584 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

*
G.R. No. 124354. December 29, 1999.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf

and as natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs. COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

Remedial Law; Pleadings and Practice; When a party is represented

by counsel, all notices should be sent to the party’s lawyer at his given
address.—It is elementary that when a party is represented by counsel, all
notices should be sent to the party’s lawyer at his given address. With a few
exceptions, notice to a litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.—
Res ipsa loquitur is a Latin phrase which literally means “the thing or the
transaction speaks for itself.” The phrase “res ipsa loquitur” is a maxim for
the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff’s prima facie case, and present a
question of fact for defendant to meet with an explanation. Where the thing
which caused the injury complained of is shown to be under the
management of the defen-

________________

* FIRST DIVISION.

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 Ramos vs. Court of Appeals

dant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper
care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant’s
want of care.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction
with the doctrine of common knowledge.—The doctrine of res ipsa loquitur
is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. 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.
Same; Same; Same; Same; Mere invocation and application of the
doctrine does not dispense with the requirement of proof of negligence;
Requisites before resort to the doctrine may be allowed.—Much has been
said that res ipsa loquitur is not a rule of substantive law and, as such, does
not create or constitute an independent or separate ground of liability.
Instead, it is considered as merely evidentiary or in the nature of a
procedural rule. It is regarded as a mode of proof, or a mere procedural
convenience since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. In other words, mere
invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. Still, before resort to
the doctrine may be allowed, the following requisites must be satisfactorily
shown: 1. The accident is of a kind which ordinarily does not occur in the
absence of someone’s negligence; 2. It is caused by an instrumentality
within the exclusive control of the defendant or defendants; and 3. The
possibility of contributing conduct which would make the plaintiff
responsible is eliminated.

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586 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

 Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is
availed by the plaintiff, the need for expert medical testimony is dispensed
with because the injury itself provides the proof of negligence.—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.
Same; Same; Same; Same; 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.—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.
Same; Same; Same; Same; 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.—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

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Ramos vs. Court of Appeals

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.
Hospitals; Damages; Proximate Cause Defined.—Proximate cause has
been defined as that which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury, and without which the
result would not have occurred. An injury or damage is proximately caused
by an act or a failure to act, whenever it appears from the evidence in the
case, that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of the act or
omission. It is the dominant, moving or producing cause.
Same; Same; 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.—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.
Same; Same; The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article 2180 of the Civil Code.
—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. Such responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of the family to
prevent damage. In other words, while the burden of proving negligence
rests

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Ramos vs. Court of Appeals

on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to prevent damage.
Same; Same; Amount of damages awarded may be a continuing one
where the injury is chronic and continuing, as when the patient is comatose.
—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.

PETITION for review on certiorari of a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

     Luis C.A. Sillano for petitioners.
          Macarius S. Galutera for private respondent De los Santos
Medical Center.
          Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for
DLSMC.
     Antonio H. Abad & Associates for respondent doctors.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial

consideration to the health and welfare of their patients. If a doctor
fails to live up to this precept, he is made accountable for his acts. A
mistake, through gross negligence or incompetence or plain human
error, may spell the difference

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between life and death. In this sense, the doctor plays God on his
1
patient’s fate.
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made liable for
the unfortunate 2comatose condition of a patient scheduled for
cholecystectomy.
3
Petitioners seek the reversal of the decision of the Court of
4
Appeals, dated 29 May 1995, which overturned the decision of the
Regional Trial Court, dated 30 January 1992, finding private
respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year
old (Exh. “A”) robust woman (TSN, October 19, 1989, p. 10). Except for
occasional complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company, she has three
children whose names are

________________

1 In the United States alone, a great number of people die every year as a result of medical
mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article on medical
negligence entitled “Doctors’ Deadly Mistakes” which is quoted in part: “It is hardly news that
medical professionals make mistakes—even dumb, deadly mistakes. What is shocking is how
often it happens. Depending on which statistics you believe, the number of Americans killed by
medical screw-ups is somewhere between 44,000 and 98,000 every year—the eighth leading
cause of death even by the more conservative figure, ahead of car crashes, breast cancer and
AIDS. More astonishing than the huge numbers themselves, though, is the fact that public
health officials had known about the problem for years and hadn’t made a concerted effort to do
something about it.”
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.

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Ramos vs. Court of Appeals

Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she
sought professional advice. She was advised to undergo an operation for the
removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She
underwent a series of examinations which included blood and urine tests
(Exhs. “A” and “C”) which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN,
January 13, 1988, p. 7), she and her husband Rogelio met for the first time
Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3),
one of the defendants in this case, on June 10, 1985. They agreed that their
date at the operating table at the DLSMC (another defendant), would be on
June 17, 1985 at 9:00 A.M. Dr. Hosaka decided that she should undergo a
“cholecystectomy” operation after examining the documents (findings from
the Capitol Medical Center, FEU Hospital and DLSMC) presented to him.
Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to
include the anesthesiologist’s fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February
27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of
the rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City
(TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she
was prepared for the operation by the hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She reiterated her
previous request for Herminda to be with her even during the operation.
After praying, she was given injections. Her hands were held by Herminda
as they went down from her room to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19,
1989, p. 18). At the operating room, Herminda saw about two or three
nurses and Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing at the
Capitol Medical Center who was to provide moral

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support to the patient, to them. Herminda was allowed to stay inside the
operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for
Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then went back to the patient who
asked, “Mindy, wala pa ba ang Doctor”? The former replied, “Huwag kang
mag-alaala, darating na iyon” (ibid.).
Thereafter, Herminda went out of the operating room and informed the
patient’s husband, Rogelio, that the doctor was not yet around (id., p. 13).
When she returned to the operating room, the patient told her, “Mindy, inip
na inip na ako, ikuha mo ako ng ibang Doctor.” So, she went out again and
told Rogelio about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was “already dying [and]
waiting for the arrival of the doctor” even as he did his best to find
somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his
wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, “Nandiyan na si Dr. Hosaka, dumating na raw.”
Upon hearing those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room
with the patient, heard somebody say that “Dr. Hosaka is already here.” She
then saw people inside the operating room “moving, doing this and that,
[and] preparing the patient for the operation” (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr. Gutierrez say, “ang
hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan”
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as
Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the oper-

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Ramos vs. Court of Appeals

ating room, she saw this anesthesiologist trying to intubate the patient. The
patient’s nailbed became bluish and the patient was placed in a
trendelenburg position—a position where the head of the patient is placed in
a position lower than her feet which is an indication that there is a decrease
of blood supply to the patient’s brain (id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told Rogelio E.
Ramos “that something wrong was x x x happening” (ibid.). Dr. Calderon
was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a
respiratory machine being rushed towards the door of the operating room.
He also saw several doctors rushing towards the operating room. When
informed by Herminda Cruz that something wrong was happening, he told
her (Herminda) to be back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was
still in trendelenburg position (TSN, January 13, 1988, p. 20). At almost
3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care
Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr.
Hosaka. The latter informed the former that something went wrong during
the intubation. Reacting to what was told to him, Rogelio reminded the
doctor that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain
what happened to the patient. The doctors explained that the patient had
bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months
thereafter or on November 15, 1985, the patient was released from the
hospital.
During the whole period of her confinement, she incurred hospital bills
amounting to P93,542.25 which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part of her body.
She cannot see or hear. She is living on mechanical means. She suffered
brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still needing
constant

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medical attention, with her husband Rogelio incurring a monthly expense

ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be suffering from “diffuse cerebral parenchymal
5
damage” (Exh. “G”; see also TSN, December 21, 1989, p. 6).
6
Thus, on 8 January 1986, petitioners filed a civil case for damages
with the Regional Trial Court of Quezon City against herein private
respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda’s injury. Plaintiff presented the testimonies
of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the
damage sustained by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by private
respondents during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr. Eduardo
Jamora, a pulmonologist, to the effect that the cause of brain damage
was Erlinda’s allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth
earlier, and applying the aforecited provisions of law and jurisprudence to
the case at bar, this Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to
exercise reasonable care in not only intubating the patient, but also in not
repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the patient was inside the operating room
for almost three (3) hours. For

________________

5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.

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594 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

after she committed a mistake in intubating [the] patient, the patient’s

nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the
patient’s brain. The evidence further shows that the hapless patient suffered
brain damage because of the absence of oxygen in her (patient’s) brain for
approximately four to five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the
acts of Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia
on the patient as part of his obligation to provide the patient a ‘good
anesthesiologist,’ and for arriving for the scheduled operation almost three
(3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for
the acts of negligence of the doctors in their ‘practice of medicine’ in the
operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants
that they have acted with due care and prudence in rendering medical
services to plaintiff-patient. For if the patient was properly intubated as
claimed by them, the patient would not have become comatose. And, the
fact that another anesthesiologist was called to try to intubate the patient
after her (the patient’s) nailbed turned bluish, belie their claim. Furthermore,
the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as
the patient’s case was an elective, not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in
favor of the plaintiffs and against the defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the former the following sums of
money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total
sum of P632,000.00 as of April 15, 1992, subject to its being
updated;
2) the sum of P100,000.00 as reasonable attorney’s fees;
3) the sum of P800,000.00 by way of moral damages and the further
sum of P200,000.00 by way of exemplary damages; and,

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Ramos vs. Court of Appeals

4) the costs of the suit.

7
SO ORDERED.

Private respondents seasonably interposed an appeal to the Court of

Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby

REVERSED, and the complaint below against the appellants is hereby
ordered DISMISSED. The counterclaim of appellant De Los Santos
Medical Center is GRANTED but only insofar as appellees are hereby
ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal
interest for justice must be tempered with mercy.
8
SO ORDERED.

The decision of the Court of Appeals was received on 9 June 1995

by petitioner Rogelio Ramos who was mistakenly addressed as
“Atty. Rogelio Ramos.” No copy of the decision, however, was sent
nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion
for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4
July 1995. However, the appellate court denied the motion for
9
extension of time in its Resolution dated 25 July 1995. Meanwhile,
petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration contending that the period to
file the appropriate plead-
________________

7 Records, pp. 276-278.

8 CA Rollo, p. 166.
9 Id. at 145.

596

596 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

ing on the assailed decision had not yet commenced to run as the
Division Clerk of Court of the Court of Appeals had not yet served a
copy thereof to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29 March
1996, primarily on the ground that the fifteen-day (15) period for
filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in
turn, was received by the Court of Appeals already on July 4, necessarily,
the 15-day period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for Reconsideration, but after
considering the Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
10
SO ORDERED.

A copy of the above resolution was received by Atty. Sillano on 11

April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present
petition for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty (30) days
after the expiration of the fifteen-day (15) period counted from the
receipt of the resolution of the Court of Appeals within which to
submit the petition. The due date fell on 27 May 1996. The petition
was filed on 9 May 1996, well within the extended period given by
the Court.
Petitioners assail the decision of the Court Of Appeals on the
following grounds:

________________

10 Id. at 195.
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Ramos vs. Court of Appeals

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS

DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;

III
11
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.

Before we discuss the merits of the case, we shall first dispose of the
procedural issue on the timeliness of the petition in relation to the
motion for reconsideration filed by petitioners with the Court of
12
Appeals. In their Comment, private respondents contend that the
petition should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court of
Appeals was validly dismissed by the appellate court for having
been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the
fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a
copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he
was mistakenly addressed as Atty. Rogelio Ramos. Based on the
other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record.
Thus, no copy of the decision of the appellate court was fur-

________________

11 Rollo, p. 19.
12 Id. at 91-98.

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Ramos vs. Court of Appeals
nished to the counsel on record. Petitioner, not being a lawyer and
unaware of the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel only on 20 June
1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party’s lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his
counsel on record is no notice at all. In the present case, since a copy
of the decision of the appellate court was not sent to the counsel on
record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration
cannot be taken against petitioner. Moreover, since the Court of
Appeals already issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we believe that
the receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look
into the merits of the case. For a more logical presentation of the
discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquitur to the instant case. Thereafter, the first
two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means “the
thing or the transaction speaks for itself.” The phrase “res ipsa
loquitur” is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a
plaintiff’s prima facie case, and present a question of fact for
13
defendant to meet with an explanation. Where the thing which
caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is
such as in ordinary course of things does not happen if those who
have its man-

________________

13 57B Am Jur 2d, 493 (1989).

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agement or control use proper care, it affords reasonable evidence,

in the absence of explanation by the defendant, that the accident
14
 14
arose from or was caused by the defendant’s want of care.
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
15
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
16
be deduced from the mere occurrence of the accident itself. Hence,
res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is not a rule
of substantive law and, as such, does not create or constitute an
17
independent or separate ground of liability. Instead, it is considered
18
as merely evidentiary or in the nature of a procedural rule. It is
regarded as a mode of proof, or a mere procedural convenience since
it furnishes a substitute for, and relieves a 19plaintiff of, the burden of
producing specific proof of negligence. In other words, mere
invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process
of such proof, permitting the plaintiff to present along with the proof
of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to
thereby place on the defendant the burden

________________

14 Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.

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600 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

20
of going forward with the proof. Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily
shown:

1. The accident is of a kind which ordinarily does not occur in

the absence of someone’s negligence;
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
 3. The possibility of contributing conduct which would make
21
the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the “control of

22
the instrumentality” which caused the damage. Such element of
control must be shown to be within the dominion of the defendant.
In order to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it is
applicable, and must establish that the essential elements of the
23
doctrine were present in a particular incident.
24
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
25
harm. The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is

________________

20 Id. at 503.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System,
182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v.
Kansas Power & Light Co., 173 Kan. 443, 249 P.2d 647.
22 St. John’s Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166
(1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her to redress a
wrong committed by a medical professional which has caused bodily harm. (Garcia-
Rueda vs. Pascasio, 278 SCRA 769, 778 [1997]).
25 Voss vs. Bridwell, supra note 21.

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a judicial function to determine whether a certain set of

26
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
27
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
28
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
29
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
30
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

________________

26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127
Kan. 573, 274 P. 237.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802,
149 P. 422, 423.
30 SOLIS, supra note 27, at 239.

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602 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

31
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
32
the patient after an operation, injuries sustained on a healthy part of
33
the body which was not under, or in the area, of treatment, removal
34
of the wrong part of the body when another part was intended,
knocking out a tooth while a patient’s jaw was under anesthetic for
35
the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following
36
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
37
ordinarily have followed if due care had been exercised. A
distinction must

________________

31 Voss vs. Bridwell, supra note 21 at 970-971.

32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.

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Ramos vs. Court of Appeals

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
38
treatment. The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any 39
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 40
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
41
untoward consequence. If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of exculpation, if he
42
could.
We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
43
Bridwell, where the Kansas Supreme Court in applying the res ipsa
loquitur stated:

________________

38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.

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604 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

The plaintiff herein submitted himself for a mastoid operation and delivered
his person over to the care, custody and control of his physician who had
complete and exclusive control over him, but the operation was never
performed. At the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable damage and
injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in
the use and employment of an endoctracheal tube. Ordinarily a person being
put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts
and under these circumstances a layman would be able to say, as a matter of
common knowledge and observation, that the consequences of professional
treatment were not as such as would ordinarily have followed if due care
had been exercised.
Here the plaintiff could not have been guilty of contributory negligence
because he was under the influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event is more accessible
to the defendants than to the plaintiff for they had the exclusive control of
the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is
44
held that a cause of action is stated under the doctrine of res ipsa loquitur.
Indeed, the principles enunciated in the aforequoted case apply with
equal force here. In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private respondents
who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and
body. However, during the administration of anesthesia and prior to
the performance of cholecystectomy she suffered irreparable damage
to her brain. Thus, without undergoing surgery, she

________________

44 Id. at 971.

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Ramos vs. Court of Appeals

went out of the operating room already decerebrate and totally

incapacitated. Obviously, brain damage, which Erlinda sustained, is
an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not happen in
the absence of negligence of someone in the administration of
anesthesia and in the use of endotracheal tube. Normally, a person
being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were
all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have
been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the
brain) is injured or destroyed while the patient is unconscious and
under the immediate and exclusive control of the physicians, we
hold that a practical administration of justice dictates the application
of res ipsa loquitur. Upon these facts and under these circumstances
the Court would be able to say, as a matter of common knowledge
and observation, if negligence attended the management and care of
the patient. Moreover, the liability of the physicians and the hospital
in this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in the
diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable in any
and all cases where injury occurs to a patient while under anesthesia,
or to any and all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ipsa loquitur
coverage.
Having in mind the applicability of the res ipsa loquitur doctrine
and the presumption of negligence allowed therein,

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Ramos vs. Court of Appeals

the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the
care of Erlinda during the anesthesia phase of the operation and, if in
the affirmative, whether the alleged negligence was the proximate
cause of Erlindas comatose condition. Corollary thereto, we shall
also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she was candid enough to
admit that she experienced some difficulty in the endotracheal
45
intubation of the patient and thus, cannot be said to be covering her
negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged faulty intubation
but was due to the allergic reaction of the patient to the drug
Thiopental Sodium (Pentothal), a short-acting barbiturate, as
testified on by their expert witness, Dr. Jamora. On the other hand,
the appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter, being
a nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a verdict in
favor of respondents physicians

________________

45 It is the method of intubating a patient through the oral cavity. Under this
procedure, after the patient has been preoxygenated and paralyzed and is no longer
breathing on his own, the anesthetist inserts an instrument called a laryngoscope into
the patient’s oral pharynx. The patient’s neck is hyperextended, that is, bent back as
far as possible so that the anesthetist can see or “visualize” the patient’s epiglottis and
vocal cords. The anesthetist will then thread the endotracheal tube between the
patient’s vocal cords into the trachea, and then hook the tube to the breathing bag and
anesthetic machine.

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and hospital and absolved them of any liability towards Er-linda and
her family.
We disagree with the findings of the Court of Appeals. We hold
that private respondents were unable to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence
was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only
the logical scientific evidence of the pathogenesis of the injury but
also in providing the Court the legal nexus upon which liability is
based. As will be shown hereinafter, private respondents’ own
testimonies which are reflected in the transcript of stenographic
notes are replete of signposts indicative of their negligence in the
care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of
Erlinda during the anesthesia phase. As borne by the records,
respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of Nursing and petitioner’s sister-in-
law, who was in the operating room right beside the patient when the
tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the
patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
  She will be incompetent Your Honor.
COURT:
  Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden I heard
some remarks coming from Dra. Perfecta
 608

608 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

  Gutierrez herself. She was saying “Ang hirap maintubate nito,

mali yata ang pagkakapasok. O lumalaki ang tiyan.”
  xxx
ATTY. PAJARES:
Q: From whom did you hear those words “lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
  xxx
Q. After hearing the phrase “lumalaki ang tiyan,” what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds ofthe left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particulartime?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?