Rumors in Hospices

10/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 321
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.
585
VOL. 321, DECEMBER 29, 1999 585

www.central.com.ph/sfsreader/session/0000016dd9a68909fcd208ed003600fb002c009e/t/?o=False 1/42
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.
586
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
587
VOL. 321, DECEMBER 29, 1999 587
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
588
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
589
VOL. 321, DECEMBER 29, 1999 589

between life 1and death. In this sense, the doctor plays God on his
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 2 comatose condition of a patient scheduled for
cholecystectomy. 3
Petitioners seek the reversal of the decision of the Court4
of
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.
590

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
591
VOL. 321, DECEMBER 29, 1999 591

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-
592

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
593
VOL. 321, DECEMBER 29, 1999 593

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
5
parenchymal
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.
594

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,
595
VOL. 321, DECEMBER 29, 1999 595

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
8
be tempered with mercy.
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 the9 motion for
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

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.
597
VOL. 321, DECEMBER 29, 1999 597

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 12filed by petitioners with the Court of
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.
598

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 13
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 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).
599
VOL. 321, DECEMBER 29, 1999 599

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 15some
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 16
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.
However, much has been said that res ipsa loquitur is not a rule
of substantive law and, as such, does not17 create or constitute an
independent or separate ground of liability. Instead, it is considered18
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.
600

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 21

which would make
the plaintiff responsible is eliminated.
In the above requisites, the fundamental element22 is the “control of

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
23
elements of the
doctrine were present in24a particular incident.
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
25
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
________________
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.
601
VOL. 321, DECEMBER 29, 1999 601

a judicial function to determine whether a certain set26 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 27
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
28
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 which29 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 of30
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.
602

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
32
of a foreign object in the body of
the patient after an operation, injuries sustained on a healthy
33
part of
the body which was not under, or in the area, of treatment, removal34
of the wrong part of the body when another part was intended,
knocking out a tooth while 35a patient’s jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence

36
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 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.
603
VOL. 321, DECEMBER 29, 1999 603

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
38
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 any39
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 41
as the negligent cause or causes of the
untoward consequence. If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is
called 42upon to explain the matter, by evidence of exculpation, if he
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 43
strikingly similar to the one before us is Voss vs.
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.
604

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 it44is
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.
605
VOL. 321, DECEMBER 29, 1999 605

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,
606

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 that45 she experienced some difficulty in the endotracheal
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.
607
VOL. 321, DECEMBER 29, 1999 607

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

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?
A: He made an order to call on the anesthesiologist in the person of
Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while
the patient’s nailbed became bluish and I saw thepatient was
placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in 46that position, there is a
decrease of blood supply to the brain.
xxx
________________
46 TSN, January 13, 1988, pp. 16-20.
609
VOL. 321, DECEMBER 29, 1999 609

The appellate court, however, disbelieved Dean Cruz’s testimony in

the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that
intubation is not taught as part of nursing procedures and techniques.
Indeed, we take judicial notice of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is fully capable of determining
whether or not a patient is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991,
p. 13). More importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine the condition of
the heart, lungs, and other organs. Thus, witness Cruz’s categorical
statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who 47
succeeded in doing so
clearly suffer from lack of sufficient factual bases.
In other words, what the Court of Appeals is trying to impress is that

being a nurse, and considered a layman in the process of intubation,
witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external
appearances,
48
and manifest conditions which are observable by any
one. This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is
the accepted rule that expert testimony is not necessary for the proof
of negligence in nontechnical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of
skill or want of care is so obvious as to render expert testimony
________________
47 CA Rollo, pp. 134-135.

48 Stockham vs. Hall, supra note 29.
610

49
49
unnecessary. We take judicial notice of the fact that anesthesia
procedures have become so common, that even an ordinary person
can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner’s witness, an experienced
clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School of
Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
instructor in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City;50and then Dean of the
Capitol Medical Center School of Nursing. Reviewing witness
Cruz’ statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency
and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she was
able to demonstrate through her testimony what truly transpired on
that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda’s trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at
your first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
________________
49 61 Am Jur 2d, 513 (1989).

50 TSN, January 13, 1988, p. 3.
611
VOL. 321, DECEMBER 29, 1999 611

Q: Did you or did you not?

A: I did not pull the tube.
Q: When you said “mahirap yata ito, what were you referring to?
A: “Mahirap yata itong i-intubate,” that was the patient.
Q: So, you found some difficulty in inserting the tube?
51
A: Yes, because of (sic) my first attempt, I did not see right away.
Curiously in the case at bar, respondent Dra. Gutierrez made the

haphazard defense that she encountered hardship in the insertion of
the tube in the trachea of Erlinda because it was positioned more 52
anteriorly (slightly deviated from the normal anatomy of a person)
making it harder to locate and, since Erlinda is obese and has a short
neck and protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed,
private respondents adduced no evidence demonstrating that they
proceeded to make a thorough assessment of Erlindas airway, prior
to the induction of anesthesia, even if this would mean postponing
the procedure. From their testimonies, it appears that the observation
was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and
preparation for anesthesia begins when the anesthesiologist reviews
the patient’s medical records and visits
53
with the patient, traditionally,
the day before elective surgery. It includes taking the patient’s
medical history, review of current drug therapy, 54
physical
examination and interpretation of laboratory data. The physical
examination performed by the
________________
51 TSN, November 15, 1990, p. 11.

52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54 Ibid.
612

anesthesiologist is directed primarily toward the central nervous

55
system, cardiovascular system, lungs and upper airway. A
thorough analysis of the patient’s airway normally involves
investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or
artificial 56 teeth, ability to visualize uvula and the thyromental
distance. Thus, physical characteristics of the patient’s upper
airway that could make tracheal intubation difficult should be
57
57
studied. Where the need arises, as when initial assessment indicates
possible problems (such as the alleged short neck and protruding
teeth of Erlinda) a thorough examination of the patient’s airway
would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself, on 17
June 1985. Before this date, no prior consultations with, or pre-
operative evaluation of Erlinda was done by her. Until the day of the
operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not
properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez’ act of seeing her patient for the first time only an hour
before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physician’s centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court’s ignorance of
clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between
an elective surgery and an emergency
________________
55 Id. at 105 (Italics supplied).

56 Id. at 106.
57 Id.
613
VOL. 321, DECEMBER 29, 1999 613

surgery just so her failure to perform the required pre-operative

evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see
the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gainthe trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective

cases and normal cardio-pulmonary clearance like that, I usually
don’t do it except on
58
emergency and on cases that have an
abnormalities (sic).
However, the exact opposite is true. In an emergency procedure,

there is hardly enough time available for the fastidious demands of
preoperative procedure so that an anesthesiologist is able to see the
patient only a few minutes before surgery, if at all. Elective
procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to make a proper
assessment, including the time to be at the patient’s bedside to do a
proper interview and clinical evaluation. There is ample time to
explain the method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent. Usually, the pre-
operative assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and cooperative.
Erlinda’s case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda’s case prior to the operation and prepare her
for anesthesia. However, she never saw the patient at the bedside.
She herself admitted that she had seen
________________
58 TSN, November 15, 1990, p. 6.
614

petitioner only in the operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take advantage of this
important opportunity. As such, her attempt
to exculpate herself must fail. Having established that respondent
Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate cause of
Erlinda’s comatose condition.
Private respondents repeatedly hammered the view that the
cerebral anoxia59
which led to Erlinda’s coma was due to
bronchospasm mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end,
they presented Dr. Jamora, a Fellow of the Philippine College of
Physicians and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private re-spondents’ theory that
60
60
the oxygen deprivation which led to anoxic encephalopathy, was
due to an unpredictable drug reaction to the short-acting barbiturate.
We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the
field of anesthesiology simply because he is not an anesthesiologist.
Since Dr. Jamora is a pulmonologist, he could not have been capable
of properly enlightening the court about anesthesia practice and
procedure and their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance expert
opinion on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as an
expert would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora’s
testimony as an expert witness in the anesthetic
________________
59 Constriction of the air passages of the lung by spasmodic contraction of the

bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate oxygenation.
615
VOL. 321, DECEMBER 29, 1999 615

practice of Pentothal administration is further supported by his own

admission that he formulated his opinions on the drug not from the
practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only
from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only
on what you have read from books and not by your own
personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my

appendectomy.
Q: And because they have used it on you and on account of your
own personal experience you feel that you can testify on
pentothal here with medical authority?
61
A: No. That is why I used references to support my claims.
An anesthetic accident caused by a rare drug-induced bronchospasm

properly falls within the fields of anesthesia, internal medicine-
allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamoras field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is
within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of
________________
61 TSN, February 28, 1991, pp. 10-11.
616

the foregoing transcript, in which the pulmonologist himself

admitted that he could not testify about the drug with medical
authority, it is clear that the appellate court erred in giving weight to
Dr. Jamora’s testimony as an expert in the administration of
Thiopental Sodium. 62
The provision in the rules of evidence regarding expert
witnesses states:
Sec. 49. Opinion of expert witness.—The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he is shown
to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired

special knowledge of the subject matter about which he or she is to
testify, either by the study
63
of recognized authorities on the subject or
by practical experience. Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he lacks the
necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents’ intentionally
avoided providing testimony by competent and independent experts

in the proper areas.
Moreover, private respondents’ theory, that Thiopental Sodium
may have produced Erlinda’s coma by triggering an allergic
mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing—some of the more common
accompanying signs of an allergic reaction—appears on record. No
laboratory data were ever presented to the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm happens only
very rarely. If courts were to accept private respondents’ hypothesis
without supporting medical proof, and against the weight of
available evidence, then every anesthetic accident
________________
62 Rule 130, RULES OF COURT.

63 61 Am Jur 2d, supra note 49, 516.
617
VOL. 321, DECEMBER 29, 1999 617

would be an act of God. Evidently, the Thiopentalallergy theory

vigorously asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to absolve them of any
and all responsibility for the patient’s condition.
In view of the evidence at hand, we are inclined to believe
petitioners’ stand that it was the faulty intubation which was the
proximate cause of Erlinda’s comatose condition.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces 64injury, 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 65result or a reasonably probable consequence of
the act or omission. It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand,
faulty intubation is undeniably the proximate cause which triggered
the chain of events leading to Erlindas brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that
the first intubation was a failure. This fact was likewise observed by
witness Cruz when she heard respondent Dra. Gutierrez remarked,
“Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.” Thereafter, witness Cruz noticed abdominal

distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that
the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal
________________
64 BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

65 Ibid.
618

intubation what actually took place was an esophageal intubation.

During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal distention had
been observed during the first intubation suggests that the length of
time utilized in inserting the endotracheal tube (up to the time the
tube was withdrawn for the second attempt) was fairly significant.
Due to the delay in the 66delivery of oxygen in her lungs Erlinda
showed signs of cyanosis. As stated in the testimony of Dr. Hosaka,
the lack of oxygen became apparent only after 67
he noticed that the
nailbeds of Erlinda were already blue. However, private
respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents’ bare claims,
which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its
way into the proper orifice of the trachea, the same gave no
guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately after
the second intubation. Proceeding from this event (cyanosis), it
could not be claimed, as private respondents insist, that the second
intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was obviously too
late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the 68
inadequate oxygenation of her brain
for about four to five minutes.
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-third (1/3)
of deaths and serious injuries associated with anes-
________________
66 It is a bluish coloration of the skin or mucous membranes caused by lack of

oxygen or abnormal hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
619
VOL. 321, DECEMBER 29, 1999 619

69
thesia. Nevertheless, ninety-eight percent (98%) or the vast
majority of difficult intubations may be anticipated by performing 70a
thorough evaluation of the patient’s airway prior to the operation.
As stated beforehand, respondent Dra. Gutierrez failed to observe
the proper pre-operative protocol which could have prevented this
unfortunate incident. Had appropriate diligence and reasonable care
been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the patient’s
neck and oral area, defects which would have been easily overcome
by a prior 71knowledge of those variations together with a change in
technique. In other words, an experienced anesthesiologist,
adequately alerted by a thorough pre-operative evaluation, would
have had
72
little difficulty going around the short neck and protruding
teeth. Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra. Gutierrez’
negligence resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as73the head of the surgical team. As the so-called “captain of
the ship,” it is the surgeon’s responsibility to see to it that those
under him perform their task in the proper manner. Respondent Dr.
Hosaka’s negligence can be found in his failure to exercise the
proper authority (as the “captain” of
________________
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).

70 Ibid.
71 Id., The book provides a thorough discussion on the management of difficult
intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who must not only
be responsible for the safety of the crew but also of the passengers of the vessel. The
head surgeon is made responsible for everything that goes wrong within the four
corners of the operating room. It enunciates the liability of the surgeon not only for
the wrongful acts of those who are under his physical control but also those wherein
he has extension of control.
620

the operative team) in not determining if his anesthesiologist

observed proper anesthesia protocols. In fact, no evidence on record
exists to show that respondent Dr. Hosaka verified if respondent
Dra. Gutierrez properly intubated the patient. Furthermore, it does
not escape us that respondent Dr. Hosaka had scheduled another
procedure in a different hospital at the same time as Erlindas
cholecystectomy, and was in fact over three hours late for the latter’s
operation. Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This indicates that
he was remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in Erlinda’s
condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private hospitals) of74
filling up specialist staff with attending and visiting “consultants,”
who are allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for “consultant”
slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications; generally,
evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who
either accept or reject
________________
74 The term “consultant” is loosely used by hospitals to distinguish their attending

and visiting physicians from the residents, who are also physicians. In most hospitals
abroad, the term visiting or attending physician, not consultant, is used.
621
VOL. 321, DECEMBER 29, 1999 621

75
75
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 76solidarily liable with
respondent doctors for petitioner’s condition.
________________
75 These requirements are in fact found in the standard application forms for
visiting and attending physicians of respondent hospital.
76 The hospital’s control over respondent physicians is all the more significant
when one considers the fact that it controls every-
622

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
77
the former’s responsibility
under a relationship of patria potestas. Such responsibility ceases
when the persons or entity concerned prove that they have observed
78
78
the diligence of a good father of the family to prevent damage. In
other words, while the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should
prove that they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed to
adduce evidence showing that it exercised the diligence of a good
father of a family in the hiring and supervi-
________________
thing which occurs in an operating room, through its nursing supervisors and
charge nurses. No operations can be undertaken without the hospital’s direct or
indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822
(1993).
78 Art. 2180 of the Civil Code provides: 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.
The father and, in case of his death or incapacity, the mother, are responsible for
the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons
who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches in
which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
623
VOL. 321, DECEMBER 29, 1999 623

sion of the latter. It failed to adduce evidence with regard to the

degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature,
respondent hospital thereby failed to discharge its burden under the
last paragraph of Article 2180. Having failed to do this, respondent
hospital is consequently solidarily responsible with its physicians for
Erlinda’s condition.
Based on the foregoing, we hold that the Court of Appeals erred
in accepting and relying on the testimonies of the witnesses for the
private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of
negligence. Upon these disquisitions we hold that private 79

respondents are solidarily liable for damages under Article 2176 of
the Civil Code.
We now come to the amount of damages due petitioners. The
trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff, “subject to
its being updated” covering the period from 15 November 1985 up
to 15 April 1992, based on monthly expenses for the care of the
patient estimated at P8,000.00.
At current levels, the P8,000/monthly amount established by the
trial court at the time of its decision would be grossly inadequate to
cover the actual costs of home-based care for a comatose individual.
The calculated amount was not even arrived at by looking at the
actual cost of proper hospice care for the patient. What it reflected
were the actual expenses incurred and proved by the petitioners after
they were forced to bring home the patient to avoid mounting
hospital bills.
And yet ideally, a comatose patient should remain in a hospital or
be transferred to a hospice specializing in the care of the chronically
ill for the purpose of providing a proper milieu adequate to meet
minimum standards of care. In the instant case for instance, Erlinda
has to be constantly turned from side to side to prevent bedsores and
hypostatic pneumonia.
________________
79 Whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done.
624

Feeding is done by nasogastric tube. Food preparation should be

normally made by a dietitian to provide her with the correct daily
caloric requirements and vitamin supplements. Furthermore, she has
to be seen on a regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least reflect
the correct minimum cost of proper care, not the cost of the care the
family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has duly
proved. The Civil Code provides:
Art. 2199.—Except as provided by law or by stipulation, one is entitled to

an adequate compensation only for such pecuniary loss suffered by him as
he has duly proved. Such compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally assume that

at the time of litigation, the injury suffered as a consequence of an
act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account
those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded,
if they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of
the case, be made
625
VOL. 321, DECEMBER 29, 1999 625

80
with certainty. In other words, temperate damages can and should
be awarded on top of actual or compensatory damages in instances
where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that
these damages cover two distinct phases.
As it would not be equitable—and certainly not in the best
interests of the administration of justice—for the victim in such
cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously
awarded—temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should
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
81
in temperate damages would therefore be
reasonable. 82
In Valenzuela vs. Court of Appeals, this Court was confronted
with a situation where the injury suffered by the plaintiff would have
led to expenses which were difficult to
________________
80 Art. 2224, CIVIL CODE.

81 Should petitioner remain in the same condition for another ten years, the amount
awarded in the form of temperate damages would in fact, be inadequate.
82 253 SCRA 303 (1996).
626

estimate because while they would have been a direct result of the
injury (amputation), and were certain to be incurred by the plaintiff,
they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic

amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
ambulatory functions of her left extremity, even with the use of state of the
art prosthetic technology. Well beyond the period of hospitalization (which
was paid for by Li), she will be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic replacements and months of
physical and occupational rehabilitation and therapy. During her lifetime,
the prosthetic devise will have to be replaced and readjusted to changes in
the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the changes in bone
resulting from a precipitate decrease in calcium levels observed in the bones
of all postmenopausal women. In other words, the damage done to her
would not only be permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes which her body would
normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a

reasonable amount of functional restoration of the motor functions of the
lower limb. The sensory functions are forever lost. The resultant anxiety,
sleeplessness,
83
psychological injury, mental and physical pain are
inestimable.
________________
83 Id. at 327-328.
627
VOL. 321, DECEMBER 29, 1999 627

The injury suffered by Erlinda as a consequence of private

respondents’ negligence is certainly much more serious than the
amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over fourteen
years now. The burden of care has so far been heroically shouldered
by her husband and children, who, in the intervening years have
been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of
the care of petitioner would be virtually impossible to quantify. Even
the temperate damages herein awarded would be inadequate if
petitioner’s condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim’s
actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to estimate the
amount of emotional and moral pain, psychological damage and
injury suffered by84 the victim or those actually affected by the
victim’s condition. The husband and the children, all petitioners in
this case, will have to live with the day to day uncertainty of the
patient’s illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of petitioner,
altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the
moral responsibility of the care of the victim. The family’s moral
injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages
would be appropriate.
Finally, by way of example, exemplary damages in the amount of
P100,000.00 are hereby awarded. Considering the length and nature
of the instant suit we are of the opinion that attorney’s fees valued at
P100,000.00 are likewise proper.
________________
84 Id. at 328.
628

Our courts face unique difficulty in adjudicating medical negligence

cases because physicians are not insurers of life and, they rarely set
out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence
exists and is proven, the same automatically gives the injured a right
to reparation for the damage caused.
Established medical procedures and practices, though in constant
flux are devised for the purpose of preventing complications. A
physician’s experience with his patients would sometimes tempt him
to deviate from established community practices, and he may end a
distinguished career using unorthodox methods without incident.
However, when failure to follow established procedure results in the
evil precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In the
case at bar, the failure to observe preoperative assessment protocol
which would have influenced the intubation in a salutary way was
fatal to private respondents’ case.
WHEREFORE, the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages; 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and
attorney’s fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Pardo and Ynares-

Santiago, JJ., concur.
Judgment modified.
629
VOL. 321, DECEMBER 29, 1999 629

Land Bank of the Philippines vs. Court of Appeals
Note.—Proximate cause is determined on the facts of each case

upon mixed considerations of logic, common sense, policy and
precedent. (Philippine Bank of Commerce vs. Court of Appeals, 269
SCRA 695 [1997])
——o0o——
© Copyright 2019 Central Book Supply, Inc. All rights reserved.

Rumors in Hospices

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Rumors in Hospices

Загружено:

Авторское право:

Доступные форматы

10/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 321

584 SUPREME COURT REPORTS ANNOTATED

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

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

VOL. 321, DECEMBER 29, 1999 585

Ramos vs. Court of Appeals

586 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

VOL. 321, DECEMBER 29, 1999 587

Ramos vs. Court of Appeals

588 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

on the plaintiffs, once negligence is shown, the burden shifts to the

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

The facts are stated in the opinion of the Court.

The Hippocratic Oath mandates physicians to give primordial

VOL. 321, DECEMBER 29, 1999 589

Regional Trial Court, dated 30 January 1992, finding private

590 SUPREME COURT REPORTS ANNOTATED

“cholecystectomy” operation after examining the documents (findings from

VOL. 321, DECEMBER 29, 1999 591

592 SUPREME COURT REPORTS ANNOTATED

VOL. 321, DECEMBER 29, 1999 593

medical attention, with her husband Rogelio incurring a monthly expense

594 SUPREME COURT REPORTS ANNOTATED

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

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

VOL. 321, DECEMBER 29, 1999 595

4) the costs of the suit.

Private respondents seasonably interposed an appeal to the Court of

WHEREFORE, for the foregoing premises the appealed decision is hereby

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

7 Records, pp. 276-278.

596 SUPREME COURT REPORTS ANNOTATED

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

VOL. 321, DECEMBER 29, 1999 597

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS

598 SUPREME COURT REPORTS ANNOTATED

nished to the counsel on record. Petitioner, not being a lawyer and

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

VOL. 321, DECEMBER 29, 1999 599

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

600 SUPREME COURT REPORTS ANNOTATED

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

3. The possibility of contributing conduct 21

In the above requisites, the fundamental element22 is the “control of

VOL. 321, DECEMBER 29, 1999 601

a judicial function to determine whether a certain set26 of

only physicians and surgeons of skill and experience are competent

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

602 SUPREME COURT REPORTS ANNOTATED

plaintiff was under the influence

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

VOL. 321, DECEMBER 29, 1999 603

be made between the failure to secure results, and the occurrence of

604 SUPREME COURT REPORTS ANNOTATED

Indeed, the principles enunciated in the aforequoted case apply with

VOL. 321, DECEMBER 29, 1999 605

went out of the operating room already decerebrate and totally

606 SUPREME COURT REPORTS ANNOTATED

VOL. 321, DECEMBER 29, 1999 607

608 SUPREME COURT REPORTS ANNOTATED