute on the subject or whether
there was, as a matter of fact, any reason to anticipate that injury would result from such
violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding
the speed limit, for example, do not inquire whether his prohibited conduct was unreasonably
dangerous. It is enough that it was prohibited. Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance was intended to avoid it brings about the
harm which the ordinance was intended to prevent, it is a legal cause of the harm. This comes only to
saying that in such circumstances the law has no reason to ignore the causal relation which obviously
exists in fact. The law has excellent reason to recognize it, since it is the very relation which the
makers of the ordinance anticipated. This court has applied these principles to speed limits and other
regulations of the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

... However, the fact that other happenings causing or contributing toward an injury intervened
between the violation of a statute or ordinance and the injury does not necessarily make the result so
remote that no action can be maintained. The test is to be found not in the number of intervening
events or agents, but in their character and in the natural and probable connection between the wrong
done and the injurious consequence. The general principle is that the violation of a statute or
ordinance is not rendered remote as the cause of an injury by the intervention of another agency if
the occurrence of the accident, in the manner in which it happened, was the very thing which the
statute or ordinance was intended to Prevent. (38 Am Jur 841).

The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances of the City of
Manila refers to public buildings and hence did not apply to the Gil-Armi building which was of private ownership. It
will be noted from the text of the ordinance, however, that it is not ownership which determines the character of
buildings subject to its requirements, but rather the use or the purpose for which a particular building is utilized. Thus
the same may be privately owned, but if it is devoted to any one of the purposes mentioned in the ordinance for
instance as a school, which the Realistic Institute precisely was then the building is within the coverage of the
ordinance. Indeed the requirement that such a building should have two (2) separate stairways instead of only one
(1) has no relevance or reasonable relation to the fact of ownership, but does have such relation to the use or purpose
for which the building is devoted.

It is next contended that the obligation to comply with the ordinance devolved upon the owners of the building and
therefore it is they and not the petitioner herein, who is a mere lessee, who should be liable for the violation. The
contention ignores the fact that it was the use of the building for school purposes which brought the same within the
coverage of the ordinance; and it was the petitioner and not the owners who was responsible for such use.

The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply with the
requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez. The case of Villanueva
Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is cited in support of the contention that
such failure was not the proximate cause. It is there stated by this Court:

The proximate legal cause is that acting first and producing the injury, either immediately or by
settling other events in motion, all constituting a natural and continuous chain of events, each having
a close causal connection with its immediate predecessor, the final event in the chain immediately
affecting the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom.

Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the death of Lourdes
Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic
in the Institute; (5) stampede; and (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot be the
basis of liability since there intervened a number of independent causes which produced the injury complained of. A
statement of the doctrine relied upon is found in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein
this Court, citing Corpus Juris said:
 A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury a distinct, successive unrelated,
and efficient cause of the injury, even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except because of the independent cause,
such condition was not the proximate cause. And if an independent negligent act or defective condition
sets into operation the circumstances which result in injury because of the prior defective condition,
such subsequent act or condition is the proximate cause. (45 C.J. p. 931.)

According to the petitioner "the events of fire, panic and stampede were independent causes with no causal
connection at all with the violation of the ordinance." The weakness in the argument springs from a faulty
juxtaposition of the events which formed a chain and resulted in the injury. It is true that the petitioner's non-
compliance with the ordinance in question was ahead of and prior to the other events in point of time, in the sense
that it was coetaneous with its occupancy of the building. But the violation was a continuing one, since the ordinance
was a measure of safety designed to prevent a specific situation which would pose a danger to the occupants of the
building. That situation was undue overcrowding in case it should become necessary to evacuate the building, which,
it could be reasonably foreseen, was bound to happen under emergency conditions if there was only one stairway
available. It is true that in this particular case there would have been no overcrowding in the single stairway if there
had not been a fire in the neighborhood which caused the students to panic and rush headlong for the stairs in order
to go down. But it was precisely such contingencies or event that the authors of the ordinance had in mind, for under
normal conditions one stairway would be adequate for the occupants of the building. Thus, as stated in 38 American
Jurisprudence, page 841: "The general principle is that the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in
which it happened, was the very thing which the statute or ordinance was intended to prevent." To consider the
violation of the ordinance as the proximate cause of the injury does not portray the situation in its true perspective; it
would be more accurate to say that the overcrowding at the stairway was the proximate cause and that it was
precisely what the ordinance intended to prevent by requiring that there be two stairways instead of only one. Under
the doctrine of the cases cited by the respondents, the principle of proximate cause applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically allege that the ordinance in
question had been violated. The violation, however, as an act of negligence which gave rise to liability, was sufficiently
comprehended within paragraph 7 of the complaint, which reads: .

Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the defendant who
failed to exercise due care and diligence for the safety of its students in not providing the building with
adequate fire exits and in not practicing fire drill exercises to avoid the stampede, aside from the fact
that the defendant did not have a permit to use the building as a school-house.

The decision appealed from is affirmed, with costs.

G.R. No. 86890 January 21, 1994

LEANDRO CARILLO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Balane, Tamase, Alampay Law Office for petitioner.

The Solicitor General for the people.

FELICIANO, J.:

Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the Court of Appeals dated 28 November
1988, which affirmed his conviction by the Regional Trial Court of the crime of simple negligence resulting in homicide,
for the death of his thirteen (13) year old patient
Catherine Acosta. The trial court had sentenced him to suffer the penalty of arresto mayor in its medium period (four
[4] months' imprisonment), as well as to pay the heirs of his patient an indemnity of P30,000.00 for her death,
P10,000.00 as reimbursement for actual expenses incurred, P50,000.00 as moral damages and to pay the costs of the
suit. 1

The information filed against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the following:

That on or about the 31st of May 1981, in the municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping and aiding with one another, without taking the
necessary care and precaution to avoid injury to person, did then and there willfully, unlawfully and
feloniously operate, in a reckless, careless and imprudent manner and neglected to exercise their
respective medical knowhow and tasks and/or departed from the recognized standard in their
treatment, diagnosis of the condition, and operation of the patient, one Catherine Acosta, 13 years
old, which negligence caused the death of the said Catherine Acosta. 2

Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the case proceeded to trail with Judge
Job B. Madayag presiding. 3

The prosecution presented as its principal evidence the testimony of four (4) witnesses, namely: 1) Yolanda Acosta,
Catherine's mother, who was able to observe the conduct of the accused outside the operating theater before, during
and after the appendectomy procedure carried out on her daughter; 4 2) Domingo Acosta, Catherine's father, who
corroborated some parts of his wife's
testimony; 5 3) Dr. Horacio Buendia, an expert witness who described before the trial court the relationship between a
surgeon and an anesthetist in the course of a surgical operation, as well as define the likelihood of cardiac arrest as a
post operative complication; 6 and 4) Dr. Nieto Salvador, an expert witness who analyzed and explained the
significance of the results of the pathological study and autopsy conducted on Catherine's body by one Dr. Alberto
Reyes. 7

After the prosecution had rested its case, the defense was granted leave to file a demurrer to the evidence. 8 After
failing to file the demurrer within the reglementary period, Judge Manuel Yuzon, who had in the meantime taken over
as presiding judge of the sala where this case was pending, denied the defense motion for extension of time to file
demurrer and declared the case submitted for decision. 9

On 19 September 1985, the trial court promulgated its decision convicting both the accused of the crime charged. 10

On appeal, the Court of Appeals affirmed the judgment of conviction, and specified that the civil liability of the two (2)
accused was solidary in nature. 11

Petitioner Dr. Carillo alone filed the present Petition for Review with the Court, seeking reversal of his conviction, or in
the alternative, the grant of a new trial. Dr. Madrid did not try to appeal further the Court of Appeals Decision.
Accordingly, the judgment of conviction became final insofar as the accused surgeon Dr. Madrid is concerned.

The facts of the case as established by the Court of Appeals are as follows:

The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and Yolanda Acosta,
complained to her father at about 10:30 o'clock in the morning of May 31, 1981 of pains in the lower
part of her abdomen. Catherine was then brought to Dr. Elva Pea. Dra. Pea called for Dr. Emilio
Madrid and the latter examined Catherine Acosta. According to Dr. Madrid, his findings might be
appendicitis. Then Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so
that the child will be observed.

At the Baclaran General Hospital, a nurse took blood sample form the child. The findings became
known at around 3:00 o'clock in the afternoon and the child was scheduled for operation at 5:00
o'clock in the afternoon. The operation took place at 5:45 p.m. because Dr. Madrid arrived only at that
time.

When brought inside the operating room, the child was feeling very well and they did not subject the
child to ECG (electrocardiogram) and
X-ray.
The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was assisted by appellant, Dr.
Leandro Carillo, an anesthesiologists.

During the operation, while Yolanda Acosta, Catherine's mother, was staying outside the operating
room, she "noticed something very unfamiliar." The three nurses who assisted in the operation were
going in and out of the operating room, they were not carrying anything, but in going out of the
operating room, they were already holding something.

Yolanda asked one of the nurses if she could enter the operating room but she was refused.

At around 6:30 p.m., Dr. Emilio Madrid went outside the operating room and Yolanda Acosta was
allowed to enter the first door.

The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr. Madrid, they might
be wondering because he was going to install drainage near the operating (sic) portion of the child.

When asked, the doctor told them the child was already out of danger but the operation was not yet
finished.

It has also been established that the deceased was not weighed before the administration of
anesthesia on her.

The operation was finished at 7:00 o'clock in the evening and when the child was brought out from the
operating room, she was observed to be shivering (nanginginig); her heart beat was not normal; she
was asleep and did not wake up; she was pale; and as if she had difficulty in breathing and Dr. Emilio
Madrid suggested that she placed under oxygen tank; that oxygen was administered to the child when
she was already in the room.

Witness Yolanda Acosta further testified that shortly before the child was transferred from the
operating room to her room, she (witness) was requested by the anesthesiologist to go home and get
a blanket.
A portion of Yolanda Acosta's testimony on what happened when she returned to the hospital are
reproduced hereunder as follows:

Q What happened afterward?

A When I arrived in the hospital, my child was being transferred to her

bed.

Q What else happened?

Q I noticed that the heartbeat of my daughter was not normal. And I

noticed that her hospital gown is rising up and down.

Q What transpired after that?

A I asked Dr. Madrid why it was like that, that the heartbeat of my
daughter is not normal.

Q And did the doctor make any reply?

A The doctor said because of the lesion of the child.

Q What else happened?

A After they have revived the heartbeat of the child, Dr. Carillo and
Dr.Madrid left.

Q Now do you remember what time was it when Dr. Carillo stepped
out?

A Only a minute after they have transferred the child to the bed.

Q What happened later on after Dr. Carillo and Dr. Madrid stepped out
of the hospital?

A After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child

had developed convulsion and stiffening of the body.

Q When you observed convulsion and stiffening of the body, did you
do anything?

A We requested the nurse who was attending to her to call for a

doctor.
 Q And the nurse who was attending to the patient called for a doctor?

A They called for Dra. Pea, their family physician.

Q What transpired afterwards?

A What Dra. Pea did was call for Dr. Madrid and the cardiologist.

Q Did this doctor arrived?

A Yes.

Q What transpired after the doctor arrived?

A They examined the child.

Q After they examined the child, did they inform you of the result of
the examination?

A The cardiologist was the one whom informed us after he stepped out
of the room when we followed him. The doctor told us that she
suffered severe infection which went up to her head.

Q After you were informed of the result of his examination, what

transpired next?

A According to them, they will do their best for the child and that they
will call for Dr. Carillo.

Q Did Dr. Carillo arrived?

A At around 10:30 in the evening.

Q Did Dr. Carillo do anything when he arrived on 31 May 1981?

A When he arrived, he noticed that there were two small bottles and
big bottles of dextrose which were hanging above the bed of the child.
Then he said, "What is this? Christmas tree or what?" He told us that
one bottle of dextrose be removed. And the big one will remain.

Q What happened after that?

A After that we talked to Dr. Carillo and asked him how did this
happen to the child.

Q What did Dr. Carillo reply (sic) to you?

A He answered "that is nothing, the child will regain consciousness and

if the child will not regain consciousness, I will resign (sic) as a
doctor." 12

(Emphasis supplied)

When Catherine remained unconscious until noontime the next day, a neurologist examined her and she was
diagnosed as comatose. 13 Three (3) days later, Catherine died without regaining consciousness. 14

The Court of Appeals held that Catherine had suffered from an overdose of, or an adverse reaction to, anesthesia,
particularly the arbitrary administration of Nubain, a pain killer, without benefit of prior weighing of the patient's body
mass, which weight determines the dosage of Nubain which can safely be given to a patient. 15 The Court of Appeals
held that this condition triggered off a heart attack as a post-operative complication, depriving Catherine's brain of
oxygen, leading to the brain's hemorrhage. 16 The Court of Appeals identified such cardiac arrest as the immediate
cause of Catherine's death. 17

The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo and his co-accused Dr. Madrid,
holding that both had failed to observe the required standard of diligence in the examination of Catherine prior to the
actual administration of anesthesia; 18 that it was "a bit rash" on the part of the accused Dr. Carillo "to have
administered Nubain without first weighing Catherine"; 19 and that it was an act of negligence on the part of both
doctors when, (a) they failed to monitor Catherine's heartbeat after the operation and
(b) they left the hospital immediately after reviving Catherine's heartbeat, depriving the latter
of immediate and expert medical assistance when she suffered a heart attack approximately fifteen (15) to thirty (30)
minutes later. 20
Since neither petitioner nor his co-accused presented evidence in their own behalf, the present Petition seeks to
question the soundness of the factual conclusions drawn by the Court of Appeals, upon which the affirmance of
petitioner's conviction was based.

Close examination of the instant Petition for Review shows that petitioner's main arguments are two-fold: (1) the
Court of Appeals "completely brushed aside" and "misapprehended" Catherine's death certificate and biopsy report
which allegedly showed that the cause of death was a ruptured appendix, which led to blood poisoning, 21 rather than
faulty anesthetic treatment;
and (2) there was no direct evidence of record showing that Nubain was administered to Catherine either during the
appendectomy procedure or after such operation. 22

Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so
drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and resolve
question(s) of fact which would have a decisive significance for the disposition of the case. The rule is too firmly
settled to require much documentation that only questions of law may be raised before this Court in a petition for
review on certiorari, subject to certain well-known exceptions. 23 After careful scrutiny of petitioner's contentions
before us and the record of this case, we do not believe that petitioner has shown "misapprehension of facts" on the
part of the Court of Appeals which would require this Court to overturn the judgment reached by the former.

The second issue is whether or not the findings of fact of the Court of Appeals adequately support the conclusion that
petitioner Dr. Carillo was, along with Dr. Madrid, guilty of simple negligence which resulted in homicide. Our review of
the record leads us to an affirmative answer.

Petitioner contends that the Court of Appeals seriously erred in finding that an overdose of, or an allergic reaction to,
the anesthetic drug Nubain had led to the death of Catherine Acosta and that the true cause of Catherine's death was
that set out in the death certificate of Catherine: "Septicemia (or blood poisoning) due to perforated appendix with
peritonitis." 24 The concept of causation in general, and the cause of death in human beings in particular, are complex
and difficult notions. What is fairly clear is that death, understood as a physical condition involving cessation of vital
signs in the brain and heart, is preceded by a series of physiological events, any one of which events can, with equal
cogency, be described as a "cause of death". The Court of Appeals found that an overdose of, or an adverse reaction
to, Nubain, an anesthetic or pain-killing drug the appropriate dose of which depends on the body weight or mass of
the patient, had generated or triggered off cardiac arrest, which in turn led to lack of oxygen in Catherine's brain,
which then brought about hemorrhaging in the brain. Vital activity in the brain thereupon ceased. The medical
evidence presented at the trial was quite consistent with the findings of the Court of Appeals which concluded that
cardiac arrest was the cause of Catherine's death. 25

For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-starvation of the brain, that
septicemia with peritonitis or severe infection which had "gone up to the head" of Catherine was an equally efficient
cause of deprivation of the brain of oxygen and hence of brain hemorrhage. The medical testimony of the expert
witnesses for the prosecution on which petitioner relies is also consistent with petitioner's theory that septicemia with
peritonitis was, or at least could have been, the cause of Catherine's death. 26

Indeed, it appears to the Court that there was no medical proof submitted to the trial court to show that one or the
other "cause" was necessarily an exclusive cause of death in the case of Catherine Acosta; that an overdose or allergic
reaction to Nubain could not have combined with septicemia and peritonitis in bringing about Catherine's death.

What is of critical importance for present purposes is not so much the identification of the "true cause" or "real cause"
of Catherine's death but rather the set of circumstances which both the trial court and the Court of Appeals found
constituted simple (as distinguished from reckless) negligence on the part of the two accused Dr. Madrid and Dr.
Carillo leading to the death of Catherine.

When the patient was wheeled out of the operating room after completion of surgery, she manifested signs of medical
instability (i.e., shivering, paleness, irregular breathing and weak heart beat). 27 She was not brought to a properly
equipped recovery room, or intensive care until which the hospital lacked. 28 Such facilities and their professional
staffs, of which an anesthetist is commonly a part, are essential for providing close observation and patient care while
a post-surgery patient is recovering from the effects of anesthesia and while the normal protective mechanisms are
still dull or obtunded. 29 Instead, the patient was merely brought to her assigned hospital bed and was provided
oxygen on the instructions of Dr. Madrid then "revived" her heartbeat. 30 Both doctors then left their patient and the
hospital; approximately fifteen minutes later, she suffered convulsions and cardiac arrest. 31

The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their patient in view of her vulnerable
condition. Both doctors failed to appreciate the serious condition of their patient whose adverse physical signs were
quite manifest right after surgery. And after reviving her heartbeat, both doctors failed to monitor their patient closely
or extend further medical care to her; such conduct was especially necessary in view of the inadequate,
post-operative facilities of the hospital. We do not, of course, seek to hold petitioner responsible for the inadequate
facilities of the Baclaran General Hospital. We consider, however, that the inadequate nature of those facilities did
impose a somewhat higher standard of professional diligence upon the accused surgeon and anesthetist personally
than would have been called for in a modern fully-equipped hospital.

While Dr. Madrid and a cardiologist were containing the patient's convulsions, and after the latter had diagnosed that
infection had reached the patient's head, these two (2) apparently after consultation, decided to call-in the
petitioner. 32 There is here a strong implication that the patient's post-operative condition must have been considered
by the two (2) doctors as in some way related to the anesthetic treatment she had received from the petitioner either
during or after the surgical procedure.

Once summoned, petitioner anesthesiologist could not be readily found. When he finally appeared at 10:30 in the
evening, he was evidently in a bad temper, commenting critically on the dextrose bottles before ordering their
removal. 33 This circumstance indicated he was not disposed to attend to this unexpected call, in violation of the
canons of his profession that as a physician, he should serve the interest of his patient "with the greatest of solicitude,
giving them always his best talent and skill." 34 Indeed, when petitioner finally saw his patient, he offered the
unprofessional bluster to the parents of Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a physician to "attend to his patients faithfully and
conscientiously." He should secure for them all possible benefits that may depend upon his professional skill and care.
As the sole tribunal to adjudge the physician's failure to fulfill his obligation to his patient is, in most cases, his own
conscience, violation of this rule on his part is "discreditable and inexcusable". 36

Nubain was an experimental drug for anesthesia and post-operative pain and the medical literature required that a
patient be weighed first before it is administered and warned that there was no (or inadequate) experience relating to
the administration thereof to a patient less that eighteen (18) ears of age. 37 Yet, the doctor's order sheet (Exhibit
"C") did not contain this precaution but instead directed a reader to apply the drug only when warranted by the
circumstances. 38 During the offer of Exhibit "C" by the prosecution, Dr. Madrid admitted that this prescription, which
was unsigned, was made in his own handwriting. 39 It must be observed that the instruction was open-ended in that
some other individual still had to determine if circumstances existed warranting administration of the drug to the
patient. The document thus indicated the abdication of medical responsibility on an extremely critical matter.
Since petitioner anesthesiologist entered subsequent prescriptions or orders in the same order sheet, which were
signed by him, at 7:15 p.m. on the same evening of 31 May 1981, he was in a position to appreciate the dangers
inherent in the prior prescription, which was within his (petitioner's) area of specialization , and to order measures to
correct this anomaly and protect his patient's well-being. So far as the condition of the evidence shows, he failed to do
so. In sum, only a low level of diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication
for their patient.

As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-examination of the expert
witnesses for the prosecution to show that blood poisoning resulting from a ruptured appendix could also be
responsible for the patient's death.

No suggestion has been made that the rupture of the patient's occurred prior to surgery. After her blood sample was
examined, the patient was merely diagnosed as a case of appendicitis, without further elaboration. 40 No intensive
preoperative preparations, like the immediate administration of antibiotics, was thereafter undertaken on the patient.
This is a standard procedure for patients who are, after being diagnosed, suspected of suffering from a perforated
appendix and consequent peritonitis. 41 The mother also testified that petitioner anesthesiologist merely injected a
drug, "pre-anesthesia" intended to put the patient to sleep, into the container of fluids being administered to her
daughter intravenously at her room, prior to surgery. 42 We note further that the surgeon Dr. Madrid was forty-five
minutes late in arriving at the operating theater. 43 Considering that delay in treatment of appendicitis increases the
morbidity of the patient, 44 Dr. Madrid's conduct can only be explained by a pre-operative diagnosis on his part that
the condition of appendicitis was not yet attended by complications (i.e., a ruptured appendix and peritonitis).

The above circumstances do strongly indicate that the rupture of the patient's appendix occurred during the
appendectomy procedure, that is, at a time and place the operating room where the two (2) accused were in full
control of the situation and could determine decisively what needed to be done in respect of the patient. 45 This
circumstance must be considered in conjunction with other related circumstances which the prosecution had proven:
that the patient was ambulatory when brought to the operating room; 46 that she left the operating room two (2)
hours later in obviously serious condition; and that an appendectomy accompanied or followed by sustained antibiotic
treatment is a fairly common and generally accepted medical procedure for dealing with ruptured appendix and
peritonitis, 47 a fact of which judicial note may be taken.

As early as in People v. Vistan, 48 the Court defined simple negligence, penalized under what is now Article 365 of the
Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is
not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of simple
negligence is the failure to exercise the diligence necessitated or called for the situation which was not immediately
life-destructive but which culminated, in the present case, in the death of a human being three (3) days later. Such
failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense charged. The rule
in such cases is that while the prosecution must prove the negative ingredient of the offense, it needs only to present
the best evidence procurable under the circumstances, in order to shift the burden of disproving or countering the
proof of the negative ingredient to the accused, provided that such initial evidence establishes at least on a prima
facie basis the guilt of the accused. 49 This rule is particularly applicable where the negative ingredient of the offense
is of such a nature or character as, under the circumstances, to be specially within the knowledge or control of the
accused. 50 In the instant case, the Court is bound to observe that the events which occurred during the surgical
procedure (including whether or not Nubain had in fact been administered as an anesthesia immediately before or
during the surgery) were peculiarly within the knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore,
incumbent upon the two (2) accused to overturn the prima facie case which the prosecution had established, by
reciting the measures which they had actually taken to prevent or to counter the obviously serious condition of
Catherine Acosta which was evident right after surgery. This they failed or refused to do so.

Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform the
parents of their minor patient of the nature of her illness, or to explain to them either during the surgery
(if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her condition
immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation to the parents
was a duty imposed upon them by the canons of their profession. 51 Petitioner should have explained to Catherine's
parents the actual circumstances surrounding Catherine's death, how, in other words, a simple appendectomy
procedure upon an ambulatory patient could have led to such fatal consequences.

By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the
failure of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to monitor her
condition and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist after
the patient's heart attack on the very evening that the surgery was completed; (3) the low level of care and diligence
exhibited by petitioner in failing to correct Dr. Madrid's prescription of Nubain for post-operative pain; (4) the
extraordinary failure or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of her true
condition after surgery, in disregard of the requirements of the Code of Medical Ethics; and (5) the failure of petitioner
and Dr. Madrid to prove that they had in fact exercised the necessary and appropriate degree of care and diligence to
prevent the sudden decline in the condition of Catherine Acosta and her death three (3) days later, leads the Court to
the conclusion, with moral certainty, that petitioner and Dr. Madrid were guilty of simple negligence resulting in
homicide.

In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of denial
of due process. He contends that he was deprived of his right to have competent representation at trial, and to have
his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was "incompetent" and exhibited
"gross negligence" by manifesting an intent to file a demurrer to the evidence, in failing to present evidence in his
behalf and in omitting to file a defense memorandum for the benefit of Judge Yuzon, after the latter took over the
case at the end of trial and before the Judge rendered his decision. 52Petitioner submits he is entitled to a new trial. 53

These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented petitioner
during trial with reasonable competence. Except for the two hearing sessions when witnesses Domingo Acosta was
cross-examined and recross-examined by Atty. Puerto, petitioner was present during all the sessions when the other
prosecution witnesses were presented and during which Atty. Puerto extensively cross-examined them in behalf of
petitioner and Dr. Madrid. This counsel elicited from the two (2) expert witnesses for the prosecution testimony
favorable to petitioner and which was relied upon by the latter in this proceeding. 54 The record further indicates that
if petitioner indeed entertained substantial doubts about the capability of Atty. Puerto, he could have easily terminated
the services of that counsel and retained a new one, or sought from the trial court the appointment of counsel
de oficio, during the ample opportunity given from the time Atty. Puerto manifested his intent to file a demurrer on 16
October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation of judgment
on 19 September 1986. 55 During all this time, petitioner could have obtained leave of court to present evidence in his
behalf in lieu of a demurrer, or to submit a memorandum for the defense. After promulgation of the judgment of
conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial court to
continue on bail during the pendency of the proceedings before the Court of Appeals. 56 Indeed, petitioner replaced
Atty. Puerto as counsel only upon institution of the present petition. 57

Petitioner's constitutional objection is plainly an afterthought.

WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is hereby AFFIRMED, subject only to the
modification that the indemnity for the death of Catherine Acosta is hereby increased to P50,000.00, in line with
current jurisprudence. 58 SO ORDERED.
G.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,

vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already
provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of
treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to
enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the
reverse be my lot." At present, the primary objective of the medical profession if the preservation of life and
maintenance of the health of the people. 4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he
must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by
the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil
Case No. 9492.

The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg.
Head of the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who
was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some
student nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45
that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs.
Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's
secretary, the amount of P1,500.00 as "professional fee". . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic
who prescribed for her certain medicines. . . which she had been taking up to December, 1988.

In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . .
certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week
of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly
losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on
January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast.
Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to
be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-
ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood
count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the
latter agreed.
 When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"
looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could have
been a torn section of a surgeon's gloves or could have come from other sources. And this foreign
body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by
Mrs. Villegas after her delivery on September 21, 1988. 7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and
although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not
mentioned in the pathologist's Surgical Pathology Report. 9

Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a
Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trial
court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical
Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she
merely affixed her signature on some of them to express her agreement thereto. . . ." 15 The trial court also refused to
give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand
knowledge" thereof, 16 as could be gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial court
noted, was never denied nor disputed by Dr. Kho, leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away
as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve
only to weaken their claim against Defendant Batiquin. 19

All told, the trial court held in favor of the petitioners herein.

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber
was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial
court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The
trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made
by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy.
Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her
abdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go
to any other doctor until they finally decided to see another doctor in January, 1989 when she was not
getting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the
witness stand that she alone decided when to close the operating area; that she examined the portion
she operated on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin
would have found the rubber and removed it before closing the operating area. 20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G
and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of appellee
Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs
were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is
that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and
caused appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants
the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages;
P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs
of litigation. SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed
grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded
its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with
contradictions and falsities.

The private respondents commented that the petition raised only questions of fact, which were not proper for review
by this Court.

While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22

After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's
testimony:

Q What is the purpose of the examination?

A Just in case, I was just thinking at the back of my mind, just in case this would turn
out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber wa
s. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of
the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial
court should have likewise considered the other portions of Dr. Kho's testimony, especially the following:

Q So you did actually conduct the operation on her?

A Yes, I did.

Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen,
there was an ovarian cyst on the left and side and there was also an ovarian cyst on
the right which, on opening up or freeing it up from the uterus, turned out to be pus.
Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back
of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we
found a [piece of] rubber on the right
side. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho
saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu
City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece
of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based
on other than first-hand knowledge for, as she asserted before the trial court:

Q But you are sure you have seen [the piece of rubber]?

A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim
on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was
a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence,
the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's
statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And
even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it
to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent
Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some
facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is
found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated
testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 29

It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private
respondent Villegas. 32But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course,
as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second
assigned error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said
testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her
turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her
trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care
with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only
supporting our appraisal of Dr. Kho's trustworthiness:

This is not to say that she was less than honest when she testified about her findings, but it can also
be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to
have anticipated. 35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber
was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the
petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation
of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen in those who have the management use proper care, it affords reasonable evidence,
in the absence of an explanation by the defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that
defendant was negligent, which arises upon proof that [the] instrumentality causing
injury was in defendant's exclusive control, and that the accident was one which
ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of
evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the]
mere fact that [the] accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence of negligence
it would not have occurred and that thing which caused injury is shown to have been
under [the] management and control of [the] alleged wrongdoer. . . . Under [this]
doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course of things would not happen if
reasonable care had been used.

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular
case, is not intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily
available. 36

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft
of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private
respondent Villegas's body, which, needless to say, does not occur unless through the intersection of negligence.
Second, since aside from the caesarean section, private respondent Villegas underwent no other operation which could
have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been
a by-product of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome
the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable
for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse
effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the
people, 37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or
trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving
them always his best talent and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for
professionals, in general, 40 and members of the medical profession, 41 in particular. WHEREFORE, the challenged
decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against
the petitioners. SO ORDERED.
 [G.R. No. 118141. September 5, 1997]

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R. ARNAU, ABELARDO L.

APORTADERA JR., Honorable CONDRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS
F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City
Prosecutor, Manila, respondents.

DECISION

ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated
in Ocampo v. Ombudsman [1] which states:

In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the
discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense
charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in
his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after
surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of
negligence but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a
preliminary investigation to each other with contradictory recommendations, ping-pong style, perhaps the distraught
widow is not to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality
under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this
Court against the Ombudsman for grave abuse of discretion in dismissing her complaint against said City Prosecutors
on the ground of lack of evidence. Much as we sympathize with the bereaved widow, however, this Court is of the
opinion that the general rule still finds application in instant case. In other words, the respondent Ombudsman did not
commit grave abuse of discretion in deciding against filing the necessary information against public respondents of the
Office of the City Prosecutor.

The following facts are borne out by the records.

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital
for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon,
while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of
complications of unknown cause, according to officials of the UST Hospital. [2]

Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to
conduct an autopsy on her husbands body. Consequently, the NBI ruled that Florencios death was due to lack of care
by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr.
Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the
Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to
disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was
related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who
was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence
regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a
resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be
dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the interest of
justice and peace of mind of the parties, recommended that the case be re-raffled on the ground that Prosecutor
Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte
faceoccurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a
corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the
findings of Prosecutor Dimagiba.
 Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas resolution, the
investigative pingpong continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who
recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence.While
the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor
Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by
both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No.
3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the
Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the
complaint for lack of evidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the
recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the
Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public
respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following:
investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain information, and
function to adopt, institute and implement preventive measures. [4]

As protector of the people, the Office of the Ombudsman has the power, function and duty to act promptly on
complaints filed in any form or manner against public officials and to investigate any act or omission of any public
official when such act or omission appears to be illegal, unjust, improper or inefficient. [5]

While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this
Court is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in which case
Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987
Constitution. [6]

In this regard, grave abuse of discretion has been defined as where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive
duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. [7]

From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another
were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority with
respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman should have been more
vigilant and assiduous in determining the reasons behind the buckpassing to ensure that no irregularity took place.

Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would
have expected the Ombudsman, however, to inquire into what could hardly qualify as standard operating procedure,
given the surrounding circumstances of the case.

While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover
who may be charged with a crime, its function is merely to determine the existence of probable cause. [8] Probable
cause has been defined as the existence of such fact and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecution, that the person charged was guilty of the crime for
which he was prosecuted.[9]

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge. [10]

In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed
negligence on the part of the attending physicians in administering the anaesthesia. [11] The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-blown trial
for it is virtually impossible to ascertain the merits of a medical negligence case without extensive investigation,
research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not in a competent
position to pass judgment on such a technical matter, especially when there are conflicting evidence and findings. The
bases of a partys accusation and defenses are better ventilated at the trial proper than at the preliminary
investigation.

A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm.

In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a
physician, either failed to do something which a reasonably prudent health care provider would have done, or that he
or she did something that a reasonably prudent provider would not have done; and that that failure or action caused
injury to the patient.[12]

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

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship
was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and
skill in the treatment of their patients. [13] They have a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these
professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is
injured in body or in health, constitutes actionable malpractice. [14] Consequently, in the event that any injury results to
the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for
negligence.[15]

Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert
testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against
anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper
anaesthesia.[16] Essentially, it requires two-pronged evidence: evidence as to the recognized standards of the medical
community in the particular kind of case, and a showing that the physician in question negligently departed from this
standard in his treatment.[17]

Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctors
actions in fact caused the harm to the patient and whether these were the proximate cause of the patients injury.
[18]
Indeed here, a causal connection is discernible from the occurrence of the victims death after the negligent act of
the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the
appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced
that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears
that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the
symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to
counteract whatever deleterious effect the anaesthesia might produce. [19] Why these precautionary measures were
disregarded must be sufficiently explained.

The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act which
requires the following facts:

1. The accused is a public officer discharging administrative or official functions or private persons charged in
conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public
position;

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit,
advantage or preference to such parties. [20]

Why did the complainant, petitioner in instant case, elect to charge respondents under the above law?

While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from the armory, it is
with no little surprise that this Court views the choice made by the complainant widow.

To our mind, the better and more logical remedy under the circumstances would have been to appeal the
resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department
of Justices Order No. 223, [21] otherwise known as the 1993 Revised Rules on Appeals From Resolutions In Preliminary
Investigations/Reinvestigations, as amended by Department Order No. 359, Section 1 of which provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: The Secretary of
Justice may reverse, affirm or modify the appealed resolution. On the other hand, He may motu proprio or on motion
of the appellee, dismiss outright the appeal on specified grounds. [22]

In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in
dismissing the complaint against the Prosecutors and this Court will not interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an
appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs. SO ORDERED.
 [G.R. No. 122445. November 18, 1997]

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

DECISION

FRANCISCO, J.:

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

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

"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of
this Honorable Court, the accused abovenamed, being then the attending anaesthesiologist and surgeon, respectively,
did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store
sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a
surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such
failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia
Umali on the day following said surgical operation."[5]

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

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

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

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

First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual
Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital
at around 4:30 in the afternoon of the same day. [9] Prior to March 22, 1991, Lydia was examined by the petitioner
who found a "myoma"[10] in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991.
[11]
Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on
the next day at 1:00 o'clock in the afternoon. [12] According to Rowena, she noticed that the clinic was untidy and the
window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor
with.[13] Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the
operation.[14] The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner
if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia
then informed Rowena that the petitioner told her that she must be operated on as scheduled. [15]

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

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the
petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. [19] The
attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the
San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her
blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could
do to help save the patient. [20] While petitioner was closing the abdominal wall, the patient died. [21] Thus, on March 24,
1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states "shock" as the
immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. [22]

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

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

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

"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it
nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary
condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the
OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to
testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the
alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.

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

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

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

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

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

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions
such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the
operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to
the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the
circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of
the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen,
including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has
exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion.[30] The deference of courts to the expert opinion of qualified physicians stems from its realization that
the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating.
[31]
Expert testimony should have been offered to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed by other physicians in good standing when
performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in
the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and
employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established.
[32]
This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

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

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

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

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

"Atty. Cachero:

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

A. That is my signature, sir.

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

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

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area,
anterior abdominal area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.

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

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

Hemoperitonium: 300 s.s.,

right paracolic gutter,

50 c.c., left paracolic gutter

200 c.c., mesentric area,

100 c.c., right pelvic gutter

stomach empty.

Other visceral organs, pale.',

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

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

Q. How about the ovaries and adnexal structures?

A. They are missing, sir.

Q. You mean to say there are no ovaries?

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

Q. And there were likewise sign of surgical sutures?

A. Yes, sir.

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

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

Q. And what could have caused this blood?

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

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

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

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

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

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

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

The foregoing was corroborated by Dr. Nieto Salvador:

"Q. And were you able to determine the cause of death by virtue of the examination of the specimen
submitted by Dr. Arizala?

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

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

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

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

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

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

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

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

A. Based on my pathology findings, sir.

Q. What could have caused this loss of blood?

A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on
operation and this cause (sic) bleeding, or may be set in the course of the operation, or may be (sic) he
died after the operation. Of course there are other cause (sic).
 Atty. Cachero:

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

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

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

"Atty. Pascual:

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

A. Yes, sir.

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

A. Yes, sir.

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

A. Yes, sir.

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

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

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

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

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

COURT:

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

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

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

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

xxxxxxxxx

Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any
suture that become (sic) loose the cause of the bleeding could not be attributed to the fault of the
subject?

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

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

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

A: Ligature, sir.

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

A: I cannot recall, sir.

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

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

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

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

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

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

A. Yes, sir.
 Q. And you mentioned that it cannot be prevented?

A. Yes, sir.

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

A. Possible, sir.

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

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

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

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

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

ATTY. MALVEDA:

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

ATTY. PASCUAL:

Precisely based on this examination.

ATTY. MALVEDA:

Not finding, there was no finding made.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

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

This court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The probability
that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a
reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting in
homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair
dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond reasonable
doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a
crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability.
[45]

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

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

Let the copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.
SO ORDERED.
 [G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES,
represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL,
SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, respondents.

DECISION

MENDOZA, J.:

This is a petition for review of the decision [1] of the Court of Appeals in CA-G.R. CV No. 36551 affirming the
decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners
against respondents.

The facts are as follows:

Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja,
Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987,
Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home medication he
was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent
Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took
his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent,
and with respiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15
to 20 cases of typhoid per month.[3] Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a
Widal Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool
examination, and malarial smear were also made. [4] After about an hour, the medical technician submitted the results
of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00
p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.

Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a
physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted
treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on
Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did
not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams
of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about
three hours later just before midnight.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient
also experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him
under oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients
convulsions.When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart
ailment or had suffered from chest pains in the past. Jorge replied he did not. [5] After about 15 minutes, however,
Jorge again started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency
measures taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment
and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient
oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was
Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.
 On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint [6]for damages against
respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente.
On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as
additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with
respondent hospital. Their principal contention was that Jorge did not die of typhoid fever. [7] Instead, his death was
due to the wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care
and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded
that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests
on the patients compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio,
with negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses. [8]

Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence,
and lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent
in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the
trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses
were presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training
Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine
the cause of his death. However, he did not open the skull to examine the brain. His findings[9] showed that the
gastro-intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified
that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five
days from the onset of the disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the
Cebu City Medical Center and an associate professor of medicine at the South Western University College of Medicine
in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history
and positive Widal Test results ratio of 1:320would make him suspect that the patient had typhoid fever. As to Dr.
Vacalares observation regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr. Gotiong said that such
hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect of typhoid
fever may lead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain. [10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of
the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo
City.Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in the
diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges
case was already the maximum by which a conclusion of typhoid fever may be made. No additional information may
be deduced from a higher dilution.[11] He said that Dr. Vacalares autopsy on Jorge was incomplete and thus
inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of
negligence and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim,
holding that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death
was due to the latters negligence.

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the
decision of the trial court.

Hence this petition.

Petitioners raise the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE
DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.

II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED
ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF
CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO
DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of
a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed
by the profession generally, under similar conditions, and in like surrounding circumstances. [12] In order to successfully
pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a
reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent
physician or surgeon would not have done, and that the failure or action caused injury to the patient. [13] There are
thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation.

In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors
and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which
constitutes actionable malpractice.[14] As to this aspect of medical malpractice, the determination of the reasonable
level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation. [15]

Res Ipsa Loquitur

 There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa
loquitur. As held in Ramos v. Court of Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill
and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund
of common knowledge can determine the proper standard of care. Where common knowledge and experience teach
that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and
the injury sustained while under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in
the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in
the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth
while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was
under the influence of anesthetic, during or following an operation for appendicitis, among others. [17]

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case
because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and
ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission.

This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the
accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency
which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not
have been due to any voluntary action or contribution of the person injured. [18]

The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the
question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition
of a patient scheduled for cholecystectomy. [19] In that case, the patient was given anesthesia prior to her operation.
Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res
ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of negligence of
the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary
person could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this
case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is
really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring
fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This
shows that he had been suffering from a serious illness and professional medical help came too late for him.

Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the
standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no
presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made
between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly committed by
respondent doctors.

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges
illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin; [21] and (2) Dr.
Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three
hours after the first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of
the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of
Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid
fever but of shock undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not
persuaded.

First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he
is not a specialist on infectious diseases like typhoid fever.Furthermore, although he may have had extensive
experience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time
he conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three
cases of typhoid fever. Thus, he testified that: [23]

ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?

A I have not seen one.

Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one.

Q How many typhoid fever cases had you seen while you were in the general practice of medicine?

A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like
that. And the widal test does not specify the time of the typhoid fever.

Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases
now you practice?

A I had only seen three cases.

Q And that was way back in 1964?

A Way back after my training in UP.

Q Clinically?

A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct
in discarding his testimony, which is really inadmissible.

In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to
oxygen deprivation after the patient had bronchospasms [24]triggered by her allergic response to a drug, [25] and not due
to faulty intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an
anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist
who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist
who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could
explain the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms.

Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They
vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is
infectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine
and the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid fever.
[26]
According to him, when a case of typhoid fever is suspected, the Widal test is normally used, [27] and if the 1:320
results of the Widal test on Jorge Reyes had been presented to him along with the patients history, his impression
would also be that the patient was suffering from typhoid fever. [28] As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. [29] He also explained that despite the measures taken by respondent doctors
and the intravenous administration of two doses of chloromycetin, complications of the disease could not be
discounted. His testimony is as follows:[30]

ATTY. PASCUAL:

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?

A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever.

Q And presently what are the treatments commonly used?

A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the
patient associated with chills, temperature - 41 oC, what could possibly come to your mind?

A Well, when it is change in the clinical finding, you have to think of complication.

Q And what will you consider on the complication of typhoid?

A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins
produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities;
then you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium.

Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous,
after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient
developed chills . . . rise in temperature to 41 oC, and then about 40 minutes later the temperature rose to
100oF, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what
significance could you attach to these clinical changes?
 A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high
cardiac rate.

Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20
minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what
significance would you attach to this development?

A We are probably dealing with typhoid to meningitis.

Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?

A No, the finding would be more on the meninges or covering of the brain.

Q And in order to see those changes would it require opening the skull?

A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico
explained that, while hyperplasia [31] in the payers patches or layers of the small intestines is present in typhoid fever,
the same may not always be grossly visible and a microscope was needed to see the texture of the cells. [32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the
MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He
stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he did
not encourage its use because a single test would only give a presumption necessitating that the test be repeated,
becoming more conclusive at the second and third weeks of the disease. [33] He corroborated Dr. Gotiongs testimony
that the danger with typhoid fever is really the possible complications which could develop like perforation,
hemorrhage, as well as liver and cerebral complications. [34] As regardsthe 1:320 results of the Widal test on Jorge
Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio. [35] He also agreed with
Dr. Gotiong that hyperplasia in the payers patches may be microscopic. [36]

Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from
the best to the worst and from the most to the least experienced, but the reasonable average merit among the
ordinarily good physicians.[37] Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the
experts as she in fact observed the due care required under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the
patients history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated
by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any
doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.

Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for
typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is
clearly absent.

Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than
three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock [38] or possibly from overdose as the second
dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the
Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al.,
in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin)
is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical
response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial
infections, bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise including the first
administration of five hundred milligrams (500 mg.) at around nine oclock in the evening and the second dose at
around 11:30 the same night was still within medically acceptable limits, sincethe recommended dose of
chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society,
Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick,
Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence
introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. ( Decision, pp. 16-17) Once
more, this Court rejects any claim of professional negligence in this regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin
test of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain drugs
cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation
of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out
anaphylactic sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What
all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet
establish the negligence of the appellee-physicians for all that the law requires of them is that they perform the
standard tests and perform standard procedures. The law cannot require them to predict every possible reaction to all
drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-
physicians ignored standard medical procedure, prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of general practitioners similarly situated. [39]

Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the
duty of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers,
[40]
physicians and surgeons should have the same duty toward their patients. [41] They also contend that the Court of
Appeals erred when it allegedly assumed that the level of medical practice is lower in Iligan City, thereby reducing the
standard of care and degree of diligence required from physicians and surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them,
according to the circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through
years of education, training, and by first obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state
regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility
to society. Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary
diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as
we have already noted, the standard contemplated for doctors is simply the reasonable average merit among
ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable
skill and competence . . . that a physician in the same or similar locality . . . should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO
ORDERED.
 [G.R. No. 137268. March 26, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA CARMEN @ Mother Perpetuala,
CELEDONIA FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga, ALEXANDER SIBONGA @
Nonoy Sibonga, and REYNARIO NUEZ @ Rey Nuez, accused-appellants.

DECISION

MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 14, Cebu City, finding accused-appellants
Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @ Isabel Fabie, Delia Sibonga @ Deding Sibonga, Alexander
Sibonga @ Nonoy Sibonga, and Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty
of reclusion perpetua and to pay the heirs of the victim the amount of P50,000.00 as indemnity as well as the costs.

The information[2] against accused-appellants alleged:

That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping
one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there
inflict fatal physical injuries on one Randy Luntayao which injuries caused the death of the said Randy Luntayao.

Accused-appellants pleaded not guilty to the charge, whereupon they were tried.

The prosecution presented evidence showing the following: At around 2 oclock in the afternoon of January 27,
1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7, were playing takyan in front of the house of one
Bebing Lastimoso in Quiot, Pardo, Cebu City, when suddenly they heard a child shout, Tabang ma! (Help
mother!). The cry came from the direction of the house of accused-appellant Carmen, who is also known in their
neighborhood as Mother Perpetuala. The two children ran towards Mother Perpetualas house. [3] What Honey Fe saw on
which she testified in court, is summarized in the decision of the trial court, to wit:

While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy Luntayao, . . . being immersed
head first in a drum of water. Accused Alexander Sibonga was holding the waist of the body while accused Reynario
Nuez held the hands of the boy at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were
pushing down the boys head into the water. She heard the boy shouting Ma, help for two times. Later, she saw
accused Reynario or Rey Nuez tie the boy on the bench with a green rope as big as her little finger. . . . After that
Eutiquia Carmen poured [water from] a plastic container (galon) . . . into the mouth of the boy. Each time the boy
struggled to raise his head, accused Alexander Sibonga banged the boys head against the bench [to] which the boy
was tied down. She even heard the banging sound everytime the boys head hit the bench. For about five times she
heard it. According to this witness after forcing the boy to drink water, Eutiquia Carmen and accused Celedonia Fabie
alias Isabel Fabie took turns in pounding the boys chest with their clenched fists. All the time Rey Nuez held down the
boys feet to the bench. She also witnessed . . . Celedonia Fabie dropped her weight, buttocks first, on the body of the
boy. Later on, Eutiquia Carmen ordered Delia or Deding Sibonga to get a knife from the kitchen. Eutiquia Carmen then
slowly plunged the stainless knife on the left side of the boys body and with the use of a plastic gallon container, the
top portion of which was cut out, Eutiquia Carmen [caught] the blood dripping from the left side of the boys
body. Honey Fe heard the moaning coming from the tortured boy. Much later she saw Nonoy or Alexander Sibonga,
Reynario Nuez, Delia Sibonga, Celedonia Fabie, and Eutiquia Carmen carry the boy into the house. [4]

Eddie Luntayao, father of the victim, testified that he has five children, the eldest of whom, Randy, was 13 years
old at the time of the incident. On November 20, 1996, Randy had a nervous breakdown which Eddie thought was due
to Randy having to skip meals whenever he took the boy with him to the farm. According to Eddie, his son started
talking to himself and laughing. On January 26, 1997, upon the suggestion of accused-appellant Reynario Nuez, Eddie
and his wife Perlita and their three children (Randy, Jesrel, 7, and Lesyl, 1) went with accused-appellant Nuez to
Cebu. They arrived in Cebu at around 1 oclock in the afternoon of the same day and spent the night in Nuezs house in
Tangke, Talisay.

The following day, they went to the house of accused-appellant Carmen in Quiot, Pardo, [5] where all of the
accused-appellants were present. Eddie talked to accused-appellant Carmen regarding his sons condition. He was told
that the boy was possessed by a bad spirit, which accused-appellant Carmen said she could exorcise. She warned,
however, that as the spirit might transfer to Eddie, it was best to conduct the healing prayer without him. Accused-
appellants then led Randy out of the house, while Eddie and his wife and two daughters were locked inside a room in
the house.[6]

After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!). Eddie tried to go out of the room to
find out what was happening to his son, but the door was locked. After about an hour, the Luntayaos were transferred
to the prayer room which was located near the main door of the house. [7]

A few hours later, at around 5 oclock in the afternoon, accused-appellants carried Randy into the prayer room
and placed him on the altar. Eddie was shocked by what he saw. Randys face was bluish and contused, while his
tongue was sticking out of his mouth. It was clear to Eddie that his son was already dead. He wanted to see his sons
body, but he was stopped from doing so by accused-appellant Eutiquia Carmen who told him not to go near his son
because the latter would be resurrected at 7 oclock that evening. [8]

After 7 oclock that evening, accused-appellant Carmen asked a member of her group to call the funeral parlor
and bring a coffin as the child was already dead. It was arranged that the body would be transferred to the house of
accused-appellant Nuez. Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez, took Randys
body to Nunezs house in Tangke, Talisay. The following day, January 28, 1997, accused-appellant Nuez told Eddie to
go with him to the Talisay Municipal Health Office to report Randys death and told him to keep quiet or they might not
be able to get the necessary papers for his sons burial. Nuez took care of securing the death certificate which Eddie
signed.[9]

At around 3 oclock in the afternoon of January 28, 1997, accused-appellant Carmen went to Tangke, Talisay to
ensure that the body was buried. Eddie and his wife told her that they preferred to bring their sons body with them to
Sikatuna, Isabela, Negros Occidental but they were told by accused-appellant Carmen that this was not possible as
she and the other accused-appellants might be arrested. That same afternoon, Randy Luntayao was buried in Tangke,
Talisay.[10]

After Eddie and his family had returned home to Negros Occidental, Eddie sought assistance from the Bombo
Radyo station in Bacolod City which referred him to the regional office of the National Bureau of Investigation (NBI) in
the city. On February 3, 1997, Eddie filed a complaint for murder against accused-appellant Nuez and the other
members of his group.[11] He also asked for the exhumation and autopsy of the remains of his son. [12] As the incident
took place in Cebu, his complaint was referred to the NBI office in Cebu City.

Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the case. He testified that he met
with Eddie Luntayao and supervised the exhumation and autopsy of the body of Randy Luntayao. [13] Cajita testified
that he also met with accused-appellant Carmen and after admitting that she and the other accused-appellants
conducted a pray-over healing session on the victim on January 27, 1997, accused-appellant Carmen refused to give
any further statement. Cajita noticed a wooden bench in the kitchen of Carmens house, which, with Carmens
permission, he took with him to the NBI office for examination. Cajita admitted he did not know the results of the
examination.[14]

Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on Randy Luntayao, testified
that he, the victims father, and some NBI agents, exhumed the victims body on February 20, 1997 at Tangke Catholic
Cemetery in the Tangke, Talisay, Cebu. He conducted the autopsy on the same day and later submitted the following
report (Exhs. E and F):[15]

FINDINGS

Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in printed blanket (white and
orange) placed in white wooden coffin and buried underground about 4 feet deep.

Contusion, 3.0 x 4.0 cms. chest, anterior, left side.

Fracture, 3rd rib, left, mid-clavicular line.

Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae right to left down to the
occipital bone, left side.

Fracture, diastatic, lamboidal suture, bilateral.

Internal organs in advanced stage of decomposition.

Cranial vault almost empty.

CAUSE OF DEATH: [The victim] could have died due to the internal effects of a traumatic head injury and/or
traumatic chest injury.
 Dr. Mendez testified that the contusion on the victims chest was caused by contact with a hard blunt
instrument. He added that the fracture on the rib was complete while that found on the base of the skull followed a
serrated or uneven pattern. He said that the latter injury could have been caused by the forcible contact of that part
of the body with a blunt object such as a wooden bench. [16]

On cross-examination, Dr. Mendez admitted that he did not find any stab wound on the victims body but
explained that this could be due to the fact that at the time the body was exhumed and examined, it was already in
an advanced state of decomposition rendering such wound, if present, unrecognizable. [17]

Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an alleged eyewitness to the
incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing, alleged former patients of accused-appellant
Carmen; (c) Dr. Milagros Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the
Cebu City Prosecutors Office.

Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-appellant Carmen, whom she
calls Mother Perpetuala. She recounted that at around 2 oclock in the afternoon of January 27, 1997, while she was in
the house of accused-appellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment of his
son. The boy was later led to the kitchen and given a bath prior to treatment. After water was poured on the boy, he
became unruly prompting accused-appellant Carmen to decide not to continue with the treatment, but the boys
parents allegedly prevailed upon her to continue. As the boy continued to resist, accused-appellant Carmen told
accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the boy on a bench. As the child
resisted all the more, Eddie Luntayao allegedly told the group to tie the boy to the bench. Accused-appellant Delia
Sibonga got hold of a nylon rope which was used to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie
prayed over the child, but as the latter started hitting his head against the bench, Carmen asked Nuez to place his
hands under the boys head to cushion the impact of the blow everytime the child brought down his head. To stop the
boy from struggling, accused-appellant Fabie held the boys legs, while accused-appellant Nuez held his
shoulders. After praying over the boy, the latter was released and carried inside the house. Accused-appellant
Alexander Sibonga, who had arrived, helped carry the boy inside. After this, Blase said she no longer knew what
happened inside the house as she stayed outside to finish the laundry. [18]

Blase testified that the parents of Randy Luntayao witnessed the pray-over of their son from beginning to
end. She denied that accused-appellants Fabie and Delia Sibonga struck the victim on his chest with their
fists. According to her, neither did accused-appellant Carmen stab the boy. She claimed that Randy was still alive
when he was taken inside the house.[19]

The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina Abing, 39, who testified that
accused-appellant Carmen had cured them of their illnesses by merely praying over them and without applying any
form of physical violence on them.[20]

Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the defense to testify on the
death certificate she issued in which she indicated that Randy Luntayao died of pneumonia. According to her, Eddie
Luntayao came to her office on January 28, 1997 to ask for the issuance of a death certificate for his son Randy
Luntayao who had allegedly suffered from cough and fever. [21]

On cross-examination, Dr. Carloto admitted that she never saw the body of the victim as she merely relied on
what she had been told by Eddie Luntayao. She said that it was a midwife, Mrs. Revina Laviosa, who examined the
victims body.[22]

The last witness for the defense, Assistant City Prosecutor Salvador Solima, was presented to identify the
resolution he had prepared (Exh. 8) [23] on the re-investigation of the case in which he recommended the dismissal of
the charge against accused-appellants. His testimony was dispensed with, however, as the prosecution stipulated on
the matters Solima was going to testify with the qualification that Solimas recommendation was disapproved by City
Prosecutor Primo Miro.[24]

The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel Blase and Dr. Milagros
Carloto. Eddie denied having witnessed what accused-appellants did to his son.He reiterated his earlier claim that
after accused-appellants had taken Randy, he and his wife and two daughters were locked inside a room. He disputed
Blases statement that his son was still alive when he was brought into the prayer room. He said he saw that his sons
head slumped while being carried by accused-appellants. [25]

As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he and accused-appellant Nuez
went to her office on January 28, 1997. However, he denied having told her that his son was suffering from fever and
cough as he told her that Randy had a nervous breakdown. He took exception to Dr. Carlotos statement that he was
alone when he went to her office because it was Nuez who insisted that he (Eddie) accompany him in order to secure
the death certificate.[26]

On November 18, 1998, the trial court rendered a decision, the dispositive portion of which states:

WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found guilty beyond reasonable
doubt of the crime of Murder and are hereby [sentenced] to suffer the penalty of RECLUSION PERPETUA, with the
accessory penalties of the law; to indemnify jointly and severally the heirs of the deceased Randy Luntayao in the sum
of P50,000.00; and to pay the costs. The accused, are, however, credited in full during the whole period of their
detention provided they will signify in writing that they will abide by all the rules and regulations of the penitentiary. [27]

In finding accused-appellants guilty of murder, the trial court stated:

Killing a person with treachery is murder even if there is no intent to kill. When death occurs, it is presumed to be the
natural consequence of physical injuries inflicted. Since the defendant did commit the crime with treachery, he is
guilty of murder, because of the voluntary presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil.
530). All the accused in the case at bar had contributed different acts in mercilessly inflicting injuries to the victim. For
having immersed the head of the victim into the barrel of water, all the herein accused should be held responsible for
all the consequences even if the result be different from that which was intended (Art. 4, par. 1, RPC). It is pointed
out that in P. v. Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting physical injuries with treachery,
the accused in that case was convicted of murder. In murder qualified by treachery, it is required only that there is
treachery in the attack, and this is true even if the offender has no intent to kill the person assaulted. Under the guise
of a ritual or treatment, the accused should not have intentionally immersed upside down the head of Randy Luntayao
into a barrel of water; banged his head against the bench; pounded his chest with fists, or plunged a kitchen knife to
his side so that blood would come out for these acts would surely cause death to the victim. . . .

One who commits an intentional felony is responsible for all the consequences which may naturally and logically result
therefrom, whether foreseen or intended or not. Ordinarily, when a person commits a felony with malice, he intends
the consequences of his felonious act. In view of paragraph 1 of Art. 4, a person committing a felony is criminally
liable although the consequences of his felonious acts are not intended by him. . . .

....

Intent is presumed from the commission of an unlawful act. The presumption of criminal intent may arise from the
proof of the criminal act and it is for the accused to rebut this presumption. In the case at bar, there is enough
evidence that the accused confederated with one another in inflicting physical harm to the victim (an illegal
act). These acts were intentional, and the wrong done resulted in the death of their victim. Hence, they are liable for
all the direct and natural consequences of their unlawful act, even if the ultimate result had not been intended. [28]

Hence, this appeal. Accused-appellants allege that the trial court erred in convicting them of murder.[29]

First. It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over
the victim was consented to by the victims parents. With the permission of the victims parents, accused-appellant
Carmen, together with the other accused-appellants, proceeded to subject the boy to a treatment calculated to drive
the bad spirit from the boys body.Unfortunately, the strange procedure resulted in the death of the boy. Thus,
accused-appellants had no criminal intent to kill the boy. Their liability arises from their reckless imprudence because
they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless
imprudence resulting in homicide and not of murder.

Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but
without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or
murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the
offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time, and place.

The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their
lack of medical skill in treating the victim of his alleged ailment, resulted in the latters death. As already stated,
accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of
Our Lady of Fatima, which is engaged in faith healing.

In United States v. Divino,[30] the accused, who was not a licensed physician, in an attempt to cure the victim of
ulcers in her feet, wrapped a piece of clothing which had been soaked in petroleum around the victims feet and then
lighted the clothing, thereby causing injuries to the victim. The Court held the accused liable for reckless imprudence
resulting in physical injuries. It was noted that the accused had no intention to cause an evil but rather to remedy the
victims ailment.

In another case, People v. Vda. de Golez,[31] the Court ruled that the proper charge to file against a non-medical
practitioner, who had treated the victim despite the fact that she did not possess the necessary technical knowledge
or skill to do so and caused the latters death, was homicide through reckless imprudence.

The trial courts reliance on the rule that criminal intent is presumed from the commission of an unlawful act is
untenable because such presumption only holds in the absence of proof to the contrary. [32] The facts of the case
indubitably show the absence of intent to kill on the part of the accused-appellants. Indeed, the trial courts findings
can be sustained only if the circumstances of the case are ignored and the Court limits itself to the time when
accused-appellants undertook their unauthorized treatment of the victim. Obviously, such an evaluation of the case
cannot be allowed.

Consequently, treachery cannot be appreciated for in the absence of intent to kill, there is no treachery or the
deliberate employment of means, methods, and manner of execution to ensure the safety of the accused from the
defensive or retaliatory attacks coming from the victim. [33] Viewed in this light, the acts which the trial court saw as
manifestations of treachery in fact relate to efforts by accused-appellants to restrain Randy Luntayao so that they can
effect the cure on him.

On the other hand, there is no merit in accused-appellants contention that the testimony of prosecution
eyewitness Honey Fe Abella is not credible. The Court is more than convinced of Honey Fes credibility. Her testimony
is clear, straightforward, and is far from having been coached or contrived. She was only a few meters away from the
kitchen where accused-appellants conducted their pray-over healing session not to mention that she had a good
vantage point as the kitchen had no roof nor walls but only a pantry. Her testimony was corroborated by the autopsy
findings of Dr. Mendez who, consistent with Honey Fes testimony, noted fractures on the third left rib and on the base
of the victims skull. With regard to Dr. Mendezs failure to find any stab wound in the victims body, he himself had
explained that such could be due to the fact that at the time the autopsy was conducted, the cadaver was already in
an advanced state of decomposition.Randy Luntayaos cadaver was exhumed 24 days after it had been
buried. Considering the length of time which had elapsed and the fact that the cadaver had not been embalmed, it
was very likely that the soft tissues had so decomposed that, as Dr. Mendez said, it was no longer possible to
determine whether there was a stab wound. As for the other points raised by accused-appellants to detract the
credibility of Honey Fes testimony, the same appear to be only minor and trivial at best.

Accused-appellants contend that the failure of the prosecution to present the testimony of Frances Claire Rivera
as well as the knife used in stabbing Randy Luntayao puts in doubt the prosecutions evidence. We do not think
so. The presentation of the knife in evidence is not indispensable. [34]

Finally, accused-appellants make much of the fact that although the case was tried under Judge Renato C.
Dacudao, the decision was rendered by Judge Galicano Arriesgado who took over the case after the prosecution and
the defense had rested their cases. [35] However, the fact that the judge who wrote the decision did not hear the
testimonies of the witnesses does not make him less competent to render a decision, since his ruling is based on the
records of the case and the transcript of stenographic notes of the testimonies of the witnesses. [36]

Second. The question now is whether accused-appellants can be held liable for reckless imprudence resulting in
homicide, considering that the information charges them with murder. We hold that they can.

Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts:

SEC. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential
ingredients of the former constitute or form part of those constituting the latter.

In Samson v. Court of Appeals,[37] the accused were charged with, and convicted of, estafa through falsification of
public document. The Court of Appeals modified the judgment and held one of the accused liable for estafa through
falsification by negligence. On appeal, it was contended that the appeals court erred in holding the accused liable for
estafa through negligence because the information charged him with having wilfully committed estafa. In overruling
this contention, the Court held:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon v. Justice of the Peace
of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal
Code, it may however be said that a conviction for the former can be had under an information exclusively charging
the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation
that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by
the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks
in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure
himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered
by the rule when there is a variance between the allegation and proof. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for
here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven
beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at
the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept
of negligence.

In People v. Fernando,[38] the accused was charged with, and convicted of, murder by the trial court. On appeal,
this Court modified the judgment and held the accused liable for reckless imprudence resulting in homicide after
finding that he did not act with criminal intent.

Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence resulting in homicide is
punishable by arresto mayor in its maximum period to prision correccional in its medium period. In this case, taking
into account the pertinent provisions of Indeterminate Sentence Law, the accused-appellants should suffer the penalty
of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum.

As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an indemnity in the amount
of P50,000.00 and moral damages also in the amount of P50,000.00.[39] In addition, they should pay exemplary
damages in the amount of P30,000.00 in view of accused-appellants gross negligence in attempting to cure the victim
without a license to practice medicine and to give an example or correction for the public good. [40]

WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is AFFIRMED with the
MODIFICATION that accused-appellants are hereby declared guilty of reckless imprudence resulting in homicide and
are each sentenced to suffer an indeterminate prison term of four (4) months of arresto mayor, as minimum, to four
(4) years and two (2) months of prision correccional, as maximum. In addition, accused-appellants are ORDERED
jointly and severally to pay the heirs of Randy Luntayao indemnity in the amount of P50,000.00, moral damages in
the amount of P50,000.00, and exemplary damages in the amount of P30,000.00.

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

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

RESOLUTION

KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a
reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner
Erlinda Ramos comatose condition after she delivered herself to them for their professional care and management.

For better understanding of the issues raised in private respondents respective motions, we will briefly restate
the facts of the case as follows:

Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an
operation for the removal of a stone in her gall bladder (cholecystectomy).She was referred to Dr. Hosaka, a surgeon,
who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning
at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband,
petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez.

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of
the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda,
her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was
allowed to accompany her inside the operating room.

At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by
phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr.
Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor.

By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his
wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the
scheduled operation.

Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival. While she held the hand of
Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas nailbeds on her
left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he
arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was
placed in a trendelenburg position a position where the head of the patient is placed in a position lower than her feet.
At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlindas operation
was not going well.
 Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At
almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained
to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from
the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in
comatose condition until she died on August 3, 1999. [1]

Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private
respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court
found that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private
respondents, the Court of Appeals reversed the trial courts decision and directed petitioners to pay their unpaid
medical bills to private respondents.

Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to
submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private
respondents now seek to be reconsidered. The dispositive portion of said Decision states:

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each exemplary damages and attorneys fees; and 5) the costs of the suit. [2]

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:

THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR.
HOSAKA LIABLE ON THE BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE.

II

THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE
FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.

III

ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME
COURT ERRED IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS. [3]

Private respondent Dr. Gutierrez, for her part, avers that:

A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE
COURT OF APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF
25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT
PETITION;

B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN
RESPECT OF THE INSTANT CASE;

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE

BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE
STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.

B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE

BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED
PATIENT ERLINDA RAMOS

C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF
PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL
CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY

D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR.
JAMORA AND DRA. CALDERON

E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR. [4]

Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following grounds:

THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF
THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY

II
 THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP]
EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ

III

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL
CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS

IV

THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF
PETITIONERS.[5]

In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private respondents
Drs. Hosaka and Gutierrez. They then filed their respective second motions for reconsideration. The Philippine College
of Surgeons filed its Petition-in-Intervention contending in the main that this Court erred in holding private respondent
Dr. Hosaka liable under the captain of the ship doctrine. According to the intervenor, said doctrine had long been
abandoned in the United States in recognition of the developments in modern medical and hospital practice. [6] The
Court noted these pleadings in the Resolution of July 17, 2000. [7]

On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor. Also present
during the hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity Sweepstakes,
former Director of the Philippine General Hospital and former Secretary of Health; Dr. Iluminada T. Camagay,
President of the Philippine Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of
Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics, Department of Anesthesiology, College of Medicine-Philippine General
Hospital, University of the Philippines.

The Court enumerated the issues to be resolved in this case as follows:

1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE;

2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND

3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST. [8]

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the Court erred
in finding her negligent and in holding that it was the faulty intubation which was the proximate cause of Erlindas
comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the
outcome of the procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and
3) That the patient was revived from that cardiac arrest. [9] In effect, Dr. Gutierrez insists that, contrary to the finding
of this Court, the intubation she performed on Erlinda was successful.

Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is belied by the records of the case. It has
been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a
patient. Dr. Egay enlightened the Court on what these standards are:

x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial
step is the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is
responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the
patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have,
who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides
for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have
an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and
establishing consent to proceed with the plan. And lastly, once this has been agreed upon by all parties concerned the
ordering of pre-operative medications. And following this line at the end of the evaluation we usually come up on
writing, documentation is very important as far as when we train an anesthesiologist we always emphasize this
because we need records for our protection, well, records. And it entails having brief summary of patient history and
physical findings pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia technique, the plan post
operative, pain management if appropriate, special issues for this particular patient. There are needs for special care
after surgery and if it so it must be written down there and a request must be made known to proper authorities that
such and such care is necessary. And the request for medical evaluation if there is an indication. When we ask for a
cardio-pulmonary clearance it is not in fact to tell them if this patient is going to be fit for anesthesia, the decision to
give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the functional capacity of
certain systems which maybe affected by the anesthetic agent or the technique that we are going to use. But the
burden of responsibility in terms of selection of agent and how to administer it rest on the anesthesiologist. [10]

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

emergency, cannot be dispensed with.[11] Such evaluation is necessary for the formulation of a plan of anesthesia care
suited to the needs of the patient concerned.

Pre-evaluation for anesthesia involves taking the patients medical history, reviewing his current drug
therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate prescription
of preoperative medications as necessary to the conduct of anesthesia. [12]

Physical examination of the patient entails not only evaluating the patients central nervous system,
cardiovascular system and lungs but also the upper airway. Examination of the upper airway would in turn include an
analysis of the patients cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or
artificial teeth, ability to visualize uvula and the thyromental distance. [13]
 Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself
admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the scheduled
operation. She auscultated[14] the patients heart and lungs and checked the latters blood pressure to determine if
Erlinda was indeed fit for operation. [15] However, she did not proceed to examine the patients airway. Had she been
able to check petitioner Erlindas airway prior to the operation, Dr. Gutierrez would most probably not have
experienced difficulty in intubating the former, and thus the resultant injury could have been avoided. As we have
stated in our Decision:

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda
was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up
and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the
administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the
physicians centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of
her negligence.[16]

Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda
that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed
a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments:

CHIEF JUSTICE:

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

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or
comatose before any act was done by her?

ATTY. GANA:

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

CHIEF JUSTICE:

Meaning to say, the patient became comatose after some intervention, professional acts have been done by
Dr. Gutierrez?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?

ATTY. GANA:

It was a consequence of the well, (interrupted)

CHIEF JUSTICE:

An acts performed by her, is that not correct?

ATTY. GANA:

Yes, Your Honor.

CHIEF JUSTICE:

Thank you.[17]

What is left to be determined therefore is whether Erlindas hapless condition was due to any fault or negligence
on the part of Dr. Gutierrez while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that the
bronchospasm and cardiac arrest resulting in the patients comatose condition was brought about by the anaphylactic
reaction of the patient to Thiopental Sodium (pentothal). [18] In the Decision, we explained why we found Dr. Gutierrez
theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority on anesthesia practice and
procedure and their complications.[19]

Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to
pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise:

DR. CAMAGAY:

All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is
not usual response and it is further qualified by the release of a hormone called histamine and histamine has
an effect on all the organs of the body generally release because the substance that entered the body reacts
with the particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is some form of
response to take away that which is not mine, which is not part of the body. So, histamine has multiple effects
on the body. So, one of the effects as you will see you will have redness, if you have an allergy you will have
tearing of the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your voice
box main airway, that swelling may be enough to obstruct the entry of air to the trachea and you could also
 have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this
way, we brought some visual aids but unfortunately we do not have a projector. And then you have the
smaller airways, the bronchi and then eventually into the mass of the lungs you have the bronchus. The
difference is that these tubes have also in their walls muscles and this particular kind of muscles is smooth
muscle so, when histamine is released they close up like this and that phenomenon is known as bronco
spasm. However, the effects of histamine also on blood vessels are different. They dilate blood vessel open up
and the patient or whoever has this histamine release has hypertension or low blood pressure to a point that
the patient may have decrease blood supply to the brain and may collapse so, you may have people who have
this.[20]

These symptoms of an allergic reaction were not shown to have been extant in Erlindas case. As we held in our
Decision, no evidence of stridor, skin reactions, or wheezing some of the more common accompanying signs of an
allergic reaction appears on record. No laboratory data were ever presented to the court. [21]

Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was
revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz
on the matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify
thereon. Rather, Dr. Gutierrez invites the Courts attention to her synopsis on what transpired during Erlindas
intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by
mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2
minutes 02 was given by positive pressure for about one minute. Intubation with endotracheal
tube 7.5 m in diameter was done with slight difficulty (short neck & slightly prominent upper
teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was
then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was
given.Blood pressure was checked 120/80 & heart rate regular and normal 90/min.

12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis
disappeared. Blood pressure and heart beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the
chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was
persistent.Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline
was given and solu cortef was given.

12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was
given & heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of
solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted
positive pressure. Laboratory exams done (see results in chart).

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

From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact
that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly
placed.

The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez
synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken
out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist
performs must be recorded. In Dr. Gutierrez case, she could not account for at least ten (10) minutes of what
happened during the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of
the amicii curiae, and Dr. Gutierrez is instructive:

DR. ESTRELLA

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

DR. GUTIERREZ

Yes.

Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted,
which was inserted?

A All the laryngoscope.

Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that
you did a first attempt and the question was did you withdraw the tube? And you said you never withdrew the
tube, is that right?

A Yes.

Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that
first attempt. Now, the other thing that we have to settle here is when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your recording when did the cyanosis occur?

A (sic)

Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to
the time that you probably get the patient out of the operating room that every single action that you do is so
recorded in your anesthesia record?

A I was not able to record everything I did not have time anymore because I did that after the, when the patient
was about to leave the operating room. When there was second cyanosis already that was the (interrupted)

Q When was the first cyanosis?

A The first cyanosis when I was (interrupted)

Q What time, more or less?

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

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

A Yes, Your Honor.

Q And the first medication you gave was what?

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

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

A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one
minute.

Q So, that is about 12:13 no, 12:15, 12:17?

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

Q 12:18?

A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant
(interrupted)

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

A Usually you wait for two minutes or three minutes.

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

A Maybe.

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

A After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw
that the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the
laryngoscope if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the
trachea was deeply interiorly. So, what I did ask mahirap ata ito ah. So, I removed the laryngoscope and
oxygenated again the patient.

Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the
laryngoscope that was inserted.

A Yes.

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

A Yes.

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

A I said mahirap ata ito when the first attempt I did not see the trachea right away. That was when I (interrupted)

Q That was the first attempt?

A Yes.

Q What about the second attempt?

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

Q At what point, for purposes of discussion without accepting it, at what point did you make the comment na
mahirap ata to intubate, mali ata ang pinasukan

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

Q Well, just for the information of the group here the remarks I am making is based on the documents that were
forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for
the sake of enlightenment. So, at what point did you ever make that comment?

A Which one, sir?

Q The mahirap intubate ito assuming that you (interrupted)

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

Q At what point?

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

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

A Yes.

Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of
the other party try to inquire from you during the first attempt that was the time when mayroon ba kayong
hinugot sa tube, I do not remember the page now, but it seems to me it is there. So, that it was on the
second attempt that (interrupted)

A I was able to intubate.

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

 A Maybe, I cannot remember the time, Sir.

Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there
was no recording of the vital signs. And can we presume that at this stage there was already some problems
in handling the patient?

A Not yet.

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

A I did not have time.

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

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

Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify
certainty more ore less on the record.

A Yes, Sir.

Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and
going over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that
right?

A Yes.

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

A Yes.

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

A We cannot (interrupted)

Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito
kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so,
I am just wondering why there were no recordings during the period and then of course the second cyanosis,
after the first cyanosis. I think that was the time Dr. Hosaka came in?

A No, the first cyanosis (interrupted).[23]

We cannot thus give full credence to Dr. Gutierrez synopsis in light of her admission that it does not fully reflect
the events that transpired during the administration of anesthesia on Erlinda.As pointed out by Dr. Estrella, there was
a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The
absence of these data is particularly significant because, as found by the trial court, it was the absence of oxygen
supply for four (4) to five (5) minutes that caused Erlindas comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she
is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances and manifest conditions which are observable by any one. [24] Cruz, Erlindas sister-
in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center
School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr.
Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. She observed that
the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in trendelenburg position. [25] Cruz further
averred that she noticed that the abdomen of Erlinda became distended. [26]

The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal
hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was
improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs
but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda was placed in trendelenburg
position. This indicates that there was a decrease of blood supply to the patients brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of
anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private
respondents Dr. Gutierrez and Dr. Hosaka. [27] In Voss vs. Bridwell,[28] which involved a patient who suffered brain
damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be
performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the
patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that [o]rdinarily a
person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in
the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the consequences of professional treatment were not as such as
would ordinarily have followed if due care had been exercised. [29] Considering the application of the doctrine of res
ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar.

For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon by applying
the Captain-of-the-Ship doctrine. [30] Dr. Hosaka argues that the trend in United States jurisprudence has been to
reject said doctrine in light of the developments in medical practice. He points out that anesthesiology and surgery are
two distinct and specialized fields in medicine and as a surgeon, he is not deemed to have control over the acts of Dr.
Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills and knowledge in the
course of her training which Dr. Hosaka, as a surgeon, does not possess. [31] He states further that current American
jurisprudence on the matter recognizes that the trend towards specialization in medicine has created situations where
surgeons do not always have the right to control all personnel within the operating room, [32] especially a fellow
specialist.[33]
 Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, [34] which involved a suit filed by a patient who
lost his voice due to the wrongful insertion of the endotracheal tube preparatory to the administration of anesthesia in
connection with the laparotomy to be conducted on him. The patient sued both the anesthesiologist and the surgeon
for the injury suffered by him. The Supreme Court of Appeals of West Virginia held that the surgeon could not be held
liable for the loss of the patients voice, considering that the surgeon did not have a hand in the intubation of the
patient. The court rejected the application of the Captain-of-the-Ship Doctrine, citing the fact that the field of medicine
has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the
operating room. It held that [a]n assignment of liability based on actual control more realistically reflects the actual
relationship which exists in a modern operating room. [35] Hence, only the anesthesiologist who inserted the
endotracheal tube into the patients throat was held liable for the injury suffered by the latter.

This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean
that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case
justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr.
Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on
Erlinda.

First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented
to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had
worked together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr.
Gutierrez to administer the anesthesia on his patient. [36]

Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed
signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help
resuscitate Erlinda.[37]

Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as
a team. Their work cannot be placed in separate watertight compartments because their duties intersect with each
other.[38]

While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of
acts within their respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise
control over the other, they were certainly not completely independent of each other so as to absolve one from the
negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the
intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the patients nails had become dusky
and had to call Dr. Gutierrezs attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in
practice, the anesthesiologist would also have to observe the surgeons acts during the surgical process and calls the
attention of the surgeon whenever necessary [39] in the course of the treatment. The duties of Dr. Hosaka and those of
Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them to be. On
the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility
necessitates that they call each others attention to the condition of the patient while the other physician is performing
the necessary medical procedures.

It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda
promptly, for he arrived more than three (3) hours late for the scheduled operation.The cholecystectomy was set
for June 17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his
patients well being, Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other,
at different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on
time, Erlinda was kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlindas scheduled operation subjected her to continued starvation and
consequently, to the risk of acidosis, [40] or the condition of decreased alkalinity of the blood and tissues, marked by
sickly sweet breath, headache, nausea and vomiting, and visual disturbances. [41] The long period that Dr. Hosaka
made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at the time. It could be
safely said that her anxiety adversely affected the administration of anesthesia on her. As explained by Dr. Camagay,
the patients anxiety usually causes the outpouring of adrenaline which in turn results in high blood pressure or
disturbances in the heart rhythm:

DR. CAMAGAY:

x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up
the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is
anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have
adverse implications. So, we would like to alleviate patients anxiety mainly because he will not be in control of
his body there could be adverse results to surgery and he will be opened up; a knife is going to open up his
body. x x x[42]

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly
constituted a breach of his professional duties to Erlinda:

CHIEF JUSTICE:

Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the
operating table for three hours sufficient enough to aggravate or magnify his or her anxiety?

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:
 In other words, I understand that in this particular case that was the case, three hours waiting and the patient
was already on the operating table (interrupted)

DR. CAMAGAY:

Yes.

CHIEF JUSTICE:

Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of the patient?

DR. CAMAGAY:

That this operation did not take place as scheduled is already a source of anxiety and most operating tables
are very narrow and that patients are usually at risk of falling on the floor so there are restraints that are
placed on them and they are never, never left alone in the operating room by themselves specially if they are
already pre-medicated because they may not be aware of some of their movement that they make which
would contribute to their injury.

CHIEF JUSTICE:

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

DR. CAMAGAY:

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

CHIEF JUSTICE:

Courtesy.

DR. CAMAGAY:

And care.

CHIEF JUSTICE:

Duty as a matter of fact?

DR. CAMAGAY:

Yes, Your Honor.[43]

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is
violative, not only of his duty as a physician to serve the interest of his patients with the greatest solicitude, giving
them always his best talent and skill, [44] but also of Article 19 of the Civil Code which requires a person, in the
performance of his duties, to act with justice and give everyone his due.

Anent private respondent DLSMCs liability for the resulting injury to petitioner Erlinda, we held that respondent
hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code[45] since there exists
an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant
staff. While consultants are not, technically employees, x x x the control exercised, the hiring and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x [46]

DLSMC however contends that applying the four-fold test in determining whether such a relationship exists
between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer
of the respondent doctors.

It has been consistently held that in determining whether an employer-employee relationship exists between the
parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages;
(3) the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used
in reaching such an end.[47]

DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits
the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a
showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the
appropriate board (diplomate), evidence of fellowship and references. [48] Second, it is not the hospital but the patient
who pays the consultants fee for services rendered by the latter. [49] Third, a hospital does not dismiss a consultant;
instead, the latter may lose his or her accreditation or privileges granted by the hospital. [50] Lastly, DLSMC argues that
when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to
said patient. The hospitals obligation is limited to providing the patient with the preferred room accommodation, the
nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of
the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctors
orders are carried out strictly.[51]

After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospitals
position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez
and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of
the Civil Code.

As explained by respondent hospital, that the admission of a physician to membership in DLSMCs medical staff as
active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the
heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery
with the department head of the particular specialty applied for as chairman. The Credentials Committee then
recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the committee's recommendation. [52] Similarly, in cases where a
disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant
concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical
director/hospital administrator merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by
the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his
patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its
object the rendition of medical services by the consultant to the patient, while the second concerns the provision by
the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper
treatment of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on
the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner
Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the
supervening event of petitioner Erlindas death. In the assailed Decision, the Court awarded actual damages of One
Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlindas
treatment and care from the date of promulgation of the Decision up to the time the patient expires or survives. [53] In
addition thereto, the Court awarded temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00)
in view of the chronic and continuing nature of petitioner Erlindas injury and the certainty of further pecuniary loss by
petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of
the promulgation of the decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these
provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing
and possible future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of
such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that
these damages cover two distinct phases.

As it would not be equitableand certainly not in the best interests of the administration of justicefor the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages
previously awardedtemperate damages are appropriate. The amount given as temperate damages, though to a
certain extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the
value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility
which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard
care at home without the aid of professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable. [54]

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that
petitioner Erlinda died on August 3, 1999. [55] In view of this supervening event, the award of temperate damages in
addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the
Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts
representing actual, moral and exemplary damages, attorneys fees and costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:

(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury
suffered by petitioner Erlinda Ramos on June 17, 1985;

(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable
for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners

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

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

(c) P100,000.00 as exemplary damages;

(d) P100,000.00 as attorneys fees; and

(e) the costs of the suit.

SO ORDERED.
 [G.R. No. 144681. June 21, 2004]

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE

COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN,
JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and
RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES,
CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE
ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS,
KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO,
MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A.
GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B.
ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L.
VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M.
CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C.
HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R.
TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY,
BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR.,
HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT,
NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R.
DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V.
FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA.
ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR,
ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents.

DECISION

TINGA, J.:

This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision,
dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the
[1]

judgment[2] dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-
66530. The trial court allowed the respondents to take their physicians oath and to register as duly licensed
physicians. Equally challenged is the Resolution[3] promulgated on August 25, 2000of the Court of Appeals, denying
petitioners Motion for Reconsideration.

The facts of this case are as follows:

The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed
the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner
Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure
examination.

Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees
from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and
Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100%
in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-
Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both
subjects, and no one got a mark lower than 90%. A comparison of the performances of the candidates from other
schools was made. The Board observed that strangely, the unusually high ratings were true only
for Fatima College examinees. It was a record-breaking phenomenon in the history of the Physician Licensure
Examination.

On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the
examinees from the Fatima College of Medicine. [4] The PRC asked the National Bureau of Investigation (NBI) to
investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination.

Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and
authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the
results in Bio-Chem and Ob-Gyne of the said examination.

On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and
Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help
College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually
clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores
in the two subjects. It must be a cause strong enough to eliminate the normal variations that one should expect from
the examinees [of Fatima College] in terms of talent, effort, energy, etc.[5]

For its part, the NBI found that the questionable passing rate of Fatima examinees in the [1993] Physician
Examination leads to the conclusion that the Fatima examinees gained early access to the test questions. [6]

On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P.
Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a
special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-
66530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents
as intervenors.

Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with immorality,
dishonest conduct, fraud, and deceit in connection with the Bio-Chem and Ob-Gyne examinations. It recommended
that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.

On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory
injunction sought by the respondents. It ordered the petitioners to administer the physicians oath to Arlene V. De
Guzman et al., and enter their names in the rolls of the PRC.

The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory
injunctive writ, docketed as CA-G.R. SP No. 31701.

On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of
the Decision ordaining as follows:

WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower
court against petitioners is hereby nullified and set aside.

SO ORDERED.[7]

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In
our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the
appellate court.

Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil
Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to
sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.

On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken belief that the trial was
set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses.

On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-
appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court
denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on
the ground that adverse counsel was notified less than three (3) days prior to the hearing.

Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein
moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994.

The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul
the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition
to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.

On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:

WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is
GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-
Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED
NULL and VOID. The said RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents
witnesses, to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the
merits on the basis of the evidence of the parties. Costs against respondents.

IT IS SO ORDERED.[8]

The trial was then set and notices were sent to the parties.

A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and
Motion praying for the partial reconsideration of the appellate courts decision in CA-G.R. SP No. 34506, and for the
outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings.

In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled
hearing dates, and reset the proceedings to October 21 and 28, 1994.

Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP
No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817,
entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.

On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon
motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the
herein respondents. Trial was reset to November 28, 1994.

On November 25, 1994, petitioners counsel moved for the inhibition of the trial court judge for alleged partiality.
On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial
court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision.

On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which
reads:

WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those
with asterisks and footnotes in pages 1 & 2 of this decision) [sic], [9] to take the physicians oath and to register them
as physicians.

It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be
taken against any of the petitioners for such causes and in the manner provided by law and consistent with the
requirements of the Constitution as any other professionals.

No costs.

SO ORDERED.[10]

As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as
G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1)
G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31,
1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the
alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit
himself, and Civil Case No. 93-66530 be re-raffled to another branch.

On December 26, 1994, the petitioners herein filed their Notice of Appeal[11] in Civil Case No. 93-66530, thereby
elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.

In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.

On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:

WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is
likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor
General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of
the same or similar acts will be dealt with accordingly.

SO ORDERED.[12]

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original
petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C.
Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos,
Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur
N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M.
Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C.
Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with
the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I.
Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C.
Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo,
Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled
that its decision in CA-G.R. SP No. 37283 would not apply to them.

On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:

WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the
instant appeal.
No pronouncement as to costs.

SO ORDERED.[13]

In sustaining the trial courts decision, the appellate court ratiocinated that the respondents complied with all the
statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed
the said examination. Having fulfilled the requirements of Republic Act No. 2382, [14] they should be allowed to take
their oaths as physicians and be registered in the rolls of the PRC.

Hence, this petition raising the following issues:

WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE
LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS
DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL
EXAMINEES.

II

WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE
CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO
BECOME DOCTORS.[15]

To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the
judgment of the trial court that respondents are entitled to a writ of mandamus?

The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of
mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it
is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty
sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate courts
decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its
own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance
of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that
the successful examinee has not fully met the requirements of the law. The petitioners stress that this Courts
Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no showing that the Court of Appeals had
committed any reversible error in rendering the questioned judgment in CA-G.R. SP No. 31701. The petitioners point
out that our Resolution in G.R. No. 112315 has long become final and executory.

Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the
obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians
pursuant to Section 20[16] of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that
respondents complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the
Medical Board to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No.
2382, the petitioners had the obligation to administer their oaths as physicians and register them.

Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the
performance of a particular duty therein specified, which duty results from the official station of the party to whom the
writ is directed, or from operation of law. [17] Section 3 of Rule 65[18] of the 1997 Rules of Civil Procedure outlines two
situations when a writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1)
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled.

We shall discuss the issues successively.

1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under
Rep. Act No. 2382.

For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal
duty, not involving discretion.[19] Moreover, there must be statutory authority for the performance of the act, [20] and
the performance of the duty has been refused. [21] Thus, it must be pertinently asked now: Did petitioners have the
duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959?

As found by the Court of Appeals, on which we agree on the basis of the records:

It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the
statutory requirements for admission into the licensure examinations for physicians conducted and administered by
the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of
them successfully passed the same examinations. [22]

The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the
respondents to take their oaths as physicians and register them, steps which would enable respondents to practice the
medical profession[23] pursuant to Section 20 of the Medical Act of 1959?

The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the
petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as
physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection
with every other part to produce a harmonious whole, not confining construction to only one section. [24] The intent or
meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the
provision. Accordingly, Section 20 of Rep. Act No. 2382, as amended should be read in conjunction with the other
provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the
Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety of the Medical
Act of 1959.

A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word shall with respect
to the issuance of certificates of registration. Thus, the petitioners shall sign and issue certificates of registration to
those who have satisfactorily complied with the requirements of the Board. In statutory construction the term shall is
a word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant
of his physicians license, the Board is obliged to administer to him his oath and register him as a physician, pursuant
to Section 20 and par. (1) of Section 22 [25] of the Medical Act of 1959.

However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory
compliance with the Board requirements by the respondents. The unusually high scores in the two most difficult
subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts
about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved.

Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative
investigations and disapprove applications for examination or registration, pursuant to the objectives of Rep. Act No.
2382 as outlined in Section 1 [26] thereof. In this case, after the investigation, the Board filed before the PRC, Adm.
Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required
by Section 9[27] of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled:

WHEREFORE, the BOARD hereby CANCELS the respondents[] examination papers in the Physician Licensure
Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of
ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the
scheduled examinations for physicians after the lapse of the period imposed by the BOARD.

SO ORDERED.[28]

Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board
has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to
them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized.

The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration
only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of
any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after
the investigation by the Board; or (3) has been declared to be of unsound mind. They aver that none of these
circumstances are present in their case.

Petitioners reject respondents argument. We are informed that in Board Resolution No. 26, [29] dated July 21,
1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for immorality,
dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations. It likewise sought to
cancel the examination results obtained by the examinees from the Fatima College.

Section 8[30] of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in
the Philippines, must have satisfactorily passed the corresponding Board Examination. Section 22, in turn, provides
that the oath may only be administered to physicians who qualified in the examinations. The operative word here is
satisfactorily, defined as sufficient to meet a condition or obligation or capable of dispelling doubt or ignorance.
[31]
Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents
satisfactorily passed the licensure examinations. The Board instead sought to nullify the examination results obtained
by the respondents.

2. On the Right Of The Respondents To Be Registered As Physicians

The function of mandamus is not to establish a right but to enforce one that has been established by law. If no
legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal
remedy for a legal right. [32] There must be a well-defined, clear and certain legal right to the thing demanded. [33] It is
long established rule that a license to practice medicine is a privilege or franchise granted by the government. [34]

It is true that this Court has upheld the constitutional right [35] of every citizen to select a profession or course of
study subject to a fair, reasonable, and equitable admission and academic requirements. [36] But like all rights and
freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general welfare of the people. [37] Thus, persons who
desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an
examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the
field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those
who would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical
Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in
Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first
passing the examination required by the Philippine Medical Act. [38] In another case worth noting, we upheld the power
of the State to upgrade the selection of applicants into medical schools through admission tests. [39]

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an
occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political
body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in
accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights as
a condition to acquiring the license. [40] Under the view that the legislature cannot validly bestow an arbitrary power to
grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in
public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity
without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power. [41]

In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which
prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board
examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physicians
license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the
applicant must show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must
appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing
authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue.
For said privilege is distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite
showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the
writ of mandamus to secure said privilege without thwarting the legislative will.

3. On the Ripeness of the Petition for Mandamus

Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus
below for being premature. They argue that the administrative remedies had not been exhausted. The records show
that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was
raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP
No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss
on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No.
93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of
Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our
consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice
Bellosillo opined that:

Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530
sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the
filing of this petition and denial thereof should follow as a logical consequence. [42] There is no longer any justiciable
controversy so that any declaration thereon would be of no practical use or value. [43] It should be recalled that in its
decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which
decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners
filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court of Appeals,
which they in fact did, by filing a notice of appeal on 26 December 1994.[44]

The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon
the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.

Section 26[45] of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents
herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment
to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the
President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a
special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are still available.
[46]
However, the doctrine of exhaustion of administrative remedies does not apply where, as in this case, a pure
question of law is raised. [47] On this issue, no reversible error may, thus, be laid at the door of the appellate court in
CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.

As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo,
Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M.
Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M.
Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C.
Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R.
SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as
they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan,
Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G.
Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan,
Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D.
Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and
motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch
as the instant case is a petition for review of the appellate courts ruling in CA-G.R. SP No. 37283, a decision which is
inapplicable to the aforementioned respondents will similarly not apply to them.

As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D.
Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan,
Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in
Civil Case No. 93-66530, dropping their names from the suit.

Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman,
Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez,
Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the
petitioners.

WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the
Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional
Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to
herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners
motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-
66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE. SO ORDERED.
 [G.R. No. 130003. October 20, 2004]

JONAS AONUEVO, petitioner vs. HON. COURT OF APPEALS and JEROME VILLAGRACIA, respondent

DECISION

TINGA, J.:

The bicycle provides considerable speed and freedom of movement to the rider. It derives a certain charm from
being unencumbered by any enclosure, affording the cyclist the perception of relative liberty. It also carries some
obvious risks on the part of the user and has become the subject of regulation, if not by the government, then by
parental proscription.

The present petition seeks to bar recovery by an injured cyclist of damages from the driver of the car which had
struck him. The argument is hinged on the cyclists failure to install safety devices on his bicycle. However, the lower
courts agreed that the motorist himself caused the collision with his own negligence. The facts are deceptively simple,
but the resolution entails thorough consideration of fundamental precepts on negligence.

The present petition raises little issue with the factual findings of the Regional Trial Court (RTC), Branch 160, of
Pasig City, as affirmed by the Court of Appeals. Both courts adjudged petitioner, Jonas Aonuevo ( Aonuevo ), liable for
the damages for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia). Instead, the petition hinges on a
sole legal question, characterized as novel by the petitioner: whether Article 2185 of the New Civil Code, which
presumes the driver of a motor vehicle negligent if he was violating a traffic regulation at the time of the mishap,
should apply by analogy to non-motorized vehicles. [1]

As found by the RTC, and affirmed by the Court of Appeals, the accident in question occurred on 8 February
1989, at around nine in the evening, at the intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a
city). Villagracia was traveling along Boni Avenue on his bicycle, while Aonuevo, traversing the opposite lane was
driving his Lancer car with plate number PJJ 359. The car was owned by Procter and Gamble Inc., the employer of
Aonuevos brother, Jonathan. Aonuevo was in the course of making a left turn towards Libertad Street when the
collision occurred. Villagracia sustained serious injuries as a result, which necessitated his hospitalization several times
in 1989, and forced him to undergo four (4) operations.

On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble Phils., Inc. and
Aonuevo before the RTC. [2] He had also filed a criminal complaint against Aonuevo before the Metropolitan Trial Court
of Mandaluyong, but the latter was subsequently acquitted of the criminal charge. [3] Trial on the civil action ensued,
and in a Decision dated 9 March 1990, the RTC rendered judgment against Procter and Gamble and Aonuevo, ordering
them to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos (P150, 000.00). for actual damages, Ten
Thousand Pesos (P10,000.00) for moral damages, and Twenty Thousand Pesos (P20,000.00) for attorneys fees, as
well as legal costs.[4] Both defendants appealed to the Court of Appeals.

In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division affirmed the RTC Decision in toto[6]. After
the Court of Appeals denied the Motion for Reconsideration in a Resolution[7] dated 22 July 1997, Procter and Gamble
and Aonuevo filed their respective petitions for review with this Court. Procter and Gambles petition was denied by
this Court in a Resolution dated 24 November 1997. Aonuevos petition, [8] on the other hand, was given due course,
[9]
and is the subject of this Decision.

In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the RTC. Among them:
that it was Aonuevos vehicle which had struck Villagracia; [10]that Aonuevos vehicle had actually hit Villagracias left
mid-thigh, thus causing a comminuted fracture; [11] that as testified by eyewitness Alfredo Sorsano, witness for
Villagracia, Aonuevo was umaarangkada, or speeding as he made the left turn into Libertad; [12] that considering
Aonuevos claim that a passenger jeepney was obstructing his path as he made the turn. Aonuevo had enough
warning to control his speed;[13] and that Aonuevo failed to exercise the ordinary precaution, care and diligence
required of him in order that the accident could have been avoided. [14] Notably, Aonuevo, in his current petition, does
not dispute the findings of tortious conduct on his part made by the lower courts, hinging his appeal instead on the
alleged negligence of Villagracia. Aonuevo proffers no exculpatory version of facts on his part, nor does he dispute the
conclusions made by the RTC and the Court of Appeals. Accordingly, the Court, which is not a trier of facts, [15] is not
compelled to review the factual findings of the lower courts, which following jurisprudence have to be received with
respect and are in fact generally binding.[16]

Notwithstanding, the present petition presents interesting questions for resolution. Aonuevos arguments are
especially fixated on a particular question of law: whether Article 2185 of the New Civil Code should apply by analogy
to non-motorized vehicles.[17] In the same vein, Aonuevo insists that Villagracias own fault and negligence serves to
absolve the former of any liability for damages.

Its is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points out that Villagracias
bicycle had no safety gadgets such as a horn or bell, or headlights, as invoked by a 1948 municipal ordinance. [18] Nor
was it duly registered with the Office of the Municipal Treasurer, as required by the same ordinance. Finally, as
admitted by Villagracia, his bicycle did not have foot brakes. [19] Before this Court, Villagracia does not dispute these
allegations, which he admitted during the trial, but directs our attention instead to the findings of Aonuevos own
negligence.[20] Villagracia also contends that, assuming there was contributory negligence on his part, such would not
exonerate Aonuevo from payment of damages. The Court of Appeals likewise acknowledged the lack of safety gadgets
on Villagracias bicycle, but characterized the contention as off-tangent and insufficient to obviate the fact that it was
Aonuevos own negligence that caused the accident. [21]

Aonuevo claims that Villagracia violated traffic regulations when he failed to register his bicycle or install safety
gadgets thereon. He posits that Article 2185 of the New Civil Code applies by analogy. The provision reads:

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap he was violating any traffic regulation.

The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of the New Civil Code.
[22]
Its applicability is expressly qualified to motor vehicles only, and there is no ground to presume that the law
intended a broader coverage.

Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of vehicles [23]. He points out
that modern-day travel is more complex now than when the Code was enacted, the number and types of vehicles now
in use far more numerous than as of then. He even suggests that at the time of the enactment of the Code, the
legislators must have seen that only motor vehicles were of such public concern that they had to be specifically
mentioned, yet today, the interaction of vehicles of all types and nature has inescapably become matter of public
concern so as to expand the application of the law to be more responsive to the times. [24]

What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as embodied in Article
2185, a task beyond the pale of judicial power. The Court interprets, and not creates, the law. However, since the
Court is being asked to consider the matter, it might as well examine whether Article 2185 could be interpreted to
include non-motorized vehicles.

At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles ranging from
human-powered contraptions on wheels such as bicycles, scooters, and animal-drawn carts such
as calesas and carromata. These modes of transport were even more prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New Civil Code chose then to exclude these alternative modes from the
scope of Article 2185 with the use of the term motorized vehicles. If Aonuevo seriously contends that the application
of Article 2185 be expanded due to the greater interaction today of all types of vehicles, such argument contradicts
historical experience. The ratio of motorized vehicles as to non-motorized vehicles, as it stood in 1950, was
significantly lower than as it stands today. This will be certainly affirmed by statistical data, assuming such has been
compiled, much less confirmed by persons over sixty. Aonuevos characterization of a vibrant intra-road dynamic
between motorized and non-motorized vehicles is more apropos to the past than to the present.

There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable today. He premises that the need for
the distinction between motorized and non-motorized vehicles arises from the relative mass of number of these
vehicles. The more pertinent basis for the segregate classification is the difference in type of these vehicles. A
motorized vehicle operates by reason of a motor engine unlike a non-motorized vehicle, which runs as a result of a
direct exertion by man or beast of burden of direct physical force. A motorized vehicle, unimpeded by the limitations
in physical exertion. is capable of greater speeds and acceleration than non-motorized vehicles. At the same time,
motorized vehicles are more capable in inflicting greater injury or damage in the event of an accident or collision. This
is due to a combination of factors peculiar to the motor vehicle, such as the greater speed, its relative greater bulk of
mass, and greater combustability due to the fuels that they use.

There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As far back as 1912,
in the U.S. v. Juanillo[25], the Court has recognized that an automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, and beyond doubt it is highly dangerous when used on country roads, putting to
great hazard the safety and lives of the mass of the people who travel on such roads. [26] In the same case, the Court
emphasized:

A driver of an automobile, under such circumstances, is required to use a greater degree of care than drivers of
animals, for the reason that the machine is capable of greater destruction, and furthermore, it is absolutely under the
power and control of the driver; whereas, a horse or other animal can and does to some extent aid in averting an
accident. It is not pleasant to be obliged to slow down automobiles to accommodate persons riding, driving, or
walking. It is probably more agreeable to send the machine along and let the horse or person get out of the way in
the best manner possible; but it is well to understand, if this course is adopted and an accident occurs, that the
automobile driver will be called upon to account for his acts. An automobile driver must at all times use all the care
and caution which a careful and prudent driver would have exercised under the circumstances. [27]

American jurisprudence has had occasion to explicitly rule on the relationship between the motorist and the
cyclist. Motorists are required to exercise ordinary or reasonable care to avoid collision with bicyclists. [28] While the
duty of using ordinary care falls alike on the motorist and the rider or driver of a bicycle, it is obvious, for reasons
growing out of the inherent differences in the two vehicles, that more is required from the former to fully discharge
the duty than from the latter.[29]

The Code Commission was cognizant of the difference in the natures and attached responsibilities of motorized
and non-motorized vehicles. Art. 2185 was not formulated to compel or ensure obeisance by all to traffic rules and
regulations. If such were indeed the evil sought to be remedied or guarded against, then the framers of the Code
would have expanded the provision to include non-motorized vehicles or for that matter, pedestrians. Yet, that was
not the case; thus the need arises to ascertain the peculiarities attaching to a motorized vehicle within the dynamics
of road travel. The fact that there has long existed a higher degree of diligence and care imposed on motorized
vehicles, arising from the special nature of motor vehicle, leads to the inescapable conclusion that the qualification
under Article 2185 exists precisely to recognize such higher standard. Simply put, the standards applicable to motor
vehicle are not on equal footing with other types of vehicles.

Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles, even if by
analogy. There is factual and legal basis that necessitates the distinction under Art. 2185, and to adopt Aonuevos
thesis would unwisely obviate this distinction.

Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not preclude any
possible finding of negligence on his part. While the legal argument as formulated by Aonuevo is erroneous, his core
contention that Villagracia was negligent for failure to comply with traffic regulations warrants serious consideration,
especially since the imputed negligent acts were admitted by Villagracia himself.

The Civil Code characterizes negligence as the omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of the time and of the place. [30] However, the
existence of negligence in a given case is not determined by the personal judgment of the actor in a given situation,
but rather, it is the law which determines what would be reckless or negligent. [31]

Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a municipal ordinance requiring the
registration of bicycles and the installation of safety devices thereon. This view finds some support if anchored on the
long standing principle of negligence per se.

The generally accepted view is that the violation of a statutory duty constitutes negligence, negligence as a
matter of law, or negligence per se.[32] In Teague vs. Fernandez,[33] the Court cited with approval American authorities
elucidating on the rule:

The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the proximate
cause of the injury complained. However, if the very injury has happened which was intended to be prevented by the
statute, it has been held that violation of the statute will be deemed to be the proximate cause of the injury. (65
C.J.S. 1156)

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a matter of law,
or, according to the decisions on the question, negligence per se, for the reason that non-observance of what the
legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man
would observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute
prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it has
been otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is
negligence, negligence per se or negligence in and of itself, in the absence of a legal excuse. According to this view it
is immaterial, where a statute has been violated, whether the act or omission constituting such violation would have
been regarded as negligence in the absence of any statute on the subject or whether there was, as a matter of fact,
any reason to anticipate that injury would result from such violation. x x x. (65 C.J.S. pp.623-628)

But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the speed limit,
for example, we do not inquire whether his prohibited conduct was unreasonably dangerous. It is enough that it was
prohibited. Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the
ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal
cause of the harm. This comes only to saying that in such circumstances the law has no reason to ignore the causal
relation which obviously exists in fact. The law has excellent reason to recognize it, since it is the very relation which
the makers of the ordinance anticipated. This court has applied these principles to speed limits and other regulations
of the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

x x x However, the fact that other happenings causing or contributing toward an injury intervened between the
violation of a statute or ordinance and the injury does not necessarily make the result so remote that no action can be
maintained. The test is to be found not in the number of intervening events or agents, but in their character and in
the natural and probable connection between the wrong done and the injurious consequence. The general principle is
that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of
another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the
statute or ordinance was intended to prevent. (38 Am Jur 841) [34]

In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found negligent, base on
her failure to provide adequate fire exits in contravention of a Manila city ordinance. [35] In F.F. Cruz and Co., Inc. v.
Court of Appeals[36], the failure of the petitioner to construct a firewall in accordance with city ordinances sufficed to
support a finding of negligence. [37] In Cipriano v. Court of Appeals, [38]the Court found that the failure of the petitioner
to register and insure his auto rustproofing shop in accordance with the statute constituted negligence per se, thus
holding him liable for the damages for the destruction by fire of a customers vehicle garaged therein.

Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an ordinance? It
cannot be denied that the statutory purpose for requiring bicycles to be equipped with headlights or horns is to
promote road safety and to minimize the occurrence of road accidents involving bicycles. At face value, Villagracias
mishap was precisely the danger sought to be guarded against by the ordinance he violated. Aonuevo argues that
Villagracias violation should bar the latters recovery of damages, and a simplistic interpretation of negligence per
se might vindicate such an argument.

But this is by no means a simple case. There is the fact which we consider as proven, that Aonuevo was speeding
as he made the left turn, and such negligent act was the proximate cause of the accident. This reckless behavior
would have imperiled anyone unlucky enough within the path of Aonuevos car as it turned into the intersection,
whether they are fellow motorists, pedestrians, or cyclists. We are hard put to conclude that Villagracia would have
avoided injury had his bicycle been up to par with safety regulations, especially considering that Aonuevo was already
speeding as he made the turn, or before he had seen Villagracia. Even assuming that Aonuevo had failed to see
Villagracia because the bicycle was not equipped with headlights, such lapse on the cyclists part would not have
acquitted the driver of his duty to slow down as he proceeded to make the left turn.

This court has appreciated that negligence per se, arising from the mere violation of a traffic statute, need not be
sufficient in itself in establishing liability for damages. In Sanitary Steam Laundry, Inc. v. Court of Appeals,[39] a
collision between a truck and a privately-owned Cimarron van caused the death of three of the vans passengers. The
petitioner therein, the owner of the truck, argued that the driver of the Cimarron was committing multiple violations of
the Land Transportation and Traffic Code [40] at the time of the accident. Among these violations: the Cimarron was
overloaded at the time of the accident; the front seat of the van was occupied by four adults, including the driver; and
the van had only one functioning headlight. Similar as in this case, petitioner therein invoked Article 2185 and argued
that the driver of the Cimarron should be presumed negligent. The Court, speaking through Justice Mendoza,
dismissed these arguments:

[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the collision between the
vehicles. Indeed, petitioner has the burden of showing a causal connection between the injury received and the
violation of the Land Transportation and Traffic Code. He must show that the violation of the statute was the
proximate or legal cause of the injury or that it substantially contributed thereto. Negligence consisting in whole or in
part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the
injury. Petitioner says that driving an overloaded vehicle with only one functioning headlight during nighttime certainly
increases the risk of accident, that because the Cimarron had only one headlight, there was decreased visibility, and
that the fact that the vehicle was overloaded and its front seat overcrowded decreased its maneuverability. However,
mere allegations such as these are not sufficient to discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury. [41]

Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was violating a municipal ordinance at
the time of the accident may have sufficiently established some degree of negligence on his part, but such negligence
is without legal consequence unless it is shown that it was a contributing cause of the injury. If anything at all, it is
but indicative of Villagracias failure in fulfilling his obligation to the municipal government, which would then be the
proper party to initiate corrective action as a result. But such failure alone is not determinative of Villagracias
negligence in relation to the accident. Negligence is relative or comparative, dependent upon the situation of the
parties and the degree of care and vigilance which the particular circumstances reasonably require. [43] To determine if
Villagracia was negligent, it is not sufficient to rely solely on the violations of the municipal ordinance, but imperative
to examine Villagracias behavior in relation to the contemporaneous circumstances of the accident.

The rule on negligence per se must admit qualifications that may arise from the logical consequences of the facts
leading to the mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as a judicial guide in
adjudging liability, for it seeks to impute culpability arising from the failure of the actor to perform up to a standard
established by a legal fiat. But the doctrine should not be rendered inflexible so as to deny relief when in fact there is
no causal relation between the statutory violation and the injury sustained. Presumptions in law, while convenient, are
not intractable so as to forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming to provide
compensation for the harm suffered by those whose interests have been invaded owing to the conduct of others. [44]

Under American case law, the failures imputed on Villagracia are not grievous enough so as to negate monetary
relief. In the absence of statutory requirement, one is not negligent as a matter of law for failing to equip a horn, bell,
or other warning devise onto a bicycle. [45] In most cases, the absence of proper lights on a bicycle does not constitute
negligence as a matter of law [46] but is a question for the jury whether the absence of proper lights played a causal
part in producing a collision with a motorist. [47] The absence of proper lights on a bicycle at night, as required by
statute or ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is struck by a motorist
as long as the absence of such lights was a proximate cause of the collision; [48] however, the absence of such lights
will not preclude or diminish recovery if the scene of the accident was well illuminated by street lights, [49] if substitute
lights were present which clearly rendered the bicyclist visible, [50] if the motorist saw the bicycle in spite of the
absence of lights thereon,[51] or if the motorist would have been unable to see the bicycle even if it had been equipped
with lights.[52] A bicycle equipped with defective or ineffective brakes may support a finding of negligence barring or
diminishing recovery by an injured bicyclist where such condition was a contributing cause of the accident. [53]

The above doctrines reveal a common thread. The failure of the bicycle owner to comply with accepted safety
practices, whether or not imposed by ordinance or statute, is not sufficient to negate or mitigate recovery unless a
causal connection is established between such failure and the injury sustained. The principle likewise finds affirmation
in Sanitary Steam, wherein we declared that the violation of a traffic statute must be shown as the proximate cause of
the injury, or that it substantially contributed thereto. [54]Aonuevo had the burden of clearly proving that the alleged
negligence of Villagracia was the proximate or contributory cause of the latters injury.

On this point, the findings of the Court of Appeals are well-worth citing:

[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about ten (10) meters before the
accident. Corrolarily, therefore, he could have avoided the accident had he [stopped] alongside with an
earlier (sic) jeep which was already at a full stop giving way to appellee. But according to [eyewitness] Sorsano, he
saw appellant Aonuevo umaarangkada and hit the leg of Villagracia (TSN March 14, 1990 p. 30). This earlier (sic) jeep
at a full stop gave way to Villagracia to proceed but Aonuevo at an unexpected motion (umarangkada) came out
hitting Villagracia (TSN March 9, 1990 p. 49). Appellant Aonuevo admitted that he did not blow his horn when he
crossed Boni Avenue (TSN March 21, 1990 p. 47). [55]

By Aonuevos own admission, he had seen Villagracia at a good distance of ten (10) meters. Had he been
decelerating, as he should, as he made the turn, Aonuevo would have had ample opportunity to avoid hitting
Villagracia. Moreover, the fact that Aonuevo had sighted Villagracia before the accident would negate any possibility
that the absence of lights on the bike contributed to the cause of the accident. [56] A motorist has been held liable for
injury to or death of a bicyclist where the motorist turned suddenly into the bicyclist so as to cause a collision. [57]

Neither does Aonuevo attempt before this Court to establish a causal connection between the safety violations
imputed to Villagracia and the accident itself. Instead, he relied on a putative presumption that these violations in
themselves sufficiently established negligence appreciable against Villagracia. Since the onus on Aonuevo is to
conclusively prove the link between the violations and the accident, we can deem him as having failed to discharge his
necessary burden of proving Villagracias own liability.

Neither can we can adjudge Villagracia with contributory negligence. The leading case in contributory
negligence, Rakes v. Atlantic Gulf[58] clarifies that damages may be mitigated if the claimant in conjunction with the
occurrence, [contributes] only to his injury. [59] To hold a person as having contributed to his injuries, it must be shown
that he performed an act that brought about his injuries in disregard of warnings or signs of an impending danger to
health and body.[60] To prove contributory negligence, it is still necessary to establish a causal link, although not
proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is contributory
only when it contributes proximately to the injury, and not simply a condition for its occurrence. [61]

As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely responsible for the accident.
The petition does not demonstrate why this finding should be reversed. It is hard to imagine that the same result
would not have occurred even if Villagracias bicycle had been equipped with safety equipment. Aonuevo himself
admitted having seen Villagracia from ten (10) meters away, thus he could no longer claim not having been
sufficiently warned either by headlights or safety horns. The fact that Aonuevo was recklessly speeding as he made
the turn likewise leads us to believe that even if Villagracias bicycle had been equipped with the proper brakes, the
cyclist would not have had opportunity to brake in time to avoid the speeding car. Moreover, it was incumbent on
Aonuevo to have established that Villagracias failure to have installed the proper brakes contributed to his own injury.
The fact that Aonuevo failed to adduce proof to that effect leads us to consider such causal connection as not proven.

All told, there is no reason to disturb the assailed judgment. WHEREFORE, the Petition is DENIED.
The Decision of the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED.
G.R. No. 142625 December 19, 2006

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

DECISION

CARPIO, J.:

The Case

This petition for review1 assails the 6 February 1998 Decision 2 and 21 March 2000 Resolution 3 of the Court of Appeals
in CA-G.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of the Regional Trial
Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon
Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners' motion
for reconsideration.

The Facts

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

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

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission
request8 of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement" 9 and "Admission Agreement."10 Corazon was then brought to the labor room
of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr.
Uy then called up Dr. Estrada to notify him of her findings.

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

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

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

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

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

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

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

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

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

On 14 May 1980, petitioners filed a complaint for damages 15 with the Regional Trial Court 16 of Manila against CMC, Dr.
Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of
Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment
and management of Corazon's condition. Petitioners charged CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.

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

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

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

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

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

On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she
did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what
was probably the orders of Dr. Estrada.
 While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of
Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was
able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the
manner Corazon Nogales may be treated, the prescription was based on the information given to him by
phone and he acted on the basis of facts as presented to him, believing in good faith that such is the correct
remedy. He was not with Dr. Estrada when the patient was brought to the hospital at 2:30 o'clock a.m. So,
whatever errors that Dr. Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of
Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due
to fortuitous event.

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

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

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

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

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

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

SO ORDERED.18

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

On 6 February 1998, the Court of Appeals affirmed the decision of the trial court. 19 Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000. 20

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April 2002 21 stating that respondents Dr. Estrada, Dr. Enriquez,
Dr. Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are absolutely not involved in
the issue raised before the [Court], regarding the liability of [CMC]." 22 Petitioners stressed that the subject matter of
this petition is the liability of CMC for the negligence of Dr. Estrada. 23

The Court issued a Resolution dated 9 September 2002 24 dispensing with the requirement to submit the correct and
present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that
with the filing of petitioners' Manifestation, it should be understood that they are claiming only against respondents
CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further
claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.

The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the
Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's judgment, is already
final as against Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration 25 of the Court's 9 September 2002 Resolution claiming that Dr. Enriquez,
Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses. Petitioners
reiterated their imputation of negligence on these respondents. The Court denied petitioners' Motion for
Reconsideration in its 18 February 2004 Resolution. 26

The Court of Appeals' Ruling

In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals rejected
petitioners' view that the doctrine in Darling v. Charleston Community Memorial Hospital 27 applies to this case.
According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent
contractor-physician whereas the Darling case involved a physician and a nurse who were employees of the hospital.

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

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

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

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

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

The Issue

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

The Ruling of the Court

The petition is partly meritorious.

On the Liability of CMC

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

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

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

xxxx

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

xxxx

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

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physician's negligence under the doctrine of respondeat superior.34

In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC,
should be liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of
CMC, though he discovered later that Dr. Estrada was not a salaried employee of the CMC. 35 Rogelio further claims
that he was dealing with CMC, whose primary concern was the treatment and management of his wife's condition. Dr.
Estrada just happened to be the specific person he talked to representing CMC. 36 Moreover, the fact that CMC made
Rogelio sign a Consent on Admission and Admission Agreement 37 and a Consent to Operation printed on the letterhead
of CMC indicates that CMC considered Dr. Estrada as a member of its medical staff.

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

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

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

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

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

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

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article
2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship of patria potestas. x x x 40 (Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KNOW ALL MEN BY THESE PRESENTS:

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

x x x x51 (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

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

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

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

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

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

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

CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its eyes to
the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the
observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc., 57 to wit:

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

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

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

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

On the Liability of the Other Respondents

Despite this Court's pronouncement in its 9 September 2002 59 Resolution that the filing of petitioners' Manifestation
confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the
Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more
than two-decade old controversy.

a) Dr. Ely Villaflor

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

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this
was after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a
dangerous level.61 At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate
from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains
uncontroverted. Dr. Villaflor's act of administering a lower dosage of magnesium sulfate was not out of her own
volition or was in contravention of Dr. Estrada's order.

b) Dr. Rosa Uy

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

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

c) Dr. Joel Enriquez

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

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

d) Dr. Perpetua Lacson

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

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

e) Dr. Noe Espinola

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

Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not negligence.
The Court agrees with the trial court's observation that Dr. Espinola, upon hearing such information about Corazon's
condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not
push through because upon Dr. Espinola's arrival, it was already too late. At the time, Corazon was practically dead.

f) Nurse J. Dumlao

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

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

On the Award of Interest on Damages

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

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously
liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages and P700,000 as moral
damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the
judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21
March 2000 of the Court of Appeals in CA-G.R. CV No. 45641. SO ORDERED.
 DR. MILAGROS L. CANTRE, G.R. No. 160889
Petitioner,

- versus

SPS. JOHN DAVID Z. GO and NORA S. GO, Promulgated:

Respondents.
April 27, 2007
x------------------------------------------------x

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision[1] dated October 3, 2002 and Resolution [2] dated November 19, 2003

of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision [3] dated March 3,

1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

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

 Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado

Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital

on April 19, 1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m.,

Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled

from her womb after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood

pressure to 40 over 0. Petitioner and the assisting resident physician performed various medical procedures to stop

the bleeding and to restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a

sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop bleeding, she ordered a

droplight to warm Nora and her baby. [4] Nora remained unconscious until she recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and

a half (2 ) by three and a half (3 ) inches in the inner portion of her left arm, close to the armpit. [5] He asked the

nurses what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a

request for investigation. [6] In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner

and the assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the

injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination,

which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.[7] The medico-legal officer later testified that

Noras injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause

such burn.[8] He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not

around the arm, but just on one side of the arm. [9]

On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital

for skin grafting.[10] Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as

well. About a year after, on April 30, 1993, scar revision had to be performed at the same hospital. [11] The surgical

operation left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising about one-

fourth (1/4) of an inch from the surface of the skin. The costs of the skin grafting and the scar revision were

shouldered by the hospital.[12]

Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm

remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children

cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the

slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint [13] for damages against petitioner, Dr. Abad,

and the hospital. Finding in favor of respondent spouses, the trial court decreed:

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

(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.[14]

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification

the trial court decision, thus:

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

1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-

appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages;

2. Deleting the award [of] exemplary damages, attorneys fees and expenses of
litigation;

3. Dismissing the complaint with respect to defendants-appellants

Dr. Rainerio S. Abad and Delgado Clinic, Inc.;

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

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

SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition

assigning the following as errors and issues:

I.

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

II.

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

III.

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

IV.

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

V.

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

VI.

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

VII.

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

VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO
RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT
THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT
OF APPEALS LIKEWISE ABUSING ITS DISCRETION. [16]
 Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in

evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists

the droplight could not have touched Noras body. She maintains the injury was due to the constant taking of Noras

blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal officer

who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic

surgery was not intended to restore respondents injury to its original state but rather to prevent further complication.

Respondents, however, counter that the genuineness and due execution of the additional documentary

exhibits were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory

is highly improbable, being unprecedented in medical history and that the injury was definitely caused by the

droplight. At any rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still

negligent in her duties as Noras attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in

evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether the

appellate court committed grave abuse of discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note

that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial

pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they were formally

offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on the

negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional

exhibits.

Petitioners contention that the medico-legal officer who conducted Noras physical examination never saw her

original injury before plastic surgery was performed is without basis and contradicted by the records. Records show

that the medico-legal officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar

revision were performed on Nora on May 22, 1992 and April 30, 1993, respectively.

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

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

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury

to justify a presumption of negligence on the part of the person who controls the instrument causing the injury,

provided that the following requisites concur:

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

As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act

of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury

could not have happened unless negligence had set in somewhere.

 Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both

instruments are deemed within the exclusive control of the physician in charge under the captain of the ship

doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during

the time when those assistants are under the surgeons control. [19] In this particular case, it can be logically inferred

that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants

assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and

the blood pressure cuff is also within petitioners exclusive control.

Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be

caused by something external to her and outside her control as she was unconscious while in hypovolemic shock.

Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury.

Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her blood

pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified to by

the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after

each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this

case. Thus, if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must have

been done so negligently as to have inflicted a gaping wound on her arm, [20] for which petitioner cannot escape

liability under the captain of the ship doctrine.

Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but

rather as a measure to prevent complication does not help her case. It does not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession

stands unrebutted. In this connection, the Civil Code provides:

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

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

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a

proximate result of petitioners negligence.

We note, however, that petitioner has served well as Noras obstetrician for her past three successful

deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her

profession. The fact that petitioner promptly took care of Noras wound before infection and other complications set in

is also indicative of petitioners good intentions. We also take note of the fact that Nora was suffering from a critical

condition when the injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it

should be stressed that all these could not justify negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the

assailed decision and resolution of the Court of Appeals. Further, we rule that the Court of Appeals award of Two

Hundred Thousand Pesos (P200,000) as moral damages in favor of respondents and against petitioner is just and

equitable.[21]
 WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November

19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED. No pronouncement as to costs. SO

ORDERED.

CONCEPCION ILAO-ORETA, G.R. No. 172406

Petitioner,

Promulgated:
October 11, 2007
- versus -

SPOUSES EVA MARIE and BENEDICTO NOEL

RONQUILLO,
Respondents.

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

DECISION

CARPIO MORALES, J.:

Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto

(Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child despite several years of

marriage. They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-
consultant at the St. Lukes Medical Center where she was, at the time material to the case, the chief of the

Reproductive Endocrinology and Infertility Section.

Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure whereby

a laparascope would be inserted through the patients abdominal wall to get a direct view of her internal reproductive

organ in order to determine the real cause of her infertility.

The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr. Ilao-Oreta. At

around 7:00 a.m. of said date, Eva Marie, accompanied by her husband Noel, checked in at the St.

Lukes Medical Center and underwent pre-operative procedures including the administration of intravenous fluid and

enema.

Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no prior notice of its

cancellation was received. It turned out that the doctor was on a return flight from Hawaii to, and arrived at 10:00

p.m. of April 5, 1999 in, Manila.

On May 18, 1999, the Ronquillo spouses filed a complaint [1] against Dr. Ilao-Oreta and the St.

Lukes Medical Center for breach of professional and service contract and for damages before the Regional Trial Court

(RTC) of Batangas City. They prayed for the award of actual damages including alleged loss of income of Noel while

accompanying his wife to the hospital, moral damages, exemplary damages, the costs of litigation, attorneys fees,

and other available reliefs and remedies.[2]

In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a honeymoon to Hawaii and

was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip

from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she

estimated that she would arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost good faith

that she would be back in Manila in time for the scheduled conduct of the laparoscopic procedure. She failed to

consider the time difference between Hawaii and the Philippines, however.

In its Answer,[4] the St. Lukes Medical Center contended that the spouses have no cause of action against it

since it performed the pre-operative procedures without delay, and any cause of action they have would be against

Dr. Ilao-Oreta.

By Decision[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the failure of the doctor to arrive

on time was not intentional, awarded Eva Marie only actual damages in the total amount of P9,939 and costs of

suit. It found no adequate proof that Noel had been deprived of any job contract while attending to his wife in the

hospital.

On appeal by the spouses, the Court of Appeals, by Decision [6] of April 21, 2006, finding Dr. Ilao-

Oreta grossly negligent,[7] modified the trial courts decision as follows:

WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject to the
modification that the amount of actual damages, for which both defendants-appellees are jointly and
severally liable to plaintiffs-appellants, is increased to P16,069.40. Furthermore, defendant-appellee
Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following:

(a) P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and

(c) P20,000.00 as attorneys fees.

SO ORDERED.[8] (Underscoring supplied)

 Hence, the present Petition for Review[9] of Dr. Ilao-Oreta raising the following arguments:

THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED WITH GROSS
NEGLIGENCE AND AWARDING MORAL DAMAGES TO RESPONDENTS. [10]

THE COURT A QUO ERRED IN AWARDING EXEMPLARY DAMAGES TO RESPONDENTS. [11]

THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO RESPONDENTS. [12]

THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL DAMAGES IN FAVOR OF
RESPONDENTS.[13]

Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire

absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. [14] It is

characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not

inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons

may be affected.[15]

The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order with her secretary for

one of the spouses to pick up, apprised Eva Marie of the necessary preparations for the procedure, and instructed the

hospital staff to perform pre-operative treatments. [16] These acts of the doctor reflect an earnest intention to perform

the procedure on the day and time scheduled.

The records also show that on realizing that she missed the scheduled procedure, Dr. Ilao-Oreta, upon arrival

in Manila, immediately sought to rectify the same, thus:

[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?

[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket and so I was to
leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I was computing 12 hours
of travel including stop-over, then probably I would be in Manila early morning of April 5, then
I have so much time and I can easily do the case at 2:00 oclock, you know it skipped my mind
the change in time.

Q: So when you arrived at 10:00 [PM] in Manila, what did you do?

A: I called immediately the hospital and I talked with the nurses, I asked about the patient, Mrs.
Ronquillo, and they told me that she has already left at around 7:00.

Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the morning I went
to my office early at 8:00 and looked for her chart, because her telephone number was written
in the chart. So, I called them right away.

Q: Were you able to contact them?

A: I was able to reach Mr. Ronquillo.

Q: In the course of your conversation, what did you tell Mr. Ronquillo?

A: I apologized to him, I said I was sorry about the time that I missed the surgery, and I told him that
I can do the case right that same day without Mrs. Ronquillo having to undergo another
[b]arium enema.

Q: What else did you tell him, if any?

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize to her personally.

Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she didnt want to talk
to me, and that she didnt want re-scheduling of the surgery . . .

ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this is purely hearsay.

COURT: Remain on the record.

WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra., we cannot re-
schedule the surgery.[17] (Underscoring supplied)
Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as related by her.[18]

The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the United States where

she obtained a fellowship in Reproductive Endocrinology and Infertility was indeed negligent when she scheduled to

perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between

the Philippines and Hawaii.

The doctors act did not, however, reflect gross negligence as defined above. Her argument that

Although petitioner failed to take into consideration the time difference between
the Philippines and Hawaii, the situation then did not present any clear and apparent harm or injury
that even a careless person may perceive. Unlike in situations where the Supreme Court had found
gross negligence to exist, petitioner could not have been conscious of any foreseeable danger that
may occur since she actually believed that she would make it to the operation that was elective in
nature, the only purpose of which was to determine the real cause of infertility and not to treat and
cure a life threatening disease. Thus, in merely fixing the date of her appointment with respondent
Eva Marie Ronquillo, petitioner was not in the pursuit or performance of conduct which any ordinary
person may deem to probably and naturally result in injury, [19] (Underscoring in original)

thus persuades.

It bears noting that when she was scheduling the date of her performance of the procedure, Dr. Ilao-

Oreta had just gotten married and was preparing for her honeymoon, [20] and it is of common human knowledge that

excitement attends its preparations. Her negligence could then be partly attributed to human frailty which rules out its

characterization as gross.

The doctors negligence not being gross, the spouses are not entitled to recover moral damages.

Neither are the spouses entitled to recover exemplary damages in the absence of a showing that Dr. Ilao-

Oreta acted in a wanton, fraudulent, reckless, oppressive or malevolent manner, [21] nor to award of attorneys fees as,

contrary to the finding of the Court of Appeals that the spouses were compelled to litigate and incur expenses to

protect their interest, [22] the records show that they did not exert enough efforts to settle the matter before going to

court. Eva Marie herself testified:

ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any demand on Dr. Ilao-
Oreta regarding the claims which you have allegedly incurred, because of the failed
laparoscopic surgery operation?

A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .

Q: But did you demand?

A: No, I did not demand because

ATTY. SINJIAN: That will be all, your Honor.

ATTY. LONTOK: The witness is still explaining.

WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the meeting for me and Dr.
Oreta to settle things and reimburse all the money that I spent from the hospital, and he even
suggested Dr. Oreta to personally talk to me.

ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.

Q: But you did not demand anything or write to Dr. Oreta?

A: No.
 Q: Before instituting this case?

A: No.[23] (Underscoring supplied)

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken. Article 2201 of the Civil Code

provides:

In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
liable shall be those which are the natural and probable consequences of the breach of the obligation,
and which the parties have foreseen or could have reasonably foreseen at the time the obligation was
constituted.

In fixing the amount of actual damages, the Court of Appeals and the trial court included expenses which the spouses

incurred prior to April 5, 1999 when the breach of contract complained of occurred. [24] The Court of Appeals also

included the alleged P300 spent on fuel consumption from the spouses residence at San Pascual, Batangas to the St.

Lukes Medical Center in Quezon City and the alleged P500 spent on food in the hospital canteen, both of which are

unsubstantiated by independent or competent proof. [25] The only piece of documentary evidence supporting the food

and fuel expenses is an unsigned listing. [26] As the fuel and food expenses are not adequately substantiated, they

cannot be included in the computation of the amount of actual damages. So Premiere Development Bank v. Court of

Appeals[27]instructs:

In the instant case, the actual damages were proven through the sole testimony
of Themistocles Ruguero, the vice president for administration of Panacor. In his testimony, the
witness affirmed that Panacor incurred losses, specifically, in terms of training and seminars, leasehold
acquisition, procurement of vehicles and office equipment without, however, adducing receipts to
substantiate the same. The documentary evidence marked as Exhibit W, which was an ordinary
private writing allegedly itemizing the capital expenditures and losses from the failed operation
of Panacor, was not testified to by any witness to ascertain the veracity of its content. Although the
lower court fixed the sum of P4,520,000.00 as the total expenditures incurred by Panacor, it failed to
show how and in what manner the same were substantiated by the claimant with reasonable
certainty.Hence, the claim for actual damages should be received with extreme caution since it is only
based on bare assertion without support from independent evidence. Premieres failure to prove actual
expenditure consequently conduces to a failure of its claim. In determining actual damages, the court
cannot rely on mere assertions, speculations, conjectures or guesswork but must depend
on competent proof and on the best evidence obtainable regarding the actual amount of loss .
[28]
(Underscoring supplied)

The list of expenses cannot replace receipts when they should have been issued as a matter of course in business

transactions[29] as in the case of purchase of gasoline and of food.

The documented claim for hospital and medical expenses of the spouses is detailed in the Statement of

Account issued by the hospital, the pertinent entries of which read:

xxxx

GROSS HOSPITAL CHARGES 2,416.50

4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000.00)
(5,000.00)
________
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.80)
BALANCE DUE (2,711.30)[30]
=======

As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70 (the gross hospital charges

of P2,416.50 less the unused medicine in the amount of P127.80) was debited from the P5,000 deposit[31] to thus leave

a balance of the deposit in the amount of P2,711.30, which the trial court erroneously denominated as confinement

fee. The remaining balance of P2,711.30 was the amount refundable to the spouses.
 Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court awards interest on the actual damages

to be paid by Dr. Ilao-Oreta at the rate of 6% per annum from the time of the filing of the complaint on May 18, 1999,

and at 12% per annum from the finality of this judgment until its satisfaction.

WHEREFORE, the petition is GRANTED. The decision appealed from is MODIFIED in that

1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages

is REDUCED to P2,288.70, to bear interest at a rate of 6% per annumfrom the time of the filing of the complaint on

May 18, 1999 and, upon finality of this judgment, at the rate of 12% per annum until satisfaction; and

2. The award of moral and exemplary damages and attorneys fees is DELETED. SO ORDERED.

BOARD OF MEDICINE, G.R. No. 166097

DR. RAUL FLORES

(now DR. JOSE S. RAMIREZ),

in his capacity as Chairman of the

Board, PROFESSIONAL

REGULATION COMMISSION,

through its Chairman,

HERMOGENES POBRE

(now DR. ALCESTIS M. GUIANG),

Petitioners,
 -versus-

Promulgated:

YASUYUKI OTA, July 14, 2008

Respondent.

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

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari assailing the Decision[1] of the Court of Appeals (CA) in CA-G.R.
SP No. 84945[2] dated November 16, 2004which affirmed the Decision [3] of the Regional Trial Court (RTC), Branch
22, Manila, dated October 19, 2003.[4]

The facts are as follows:

Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, who has continuously resided in
the Philippines for more than 10 years. He graduated from Bicol Christian College of Medicine on April 21, 1991 with a
degree of Doctor of Medicine. [5] After successfully completing a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, he filed an application to take the medical board examinations in order to
obtain a medical license. He was required by the Professional Regulation Commission (PRC) to submit an affidavit of
undertaking, stating among others that should he successfully pass the same, he would not practice medicine until he
submits proof that reciprocity exists between Japan and the Philippines in admitting foreigners into the practice of
medicine.[6]

Respondent submitted a duly notarized English translation of the Medical Practitioners Law of Japan duly
authenticated by the Consul General of the Philippine Embassy to Japan, Jesus I. Yabes;[7] thus, he was allowed to
take the Medical Board Examinations in August 1992, which he subsequently passed. [8]

In spite of all these, the Board of Medicine (Board) of the PRC, in a letter dated March 8,
1993, denied respondent's request for a license to

practice medicine in the Philippines on the ground that the Board believes that no genuine reciprocity can be found in
the law of Japan as there is no Filipino or foreigner who can possibly practice there. [9]

Respondent then filed a Petition for Certiorari and Mandamus against the Board before the RTC of Manila on June 24,
1993, which petition was amended on February 14, 1994 to implead the PRC through its Chairman.[10]

In his petition before the RTC, respondent alleged that the Board and the PRC, in refusing to issue in his favor a
Certificate of Registration and/or license to practice medicine, had acted arbitrarily, in clear contravention of the
provision of Section 20 of Republic Act (R.A.) No. 2382 (The Medical Act of 1959), depriving him of his legitimate right
to practice his profession in the Philippines to his great damage and prejudice. [11]
On October 19, 2003, the RTC rendered its Decision finding that respondent had adequately proved that the medical
laws of Japan allow foreigners like Filipinos to be granted license and be admitted into the practice of medicine under
the principle of reciprocity; and that the Board had a ministerial duty of issuing the Certificate of Registration and
license to respondent, as it was shown that he had substantially complied with the requirements under the law. [12] The
RTC then ordered the Board to issue in favor of respondent the corresponding Certificate of Registration and/or license
to practice medicine in the Philippines.[13]

The Board and the PRC (petitioners) appealed the case to the CA, stating that while respondent submitted documents
showing that foreigners are allowed to practice medicine in Japan, it was not shown that the conditions for the
practice of medicine there are practical and attainable by a foreign applicant, hence, reciprocity was not established;
also, the power of the PRC and the Board to regulate and control the practice of medicine is discretionary and not
ministerial, hence, not compellable by a writ of mandamus.[14]

The CA denied the appeal and affirmed the ruling of the RTC. [15]

Hence, herein petition raising the following issue:

WHETHER THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN FINDING THAT

RESPONDENT HAD ESTABLISHED THE EXISTENCE OF RECIPROCITY IN THE PRACTICE OF MEDICINE
BETWEEN THE PHILIPPINES AND JAPAN.[16]

Petitioners claim that: respondent has not established by competent and conclusive evidence that reciprocity in the
practice of medicine exists between the Philippinesand Japan. While documents state that foreigners are allowed to
practice medicine in Japan, they do not similarly show that the conditions for the practice of medicine in said country
are practical and attainable by a foreign applicant. There is no reciprocity in this case, as the requirements to practice
medicine in Japan are practically impossible for a Filipino to comply with. There are also ambiguities in the Medical
Practitioners Law of Japan, which were not clarified by respondent, i.e., what are the provisions of the School
Educations Laws, what are the criteria of the Minister of Health and Welfare of Japan in determining whether the
academic and technical capability of foreign medical graduates are the same or better than graduates of medical
schools in Japan, and who can actually qualify to take the preparatory test for the National Medical Examination.
Consul General Yabes also stated that there had not been a single Filipino who was issued a license to practice
medicine by the Japanese Government. The publication showing that there were foreigners practicing medicine
in Japan, which respondent presented before the Court, also did not specifically show that Filipinos were among those
listed as practicing said profession. [17] Furthermore, under Professional Regulation Commission v. De Guzman, [18]the
power of the PRC and the Board to regulate and control the practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice medicine, which power is discretionary and not ministerial,
hence, not compellable by a writ of mandamus.[19]

Petitioners pray that the CA Decision dated November 16, 2004 be reversed and set aside, that a new one be
rendered reinstating the Board Order dated March 8, 1993which disallows respondent to practice medicine in
the Philippines, and that respondent's petition before the trial court be dismissed for lack of merit. [20]

In his Comment, respondent argues that: Articles 2 and 11 of the Medical Practitioners Law of Japan and Section 9 of
the Philippine Medical Act of 1959 show that reciprocity exists between the Philippines and Japan concerning the
practice of medicine. Said laws clearly state that both countries allow foreigners to practice medicine in their
respective jurisdictions as long as the applicant meets the educational requirements, training or residency in hospitals
and pass the licensure examination given by either country. Consul General Yabes in his letter dated January 28,
1992 stated that the Japanese Government allows a foreigner to practice medicine in Japan after complying with the
local requirements. The fact that there is no reported Filipino who has successfully penetrated the medical practice
in Japandoes not mean that there is no reciprocity between the two countries, since it does not follow that no Filipino
will ever be granted a medical license by the Japanese Government. It is not the essence of reciprocity that before a
citizen of one of the contracting countries can demand its application, it is necessary that the interested citizens
country has previously granted the same privilege to the citizens of the other contracting country. [21] Respondent
further argues that Section 20 of the Medical Act of 1959 [22] indicates the mandatory character of the statute and an
imperative obligation on the part of the Board inconsistent with the idea of discretion. Thus, a foreigner, just like a
Filipino citizen, who successfully passes the examination and has all the qualifications and none of the
disqualifications, is entitled as a matter of right to the issuance of a certificate of registration or a physicians license,
which right is enforceable by mandamus.[23]

Petitioners filed a Reply[24] and both parties filed their respective memoranda[25] reiterating their arguments.

The Court denies the petition for lack of merit.

There is no question that a license to practice medicine is a privilege or franchise granted by the government.
[26]
It is a right that is earned through years of education and training, and which requires that one must first secure a
license from the state through professional board examinations. [27]

Indeed,

[T]he regulation of the practice of medicine in all its branches has long been recognized as a
reasonable method of protecting the health and safety of the public. That the power to regulate and
control the practice of medicine includes the power to regulate admission to the ranks of those
authorized to practice medicine, is also well recognized. Thus, legislation and administrative
regulations requiring those who wish to practice medicine first to take and pass medical board
examinations have long ago been recognized as valid exercises of governmental power. Similarly, the
establishment of minimum medical educational requirements i.e., the completion of prescribed
courses in a recognized medical school for admission to the medical profession, has also been
sustained as a legitimate exercise of the regulatory authority of the state. [28]

It must be stressed however that the power to regulate the exercise of a profession or pursuit of an
occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political
body which regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in
accordance with certain conditions. As the legislature cannot validly bestow an arbitrary power to grant or refuse a
license on a public agency or officer, courts will generally strike down license legislation that vests in public officials
discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without
prescribing definite rules and conditions for the guidance of said officials in the exercise of their power. [29]

R.A. No. 2382 otherwise known as the Medical Act of 1959 states in Section 9 thereof that:

Section 9. Candidates for Board Examinations.- Candidates for Board examinations shall have the
following qualifications:

1. He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted
competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs,
showing that his countrys existing laws permit citizens of the Philippines to practice medicine under
the same rules and regulations governing citizens thereof;

xxxx

Presidential Decree (P.D.) No. 223[30] also provides in Section (j) thereof that:

j) The [Professional Regulation] Commission may, upon the recommendation of the Board
concerned, approve the registration of and authorize the issuance of a certificate of registration with
or without examination to a foreigner who is registered under the laws of his country: Provided, That
the requirement for the registration or licensing in said foreign state or country are substantially the
 same as those required and contemplated by the laws of the Philippines and that the laws of such
foreign state or country allow the citizens of the Philippines to practice the profession on the same
basis and grant the same privileges as the subject or citizens of such foreign state or country:
Provided, finally, That the applicant shall submit competent and conclusive documentary evidence,
confirmed by the Department of Foreign Affairs, showing that his country's existing laws permit
citizens of the Philippines to practice the profession under the rules and regulations governing citizens
thereof. The Commission is also hereby authorized to prescribe additional requirements or grant
certain privileges to foreigners seeking registration in the Philippines if the same privileges are granted
to or some additional requirements are required of citizens of the Philippines in acquiring the same
certificates in his country;

As required by the said laws, respondent submitted a copy of the Medical Practitioners Law of Japan, duly
authenticated by the Consul General of the Embassy of the Philippines in Japan, which provides in Articles 2 and 11,
thus:

Article 2. Anyone who wants to be medical practitioner must pass the national examination for
medical practitioner and get license from the Minister of Health and Welfare.

Article 11. No one can take the National Medical Examination except persons who conform to
one of the following items:

1. Persons who finished regular medical courses at a university based on the School
Education Laws (December 26, 1947) and graduated from said university.

2. Persons who passed the preparatory test for the National Medical Examination and
practiced clinics and public sanitation more than one year after passing the said test.

3. Persons who graduated from a foreign medical school or acquired medical practitioner
license in a foreign country, and also are recognized to have the same or more academic
ability and techniques as persons stated in item 1 and item 2 of this article. [31]

Petitioners argue that while the Medical Practitioners Law of Japan allows foreigners to practice medicine
therein, said document does not show that conditions for the practice of medicine in said country
are practical and attainable by a foreign applicant; and since the requirements are practically impossible for a Filipino
to comply with, there is no reciprocity between the two countries, hence, respondent may not be granted license to
practice medicine in the Philippines.

The Court does not agree.

R.A. No. 2382, which provides who may be candidates for the medical board examinations, merely requires a
foreign citizen to submit competent and conclusive documentary evidence, confirmed by the Department of Foreign
Affairs (DFA), showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the
same rules and regulations governing citizens thereof.

Section (j) of P.D. No. 223 also defines the extent of PRC's power to grant licenses, i.e., it may, upon
recommendation of the board, approve the registration and authorize the issuance of a certificate of registration with
or without examination to a foreigner who is registered under the laws of his country, provided the following
conditions are met: (1) that the requirement for the registration or licensing in said foreign state or country are
substantially the same as those required and contemplated by the laws of the Philippines; (2) that the laws of such
foreign state or country allow the citizens of the Philippines to practice the profession on the same basis and grant the
same privileges as the subject or citizens of such foreign state or country; and (3) that the applicant shall submit
competent and conclusive documentary evidence, confirmed by the DFA, showing that his country's existing laws
permit citizens of the Philippines to practice the profession under the rules and regulations governing citizens thereof.

The said provision further states that the PRC is authorized to prescribe additional requirements or grant
certain privileges to foreigners seeking registration in the Philippines if the same privileges are granted to or some
additional requirements are required of citizens of the Philippines in acquiring the same certificates in his country.

Nowhere in said statutes is it stated that the foreign applicant must show that the conditions for the practice
of medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven
that a Filipino has been granted license and allowed to practice his profession in said country before a foreign
applicant may be given license to practice in the Philippines. Indeed, the phrase used in both R.A. No. 2382 and P.D.
No. 223 is that:

[T]he applicant shall submit] competent and conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's existing laws permitcitizens of the
Philippines to practice the profession [of medicine] under the [same] rules and regulations governing
citizens thereof. x x x (Emphasis supplied)

It is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring
respondent to prove first that a Filipino has already been granted license and is actually practicing therein unduly
expands the requirements provided for under R.A. No. 2382 and P.D. No. 223.

While it is true that respondent failed to give details as to the conditions stated in the Medical Practitioners
Law of Japan -- i.e., the provisions of the School Educations Laws, the criteria of the Minister of Health and Welfare of
Japan in determining whether the academic and technical capability of foreign medical graduates are the same as or
better than that of graduates of medical schools in Japan, and who can actually qualify to take the preparatory test
for the National Medical Examination respondent, however, presented proof that foreigners are actually practicing in
Japan and that Filipinos are not precluded from getting a license to practice there.

Respondent presented before the trial court a Japanese Government publication, Physician-Dentist-
Pharmaceutist Survey, showing that there are a number of foreign physicians practicing medicine in Japan.[32] He also
presented a letter dated January 28, 1992 from Consul General Yabes,[33] which states:

Sir:

With reference to your letter dated 12 January 1993, concerning your request for a Certificate
of Confirmation for the purpose of establishing a reciprocity with Japan in the practice of medical
profession relative to the case of Mr. Yasuyuki Ota, a Japanese national, the Embassy wishes to inform
you that inquiries from the Japanese Ministry of Foreign Affairs, Ministry of Health and Welfare as well
as Bureau of Immigration yielded the following information:

1. They are not aware of a Filipino physician who was granted a license by the Japanese
Government to practice medicine in Japan;

2. However, the Japanese Government allows a foreigner to practice medicine

in Japan after complying with the local requirements such as holding a valid visa for
the purpose of taking the medical board exam, checking the applicant's qualifications
to take the examination, taking the national board examination in Japanese and
filing an application for the issuance of the medical license.

Accordingly, the Embassy is not aware of a single Filipino physician who was issued by
the Japanese Government a license to practice medicine, because it is extremely difficult to
pass the medical board examination in the Japanese language. Filipino doctors here are only
allowed to work in Japanese hospitals as trainees under the supervision of a Japanese doctor. On
 certain occasions, they are allowed to show their medical skills during seminars for demonstration
purposes only. (Emphasis supplied)

Very truly yours,

Jesus I. Yabes

Minister Counsellor &

Consul General

From said letter, one can see that the Japanese Government allows foreigners to practice medicine therein
provided that the local requirements are complied with, and that it is not the impossibility or the prohibition against
Filipinos that would account for the absence of Filipino physicians holding licenses and practicing medicine in Japan,
but the difficulty of passing the board examination in the Japanese language. Granting that there is still no Filipino
who has been given license to practice medicine in Japan, it does not mean that no Filipino will ever be able to be
given one.

Petitioners next argue that as held in De Guzman, its power to issue licenses is discretionary, hence, not
compellable by mandamus.

The Court finds that the factual circumstances of De Guzman are different from those of the case at bar;
hence, the principle applied therein should be viewed differently in this case. In De Guzman, there were doubts about
the integrity and validity of the test results of the examinees from a particular school which garnered unusually high
scores in the two most difficult subjects. Said doubts called for serious inquiry concerning the applicants satisfactory
compliance with the Board requirements. [34] And as there was no definite showing that the requirements and
conditions to be granted license to practice medicine had been satisfactorily met, the Court held that the writ
of mandamus may not be granted to secure said privilege without thwarting the legislative will. [35]

Indeed, to be granted the privilege to practice medicine, the applicant must show that he possesses all the
qualifications and none of the disqualifications. It must also appear that he has fully complied with all the conditions
and requirements imposed by the law and the licensing authority. [36]

In De Guzman itself, the Court explained that:

A careful reading of Section 20 [37] of the Medical Act of 1959 discloses that the law uses the
word shall with respect to the issuance of certificates of registration. Thus, the petitioners
[PRC] shall sign and issue certificates of registration to those who have satisfactorily complied with the
requirements of the Board. In statutory construction the term shall is a word of command. It is given
imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his
physician's license, the Board is obliged to administer to him his oath and register him as a physician,
pursuant to Section 20 and par. (1) of Section 22 of the Medical Act of 1959.[38]

In this case, there is no doubt as to the competence and qualifications of respondent. He finished his medical
degree from Bicol Christian College of Medicine.He completed a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, a government hospital. Then he passed the Medical Board Examinations
which was given on August 8, 1992 with a general average of 81.83, with scores higher than 80 in 9 of the 12
subjects.
 In fine, the only matter being questioned by petitioners is the alleged failure of respondent to prove that there
is reciprocity between the laws of Japan and the Philippines in admitting foreigners into the practice of
medicine. Respondent has satisfactorily complied with the said requirement and the CA has not committed any
reversible error in rendering its Decision dated November 16, 2004 and Resolution dated October 19, 2003.

WHEREFORE, the petition is hereby DENIED for lack of merit. SO ORDERED.

SPOUSES FREDELICTO FLORES G.R. No. 158996

(deceased) and FELICISIMA FLORES,

Petitioners,
Promulgated:

November 14, 2008

- versus -

SPOUSES DOMINADOR PINEDA and

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

Respondents.

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

DECISION

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

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

1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors
Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of Teresita
Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida,
Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by
way of moral damages;

2) Ordering the above-named defendant-appellants to jointly and severally pay the above-
named plaintiff-appellees the sum of P100,000.00 by way of exemplary damages;

3) Ordering the above-named defendant-appellants to jointly and severally pay the above-
named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory
damages; and

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

SO ORDERED.

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

BACKGROUND FACTS

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

Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult
Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with
her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then
so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto
arrived, he did a routine check-up and ordered Teresitas admission to the hospital. In the admission slip, he directed
the hospital staff to prepare the patient for an on call D&C[5] operation to be performed by his wife, Dr. Felicisima
Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took
her blood and urine samples for the laboratory tests [6] which Dr. Fredelicto ordered.
 At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr.
Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the
patients medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own
briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15
minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for
the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were
available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]

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

A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as a
confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.[9] Dr. Felicisima,
however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for
hospital confinement.

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

By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in breathing and was rushed
to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II.[10] Insulin
was administered on the patient, but the medication might have arrived too late. Due to complications induced by
diabetes, Teresita died in the morning of May 6, 1987.[11]

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

The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary damages, plus attorneys
fees and costs.[12] The CA affirmed the judgment, but modified the amount of damages awarded and deleted the
award for attorneys fees and costs of suit.[13]

Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto (now deceased) and Dr.
Felicisima Flores allege that the RTC and CA committed a reversible error in finding them liable through negligence for
the death of Teresita Pineda.

ASSIGNMENT OF ERRORS

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

We do not find the petition meritorious.

The respondents claim for damages is predicated on their allegation that the decision of the petitioner spouses to
proceed with the D&C operation, notwithstanding Teresitas condition and the laboratory test results, amounted to
negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted
procedure to address vaginal bleeding the medical problem presented to them. Given that the patient died after the
D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or
one amounting to negligence.

Elements of a Medical Negligence Case

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

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

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

Standard of Care and Breach of Duty

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

DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C
for diagnostic purposes.

xxx xxx xxx

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

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

Q: Why do you consider the time of performance of the D&C not appropriate?

A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the
urine, and blood sugar was 10.67

Q: What is the significance of the spillage in the urine?

A: It is a sign that the blood sugar is very high.

Q: Does it indicate sickness?

A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.

COURT: In other words, the operation conducted on the patient, your opinion, that it is
inappropriate?

A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion,
that D&C should be postponed a day or two.[22]

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

The petitioner spouses contentions, in our view, miss several points. First, as early as April 17, 1987,
Teresita was already suspected to be suffering from diabetes. [25] This suspicion again arose right before the D&C
operation on April 28, 1987 when the laboratory result revealed Teresitas increased blood sugar level.
[26]
Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with
the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses were duly advised
that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst all of which
are classic symptoms of diabetes. [27] When a patient exhibits symptoms typical of a particular disease, these
symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the
suspected disease:

[Expert testimony for the plaintiff showed that] tests should have been ordered immediately
on admission to the hospital in view of the symptoms presented, and that failure to recognize the
existence of diabetes constitutes negligence. [28]

Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not
therefore be held accountable for complications coming from other sources. This is a very narrow and self-serving
view that even reflects on their competence.
 Taken together, we find that reasonable prudence would have shown that diabetes and its complications were
foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers
from some disability that increases the magnitude of risk to him, that disability must be taken into
account so long as it is or should have been known to the physician. [29] And when the patient is exposed to an
increased risk, it is incumbent upon the physician to take commensurate and adequate precautions.

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

Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-
threatening that urgent first-aid measures are required. [32]Indeed, the expert witnesses declared that a D&C operation
on a hyperglycemic patient may be justified only when it is an emergency case when there is profuse vaginal
bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse
bleeding, not only because the statements were self-serving, but also because the petitioner spouses were
inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the bleeding, [33] but
later on said that he did not see it and relied only on Teresitas statement that she was bleeding. [34] He went on to
state that he scheduled the D&C operation without conducting any physical examination on the patient.

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

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

The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but
rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation
is driven by findings on history and physical examination suggestive of organ system dysfunction The
goal is to uncover problem areas that may require further investigation or be amenable to
preoperative optimization.

If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of

an underlying disease process, consultation with an internist or medical specialist may be required to
facilitate the work-up and direct management. In this process, communication between the surgeons
and the consultants is essential to define realistic goals for this optimization process and to expedite
surgical management.[39] [Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the

laboratory results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a

telephone report of the preliminary laboratory result prior to the D&C. This preliminary report did not include the 3+

status of sugar in the patients urine[40] a result highly confirmatory of diabetes.

Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented a far

greater risk than her on-and-off vaginal bleeding.The presence of hyperglycemia in a surgical patient is associated

with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality. [41] Elective

surgery in people with uncontrolled diabetes should preferably be scheduled after acceptable glycemic control has been

achieved.[42]According to Dr. Mercado, this is done by administering insulin on the patient. [43]

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

The prudent move is to address the patients hyperglycemic state immediately and promptly before any other

procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or

during the D&C operation. Insulin was only administered two days after the operation.

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

The above facts, point only to one conclusion that the petitioner spouses failed, as medical professionals, to
comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing
surgery. Whether this breach of duty was the proximate cause of Teresitas death is a matter we shall next determine.

Injury and Causation

As previously mentioned, the critical and clinching factor in a medical negligence case is proof of the causal

connection between the negligence which the evidence established and the plaintiffs injuries; [45] the plaintiff must

plead and prove not only that he had been injured and defendant has been at fault, but also that the defendants fault

caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be

proven within a reasonable medical probability based upon competent expert testimony. [46]

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

Immediate cause: Cardiorespiratory arrest

Antecedent cause: Septicemic shock, ketoacidocis

Underlying cause: Diabetes Mellitus II

Other significant conditions

 contributing to death: Renal Failure Acute[47]

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of

physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when stress

occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are counter-

regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death. [48] Medical literature

further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When

this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste

products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a medical emergency with a

significant mortality).[49] This was apparently what happened in Teresitas case; in fact, after she had been referred to

the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the

normal blood sugar range. Thus, between the D&C and death was the diabetic complication that could have been

prevented with the observance of standard medical precautions. The D&C operation and Teresitas death due to

aggravated diabetic condition is therefore sufficiently established.

The trial court and the appellate court pinned the liability for Teresitas death on both the petitioner spouses

and this Court finds no reason to rule otherwise.However, we clarify that Dr. Fredelictos negligence is not solely the

act of ordering an on call D&C operation when he was mainly an anaesthesiologist who had made a very cursory

examination of the patients vaginal bleeding complaint. Rather, it was his failure from the very start to identify and

confirm, despite the patients complaints and his own suspicions, that diabetes was a risk factor that should be

guarded against, and his participation in the imprudent decision to proceed with the D&C operation despite his early

suspicion and the confirmatory early laboratory results. The latter point comes out clearly from the following exchange

during the trial:

Q: On what aspect did you and your wife consult [with] each other?

A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal,
the blood sugar was elevated, so that we have to evaluate these laboratory results what it
means.

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

A: Yes, sir.

Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed?

A: Yes, anyway, she asked me whether we can do D&C based on my experience.

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

A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]

If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for

which reason he referred Teresita to Dr. Jorge), [51] he should have likewise refrained from making a decision to

proceed with the D&C operation since he was niether an obstetrician nor a gynecologist.

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

Liability of the Hospital

 In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC found the hospital jointly and
severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006,
this Court however denied UDMCs petition for review on certiorari. Since UDMCs appeal has been denied and they are
not parties to this case, we find it unnecessary to delve on the matter. Consequently, the RTCs decision, as affirmed
by the CA, stands.

Award of Damages

Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the
respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on
account of Teresitas confinement and death. The settled rule is that a plaintiff is entitled to be compensated for
proven pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm the award of actual
damages of P36,000.00 representing the hospital expenses the patient incurred.

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

The same article allows the recovery of moral damages in case of death caused by a quasi-delict and
enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral
damages are designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious
anxiety, wounded feelings which the respondents herein must have surely felt with the unexpected loss of their
daughter. We affirm the appellate courts award ofP400,000.00 by way of moral damages to the respondents.

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

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

WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding
petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory
damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by
reversing the deletion of the award of attorneys fees and costs and restoring the award of P100,000.00 as attorneys
fees. Costs of litigation are adjudged against petitioner spouses.

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

1. The sum of P36,000.00 by way of actual and compensatory damages;

2. The sum of P50,000.00 by way of death indemnity;

 3. The sum of P400,000.00 by way of moral damages;

4. The sum of P100,000.00 by way of exemplary damages;

5. The sum of P100,000.00 by way of attorneys fees; and

6. Costs.

SO ORDERED.

G.R. No. 159132 December 18, 2008

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

DECISION

AUSTRIA-MARTINEZ, J.:

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

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical
Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone,
Editha was admitted to the LMC on the same day. A pelvic sonogram 2 was then conducted on Editha revealing the
fetus weak cardiac pulsation. 3 The following day, Edithas repeat pelvic sonogram 4 showed that aside from the fetus
weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding,
petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa."

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

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

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

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

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

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

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

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

When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an
ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not
specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless
so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if
she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C
conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse
bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic
pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore,
a more extensive operation needed in this case of pregnancy in order to remove the fetus. 15

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

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

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

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

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

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

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

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

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

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

7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE

MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;

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

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

The Court will first deal with the procedural issues.

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

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

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

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

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

The Court does not agree.

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

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

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

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

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

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

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

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43 32 of the Rules of
Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just
because it is not mentioned therein.34

On this point, the Court agrees with the petitioner.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Atty. Hidalgo:

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

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

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

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

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

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

Atty. Ragonton:

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

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

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

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

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

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

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

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

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

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

A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone
orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day
practice somehow justifies telephone orders. I have patients whom I have justified and then all of a
sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go
home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our
resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full
grasp of her problems. So, thats when I make this telephone orders. And, of course before giving that order I
ask about how she feels.53 (Emphases supplied)

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

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 54 of the Civil
Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:

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

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

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

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

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

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

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha
omitted the diligence required by the circumstances which could have avoided the injury. The omission in not
returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha
returned, petitioner could have conducted the proper medical tests and procedure necessary to determine Edithas
health condition and applied the corresponding treatment which could have prevented the rupture of Edithas uterus.
The D&C procedure having been conducted in accordance with the standard medical practice, it is clear that Edithas
omission was the proximate cause of her own injury and not merely a contributory negligence on her part.

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

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

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

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

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

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

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR
SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999
exonerating petitioner is AFFIRMED. No pronouncement as to costs. SO ORDERED.

PETER PAUL PATRICK LUCAS, FATIMA G. R. No. 178763

GLADYS LUCAS, ABBEYGAIL LUCAS
AND GILLIAN LUCAS,
Petitioners,

- versus -

Promulgated:

DR. PROSPERO MA. C. TUAO,

April 21, 2009
Respondent.
x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:
 In this petition for review on certiorari[1] 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 Decision[2] 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 ophthalmoscopy [4] on Peters

eyes was used. On that particular consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis[5] or

sore eyes. Dr. Tuao then prescribed Spersacet-C[6] 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 check-up

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, Blephamide[12]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.

xxxx

ADVERSE 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 tonometer[16] to verify

the exact intraocular pressure[17] (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 ordered[20] 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.[24]

Peter 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 Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] 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 follow-ups 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 vis--vis 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 tab every 6h po.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was
circumferential peripheral iris atrophy, OD. The lenses were clear.

Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy[35] 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 Timolol [37] BID[38] OD in lieu of Normoglaucon. If the IOP is still inadequate,
we may try Depifrin[39] 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, TimololB.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 study[43] of Peters eyes, which revealed that the latter

had tubular vision[44] 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 7 th, 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 follow-ups.

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 glaucoma[45] and blaming Dr. Tuao for the same, Peter, joined by: (1)

Fatima, his spouse[46]; (2) Abbeygail, his natural child[47]; and (3) Gillian, his legitimate child [48] 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 P2,000,000.00 to plaintiff Peter Lucas as and
by way of compensation for his impaired vision.

2. The amount of P300,000.00 to spouses Lucas as and

by way of actual damages plus such additional amounts
that may be proven during trial.

3. The amount of P1,000,000.00 as and by way of

moral damages.

4. The amount of P500,000.00 as and by way of

exemplary damages.

5. The amount of P200,000.00 as and by way of

attorneys fees plus costs of suit.[54]

In 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.[64]

The 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. [67]

Like 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.[68]

Petitioners 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 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. [70]
 Elementary 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.

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%.[74]

We 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.,

(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

check-up 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:D [97] 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 vis--vis 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 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 so-called 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.

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.

G.R. No. 126297 February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467

NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya,
Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners,
vs.
THE COURT OF APPEALS and JUAN FUENTES, Respondents.

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

G.R. No. 127590

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

RESOLUTION

CORONA, J.:

With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration 2urging
referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and resolution
dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana
and the heirs of Natividad Agana (Aganas).

Manila Medical Services, Inc. (MMSI), 3 Asian Hospital, Inc. (AHI), 4 and Private Hospital Association of the Philippines
(PHAP)5 all sought to intervene in these cases invoking the common ground that, unless modified, the assailed
decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of health care.

The Special First Division of the Court granted the motions for intervention of MMSI, AHI and PHAP (hereafter
intervenors),6 and referred en consulta to the Court en banc the motion for prior leave of court and the second motion
for reconsideration of PSI.7

Due to paramount public interest, the Court en banc accepted the referral8 and heard the parties on oral arguments
on one particular issue: whether a hospital may be held liable for the negligence of physicians-consultants allowed to
practice in its premises.9

To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was
impleaded by Enrique Agana and Natividad Agana (later substituted by her heirs), in a complaint 10 for damages filed in
the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil and
Dr. Fuentes neglected to remove from her body two gauzes 11 which were used in the surgery they performed on her
on April 11, 1984 at the Medical City General Hospital. PSI was impleaded as owner, operator and manager of the
hospital.

In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for
damages.13 On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI,
subject to the right of PSI to claim reimbursement from Dr. Ampil. 141avvphi1

On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision. 15 PSI filed a motion for
reconsideration16 but the Court denied it in a resolution dated February 11, 2008. 17

The Court premised the direct liability of PSI to the Aganas on the following facts and law:

First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated in the December
29, 1999 decision in Ramos v. Court of Appeals18 that "for purposes of allocating responsibility in medical negligence
cases, an employer-employee relationship exists between hospitals and their consultants." 19Although the Court
in Ramos later issued a Resolution dated April 11, 2002 20 reversing its earlier finding on the existence of an
employment relationship between hospital and doctor, a similar reversal was not warranted in the present case
because the defense raised by PSI consisted of a mere general denial of control or responsibility over the actions of
Dr. Ampil.21

Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that he was its
agent.22 Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with said
doctor about his wife's (Natividad's) condition. 23 After his meeting with Dr. Ampil, Enrique asked Natividad to
personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at the back of
their minds was that the latter was a staff member of a prestigious hospital. Thus, under the doctrine of apparent
authority applied in Nogales, et al. v. Capitol Medical Center, et al.,25 PSI was liable for the negligence of Dr. Ampil.

Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide comprehensive
medical services to Natividad Agana, to exercise reasonable care to protect her from harm, 26 to oversee or supervise
all persons who practiced medicine within its walls, and to take active steps in fixing any form of negligence
committed within its premises. 27 PSI committed a serious breach of its corporate duty when it failed to conduct an
immediate investigation into the reported missing gauzes. 28

PSI is now asking this Court to reconsider the foregoing rulings for these reasons:

The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the ruling in Ramos
vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that "an employer-employee relations exists between
hospital and their consultants" stays should be set aside for being inconsistent with or contrary to the import of the
resolution granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11,
2002), which is applicable to PSI since the Aganas failed to prove an employer-employee relationship between PSI
and Dr. Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found that there is no
employer-employee relationship in this case and that the doctor's are independent contractors.

II

Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically look to the
Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents Aganas did not select Medical
City Hospital (PSI) to provide medical care because of any apparent authority of Dr. Miguel Ampil as its agent since
the latter was chosen primarily and specifically based on his qualifications and being friend and neighbor.

III

PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was the
negligence of Dr. Ampil, which is an element of the principle of corporate negligence. 29

In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the existence of an
employer-employee relationship between private hospitals and consultants will force a drastic and complex alteration
in the long-established and currently prevailing relationships among patient, physician and hospital, with burdensome
operational and financial consequences and adverse effects on all three parties. 30

The Aganas comment that the arguments of PSI need no longer be entertained for they have all been traversed in the
assailed decision and resolution.31

After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle
of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of
ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its
failure to perform its duties as a hospital.

While in theory a hospital as a juridical entity cannot practice medicine, 32 in reality it utilizes doctors, surgeons and
medical practitioners in the conduct of its business of facilitating medical and surgical treatment. 33 Within that reality,
three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2)
between the hospital and the patient being treated or examined within its premises and (3) between the patient and
the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the
negligence of the doctor.

Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 34 in relation to
Article 218035 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists
but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation to Article 1431 36 and Article 186937 of the Civil Code or the principle of
apparent authority.38 Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable
to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as
a corporation.39

This Court still employs the "control test" to determine the existence of an employer-employee relationship between
hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al. 40 it held:

Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls
both the means and the details of the process by which the physician is to accomplish his task.

xxx xxx xxx

As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its
medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be
observed under pain of administrative sanctions.

That petitioner exercised control over respondents gains light from the undisputed fact that in the
emergency room, the operating room, or any department or ward for that matter, respondents' work is
monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent
of petitioner or its medical director, no operations can be undertaken in those areas. For control test to
apply, it is not essential for the employer to actually supervise the performance of duties of the employee,
it being enough that it has the right to wield the power. (emphasis supplied)

Even in its December 29, 1999 decision 41 and April 11, 2002 resolution 42 in Ramos, the Court found the control test
decisive.

In the present case, it appears to have escaped the Court's attention that both the RTC and the CA found no
employment relationship between PSI and Dr. Ampil, and that the Aganas did not question such finding. In its
March 17, 1993 decision, the RTC found "that defendant doctors were not employees of PSI in its hospital, they being
merely consultants without any employer-employee relationship and in the capacity of independent contractors." 43 The
Aganas never questioned such finding.

PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the issues of negligence, agency and
corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-
employee, but it was clear in its discussion on the matter that it viewed their relationship as one of mere apparent
agency.45

The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes. 46 PSI also appealed
from the CA decision, and it was then that the issue of employment, though long settled, was unwittingly resurrected.

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee relationship,
such finding became final and conclusive even to this Court. 47 There was no reason for PSI to have raised it as an
issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely academic.

Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent
finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor
in testing the employer-employee relationship between doctor and hospital under which the hospital could be held
vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of
evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the
means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad.
Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat
superior.

There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) 48 that the doctor (Dr.
Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied
manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the
patients reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence. 49

Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that after the
meeting and as advised by Dr. Ampil, he "asked [his] wife to go to Medical City to be examined by [Dr. Ampil]"; and
that the next day, April 3, he told his daughter to take her mother to Dr. Ampil. 50 This timeline indicates that it was
Enrique who actually made the decision on whom Natividad should consult and where, and that the latter merely
acceded to it. It explains the testimony of Natividad that she consulted Dr. Ampil at the instigation of her daughter. 51

Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:

Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact with in connection
with your wife's illness?

A. First, before that, I have known him to be a specialist on that part of the body as a surgeon, second, I have known
him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a
neighbor, I expect more than the usual medical service to be given to us, than his ordinary patients. 52 (emphasis
supplied)

Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression
that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and
prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that PSI required a
"consent for hospital care"53 to be signed preparatory to the surgery of Natividad. The form reads:

Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform
such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or
advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied)

By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather
than one independently practicing in it; that the medications and treatments he prescribed were necessary and
desirable; and that the hospital staff was prepared to carry them out.1avvphi1

PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas
decision to have Natividad treated in Medical City General Hospital, meaning that, had Dr. Ampil been affiliated with
another hospital, he would still have been chosen by the Aganas as Natividad's surgeon. 54

The Court cannot speculate on what could have been behind the Aganas decision but would rather adhere strictly to
the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a
staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad
to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a way that fortified
Enrique's belief.

This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its
ostensible agent.

Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for Reconsideration:

51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's acts during the
operation. Considering further that Dr. Ampil was personally engaged as a doctor by Mrs. Agana, it is incumbent upon
Dr. Ampil, as "Captain of the Ship", and as the Agana's doctor to advise her on what to do with her situation vis-a-vis
the two missing gauzes. In addition to noting the missing gauzes, regular check-ups were made and no
signs of complications were exhibited during her stay at the hospital, which could have alerted petitioner
PSI's hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor
of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her discharge is borne
by the finding of facts in this case. Likewise evident therefrom is the absence of any complaint from Mrs.
Agana after her discharge from the hospital which had she brought to the hospital's attention, could have
alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's attention. But this was not
the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI
possibly do something to fix the negligence committed by Dr. Ampil when it was not informed about it at
all.55 (emphasis supplied)

PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital of her discomfort and
pain, the hospital would have been obliged to act on it."56

The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to control the means or method by which Dr.
Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may
have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence
may have attended any procedure done inside its premises, with the ultimate end of protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence 57 in the hospital
industry, it assumed a duty to "tread on" the "captain of the ship" role of any doctor rendering services within its
premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case,
specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient;
(b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c)
that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and
correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept
of corporate responsibility was not yet in existence at the time Natividad underwent treatment; 58 and that if it had any
corporate responsibility, the same was limited to reporting the missing gauzes and did not include "taking an active
step in fixing the negligence committed." 59 An admission made in the pleading cannot be controverted by the party
making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent
therewith should be ignored, whether or not objection is interposed by a party. 60

Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital measured
up to it.

PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of
informing Natividad about the two missing gauzes. 61 Dr. Ricardo Jocson, who was part of the group of doctors that
attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but
Dr. Ampil assured them that he would personally notify the patient about it. 62 Furthermore, PSI claimed that there
was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of
complications. She did not even inform the hospital about her discomfort. 63

The excuses proffered by PSI are totally unacceptable.

To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review
what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by
whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to
Natividads recovery. Certainly, PSI could not have expected that purpose to be achieved by merely hoping that the
person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate
conduct, PSI's duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI imposed
upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose
of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the
second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent
a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil
negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises,
PSI had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially
when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation of Natividad which
reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should not have
waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what
transpired during Natividads operation. Rather, it shirked its responsibility and passed it on to others to Dr. Ampil
whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its
inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence
attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its
premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a
direct liability to the Aganas distinct from that of Dr. Ampil.

All this notwithstanding, we make it clear that PSIs hospital liability based on ostensible agency and corporate
negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis
to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The
ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and an admitted
corporate duty to Natividad.64

Other circumstances peculiar to this case warrant this ruling, 65 not the least of which being that the agony wrought
upon the Aganas has gone on for 26 long years, with Natividad coming to the end of her days racked in pain and
agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the report of a guaze
count discrepancy, initiate a review of what went wrong and take corrective measures to ensure the safety of Nativad.
Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such responsibility to its patient.
Meanwhile, the options left to the Aganas have all but dwindled, for the status of Dr. Ampil can no longer be
ascertained.66

Therefore, taking all the equities of this case into consideration, this Court believes P15 million would be a fair and
reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.

WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED.

Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana
III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount
of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.

No further pleadings by any party shall be entertained in this case.

Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this resolution.
SO ORDERED.

G.R. No. 187926 February 15, 2012

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 Decision 2 of the Court
of Appeals (CA), and its May 19, 2009 Resolution 3 in CA-G.R. CR No. 29559, dismissing the appeal and affirming in
toto the June 14, 2005 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 X-ray result showed no
fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own
examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to
examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and
misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a
right mid-tibial fracture and a linear hairline fracture in the shaft of the bone.

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

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence
Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:

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

It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her
arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her
apprehension.

SO ORDERED.6

The RTC explained:

After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds
that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the
mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent
when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso
Santiago, Jr.

However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but
merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases
in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of
simple imprudence are as follows.

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

2. that the damage impending to be caused is not immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical
injuries. Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum
period.7

Dissatisfied, the petitioners appealed to the CA.

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

This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction
against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements
of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is
voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is
inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation,
degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of precaution" in the treatment of their
patient is to be determined according to the standard of care observed by other members of the profession in good
standing under similar circumstances, bearing in mind the advanced state of the profession at the time of treatment
or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated
that, in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence,
and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as
well as a causal connection of such breach and the resulting injury of his patient. The connection between the
negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.
In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists,
cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an
injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury and without which the result would not have occurred.

In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no
causal connection between their failure to diagnose the fracture and the injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the
accused-appellants to correctly diagnose the extent of the injury sustained by Roy.

For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa
loquitur to 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

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.

A: I just listened to them, sir. And I just asked if I will still return my son.

Q: And you were present when they were called?

A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?

A: When they were there they admitted that they have mistakes, sir.

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

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

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the "control of the instrumentality" which caused the damage.
Such element of control must be shown to be within the dominion of the accused-appellants. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable and
must establish that the essential elements of the doctrine were present in a particular incident. The early treatment of
the leg of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose
leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical
attention. As junior residents who only practice general surgery and without specialization with the case consulted
before them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence
on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg, they
refused to do so. The mother would not have asked them if they had no exclusive control or prerogative to request an
x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician.

The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his
personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?

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

Q: You mean to say there is no supervisor attending the emergency room?

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

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements
and acts of physicians, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at
bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made
between the failure to secure results and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that particular practice. The latter
circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa
loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the
trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious
physical injuries is hereby AFFIRMED in toto.

SO ORDERED.8

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.

Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following

GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT

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

2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING

PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR.
CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING
OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE
EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING,
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE
DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS,
AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE
WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY
(PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP

EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT
BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE
EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR
THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE

CRIME CHARGED."9

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is
applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records,
however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is
also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case.

As to the Application 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.

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.

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

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.

A: They are general surgeon residents. You have to man[x] the emergency room, including neurology,
orthopedic, general surgery, they see everything at the emergency room.

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 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 P 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 P 100,000.00
and P50,000.00, 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. 1wphi1 Article 2229
of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public
good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008
is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou
Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the
amounts of:

(1) P 3,850.00 as actual damages;

(2) P 100,000.00 as moral damages;

(3) P 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.
R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

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, 1992 2 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.5Dr. 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.8His
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,13alleging:

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

Contrary to law.14

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

Judgment of the RTC

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

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

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

SO ORDERED.17

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

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one
(1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.

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

Decision of the CA

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

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

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.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010. 22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE 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.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

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

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

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

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

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

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill
and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in
the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in
the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth
while a 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.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act.33

Dr. 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).

xxxx

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

A Yes, sir in general sir.41

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

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

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

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

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

Q 100%?

A 100% based on the records.

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

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.

xxxx

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

WITNESS Well, that is a major operation sir.

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

A That is a possibility sir.

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

A Yes, sir.

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

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that 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." 45However, the foregoing
circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly
imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. 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. 1wphi1 But
we cannot now find and declare him civilly liable because the circumstances that have been established here do not
present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of
administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the
cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent
evidence.

Liability of Ospital ng Maynila

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

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

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

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

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable
pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions
for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of
the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The
term industry means any department or branch of art, occupation or business, especially one that employs labor and
capital, and is engaged in industry. 49 However, Ospital ng Maynila, being a public hospital, was not engaged in
industry conducted for profit but purely in charitable and humanitarian work. 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.
ORLANDO D. GARCIA, JR., G.R. No. 168512

doing business under the name and

style COMMUNITY DIAGNOSTIC

CENTER and BU CASTRO,[1]

Petitioners,

- versus -

RANIDA D. SALVADOR and

RAMON SALVADOR, Promulgated:

Respondents.

March 20, 2007

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

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review[2] under Rule 45 of the Rules of Court assailing the February 27, 2004 Decision [3] of

the Court of Appeals in CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia liable for gross negligence; and its

June 16, 2005 Resolution[4] denying petitioners motion for reconsideration.

On October 1, 1993, respondent Ranida D. Salvador started working as a trainee in the Accounting

Department of Limay Bulk Handling Terminal, Inc. (the Company). As a prerequisite for regular employment, she

underwent a medical examination at the Community Diagnostic Center (CDC). Garcia who is a medical technologist,

conducted the HBs Ag (Hepatitis B Surface Antigen) test and on October 22, 1993, CDC issued the test

result[5] indicating that Ranida was HBs Ag: Reactive. The result bore the name and signature of Garcia as examiner

and the rubber stamp signature of Castro as pathologist.

When Ranida submitted the test result to Dr. Sto. Domingo, the Company physician, the latter apprised her

that the findings indicated that she is suffering from Hepatitis B, a liver disease. Thus, based on the medical

report[6] submitted by Sto. Domingo, the Company terminated Ranidas employment for failing the physical

examination.[7]

When Ranida informed her father, Ramon, about her ailment, the latter suffered a heart attack and was confined at

the Bataan Doctors Hospital. During Ramons confinement, Ranida underwent another HBs Ag test at the said hospital
and the result[8] indicated that she is non-reactive. She informed Sto. Domingo of this development but was told that

the test conducted by CDC was more reliable because it used the Micro-Elisa Method.

Thus, Ranida went back to CDC for confirmatory testing, and this time, the Anti-HBs test conducted on her indicated a

Negative result.[9]

Ranida also underwent another HBs Ag test at the Bataan Doctors Hospital using the Micro-Elisa Method. The result

indicated that she was non-reactive.[10]

Ranida submitted the test results from Bataan Doctors Hospital and CDC to the Executive Officer of the Company who

requested her to undergo another similar test before her re-employment would be considered. Thus, CDC conducted

another HBs Ag test on Ranida which indicated a Negative result. [11] Ma. Ruby G. Calderon, Med-Tech Officer-in-

Charge of CDC, issued a Certification correcting the initial result and explaining that the examining medical

technologist (Garcia) interpreted the delayed reaction as positive or reactive. [12]

Thereafter, the Company rehired Ranida.

On July 25, 1994, Ranida and Ramon filed a complaint [13] for damages against petitioner Garcia and a purportedly

unknown pathologist of CDC, claiming that, by reason of the erroneous interpretation of the results of Ranidas

examination, she lost her job and suffered serious mental anxiety, trauma and sleepless nights, while Ramon was

hospitalized and lost business opportunities.

On September 26, 1994, respondents amended their complaint [14] by naming Castro as the unknown pathologist.

Garcia denied the allegations of gross negligence and incompetence and reiterated the scientific explanation for the

false positive result of the first HBs Ag test in his December 7, 1993 letter to the respondents.[15]

For his part, Castro claimed that as pathologist, he rarely went to CDC and only when a case was referred to

him; that he did not examine Ranida; and that the test results bore only his rubber-stamp signature.

On September 1, 1997,[16] the trial court dismissed the complaint for failure of the respondents to present sufficient

evidence to prove the liability of Garcia and Castro. It held that respondents should have presented Sto. Domingo

because he was the one who interpreted the test result issued by CDC. Likewise, respondents should have presented

a medical expert to refute the testimonies of Garcia and Castro regarding the medical explanation behind the

conflicting test results on Ranida.[17]

Respondents appealed to the Court of Appeals which reversed the trial courts findings, the dispositive portion of which

states:

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and another one
entered ORDERING defendant-appellee Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D.
 Salvador moral damages in the amount of P50,000.00, exemplary damages in the amount of
P50,000.00 and attorneys fees in the amount of P25,000.00. SO ORDERED.[18]

The appellate court found Garcia liable for damages for negligently issuing an erroneous HBs Ag result. On the other

hand, it exonerated Castro for lack of participation in the issuance of the results.

After the denial of his motion for reconsideration, Garcia filed the instant petition.

The main issue for resolution is whether the Court of Appeals, in reversing the decision of the trial court,

correctly found petitioner liable for damages to the respondents for issuing an incorrect HBsAG test result.

Garcia maintains he is not negligent, thus not liable for damages, because he followed the appropriate laboratory

measures and procedures as dictated by his training and experience; and that he did everything within his

professional competence to arrive at an objective, impartial and impersonal result.

At the outset, we note that the issues raised are factual in nature. Whether a person is negligent or not is a

question of fact which we cannot pass upon in a petition for review on certiorari which is limited to reviewing errors of

law.[19]

Negligence is the failure to observe for the protection of the interest of another person that degree of care,

precaution and vigilance which the circumstances justly demand, [20] whereby such other person suffers injury. For

health care providers, the test of the existence of negligence is: did the health care provider either fail to do

something which a reasonably prudent health care provider would have done, or that he or she did something that a

reasonably prudent health care provider would not have done; and that failure or action caused injury to the patient;
[21]
if yes, then he is guilty of negligence.

Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3) injury, and 4) proximate causation.

All the elements are present in the case at bar.

Owners and operators of clinical laboratories have the duty to comply with statutes, as well as rules and

regulations, purposely promulgated to protect and promote the health of the people by preventing the operation of

substandard, improperly managed and inadequately supported clinical laboratories and by improving the quality of

performance of clinical laboratory examinations. [22] Their business is impressed with public interest, as such, high

standards of performance are expected from them.

In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner of a furniture shop liable for the destruction

of the plaintiffs house in a fire which started in his establishment in view of his failure to comply with an ordinance

which required the construction of a firewall. In Teague v. Fernandez, we stated that where the very injury which was

intended to be prevented by the ordinance has happened, non-compliance with the ordinance was not only an act of

negligence, but also the proximate cause of the death. [23]

In fine, violation of a statutory duty is negligence. Where the law imposes upon a person the duty to do

something, his omission or non-performance will render him liable to whoever may be injured thereby.

Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The Clinical Laboratory Law, provides:
Sec. 2. It shall be unlawful for any person to be professionally in-charge of a registered clinical
laboratory unless he is a licensed physician duly qualified in laboratory medicine and authorized by the
Secretary of Health, such authorization to be renewed annually.
 No license shall be granted or renewed by the Secretary of Health for the operation and
maintenance of a clinical laboratory unless such laboratory is under the administration, direction and
supervision of an authorized physician, as provided for in the preceding paragraph.

Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH Administrative Order No. 49-B Series of 1988,

otherwise known as the Revised Rules and Regulations Governing the Registration, Operation and Maintenance of

Clinical Laboratories in the Philippines, read:

Sec. 9. Management of the Clinical Laboratory:

9.1 Head of the Clinical Laboratory: The head is that person who assumes
technical and administrative supervision and control of the activities in the
laboratory.

For all categories of clinical laboratories, the head shall be a licensed

physician certified by the Philippine Board of Pathology in either Anatomic or
Clinical Pathology or both provided that:

(1) This shall be mandatory for all categories of free-standing clinical

laboratories; all tertiary category hospital laboratories and for all secondary
category hospital laboratories located in areas with sufficient available
pathologist.

xxxx

Sec. 11. Reporting: All laboratory requests shall be considered as consultations between the
requesting physician and pathologist of the laboratory. As such all laboratory reports on various
examinations of human specimens shall be construed as consultation report and shall bear the name
of the pathologist or his associate. No person in clinical laboratory shall issue a report, orally or in
writing, whole portions thereof without a directive from the pathologist or his authorized associate and
only to the requesting physician or his authorized representative except in emergencies when the
results may be released as authorized by the pathologist.

xxxx

Sec. 25. Violations:

25.1 The license to operate a clinical laboratory may be suspended or revoked by the
Undersecretary of Health for Standards and Regulation upon violation of R.A. 4688 or the rules and
regulations issued in pursuance thereto or the commission of the following acts by the persons owning
or operating a clinical laboratory and the persons under their authority.

(1) Operation of a Clinical Laboratory without a certified pathologist or qualified

licensed physician authorized by the Undersecretary of Health or without
employing a registered medical technologist or a person not registered as a
medical technologist in such a position.

And Section 29(b) of R.A. No. 5527, otherwise known as The Philippine Medical Technology Act of 1969,

reads:

Section 29. Penal Provisions.- Without prejudice to the provision of the Medical Act of 1959, as
amended relating to illegal practice of Medicine, the following shall be punished by a fine of not less
than two thousand pesos nor more than five thousand pesos, or imprisonment for not less than six
months nor more than two years, or both, in the discretion of the court:

xxxx

(b) Any medical technologist, even if duly registered, who shall practice medical technology in
the Philippines without the necessary supervision of a qualified pathologist or physician authorized by
the Department of Health;

From the foregoing laws and rules, it is clear that a clinical laboratory must be administered, directed and

supervised by a licensed physician authorized by the Secretary of Health, like a pathologist who is specially trained in

methods of laboratory medicine; that the medical technologist must be under the supervision of the pathologist or a

licensed physician; and that the results of any examination may be released only to the requesting physician or his

authorized representative upon the direction of the laboratory pathologist.

 These rules are intended for the protection of the public by preventing performance of substandard clinical

examinations by laboratories whose personnel are not properly supervised. The public demands no less than an

effective and efficient performance of clinical laboratory examinations through compliance with the quality standards

set by laws and regulations.

We find that petitioner Garcia failed to comply with these standards.

First, CDC is not administered, directed and supervised by a licensed physician as required by law, but by Ma.

Ruby C. Calderon, a licensed Medical Technologist. [24] In the License to Open and Operate a Clinical Laboratory for the

years 1993 and 1996 issued by Dr. Juan R. Naagas, M.D., Undersecretary for Health Facilities, Standards and

Regulation, defendant-appellee Castro was named as the head of CDC. [25] However, in his Answer with Counterclaim,

he stated:
3. By way of affirmative and special defenses, defendant pathologist further avers and plead as
follows:

Defendant pathologist is not the owner of the Community Diagnostic Center nor an employee
of the same nor the employer of its employees. Defendant pathologist comes to
the Community Diagnostic Center when and where a problem is referred to him. Its employees are
licensed under the Medical Technology Law (Republic Act No. 5527) and are certified by, and
registered with, the Professional Regulation Commission after having passed their Board
Examinations. They are competent within the sphere of their own profession in so far as conducting
laboratory examinations and are allowed to sign for and in behalf of the clinical laboratory. The
defendant pathologist, and all pathologists in general, are hired by laboratories for purposes of
complying with the rules and regulations and orders issued by the Department of Health through the
Bureau of Research and Laboratories.Defendant pathologist does not stay that long period of time at
the Community Diagnostic Center but only periodically or whenever a case is referred to him by the
laboratory. Defendant pathologist does not appoint or select the employees of the laboratory nor does
he arrange or approve their schedules of duty. [26]

Castros infrequent visit to the clinical laboratory barely qualifies as an effective administrative supervision and

control over the activities in the laboratory. Supervision and control means the authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the

commission of acts; review, approve, revise or modify acts and decisions of subordinate officials or units. [27]

Second, Garcia conducted the HBsAG test of respondent Ranida without the supervision of defendant-appellee

Castro, who admitted that:

[He] does not know, and has never known or met, the plaintiff-patient even up to this time
nor has he personally examined any specimen, blood, urine or any other tissue, from the plaintiff-
patient otherwise his own handwritten signature would have appeared in the result and not merely
stamped as shown in Annex B of the Amended Complaint. [28]

Last, the disputed HBsAG test result was released to respondent Ranida without the authorization of

defendant-appellee Castro.[29]

Garcia may not have intended to cause the consequences which followed after the release of the HBsAG test

result. However, his failure to comply with the laws and rules promulgated and issued for the protection of public

safety and interest is failure to observe that care which a reasonably prudent health care provider would

observe. Thus, his act or omission constitutes a breach of duty.

Indubitably, Ranida suffered injury as a direct consequence of Garcias failure to comply with the mandate of

the laws and rules aforequoted. She was terminated from the service for failing the physical examination; suffered

anxiety because of the diagnosis; and was compelled to undergo several more tests. All these could have been

avoided had the proper safeguards been scrupulously followed in conducting the clinical examination and releasing the

clinical report.

Article 20 of the New Civil Code provides:

 Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.

The foregoing provision provides the legal basis for the award of damages to a party who suffers damage

whenever one commits an act in violation of some legal provision. [30] This was incorporated by the Code Commission

to provide relief to a person who suffers damage because another has violated some legal provision. [31]

We find the Court of Appeals award of moral damages reasonable under the circumstances bearing in mind

the mental trauma suffered by respondent Ranida who thought she was afflicted by Hepatitis B, making her unfit or

unsafe for any type of employment. [32] Having established her right to moral damages, we see no reason to disturb

the award of exemplary damages and attorneys fees. Exemplary damages are imposed, by way of example or

correction for the public good, in addition to moral, temperate, liquidated or compensatory damages, [33] and attorneys

fees may be recovered when, as in the instant case, exemplary damages are awarded. [34]

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 58668 dated February 27, 2004 finding

petitioner Orlando D. Garcia, Jr. guilty of gross negligence and liable to pay to respondents P50,000.00 as moral

damages, P50,000.00 as exemplary damages, and P25,000.00 as attorneys fees, is AFFIRMED. SO ORDERED.