II.
MEDICAL PRACTICE the RTC of Manila on June 24, 1993, which petition was
G.R. No. 166097 July 14, 2008
BOARD OF MEDICINE, DR. RAUL FLORES (now DR.
JOSE S. RAMIREZ), in his capacity as Chairman of the
Board, PROFESSIONAL REGULATION COMMISSION,
through its Chairman, HERMOGENES POBRE (now
DR. ALCESTIS M. GUIANG), Petitioners,
vs.
YASUYUKI OTA, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari assailing the Decision of the Court of
Appeals (CA) in CA-G.R. SP No. 84945 dated November
16, 2004 which affirmed the Decision of the Regional Trial
Court (RTC), Branch 22, Manila, dated October 19, 2003.
The facts are as follows:
Yasuyuki Ota (respondent) is a Japanese national,
married to a Filipina, who has continuously resided in the
Philippines for more than 10 years. He graduated from
Bicol Christian College of Medicine on April 21, 1991 with
a degree of Doctor of Medicine. After successfully
completing a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, he filed an
application to take the medical board examinations in
order to obtain a medical license. He was required by the
Professional Regulation Commission (PRC) to submit an
affidavit of undertaking, stating among others that should
he successfully pass the same, he would not practice
medicine until he submits proof that reciprocity exists
between Japan and the Philippines in admitting foreigners
into the practice of medicine.
Respondent submitted a duly notarized English
translation of the Medical Practitioners Law of Japan duly
authenticated by the Consul General of the Philippine
Embassy to Japan, Jesus I. Yabes; thus, he was allowed
to take the Medical Board Examinations in August 1992,
which he subsequently passed.
In spite of all these, the Board of Medicine (Board) of the
PRC, in a letter dated March 8, 1993, denied respondent's
request for a license to
practice medicine in the Philippines on the ground that the
Board "believes that no genuine reciprocity can be found
in the law of Japan as there is no Filipino or foreigner who
can possibly practice there."
Respondent then filed a Petition
for Certiorari and Mandamus against the Board before
amended on February 14, 1994 to implead the PRC
through its Chairman.
In his petition before the RTC, respondent alleged that the
Board and the PRC, in refusing to issue in his favor a
Certificate of Registration and/or license to practice
medicine, had acted arbitrarily, in clear contravention of
the provision of Section 20 of Republic Act (R.A.) No.
2382 (The Medical Act of 1959), depriving him of his
legitimate right to practice his profession in the Philippines
to his great damage and prejudice.
On October 19, 2003, the RTC rendered its Decision
finding that respondent had adequately proved that the
medical laws of Japan allow foreigners like Filipinos to be
granted license and be admitted into the practice of
medicine under the principle of reciprocity; and that the
Board had a ministerial duty of issuing the Certificate of
Registration and license to respondent, as it was shown
that he had substantially complied with the requirements
under the law. The RTC then ordered the Board to issue
in favor of respondent the corresponding Certificate of
Registration and/or license to practice medicine in the
Philippines.
The Board and the PRC (petitioners) appealed the case
to the CA, stating that while respondent submitted
documents showing that foreigners are allowed to
practice medicine in Japan, it was not shown that the
conditions for the practice of medicine there are practical
and attainable by a foreign applicant, hence, reciprocity
was not established; also, the power of the PRC and the
Board to regulate and control the practice of medicine is
discretionary and not ministerial, hence, not compellable
by a writ of mandamus.
The CA denied the appeal and affirmed the ruling of the
RTC.
Hence, herein petition raising the following issue:
WHETHER THE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN
FINDING THAT RESPONDENT HAD
ESTABLISHED THE EXISTENCE OF
RECIPROCITY IN THE PRACTICE OF
MEDICINE BETWEEN THE PHILIPPINES AND
JAPAN.
Petitioners claim that: respondent has not established by
competent and conclusive evidence that reciprocity in the
practice of medicine exists between the Philippines and
Japan. While documents state that foreigners are allowed
to practice medicine in Japan, they do not similarly show
that the conditions for the practice of medicine in said
country are practical and attainable by a foreign applicant.
There is no reciprocity in this case, as the requirements to
practice medicine in Japan are practically impossible for
1
a Filipino to comply with. There are also ambiguities in the
Medical Practitioners Law of Japan, which were not
clarified by respondent, i.e., what are the provisions of the
School Educations Laws, what are the criteria of the
Minister of Health and Welfare of Japan in determining
whether the academic and technical capability of foreign
medical graduates are the same or better than graduates
of medical schools in Japan, and who can actually qualify
to take the preparatory test for the National Medical
Examination. Consul General Yabes also stated that
there had not been a single Filipino who was issued a
license to practice medicine by the Japanese
Government. The publication showing that there were
foreigners practicing medicine in Japan, which
respondent presented before the Court, also did not
specifically show that Filipinos were among those listed
as practicing said profession. Furthermore, under
Professional Regulation Commission v. De Guzman, the
power of the PRC and the Board to regulate and control
the practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice
medicine, which power is discretionary and not
ministerial, hence, not compellable by a writ
of mandamus.
Petitioners pray that the CA Decision dated November 16,
2004 be reversed and set aside, that a new one be
rendered reinstating the Board Order dated March 8,
1993 which disallows respondent to practice medicine in
the Philippines, and that respondent's petition before the
trial court be dismissed for lack of merit.
In his Comment, respondent argues that: Articles 2 and
11 of the Medical Practitioners Law of Japan and Section
9 of the Philippine Medical Act of 1959 show that
reciprocity exists between the Philippines and Japan
concerning the practice of medicine. Said laws clearly
state that both countries allow foreigners to practice
medicine in their respective jurisdictions as long as the
applicant meets the educational requirements, training or
residency in hospitals and pass the licensure examination
given by either country. Consul General Yabes in his letter
dated January 28, 1992 stated that "the Japanese
Government allows a foreigner to practice medicine in
Japan after complying with the local requirements." The
fact that there is no reported Filipino who has successfully
penetrated the medical practice in Japan does not mean
that there is no reciprocity between the two countries,
since it does not follow that no Filipino will ever be granted
a medical license by the Japanese Government. It is not
the essence of reciprocity that before a citizen of one of
the contracting countries can demand its application, it is
necessary that the interested citizen’s country has
previously granted the same privilege to the citizens of the
other contracting country. Respondent further argues that
Section 20 of the Medical Act of 1959 indicates the
mandatory character of the statute and an imperative
obligation on the part of the Board inconsistent with the
idea of discretion. Thus, a foreigner, just like a Filipino
citizen, who successfully passes the examination and has
all the qualifications and none of the disqualifications, is
entitled as a matter of right to the issuance of a certificate
of registration or a physician’s license, which right is
enforceable by mandamus.
Petitioners filed a Reply and both parties filed their
respective memoranda reiterating their
arguments.1avvphi1
The Court denies the petition for lack of merit.
There is no question that a license to practice medicine is
a privilege or franchise granted by the government.26 It is
a right that is earned through years of education and
training, and which requires that one must first secure a
license from the state through professional board
examinations.27
Indeed,
[T]he regulation of the practice of medicine in all its
branches has long been recognized as a reasonable
method of protecting the health and safety of the public.
That the power to regulate and control the practice of
medicine includes the power to regulate admission to the
ranks of those authorized to practice medicine, is also well
recognized. Thus, legislation and administrative
regulations requiring those who wish to practice medicine
first to take and pass medical board examinations have
long ago been recognized as valid exercises of
governmental power. Similarly, the establishment of
minimum medical educational requirements – i.e., the
completion of prescribed courses in a recognized medical
school – for admission to the medical profession, has also
been sustained as a legitimate exercise of the regulatory
authority of the state."28
It must be stressed however that the power to regulate the
exercise of a profession or pursuit of an occupation
cannot be exercised by the State or its agents in an
arbitrary, despotic, or oppressive manner. A political body
which regulates the exercise of a particular privilege has
the authority to both forbid and grant such privilege in
accordance with certain conditions. As the legislature
cannot validly bestow an arbitrary power to grant or refuse
a license on a public agency or officer, courts will
generally strike down license legislation that vests in
public officials discretion to grant or refuse a license to
carry on some ordinarily lawful business, profession, or
activity without prescribing definite rules and conditions
for the guidance of said officials in the exercise of their
power.29
R.A. No. 2382 otherwise known as the Medical Act of
1959 states in Section 9 thereof that:
Section 9. Candidates for Board Examinations.-
Candidates for Board examinations shall have the
following qualifications:
2
1. He shall be a citizen of the Philippines or a citizen of
any foreign country who has submitted competent and
conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country’s
existing laws permit citizens of the Philippines to practice
medicine under the same rules and regulations governing
citizens thereof;
xxxx
Presidential Decree (P.D.) No. 22330 also provides in
Section (j) thereof that:
j) The [Professional Regulation] Commission may, upon
the recommendation of the Board concerned, approve the
registration of and authorize the issuance of a certificate
of registration with or without examination to a foreigner
who is registered under the laws of his country: Provided,
That the requirement for the registration or licensing in
said foreign state or country are substantially the same as
those required and contemplated by the laws of the
Philippines and that the laws of such foreign state or
country allow the citizens of the Philippines to practice the
profession on the same basis and grant the same
privileges as the subject or citizens of such foreign state
or country: Provided, finally, That the applicant shall
submit competent and conclusive documentary evidence,
confirmed by the Department of Foreign Affairs, showing
that his country's existing laws permit citizens of the
Philippines to practice the profession under the rules and
regulations governing citizens thereof. The Commission
is also hereby authorized to prescribe additional
requirements or grant certain privileges to foreigners
seeking registration in the Philippines if the same
privileges are granted to or some additional requirements
are required of citizens of the Philippines in acquiring the
same certificates in his country;
xxxx
As required by the said laws, respondent submitted a
copy of the Medical Practitioners Law of Japan, duly
authenticated by the Consul General of the Embassy of
the Philippines in Japan, which provides in Articles 2 and
11, thus:
Article 2. Anyone who wants to be medical practitioner
must pass the national examination for medical
practitioner and get license from the Minister of Health
and Welfare.
xxxx
Article 11. No one can take the National Medical
Examination except persons who conform to one of the
following items:
1. Persons who finished regular medical courses
at a university based on the School Education
Laws (December 26, 1947) and graduated from
said university.
2. Persons who passed the preparatory test for
the National Medical Examination and practiced
clinics and public sanitation more than one year
after passing the said test.
3. Persons who graduated from a foreign medical
school or acquired medical practitioner license in
a foreign country, and also are recognized to
have the same or more academic ability and
techniques as persons stated in item 1 and item
2 of this article.31
Petitioners argue that while the Medical Practitioners Law
of Japan allows foreigners to practice medicine therein,
said document does not show that conditions for the
practice of medicine in said country are practical and
attainable by a foreign applicant; and since the
requirements are practically impossible for a Filipino to
comply with, there is no reciprocity between the two
countries, hence, respondent may not be granted license
to practice medicine in the Philippines.
The Court does not agree.
R.A. No. 2382, which provides who may be candidates for
the medical board examinations, merely requires a
foreign citizen to submit competent and conclusive
documentary evidence, confirmed by the Department of
Foreign Affairs (DFA), showing that his country’s existing
laws permit citizens of the Philippines to practice medicine
under the same rules and regulations governing citizens
thereof.
Section (j) of P.D. No. 223 also defines the extent of
PRC's power to grant licenses, i.e., it may, upon
recommendation of the board, approve the registration
and authorize the issuance of a certificate of registration
with or without examination to a foreigner who is
registered under the laws of his country, provided the
following conditions are met: (1) that the requirement for
the registration or licensing in said foreign state or country
are substantially the same as those required and
contemplated by the laws of the Philippines; (2) that the
laws of such foreign state or country allow the citizens of
the Philippines to practice the profession on the same
basis and grant the same privileges as the subject or
citizens of such foreign state or country; and (3) that the
applicant shall submit competent and conclusive
documentary evidence, confirmed by the DFA, showing
that his country's existing laws permit citizens of the
Philippines to practice the profession under the rules and
regulations governing citizens thereof.
The said provision further states that the PRC is
authorized to prescribe additional requirements or grant
certain privileges to foreigners seeking registration in the
3
Philippines if the same privileges are granted to or some
additional requirements are required of citizens of the
Philippines in acquiring the same certificates in his
country.
Nowhere in said statutes is it stated that the foreign
applicant must show that the conditions for the practice of
medicine in said country are practical and attainable by
Filipinos. Neither is it stated that it must first be proven
that a Filipino has been granted license and allowed to
practice his profession in said country before a foreign
applicant may be given license to practice in the
Philippines. Indeed, the phrase used in both R.A. No.
2382 and P.D. No. 223 is that:
[T]he applicant shall submit] competent and conclusive
documentary evidence, confirmed by the Department of
Foreign Affairs, showing that his country's existing laws
permit citizens of the Philippines to practice the profession
[of medicine] under the [same] rules and regulations
governing citizens thereof. x x x (Emphasis supplied)
It is enough that the laws in the foreign country permit a
Filipino to get license and practice therein. Requiring
respondent to prove first that a Filipino has already been
granted license and is actually practicing therein unduly
expands the requirements provided for under R.A. No.
2382 and P.D. No. 223.
While it is true that respondent failed to give details as to
the conditions stated in the Medical Practitioners Law of
Japan -- i.e., the provisions of the School Educations
Laws, the criteria of the Minister of Health and Welfare of
Japan in determining whether the academic and technical
capability of foreign medical graduates are the same as
or better than that of graduates of medical schools in
Japan, and who can actually qualify to take the
preparatory test for the National Medical Examination –
respondent, however, presented proof that foreigners are
actually practicing in Japan and that Filipinos are not
precluded from getting a license to practice there.
Respondent presented before the trial court a Japanese
Government publication, Physician-Dentist-
Pharmaceutist Survey, showing that there are a number
of foreign physicians practicing medicine in Japan.32 He
also presented a letter dated January 28, 1992 from
Consul General Yabes,33 which states:
Sir:
With reference to your letter dated 12 January 1993,
concerning your request for a Certificate of Confirmation
for the purpose of establishing a reciprocity with Japan in
the practice of medical profession relative to the case of
Mr. Yasuyuki Ota, a Japanese national, the Embassy
wishes to inform you that inquiries from the Japanese
Ministry of Foreign Affairs, Ministry of Health and Welfare
as well as Bureau of Immigration yielded the following
information:
1. They are not aware of a Filipino physician who
was granted a license by the Japanese
Government to practice medicine in Japan;
2. However, the Japanese Government allows a
foreigner to practice medicine in Japan after
complying with the local requirements such as
holding a valid visa for the purpose of taking the
medical board exam, checking the applicant's
qualifications to take the examination, taking the
national board examination in Japanese and filing
an application for the issuance of the medical
license.
Accordingly, the Embassy is not aware of a single Filipino
physician who was issued by the Japanese Government
a license to practice medicine, because it is extremely
difficult to pass the medical board examination in the
Japanese language. Filipino doctors here are only
allowed to work in Japanese hospitals as trainees under
the supervision of a Japanese doctor. On certain
occasions, they are allowed to show their medical skills
during seminars for demonstration purposes only.
(Emphasis supplied)
Very truly yours,
Jesus I. Yabes
Minister Counsellor &
Consul General
From said letter, one can see that the Japanese
Government allows foreigners to practice medicine
therein provided that the local requirements are complied
with, and that it is not the impossibility or the prohibition
against Filipinos that would account for the absence of
Filipino physicians holding licenses and practicing
medicine in Japan, but the difficulty of passing the board
examination in the Japanese language. Granting that
there is still no Filipino who has been given license to
practice medicine in Japan, it does not mean that no
Filipino will ever be able to be given one.
Petitioners next argue that as held in De Guzman, its
power to issue licenses is discretionary, hence, not
compellable by mandamus.
The Court finds that the factual circumstances of De
Guzman are different from those of the case at bar;
hence, the principle applied therein should be viewed
differently in this case. In De Guzman, there were doubts
about the integrity and validity of the test results of the
examinees from a particular school which garnered
unusually high scores in the two most difficult subjects.
Said doubts called for serious inquiry concerning the
applicants’ satisfactory compliance with the Board
4
requirements.34 And as there was no definite showing that
the requirements and conditions to be granted license to
practice medicine had been satisfactorily met, the Court
held that the writ of mandamus may not be granted to
secure said privilege without thwarting the legislative
will.35
Indeed, to be granted the privilege to practice medicine,
the applicant must show that he possesses all the
qualifications and none of the disqualifications. It must
also appear that he has fully complied with all the
conditions and requirements imposed by the law and the
licensing authority.36
In De Guzman itself, the Court explained that:
A careful reading of Section 2037 of the Medical Act of
1959 discloses that the law uses the word "shall" with
respect to the issuance of certificates of registration.
Thus, the petitioners [PRC] "shall sign and issue
certificates of registration to those who have satisfactorily
complied with the requirements of the Board." In statutory
construction the term "shall" is a word of command. It is
given imperative meaning. Thus, when an examinee
satisfies the requirements for the grant of his physician's
license, the Board is obliged to administer to him his oath
and register him as a physician, pursuant to Section 20
and par. (1) of Section 22 of the Medical Act of 1959.38
In this case, there is no doubt as to the competence and
qualifications of respondent. He finished his medical
degree from Bicol Christian College of Medicine. He
completed a one-year post graduate internship training at
the Jose Reyes Memorial Medical Center, a government
hospital. Then he passed the Medical Board
Examinations which was given on August 8, 1992 with a
general average of 81.83, with scores higher than 80 in 9
of the 12 subjects.
In fine, the only matter being questioned by petitioners is
the alleged failure of respondent to prove that there is
reciprocity between the laws of Japan and the Philippines
in admitting foreigners into the practice of medicine.
Respondent has satisfactorily complied with the said
requirement and the CA has not committed any reversible
error in rendering its Decision dated November 16, 2004
and Resolution dated October 19, 2003.
WHEREFORE, the petition is hereby DENIED for lack of
merit.
SO ORDERED.
III. ILLEGAL PRACTICE OF MEDICINE
People v. Ventura
114 Phil. 162
BENGZON, C.J.:
This is an appeal from the decision of the Court of First
Instance of Rizal finding Guillermo I. Ventura guilty of
illegal practice of medicine under Section 770 in
connection with Section 2678 of the Revised
Administrative Code, and sentencing him, this being his
second offense, to pay a fine in the sum of P500.00, with
the corresponding subsidiary imprisonment in case of
insolvency and to pay costs.
Appellant, the accused, was charged with the above
offense in an information which alleges that in February
1955, he did,
"willfully, unlawfully and feloniously and for compensation
and reward, practice medicine in the said City (Pasay) by
treating and applying electrical appliances to patients for
the purpose of curing them with their ailments, diseases,
pains, and physical defects from which they are suffering
and by holding out himself to the public by means of signs,
advertisements, and other means, to be a Doctor of
Medicine."
The lower court found, as facts, the following:
"* * * in the year 1949, the accused herein, Guillermo I.
Ventura, was convicted by the court of First Instance of
Rizal of a 'similar offense' or illegal practice of medicine in
the municipality of Pasay, now Pasay City and sentenced
to pay a fine of P200.00 under the same legal provisions,
or Section 770 in connection with Section 2678 of the
Revised Administrative Code.
"* * * by reason of certain complaints the National Bureau
of Investigation had received from the President of the
Philippine Federation of Private Medical Practitioners and
from the Chairman of the Board of Medical Examiners, the
National Bureau of Investigation on December 16, 1955,
sent its morgue attendant Jose Natayan to the clinics of
the accused at No. 2454 M. de la Cruz Street, Pasay City.
Natayan was at that time suffering from pains in his back
and he asked the accused to see his sickness. The
accused attended to Natayan; wrote something on a
piece of paper; and then he told him that he (Natayan)
'was sick of lumbago'. Thereupon, the accused asked
Natayan to pay P5.00 and then asked him to pay the
amount to a lady employee in the clinic which Natayan
did. At the request of the accused, Natayan, then went
around the other side of the clinic where he was given an
enema of hot water by a male attendant. Then Natayan
was asked to lie down on a table where his back was
exposed to a big bulb for around fifteen minutes and
afterwards to a red colored bulb for another ten minutes.
Thereafter Natayan went back to the accused, who told
him to come back to his clinic for six consecutive days.
After that Natayan went back on the same day or
December 16, 1955 to his office in the National Bureau of
Investigation.
The following day, Natayan returned to the clinic of the
accused with the National Bureau of Investigation raiding
party composed of two agents, two attorneys and one
photographer. After he was dropped by the National
Bureau of Investigation agents about seven meters away
from the clinic of the accused, Natayan proceeded to the
5
office of the accused, who then and there told him that
another treatment would be applied to him and that he
would pay P3.00. After paying this amount and while
Natayan was lying on a table about to be given treatment
the National Bureau of Investigation agents raided the
place.
The accused herein, Guillermo I. Ventura, is not a duly
registered masseur or a physician qualified to practice
medicine."
Appellant seeks a reversal here of aforementioned
judgment of conviction on the grounds: (1) that the offense
charged in the information had already prescribed; (2) that
the laws involved are unconstitutional and void; (3) that
granting that the said laws are valid the accused should
not have been prosecuted thereunder because he was
not engaged in the practice of medicine (4) that Congress,
in passing House Bills Nos. 2405 and 357 recognized and
believed in the efficacy of the drugless systems of healing
and although said bills were vetoed by the President of
the Philippines and thereby did not become regular
statutes, they may be considered as concurrent
resolutions formally establishing the drugless system of
healing as a separate and distinct profession, not covered
by Section 770 of the Medical Law; (5) that the
complainants and the Government are estopped from
prosecuting the accused under Section 770 because they
were the ones who induced him to practice drugless
healing after his conviction in 1949; and (6) that the
accused has an implied license to practice drugless
healing from the people of the Philippines and the
Chairman of the Medical Board of Examiners.
Appellant, testifying on his behalf admitted that for the
past 35 years, he had been practicing as a naturopathic
physician, "treating human ailments without the use of
drugs and medicines" and employing in his practice
"electricity, water and hand", without a license to practice
medicine; that during this time he had treated 500,000
patients, more or less, about 90% of whom were healed,
and that he had studied drugless healing in the American
University, Chicago, Illinois for about four years.
Invoking prescription, he argues that in view of the fact
that he had begun the alleged practice of medicine thirty-
five years ago without the required license, the crime
charged in the information had already prescribed.[1]
The records reveal that the accused begun practicing his
method of drugless healing 35 years ago. This practice
was first discovered by the authorities in 1949. He was
prosecuted and convicted therefore the same year.
Sometime after he again set up a clinic. He had a lucrative
clientele and nobody bothered him.
However, at about February, 1955, the President of the
Philippine Federation of Private Medical Practitioners,
complained to the National Bureau of Investigation that
appellant was advertising himself as capable of treating
human ailments without drugs. Upon investigation,
apellant was found to be without certificate of registration
to practice such profession either from the Board of
Medical Examiners or from the Committee of Examiners
of Masseurs. So, this prosecution started in 1956. It is
clear that the four-year period of prescription of the
offense charged should be computed from February,
1955 when the National Bureau of Investigation
discovered appellant's alleged illegal practice of
Medicine.
Appellant also questions the constitutionality of Section
770 in relation to Section 775 of the Revised
Administrative Code. It is appellant's theory that to
require, of any person whose business is merely to
stimulate by mechanical means the nerves of the body,
many years of study in medical schools, taking up
obstetrics, general surgery, gynecology, bacteriology and
many other sciences, is curtailment of the exercise of
one's calling, a violation of the constitutional principle that
all men have the right to life, liberty, and the pursuit of
happiness and are entitled to the equal protection of the
law. It is furthermore theorized that inasmuch as drugless
healing is not taught in any of the medical schools
prescribed, how could the members of the Medical Board
of Examiners pass on the competence of these drugless
healers?
This same contention was presented to and settled by this
Court in the case of People vs. Buenviaje who was
convicted of illegal practice of medicine for practicing
chiropractor.[2] It held:
"There is very little force in this argument. The subjects in
which an examination is required relate to matters of
which a thorough knowledge seems necessary for the
proper diagnosis of diseases of the human body and it is
within the police power of the State to require that persons
who devote themselves to the curing of human ills should
possess such knowledge."
In the instant case, we must again uphold those
immutable concepts of the police power of the State.
Under this power, the State may prescribe such
regulations as in its judgment will secure or tend to secure
the general welfare of the people, to protect them against
the consequences of ignorance and incapacity as well as
of deception and fraud. As one means to this end, it has
been the practice of different States, from time
immemorial to exact in any pursuit, profession or trade, a
certain degree of skill and learning upon which the
community may confidently rely, their possession being
generally ascertained in an examination of parties by
competent persons, or inferred from a certificate to them
in the form of a diploma or license from an institution
established for instruction on the subjects, scientific and
otherwise, with which such pursuits have to deal.[3]
Appellant claims that his act of stimulating the affected
nerves of the patients without use of any drug or medicine
is not practice of medicine; that "practice of medicine" is
confined only to the systems taught by the medical
schools, namely, the regular, the homeopathic and the
electric schools or systems.
6
Section 770 of the Revised Administrative Code in no
uncertain terms covers appellant's acts. The statutory
definition as to what acts constitute illegal practice of
medicine as provided in said Section 770 includes the
acts and practices performed by appellant. By his own
statements, he admitted to have continuously diagnosed
aad treated more or less 500,000 instances of different
kinds of human ailments and to have prescribed remedies
therefor.
As regards the contention that there are at least two
concurrent resolutions declaring formally that Congress
has recognized the drugless methods of healing, we need
not elaborate further than to say that not until such
recognition is actually embodied in a statute, shall we
extend consideration of such method.
Appellant pleads that the lower court erred in not holding
that the complainants and the government are estopped
from prosecuting him because they were the ones who
induced him to practice drugless healing after his
conviction in 1949. He tried to show that medical
practitioners, members of Congress, provincial
governors, city mayors and municipal board members
wrote to him requesting his help for persons suffering from
all kinds of ailments; that municipal ordinances and
resolutions were also passed authorizing him not only to
practice his method of healing hut also to put up clinics in
some municipalities; that he was even extended free
transportation facilities to work in the Central Luzon
Sanitarium in Tala, Caloocan, Rizal.
Above plea cannot be sustained by this Court. The
doctrine of estoppel does not apply to the government.[4] It
is never estopped by mistakes or errors on the part of its
agents, even assuming without conceding that said
municipalities had encouraged appellant's practice. We
cannot allow the bargaining away of public health and
safety for the semblance of benefit to a few government
officials, people or even municipalities.
Similarly, there is no such thing as implied license to
practice drugless healing by the mere fact that the
Chairman of the Board of Medical Examiners had
permitted appellant to serve free in the Central Luzon
Sanitarium in Tala, Caloocan, Rizal, or that countless
people persisted in engaging his services. For one thing,
these people might have contracted his services on the
mistaken notion that he was duly licensed to practice his
profession; for another, a repetition of illegal acts can
never make them legal.
As additional argument, appellant urges acquittal under
the new Medical Act of 1959[5] wherein the practice of
physiotherapy is recognized as a distinct science. He
claim coverage of said law on the ground that he practices
physiotherapy by massage through physical devices and
upon the recommendation of duly registered physicians.
The above argument has no merit because there is strong
evidence to the effect that appellant alone diagnoses his
patients' ailments and applies that remedies
therefor[6] without written order or prescription by a
registered physician.
Wherefore, the decision appealed from is hereby affirmed
in all parts and respects. Costs against appellant.
G.R. No. L-22945 March 3, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-
Appellee, vs. JOVITA V. BUENVIAJE, Defendant-
Appellant.
OSTRAND, J.:
The defendant is accused of the violation of the Medical
Act, the information alleging "that on or about the first day
of June, 1923, and for some time prior to said date, the
said accused without having obtained from the Board of
Medical Examiners the corresponding certificate of
registration for the practice of medicine in the Philippine
Islands, voluntarily, illegally and criminally and for
compensation, practiced medicine in the City of Manila,
Philippine Islands, assisting, treating and manipulating
the head and body of Regino Noble for the purpose of
curing him of the ailments, diseases, pains and physical
defects from which he pretended to suffer, and advertising
and offering her services as a physician, by means of
cards which she distributed and by letterheads and signs
which she exposed on the door of her office, situated at
No. 712 Calle Asuncion, and in newspapers which are
published and circulated in the City of Manila, in which
cards, letterheads, signs and advertising she added and
prefixed to her name the letters `Dra.,' which is the
abbreviation of the word `doctor,' for the purpose of
causing the public to believe that she, the said defendant,
had received the corresponding title of doctor."chanrobles
virtual law library
To this information the defendant demurred in the court
below on the grounds: (1) That it stated more than one
offense, and (2) that it was not drawn in accordance with
the form prescribed by law. The demurrer was overruled
and the defendant pleaded not
guilty.chanroblesvirtualawlibrary chanrobles virtual law
library
At the trial of the case the defendant made the following
admissions: "That on the first of June, 1923, she had no
certificate from the Board of Medical Examiners
authorizing her to practice medicine in the Philippine
Islands; that on that day she treated and manipulated the
head and body of Regino Noble in order to cure him of
ailments from which he pretended to suffer, the treatment
consisting in a `thrust' by means of the application of the
hand to the spinal column; that she for such treatment
received and collected from said Regino Noble the sum of
P1; that the said treatment took place in her office situated
at No. 712 Calle Asuncion, District of Binondo, City of
Manila, Philippine Islands; that she on or about the first
day of June, 1923, and for some time prior to that date,
7
advertised herself as a `doctor of chiropractic,' in said City
of Manila, said advertisement appearing upon her
business cards and in the newspaper `El Debate,' in its
issue of April 29, 1923, edited and published in Manila and
in which cards and newspaper advertisement the
defendant prefixed the abbreviation `Dra.' to her name;
that she was graduated a doctor in chiropractic on the
13th day of August, 1919, as evidenced by a certificate
marked Exhibit I and issued by the American University
School of Chiropractic of Chicago, Illinois."chanrobles
virtual law library
Upon this admission and some other evidence to the
same effect, the trial court found the defendant guilty as
charged in the information and, in accordance with
section 2678 of the Administrative Code, sentenced her
to pay a fine of P300, with subsidiary imprisonment in
case of insolvency and to pay the costs. From this
judgment the defendant appeals to this court and
presents four assignments of
error.chanroblesvirtualawlibrary chanrobles virtual law
library
I. In the first assignment of error counsel contends that the
demurrer to the information should have been sustained
on the ground that said information charged more than
one offense. The Medical Law is contained in sections
758 to 783 of the Administrative Code and it is argued that
inasmuch as some of the illegal acts with which the
defendant is charged are prohibited by section 770 of the
Code and others by section 783, the defendant is in reality
accused of two separate and distinct offenses, namely,
illegal practice of medicine and illegally representing
oneself as
doctor.chanroblesvirtualawlibrary chanrobles virtual law
library
We cannot accept this view. It may be noted that the
Medical Law itself, as it appears in the Administrative
Code, does not declare any of the therein prohibited acts
penal offenses. The penal provisions relating thereto are
contained in section 2678 of the Code, which reads as
follows:
SEC. 2678. Violation of Medical Law. - A person violating
any provision of the Medical Law shall, upon conviction,
be punished by a fine of not more than three hundred
pesos or by imprisonment for not more than ninety days,
or both, in the discretion of the court.
The offense here penalized is "violation of the Medical
Law." The statute makes no distinction between illegal
practice of medicine and illegally advertising oneself as a
doctor. Both are in violation of the Medical Law and carry
the same penalty. They are merely different ways or
means of committing the same offense and both of these
means are closely related to each other and usually
employed together.chanroblesvirtualawlibrary chanrobles
virtual law library
In these circumstances and where, as alleged in the
information in the present case, the various violations
have taken place simultaneously, we do not think it was
the intention of the legislator that each single act should
be regarded as a separate offense and separate
informations presented for each. The language of this
court in the case of United States vs. Poh Chi (20 Phil.,
140), in regard to the Opium Law, is opposite to the
present case.
It is true that the Commission has provided a certain
punishment for the possession of a pipe used in the
smoking of opium, for the smoking of opium, as well as a
punishment for the illegal possession of opium, but it is
not believed that it was the intention of the legislature to
have separate complaints filed against a person who was
found in the illegal possession of opium and a pipe at the
same time. If that were true then every person who was
found to be smoking opium could be charged in three
different complaints: First, with the illegal possession of
the pipe; second, the illegal possession of the opium;
and third, for smoking the opium. Certainly the legislature
did not intend any such consequences.
In the case of United States vs. Douglass (2 Phil., 461),
the court said:
It is not objectionable, when a single offense may be
committed by the use of different means, to charge, in the
alternative, the various means by which the crime may
have been committed. (U.S. vs. Potter, 27 Fed. Cases,
604; Bishop's New Criminal Procedure, sec. 434.)
a
The same rule was followed in the case of United
States vs. Dorr (2 Phil., 332); United States vs. Tolentino
(5 Phil., 682); and United States vs. Gustilo (19 Phil., 208)
and is in harmony with the views of the courts in other
jurisdictions. That the various means of committing the
offense is described in more than one section of the
statute does not necessarily effect the general principle
involved; the subdivision of a statute into section is merely
a matter of convenience and while it sometimes may be
of some aid in ascertaining the legislative intent, it is, of
course, not conclusive
thereof.chanroblesvirtualawlibrary chanrobles virtual law
library
II. Under the second assignment of error the appellant
argues in substance that chiropractic has nothing to do
with medicine and that the practice of that profession can
therefore not be regarded as practice of medicine. There
is no merit whatever in this contention. Assuming without
conceding that chiropractic does not fall within the term
"practice of medicine" in its ordinary acceptation, we have
the statutory definition contained in section 770 of the
Administrative Code and which clearly includes the
manipulations employed in chiropractic. The statutory
definition necessarily prevails over the ordinary
one.chanroblesvirtualawlibrary chanrobles virtual law
library
8
Under the same assignment of error the defendant also
argues that the examination prescribed by section 776 of
the Administrative Code for admission to the practice of
medicine, embraces subjects which have no connection
with chiropractic and that to require chiropractors to take
that examination is unreasonable and, in effect amounts
to prohibition of the practice of their profession and
therefore violates the constitutional principle that all men
have the right to life, liberty and the pursuit of happiness
and are entitled to the equal protection of the
law.chanroblesvirtualawlibrary chanrobles virtual law
library
There is very little force in this argument. The subjects in
which an examination is required by section 778 of the
Administrative Code, as amended by Act No. 3111, relate
to matters of which a thorough knowledge seems
necessary for the proper diagnosis of diseases of the
human body and it is within the police power of the State
to require that persons who devote themselves to the
curing of human ills should possess such knowledge.
(State vs. Edmunds, 127 Iowa, 333; 69 L.R.A., 504;
Underwood vs. Scott, 43 Kan., 714; People vs. Blue
Mountain Joe, 129 Ill., 370; State vs. Mylod, 20 R. I., 632;
41 L.R.A., 428; Stewart vs. Raab, 55 Minn., 20;
Matthei vs. Wooley, 69 Ill. App., 654; State vs. Buswell,
40 Neb., 158; 24 L.R.A., 68; O'Connor vs. State, 46 Neb.,
157; U. S. vs. Gomez Jesus, 31 Phil., 218.)chanrobles
virtual law library
III. The third assignment of error is closely related to the
foregoing. The appellant contends that the prohibition in
section 783 against the unauthorized use of the title
"doctor" must be understood to refer to "Doctor of
Medicine" and has no application to doctors of
chiropractic. Under different circumstances that might
possibly be so, but where, as here, chiropractic is by
statute made a form of the practice of medicine, it
necessarily follows that a person holding himself out as a
doctor of chiropractic in legal effect represents himself as
a doctor of
medicine.chanroblesvirtualawlibrary chanrobles virtual
law library
IV. In her fourth assignment of error the appellant attacks
the constitutionality of Act No. 3111, amending section
770 of the Administrative Code, on the ground that the
subject of the Act is not sufficiently expressed in its title
and that it embraces more than one subject. There is no
merit in this contention. The title of Act No. 3111 reads as
follows:
An Act to amend sections seven hundred and fifty-nine,
seven hundred and sixty, seven hundred and sixty-one,
seven hundred and sixty-two, seven hundred and sixty-
five, seven hundred and sixty-seven, seven hundred and
seventy, seven hundred and seventy-four, seven hundred
and seventy-five, seven hundred and seventy-six, seven
hundred and seventy-eight, seven hundred and eighty,
seven hundred and eighty-two, seven hundred and
eighty-three, and twenty-six hundred and seventy-eight of
Act Numbered Twenty-seven hundred and eleven, known
as the Administrative Code, increasing the number of the
members of the Board of Medical Examiners, conferring
upon the same certain additional powers and
responsibilities and for other purposes.
All of the sections enumerated in the title quoted relate to
the same general subject, namely, defining and regulating
the practice of medicine, and section 770 is expressly
mentioned as one of the sections
amended.chanroblesvirtualawlibrary chanrobles virtual
law library
This is sufficient. Under constitutional provisions similar to
ours the general rule is that a title which declares the
amendatory statute to be an act to amend a designated
section or the like of a specified Code is sufficient and the
precise nature of the amendatory Act need not be further
stated. (Ross vs. Aguirre, 191 U.S., 60; Udell vs. Citizens
Street R. Co., 152 Ind., 507; McGuire vs. Chicago, etc.,
R. Co., 131 Iowa, 340; Lankford vs. County
Commissioners of Somerset County, 73 Md., 105;
Tabor vs. State, 34 Tex. Crim., 631; Com. vs. Brown, 91
Va., 762.) For a full and authoritative discussion of this
subject, see Note to Lewis vs. Dunne, 55 L.R.A., 833. See
also Government of the Philippine Islands vs. Municipality
of Binalonan and Roman Catholic Bishop of Nueva
Segovia (32 Phil., 634) and Yu Cong Eng vs. Trinidad (p.
385, ante).chanroblesvirtualawlibrary chanrobles virtual
law library
We find no error in the judgment appealed from and the
same is therefore affirmed, with the costs against the
appellant. So ordered.
SIXTO P. CRISOSTOMO, petitioner, vs. SECURITIES
AND EXCHANGE COMMISSION, SPOUSES SHOJI
YAMADA and MICHIYO YAMADA and SPOUSES
TOMOTADA ENATSU and EDITA ENATSU,
respondents.
G.R. Nos. 89095 & 89555 | 1989-11-06
DECISION
AQUINO, J.:
In his petition for certiorari, 1 the petitioner seeks
to annul and set aside the en banc resolution dated
February 14, 1989 of the Securities and Exchange
Commission in SEC EB Case No. 191 and the concurring
opinions thereto (Annexes F, G, and H, pp. 39-62, Rollo),
as well as its orders dated June 27, 1989 and July 21,
1989 (Annexes M and O, pp. 83-86, Rollo) directing the
corporate secretary of the United Doctors Medical Center,
Inc. (hereafter "UDMC") to call a special meeting of the
9
stockholders to elect the officers and directors in the
implementation of the SEC's aforementioned en banc
resolution of February 14, 1989, which the Court of
Appeals affirmed in its decision dated June 8, 1989 in CA-
G.R. SP No. 17435, entitled "Sixto Crisostomo, petitioner
vs. Securities and Exchange Commission, Spouses Dr.
Shoji Yamada and Michiyo Yamada, and Spouses Dr.
Tomotada Enatsu and Edita Enatsu, respondents." On
August 1, 1989, the Court of Appeals denied Crisostomo's
motion for reconsideration of its decision. On August 24,
1989, he filed a petition for review of said decision in this
Court (G.R. No. 89555) which was originally assigned to
the Third Division, but was later consolidated with G.R.
No. 89095.
At first blush, the petitions sound like a patriotic
defense of the Constitution, but, at bottom they are only
an artful scheme to defraud a group of foreign investors
who had been persuaded by the officers of UDMC to
invest P57 million to save the corporation (its assets as
well as those of the Crisostomos) from imminent
foreclosure by the Development Bank of the Philippines
(DBP) to which UDMC was indebted in the sum of P55
million. It is the kind of operation that sullies our collective
image as a people and sets back our government's heroic
efforts to attract foreign investments to our country.
The antecedent facts, culled from the decision of the
Court of Appeals, are as follows:
Sixto Crisostomo, Felipe Crisostomo (deceased),
Veronica Palanca, Juanito Crisostomo, Carlos
Crisostomo, Ricardo Alfonso, Regino Crisostomo and
Ernesto Crisostomo (known as the Crisostomo group)
were the original stockholders of the United Doctors
Medical Center (UDMC) which was organized in 1968
with an authorized capital stock of P1,000,000 (later
increased to P15,000,000 in 1972). They owned
approximately 40% of UDMC's outstanding capital stock,
while the 60% majority belonged to the members of the
United Medical Staff Association (UMSA), numbering
approximately 150 doctors and medical personnel of
UDMC.
Despite their minority status, the Crisostomo
group has managed UDMC from its inception, with
Juanito Crisostomo as president, Ricardo Alfonso, Sr. as
chairman of the board, Carlos Crisostomo as corporate
secretary and Sixto Crisostomo as director and legal
counsel.
In 1988, UDMC defaulted in paying its loan obligation of
approximately P55 million to the DBP. In the last quarter
of 1987, UDMC's assets (principally its hospital) and
those of the Crisostomos which had been given as
collateral to the DBP, faced foreclosure by the Asset
Privatization Trust (APT), which had taken over UDMC's
loan obligation to the DBP.
To stave off the threatened foreclosure, UDMC,
through its principal officers, Ricardo Alfonso and Juanito
Crisostomo, persuaded the Yamadas and Enatsu (Shoji
Yamada and Tomotada Enatsu are Japanese doctors) to
invest fresh capital in UDMC. The wife of Tomotada
Enatsu, Edita Enatsu, is a Filipina. They invested
approximately P57 million in UDMC.
The investment was effected by means of: (1) a
Stock Purchase Agreement; and (2) an Amended
Memorandum of Agreement whereby the group
subscribed to 82.09% of the outstanding shares of
UDMC.
Both transactions were duly authorized by the
board of directors and stockholders of UDMC. They were
submitted to, scrutinized by, and, finally, approved by the
Board of Investments, the Central Bank of the Philippines,
and the Securities and Exchange Commission. The
elaborate governmental approval process was done
openly and with full knowledge of all concerned, including
Sixto Crisostomo, the corporate legal counsel. Upon the
completion of the governmental approval process, shares
of stock, duly signed by UDMC's authorized officers, were
issued to the Yamadas and Enatsus.
This capital infusion not only saved the assets of
the UDMC (especially the hospital) from foreclosure but
also freed the Crisostomos from their individual and
solidary liabilities as sureties for the DBP loan.
As it had been agreed in the Amended
Memorandum of Agreement between UDMC and the
Japanese group that upon the latter's acquisition of the
controlling interest in UDMC, the corporation would be
reorganized, a special stockholders' meeting and board of
directors' meeting were scheduled to be held on August
20, 1988. However, on the eve of the meetings, i.e.,
on August 19, 1988, Sixto Crisostomo, supposedly acting
for himself, filed SEC Case No. 3420 against Juanito
Crisostomo, Ricardo Alfonso, Shoji Yamada, Michiyo
Yamada, Tomotada Enatsu and Edita Enatsu, praying,
among other things, (1) to stop the holding of the
stockholder's and board of directors' meetings; (2) to
disqualify the Japanese investors from holding a
controlling interest in UDMC and from being elected
directors or officers of UDMC; and (3) to annul the
Memorandum of Agreement and Stock Purchase
Agreement because they allegedly did not express the
true agreement of the parties (pp. 194-203, Rollo).
Two weeks later, on September 2, 1988,
Crisostomo filed Civil Case No. 88-1823 in the Regional
Trial Court of Makati, Metro Manila, where he also sought
a preliminary injunction and the identical reliefs prayed for
by him in SEC Case No. 3420 (pp. 317-335, Rollo).It was
dismissed by the trial court for lack of jurisdiction and is
pending appeal in the Court of Appeals where it is
docketed as CA-G.R No. 20285-CV.
On September 13, 1988, the hearing officer,
Antonio Esteves, granted the application for a writ of
preliminary injunction enjoining the respondents
". . . from holding the special meeting of the
stockholders and of the Board of Directors of United
Doctors Medical Center, [Inc.] (UDMC) scheduled on
August 20, 1988 or any subsequent meetings; from
adopting resolutions to elect new directors and appoint
new officers; from approving resolutions directly or
10
indirectly affecting the operations, organizational
structure, and financial condition of the corporation, . . .
and from disbursing funds of the said corporation except
those ordinary day-to-day expenses pending the final
termination of this case." (p. 30, Rollo.)
The private respondents' motion for
reconsideration of this order was denied by the hearing
officer on November 16, 1988. In the same order, he
created a management committee to administer UDMC
(pp. 32-35, Rollo).
The respondents appealed by certiorari to the
SEC en banc. On February 14, 1989, Commissioner Jose
C. Laureta, with whom Commissioners Rosario N. Lopez
and Gonzalo T. Santos separately concurred, set aside
the preliminary injunction issued by Esteves and the
management committee which he created. The
dispositive part of the decision reads:
"Wherefore, premises considered, the instant
petition for certiorari is GRANTED and the Commission
en banc ORDERS:
"1. That the questioned orders of the hearing
officer in SEC Case No. 3420 of September 13, 1988 and
November 16, 1988, be immediately vacated;
"2. That a special stockholders' meeting of UDMC
be held for the purpose of allowing the stockholders of
record of the corporation to elect a new board of directors,
which special meeting is hereby directed to be scheduled
within 10 days from receipt of a copy of this resolution by
the incumbent corporate secretary or acting corporate
secretary of UDMC, and to this end, that such officer be,
as he hereby is, directed: (a) to issue a call for such
special meeting and serve notice thereof on all
stockholders of record of the corporation, in accordance
with section 6 of article VII of UDMC's by-laws; and (b) to
submit to the Commission, through the Commission
Secretary, a written report of his compliance with this
particular order of the Commission, not later than 5 days
prior to the scheduled date of the proposed UDMC special
stockholders' meeting;
"3. That upon the election of a new board of
directors of UDMC, that such board be, as it hereby is,
enjoined to meet as promptly as possible for the purpose
of electing a new set of officers of the corporation in order
to ensure its proper management;
"4. That the hearing officer be, as he hereby is,
directed to continue with the proceedings of SEC Case
No. 3420, and to do so with all deliberate speed, for the
purpose of resolving the alleged violation of certain rights
of Sixto Crisostomo, as a stockholder of UDMC,
particularly, his right to inspect the corporate books and
records of UDMC, his preemptive right to subscribe to the
P60 million increase in the authorized capital of UDMC,
and his appraisal rights; and
"5. That the board of directors and officers of
UDMC be, as they hereby are, ordered to submit to the
Commission, through the Chairman, a written report as to
its plans as regards its nursing school, such report to be
submitted at least one month prior to the commencement
of the school year 1989-1990.
"SO ORDERED." (pp. 49-50, Rollo.)
Sixto Crisostomo sought a review of the SEC's en
banc resolution in the Court of Appeals (CA-G.R. SP No.
17435).
On June 8, 1989, the Court of Appeals dismissed
his petition and lifted the temporary restraining order that
it had issued against the SEC's resolution (Annex K, pp.
65-81, Rollo). Petitioner filed a motion for reconsideration
(pp. 418-434, Rollo). The Court of Appeals required the
private respondents to comment but it denied the
petitioner's motion to reinstate the writ of preliminary
injunction (Annex L, p. 82, Rollo).
On motion of the private respondents (Annex K,
p. 413, Rollo), the SEC en banc issued an order on June
27, 1989 directing the secretary of UDMC to call a special
stockholders' meeting to elect a new board of directors
and officers of the corporation (Annex F). Petitioner asked
the SEC to recall that order on account of his pending
motion for reconsideration in the Court of Appeals. The
motion was opposed by the private respondents. On July
21, 1989, the SEC denied petitioner's motion (p. 86,
Rollo). Whereupon, he filed this petition for certiorari and
prohibition with a prayer for preliminary injunction alleging
that the SEC en banc abused its discretion:
1. in setting aside Esteves' orders;
2. in allowing the Japanese group to have control
of UDMC for it will result in culpable violation of Section 7,
Article XII of the 1987 Constitution which provides that no
private lands shall be transferred or conveyed except to
individuals or corporations qualified to acquire or hold
land of the public domain, meaning corporations at least
sixty per centum of whose capital is owned by Filipino
citizens (Sec. 2, Article XII, 1987 Constitution); and
3. in allowing the Japanese investors to own more
than 40% of the capital stock of UDMC (which operates a
nursing and midwifery school) in violation of Section 4 (2)
Article XIV of the 1987 Constitution which provides that
educational institutions . . . shall be owned solely by
citizens of the Philippines or corporations or associations
at least sixty per centum of the capital of which is owned
by such citizens.
The public and private respondents, in their
comments on the petition, asked that the petition be
dismissed and that the petitioner be cited for contempt for
forum-shopping.
We find no merit in the petition. The first allegation
that the SEC en banc erred in reversing the orders of the
hearing officer, Esteves, is the same ground raised by the
petitioner in CA-G.R. No. SP 17435. The issue is frivolous
for the authority of the SEC en banc to review, revise,
reverse, or affirm orders of its hearing officers is too
elementary to warrant any debate.
Equally unmeritorious are the second and third
grounds of the petition ---- that the P57 million investment
of the Japanese group in UDMC violates the constitutional
provisions restricting the transfer or conveyance of private
lands (Art. XIII, Sec. 7, 1987 Constitution) and the
ownership of educational institutions (Art. XVI, Sec. 14[a],
1987 Constitution), to citizens of the Philippines or
11
corporations at least 60% of the capital of which is owned
by Filipino citizens. While 82% of UDMC's capital stock is
indeed subscribed by the Japanese group, only 30%
(equivalent to 171,721 shares or P17,172.00) is owned by
the Japanese citizens, namely, the Yamada spouses and
Tomotada Enatsu. 52% is owned by Edita Enatsu, who is
a Filipino. Accordingly, in its application for
approval/registration of the foreign equity investments of
these investors, UDMC declared that 70% of its capital
stock is owned by Filipino citizens, including Edita Enatsu.
That application was approved by the Central Bank on
August 3, 1988 (p. 249, Rollo).
The investments in UDMC of Doctors Yamada
and Enatsu do not violate the Constitutional prohibition
against foreigners practicing a profession in the
Philippines (Section 14, Article XII, 1987 Constitution) for
they do not practice their profession (medicine) in the
Philippines, neither have they applied for a license to do
so. They only own shares of stock in a corporation that
operates a hospital. No law limits the sale of hospital
shares of stock to doctors only. The ownership of such
shares does not amount to engaging (illegally) in the
practice of medicine, or, nursing. If it were otherwise, the
petitioner's stockholding in UDMC would also be illegal.
The SEC's orders dated June 27, 1989 and July
21, 1989 (directing the secretary of UDMC to call a
stockholders' meeting, etc.) are not premature, despite
the petitioner's then pending motion for reconsideration of
the decision of the Court of Appeals. The lifting by the
Court of Appeals of its writ of preliminary injunction in CA-
G.R. SP No. 17435 cleared the way for the
implementation by the SEC's en banc resolution in SEC
EB Case No. 191. The SEC need not wait for the Court of
Appeals to resolve the petitioner's motion for
reconsideration for a judgment decreeing the dissolution
of a preliminary injunction is immediately executory. It
"shall not be stayed after its rendition and before an
appeal is taken or daring the pendency of an appeal."
(Sec. 4, Rule 39, Rules of Court; Marcelo Steel Corp. vs.
Court of Appeals, 54 SCRA 89 [1973]; Aguilar vs. Tan, 31
SCRA 205 [1970]; Sitia Teco vs. Ventura, 1 Phil. 497
[1902]; Watson & Co., Ltd. vs. M. Enriquez, 1 Phil. 480
[1902]).
We now address the public and private
respondents' separate motions to dismiss the petition and
to cite Crisostomo and his counsel for contempt of court
for forum-shopping. The records show that Crisostomo
had two actions pending in the Court of Appeals (CA-G.R.
No. SP 17435 and CA-G.R. No. 20285 CV) when he filed
the petition for certiorari (G.R. No. 89095) in this Court on
July 27, 1989. The case docketed as CA-G.R. No. 20285-
CV, is his appeal from the decision of the Regional Trial
Court of Makati, dismissing his complaint for annulment of
the Memorandum of Agreement and the Stock Purchase
Agreement between UDMC and the Japanese investors.
CA-G.R. No. SP 17435 is his petition for certiorari to
review the SEC's en banc resolution upholding those
transactions and ordering the holding of a stockholders
meeting to elect the directors of the UDMC, and of a board
of directors' meeting to elect the officers.
Notwithstanding the pendency of those two cases
in the Court of Appeals, Crisostomo filed this petition for
certiorari and prohibition on July 27, 1989 where he raises
the same issues that he raised in the Court of Appeals.
The prayer of his petition in CA-G.R. No. SP
17435 reads thus:
"3) After hearing on the merits, judgment be
rendered:
"a) Annulling and setting aside the questioned
rulings of the respondent COMMISSION 2 for having
been issued with grave abuse of discretion tantamount to
lack or excess of jurisdiction; and
"b) Making permanent the preliminary injunction
issued in this case against the respondents." (p. 241,
Rollo.)
In his petition for certiorari (G.R. No. 89095), he also prays
that
"1. Upon the filing of this petition, a temporary
restraining order issue enjoining respondents, their
representatives or agents from implementing or executing
the SEC opinions (Annexes 'F', 'G' and 'H') and its June
27 and July 21, 1989 orders (Annexes 'M' and 'O') until
further orders from the Honorable Court.
Xxx xxx xxx
"3. After notice, this petition be given due course
and a writ of preliminary injunction be issued for the same
purpose and effect upon such terms and conditions the
Honorable Court may impose; and thereafter, judgment
be rendered granting the writ prayed for and annulling and
setting aside the said opinions rendered by the SEC in
their stead, affirming the orders of the Hearing Officer
(Annexes 'A' and 'B')." (pp. 27-28, Rollo.)
Additionally, in his petition for review (G.R. No.
89555) he prays this Court to grant "all the reliefs" prayed
for by him in CA-G.R. SP No. 17435.
Here is a clear case of forum-shopping.
"There is forum-shopping whenever, as a result
of an adverse opinion in one forum, a party seeks a
favorable opinion (other than by appeal or certiorari) in
another. The principle applies not only with respect to
suits filed in the courts but also in connection with
litigations commenced in the courts while an
administrative proceeding is pending, as in this case, in
order to defeat administrative processes and in
anticipation of an unfavorable administrative ruling and a
favorable court ruling. This is specially so, as in this case,
where the court in which the second suit was brought, has
no jurisdiction. (Villanueva vs. Adre, G.R. No. 80863, April
27, 1989.)" (p. 303, Rollo.
Forum-shopping is prohibited by the Interim
Rules of Court for it trifles with the courts and abuses their
processes (E. Razon, Inc. vs. Phil. Port Authority, 101
SCRA 450). Section 17 of the Interim Rules of Courts
provides:
"17. Petitions for writs of certiorari, etc., ---- No
petition for certiorari, mandamus, prohibition, habeas
corpus or quo warranto may be filed in the Intermediate
12
Appellate Court if another similar petition has been filed
or is still pending in the Supreme Court. Nor may such
petition be filed in the Supreme Court if a similar petition
has been filed or is still pending in the Intermediate
Appellate Court, unless it be to review the action taken by
the Intermediate Appellate Court on the petition filed with
it. A violation of this rule shall constitute contempt of court
and shall be a cause for the summary dismissal of both
petitions, without prejudice to the taking of appropriate
action against the counsel or party concerned." (Interim
Rules of Court.)
Forum-shopping makes the petitioner subject to
disciplinary action and renders his petitions in this Court
and in the Court of Appeals dismissible (E. Razon, Inc. vs.
Philippine Port Authority, et al., G.R. No. 75197,
Resolution dated July 31, 1986; Buan vs. Lopez, Jr., 145
SCRA 34, 38-39; Collado vs. Hernando, L-43886, May
30, 1988). For this reason, if not for their lack of merit, the
petitions should be, as they are hereby, dismissed.
WHEREFORE, these petitions are dismissed for
lack of merit. The temporary restraining order which this
Court issued on August 7, 1989 in G.R. No. 89095 is
hereby lifted. The Court of Appeals is ordered to
immediately dismiss CA-G.R. CV No. 20285. The
petitioner and his counsel are censured for engaging in
forum-shopping. The petitioner is further ordered to pay
double costs in this instance.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ.,
concur.
[G.R. No. 46094. September 27, 1939.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. FERNANDO C. QUEBRAL, Defendant-
Appellant.
Mabanag, Primicias, Abad & Mencias for Appellant.
Solicitor-General Ozaeta and Assistant Attorney
Kapunan, jr., for Appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE; VIOLATION OF
SECTION 770 OF THE ADMINISTRATIVE CODE;
EVIDENCE; BURDEN OF PROVING NEGATIVE
AVERMENT. — There is no question that the accused
diagnosed, treated and prescribed for certain diseases
suffered by certain patients, from whom he received
money as compensation; but it is contended that no
evidence has been adduced to the effect that the accused
had thus practiced medicine "without having previously
obtained the proper certificate of registration issued by the
Board of Medical Examiners," as provided in section 770
of the Administrative Code. The rule is, and has always
been, that, if the subject of the negative averment, like, for
instance, the act of voting without the qualifications
provided by law, inheres in the offense as an essential
ingredient thereof, the prosecution has the burden of
proving the same. (Sec. 297, Act No. 190; U. S. v. Tria,
17 Phil., 303, 306, 307.) In view, however, of the difficult
office of proving a negative allegation, the prosecution,
under such circumstance, need do no more than make a
prima facie case from the best evidence obtainable. (U.
S. v. Tria, supra.) It would certainly be anomalous to hold."
. . that mere difficulty in discharging a burden of making
proof should displace it; and as a matter of principle the
difficulty only relieves the party having the burden of
evidence from the necessity of creating positive
conviction entirely by his own evidence; so that, when he
produces such evidence as it is in his power to produce,
its probative effect is enhanced by the silence of his
opponent." (22 C. J., pp. 81, 82.) The rule, however, is
different when the subject of the negative averment does
not constitute an assential element of the offense, but is
purely a matter of defense. In such case, the burden of
proof is upon the defendant. As to whether or not a
negative agreement is a matter of defense, is a question
which we have fully discussed in United States us. Chan
Toco (12 Phil., 262).
2. ID.; ID.; ID.; ID.; CASE AT BAR. — Section 770 of the
Administration Code provides that "no person shall
practice medicine in this Philippine Islands without having
previously obtained the proper certificate of registration
issued by the Board of Medical Examiners . . ." This
provision clearly includes the want of certificate as an
essential element of the offense charged. The negative
fact is not separable from the offense as defined. it is,
therefore, incumbent upon the prosecution to proves that
negative fact, and failure to prove it is a ground for
acquittal. In the instant case, however, the decision
rendered by the lower court makes mention of Exhibit F-2
as showing that the accused is not a registered physician.
Furthermore, Exhibit H-3 is also mentioned in the decision
of the lower court, which is a letter of the accused to the
President of the Philippines, quoting approvingly an article
published in this Philippines Herald, wherein it is said that
F. Q. is not a holder of a doctor of medicine degree. These
Exhibits, F-2 and H-3, are sufficient evidence to show that
the accused has been practicing medicine without the
required certificate of registration issued by the Board of
Medical Examiners.
DECISION
MORAN, J.:
In June, 1937, the provincial fiscal of Pangasinan filed an
information against the accused, Fernando C. Quebral,
for violation of section 770 of the Administrative Code.
The pertinent portion of the information reads as follows:
"Que en o hacia y desde el ano de 1930 en adelante hasta
el mes de mayo de 1937, inclusive, en los municipios de
San Jacinto, Mapandan, Mangaldan y Dagupan,
Provincia de Pangasinan, Filipinas, y dentro de y
jurisdiccion de este Juzgado, el aeusado arriba nombrado
voluntaria, ilegal y criminalmente y sin haber obtenido
previamente el certificado de registro correspondiente,
expedido por la Junta Examinadora de Medicos, ejercio
13
la medicina dentro de los terminos del articulo 770 del
Codigo Administrativo Revisado, . . ."cralaw virtua1aw
library
There is no question that the accused diagnosed,
treated and prescribed for certain diseases suffered by
certain patients, from whom he received money as
compensation; but it is contended that no evidence has
been adduced to the effect that the accused had thus
practiced medicine "without having previously obtained
the proper certificate of registration issued by the Board
of Medical Examiners," as provided in section 770 of the
Administrative Code.
As to this question, the lower court said:
"No hay cuestion alguna en cuanto al hecho de
que 108 actos del acusado probados por la acusacion
constituyen un ejercicio de la medicina. La unica cuestion,
por tanto, a determinar es la de si o no incumbia a la
acusacion probar que dicho acusado habia ejercido la
profesion medica sin estar previamente registrado como
tal medico.
"Teniendo en cuenta lo dispuesto en el articulo
297 del Codigo de Procedimiento Civil y la doctrina
enunciada por nuestra Honorable Corte Suprema en las
causas Estados Unidos contra Gonzalez (10 Jur. Fil., 67);
Estados Unidos contra Co Pinco (10 Jur. Fil., 370);
Estados Unidos contra Tria (17 Jur. Fil., 304);y Estados
Unidos contra De la Torre (42 Jur. Fil., 65), el Juzgado
cree que no es necesario que la acusacion pruebe que el
acusado no estaba previamente registrado como medico
antes de ejercer la profesion medica, pues, si el acusado
lo estaba, y funda su defensa en tal hecho, a el incumbe
probarlo."cralaw virtua1aw library
The accused was found guilty of the offense
charged and was sentenced to pay a fine of two hundred
pesos (100) with subsidiary imprisonment in case of
insolvency. He appealed, and, in this court, he reiterates
his contention that it is incumbent upon the prosecution to
prove that he practiced medicine without the proper
certificate, and that there being no evidence to that effect,
he should be acquitted.
The rule is, and has always been, that, if the
subject of the negative averment, like, for instance, the act
of voting without the qualifications provided by law,
inheres in the offense as an essential ingredient thereof,
the prosecution has the burden of proving the same. (Sec.
297, Act No. 190; U. S. v. Tria, 17 Phil., 303, 306, 307.) In
view, however, of the difficult office of proving a negative
allegation, the prosecution, under such circumstance,
need do no more than make a prima facie case from the
best evidence obtainable. (U. S. v. Tria, supra.) It would
certainly be anomalous to hold." . . that mere difficulty in
discharging a burden of making proof should displace it;
and as a matter of principle the difficulty only relieves the
party having the burden of evidence from the necessity of
creating positive conviction entirely by his own evidence;
so that, when he produces such evidence as it is in his
power to produce, its probative effect is enhanced by the
silence of his opponent." (22 C. J., pp. 81, 82.)
The rule, however, is different when the subject
of the negative averment does not constitute an essential
element of the offense, but is purely a matter of defense.
In such case, the burden of proof is upon the defendant.
As to whether or not a negative averment is a matter of
defense, is a question which we have fully discussed in
United States v. Chan Toco (12 Phil., 262).
Section 770 of the Administrative Code provides
that "no person shall practice medicine in the Philippine
Islands without having previously obtained the proper
certificate of registration issued by the Board of Medical
Examiners . . ." This provision clearly includes the want of
certificate as an essential element of the offense charged.
The negative fact is not separable from the offense as
defined. It is, therefore, incumbent upon the prosecution
to prove that negative fact, and failure to prove it is a
ground for acquittal.
In the instant case, however, the decision
rendered by the lower court makes mention of Exhibit F-2
as showing that the accused is not a registered physician.
That document is signed by Jose Ma. Delgado, chairman
of the Board of Medical Examiners, wherein it is stated, in
part, that "there is nothing in the records of this Board to
show that Mr. Fernando C. Quebral is a registered
physician." This document is admissible as evidence of its
contents, under one of the exceptions to the hearsay rule,
regarding Official written statements. "The certificate of a
custodian that he has diligently searched for a document
or an entry of a specified tenor and has been unable to
find it ought to be usually as satisfactory for evidencing its
non-existence in his office as his testimony on the stand
to this effect would be." (3 Wigmore on Evidence, p. 561.)
Furthermore, Exhibit H-3 is also mentioned in the decision
of the lower court, which is a letter of the accused to the
President of the Philippines, quoting approvingly an article
published in the Philippines Herald, wherein it is said that
Fernando Quebral is not a holder of a doctor of medicine
degree. These Exhibits, F-2 and H-3, are sufficient
evidence to show that the accused has been practicing
medicine without the required certificate of registration
issued by the Board of Medical Examiners.
Judgment is affirmed, with costs
against Appellant.
PEOPLE v. HATANI G.R. Nos. 78813-14
QUIASON, J.:
This is an appeal from the decisions of the Regional Trial
Court, Branch 105, Quezon City, convicting appellant in
Criminal Cases No. Q-11867 and No. Q-11868.
The dispositive portion of the decision in Criminal Case
No. Q-11867 reads as follows:
"WHEREFORE, premises considered, the Court finds the
accused Farhad Hatani y Abolhassan, GUILTY beyond
reasonable doubt of illegal practice of medicine in
violation of R.A. 2382 otherwise known as the Medical Act
of 1959 (Secs. 8, 10) penalized by Section 28 thereof with
"a fine of not less than one thousand pesos nor more than
ten thousand pesos with subsidiary imprisonment in case
of insolvency, or by imprisonment of not less than one
year nor more than five years, or by both such fine and
imprisonment, in the discretion of the court; and
considering the circumstances of the case and the
14
ignominy caused by him to his two teen-aged, female,
then unmarried victims, this Court exercising its discretion
granted under said Section 28 of the law, hereby
SENTENCES said accused FARHAD HATANI Y
ABOLHASSAN to pay a fine of ten thousand pesos
(P10,000.00) with subsidiary imprisonment in case of
insolvency AND to suffer imprisonment of five (5) years;
and to pay the costs.
This Court further recommends that after service of his
sentence the accused be deported as undesirable alien"
(Rollo, p. 35).
The dispositive portion of the decision in Criminal Case
No. Q-11868 reads as follows:
"WHEREFORE, premises considered, the Court finds the
accused, FARHAD HATANI y ABOLHASSAN, GUILTY
beyond reasonable doubt of the crime of rape punishable
under Article 335 of the Revised Penal Code and hereby
SENTENCES said accused to suffer life imprisonment or
reclusion perpetua; and to indemnify the complainant,
Precila Borja, in the sum of fifty thousand pesos
(P50,000.00) and to pay costs" (Rollo, p. 41).
The information in Criminal Case No. Q-11867 charged
appellant with illegal practice of medicine, in violation of
R.A. No. 2382, otherwise known as the Medical Act of
1959, committed as follows:
"That on or about the 6th day of July, 1979, in Quezon
City, Philippines, the above-named accused, knowing
fully well that he has not satisfactorily passed the
corresponding Board Examination, neither is he a bolder
of a valid Certificate of Registration duly issued by the
Board of Medical Examiners, as in fact he does not even
appear to have taken or completed the course leading to
a medical degree, did, then and there, willfully, unlawfully
and feloniously for compensation, fee and salary, paid to
him directly, physically examined Priscila (sic) Borja Y
Loquero and Wilma Borja Y Loquero, diagnosed, treated
and administer injections on the persons of Prescila (sic)
Borja Y Loquero and Wilma Borja Y Loquero, in Violation
of Section 10, in relation to Section 28, Republic Act No.
2382" (Records, Vol. I, p. 1).
The information in Criminal Case No. Q-11868, charged
appelant with Rape, committed as follows:
"That on or about the 6th day of July, 1979, in Quezon
City, Philippines, the above-named accused, with lewd
designs, and while she was deprived of reason or
unconscious after having been drugged or administered
medicine, did, then and there, willfully, unlawfully and
feloniously have sexual intercourse with the undersigned
PRECILA BORJA Y LOQUERO, without her consent and
against her will, to her damage and prejudice in such
amount as may be awarded under the provisions of the
Civil Code" (Records, Vol. II, p. 1).
It appears that in the morning of July 6, 1979, Agustina
Borja visited her comadre, Maura Fontreras, and
requested malunggay leaves as medication for her 16-
year old daughter, Precila, who had high fever and loose
bowel movement. Upon learning that Precila was sick,
Marita, Maura's daughter, introduced Agustina to her
husband, appellant herein, whom she said was a medical
doctor. Marita suggested that her husband treat Precila
and Agustina agreed.
Appellant and Marita went to the Borja residence, where
he examined Precila. He gave her tablets to take and
administered two injections (to her), one in the morning
and the second at noon. After each injection, Precila
would feel dizzy and fall asleep.
It was appellant's diagnosis that Precila was a drug addict
and required further observation and treatment. Appellant
offered to attend to Precila at his house and again,
Agustina agreed in the belief that her daughter was a drug
addict.
In the evening of the same day, Precila was fetched by
appellant and Marita and was brought to appellant's
house. Again, Precila was given an injection which
caused her to sleep. When she awoke, she realized that
she was naked and her entire body was in pain. Appellant
was seated on the bed and was fondling her private parts.
Shocked, Precila called for her mother and tried to get up.
Appellant, however, punched her on the chest and forced
her to lie down. He pressed a pillow on her face and
injected her again, causing her to fall asleep.
When Precila awoke the second time, she found appellant
in bed with her. He was naked and fondling her private
parts. The pain all over her body lingered. When Precila
touched her private parts, she saw blood stains on her
hand. She tried to stand up but she was too weak.
Appellant gave her another injection rendering her
unconscious.
The following morning, Agustina went to fetch Precila.
Upon reaching the Fontreras' residence, she went straight
to the bedroom, where, to her great dismay, she found
Precila and appellant both asleep and naked. She
hurriedly dressed up Precila and brought her home.
When Precila woke up, she noticed she was already
home and her mother was crying. Precila remained dizzy,
with throbbing pains all over her body. When talked to,
she was incoherent.
That evening, Precila's oldest sister, Josefina, a nurse by
profession, came home and saw Precila looking very
weak. Her mother, who was crying, narrated what she had
witnessed that morning. She also told Josefina that
appellant was in the other bedroom, treating another
sister, Wilma whom he also diagnosed as a drug addict.
Josefina immediately proceeded to the bedroom and saw
appellant about to inject Wilma.
Josefina saw the open bag of appellant, which contained
empty capsules of dalmane and empty vials of valium.
She inquired on the need of the injection and appellant
replied that a second shot of plain distilled water was
required to cure Wilma of her drug addiction. Josefina told
appellant to stop but he persisted. Only upon threat that
she would call the police did appellant stop. Appellant and
his wife then left the Borja residence.
15
The following day, Agustina and Josefina brought Precila
and Wilma to the Philippine Constabulary Headquarters
at Camp Crame, Quezon City, where Josefina and Wilma
gave their statements (Exhs. "D" and "F"). Precila was
physically examined by a doctor, whose medical report
stated that Precila's hymen had "deep, healing
lacerations" and that "subject is in non-virgin state
physically" (Exh. A). Several needle puncture marks were
also found on Precila's arms and buttocks.
A physical examination was likewise done on Wilma,
which showed that she too had a needle puncture, as
shown in the Medico-Legal Report (Exh. "L").
Acting on the complaint filed before the Constabulary
Anti-Narcotics Unit (CANU), a surveillance of appellant's
residence was conducted. Subsequently, a search
warrant was secured from Judge Jose P. Castro of the
Court of First Instance of Quezon City. Armed with the
warrant, CANU agents raided appellant's residence on
July 15, 1979.
Assorted drugs, such as dalmane, valium and mogadon,
as well as prescription pads in the name of Dr. Jesus Yap
(Exhs. "H" - "H-4") and other medical instruments, such
as a "thermometer, a hygomonometer (sic), stethoscope,
syringes and needles, were seized."
The Handwriting Identification Report (Exh. "I") on the
prescription slips showed that these were written by the
appellant himself. The report on the chemistry
examination of the seized tablets and capsules (Exhs. "J"
- "J-1") confirmed the presence of mogadon, dalmane and
valium.
After the preliminary investigation, separate informations
for rape and violation of R.A. No. 2382 were filed.
Appellant pleaded not guilty to both crimes.
The defense's version is that in the evening of July 6,
1976, Agustina and Precila Borja visited the mother-in-law
of the appellant, Maura Fontreras. In the course of the
conversation, Agustina asked Marita if she could help
Precila. Marita obliged and agreed to take care of Precila
for the night and allow her to sleep in her bedroom.
Precila and Marita chatted the whole night. Accordingly,
Precila confessed that she was not really sick. She merely
related her personal problems, involving her parents. She
also admitted her vices, such as drinking, smoking and
taking drugs.
Their talk lasted until the wee hours of the morning and
during their conversation, appellant would occasionally
enter the room but he never joined their discussion.
Precila and Marita shared the same bed. Appellant, who
was wearing only his pajama pants, slept on the floor at
the opposite end of the room.
The following morning Agustina arrived and Marita related
some of Precila's problems. Nothing untoward happened
that day and Agustina headed for home while Precila and
Marita followed later.
At past midnight of July 15, 1979, a raid was conducted
by CANU agents in the house of the appellant under the
supervision of CIC Agustin Timbol, Jr. The raid was made
upon Josefina's complaint for illegal possession of drugs.
Appellant and his wife were driven out of their bedroom,
while three men remained. Later, appellant was called to
join them in the bedroom and he was shocked to see
assorted drugs scattered around. Appellant denied
owning them. Photographs were taken of him with the
drugs. A barangay official was called to attest to the list of
the confiscated drugs. Appellant, however, refused to sign
the said list.
CIC Timbol offered to fix the case in exchange
of money. Instead of acceding, appellant demanded to
see the search warrant. CIC Timbol failed to show a
warrant on the pretext that they were military men without
need of any identification or search warrant. Appellant, his
wife and brother-in-law were forced to join CIC Timbol for
questioning in Camp Crame. Upon boarding the van,
appellant saw Josefina aboard kissing CIC Timbol and
both exchanged victory signs.
The trial court rendered two separate decisions and
convicted the appellant of both crimes. In finding appellant
guilty of illegal purchase of medicine, considerable weight
was given to the presecution's exhibits.
The Professional Regulation Commission certified that
appellant is not among the list of registered physicians nor
among those with special permit to practice medicine in a
limited scope (Exh. "K").
Appellant failed to refute the Handwriting Identification
Report (Exh. "I") released by the PC Crime Laboratory
showing that the signature of Dr. Jesus D. Yap (Exhs. "H"
- "H-4") prescribing medicine belonged to him. The
pictures also taken during the raid (Exhs. "G" - "G-8")
undeniably reveal several medical equipment used by
practicing physicians.
Notwithstanding the trial court's finding that there was no
direct evidence of rape, it concluded that circumstantial
evidence indicate that rape was consummated by
appellant considering the following:
"1. The medico - legal examination of victim Precila, taken
on July 8, 1979 at 10:25 in the morning or less than 48
hours from the evening of July 6, 1979 found "hymen with
deep, healing lacerations at 4, 6 and 9 o'clock position";
thus indicating that the lacerations were recent as they are
in the process of healing; (Exh. "A-1")
2. The above undeniable findings of the expert confirms
the statement of the victim, a young girl of 16 or 17 years
of age, that when she held private parts which were
painful then, she noticed blood. (tsn. Alma, Feb. 9, 1984,
pp. 4-5)
"The fresh laceration of the hymen further confirms the
carnal assault." (People vs. Ocampo, L-47335, Aug. 13,
1986)
16
3. In the two short waking moments of the victim she
noticed she was naked and beside her on the same bed
was the accused, also naked. (tsn. Alma, Feb. 9, 1984,
pp. 3-5)
4. The accused, then 21 years of age was in the prime of
youth, and the unconscious girl beside him was just 16 or
17 years of age, thus in the full bloom of womanhood. The
sexual excitement on the part of the accused was
therefore exceedingly great.
5. When the mother, Agustina, came into the room of the
accused that early morning of July 7, 1979 she saw her
daughter and the accused on the same bed and both
naked. (tsn., Rogato, Jan. 27, 1981, p. 9)
6. The medico-legal found several needle puncture marks
on the arms and buttocks of Precila (Exh. "A"); thus
confirming Precila's testimony that she had been injected
by the accused, rendering her unconscious (tsn. Alma,
Feb. 9, 1984, pp. 4-5; tsn., Nenita, May 21, 1984, pp. 3-6;
also pp. 29-30).
7. The medico-legal found the victim 'in non-virgin state
physically.' (Exh. "A-1")
8. At the time of the medico-legal examination, i.e.
morning of July 8, 1979, the victim was found to be
'incoherent.' (Exh. A)-after effect of the injections or drugs.
9. At the time of the incident (July 6, 1979) the Borjas and
Frontreras (sic) were 'comadres' and neighbors. There is
no enmity between and among them.
10. Between accused and Marita on one hand, and the
victim, her mother, and sisters, on the other hand, there
was no misunderstanding before the incident. There is
absolutely absence of any ulterior motive for the teen-
aged victim or her family to file the serious charge of rape
which would expose her to embarrassment of
examination of her private parts and public trial" (Rollo,
pp. 38-39).
In his first assignment of error, appellant questions the
credibility of the prosecution witnesses.
Appellant faults complainant for recounting her ordeal
only after four years when she took the witness stand.
This argument is misleading. The record shows that the
day after the rape, Josefina and Wilma Borja,
accompanied by their mother, Agustina, issued their
statements at Camp Crame. Agustina gave her statement
twice on separate days. Precila did not give any statement
due to her weak condition but it cannot be denied that she
was instead physically examined. Suffice it to say, the
Medico-Legal Report (Exh. "A") indicates swellings and
lacerations and concludes that Precila was no longer a
virgin. Although the records fail to show any sworn
statement by Precila, such is not fatal where the sworn
affidavits of her mother, her two sisters and the medico-
legal report are sufficient to show probable cause of rape
(People v. Yambao, 193 SCRA 571 [1991]).
Precila was either dizzy or unconscious at the time she
was sexually abused. We find her testimony consistent
and credible. While her testimony is limited to the times
when she would gain her consciousness, it is not unlikely
that such traumatic incidents would still be engraved on
her mind even four years after.
Appellant's assertion that Precila failed to inform her
family of his misdeeds is explainable. As correctly pointed
out by the Solicitor General, Precila was still dizzy and
incoherent as a consequece of the injections
administered by appellant. In fact, when Precila was
physically examined by the doctor the day after, she was
still sleepy and groggy (TSN, March 31, 1980, pp. 7-8).
Appellant also finds it strange that considering the acts
allegedly committed by him against Precila, the medico-
legal report fails to specify any injuries on the body of
Precila. Appellant need not inflict heavy blows on Precila
for the simple reason that she was under sedation. The
absence of the injuries does not negate the commission
of rape (People v. Torrevillas, 203 SCRA 576 [1991];
People v. Arenas, 198 SCRA 172 [1991]) for rape may be
committed after rendering a woman unconscious (Art.
335, Revised Penal Code; People v. Gerones, 193 SCRA
263 [1991]).
Appellant alleges that Precila was no longer a virgin on
that fateful day and that her bleeding was actually the start
of her menstrual cycle. It is settled jurisprudence that
virginity is not an essential element of rape (People v.
Corro, 197 SCRA 121 [1991]; People v. Banayo, 195
SCRA 543 [1991]). To claim that Precila's menstrual cycle
began on that day is highly speculative.
Appellant claims that the sworn statements of the Borjas
(Exhs. "D", "E" and "F") were antedated and were
prepared after the illegal search was conducted in his
residence. He also cites some inconsistencies in said
statements. We find the claim to be devoid of merit. It is
only now on appeal that appellant disputes the execution
of these affidavits. When they were presented and offered
as evidence, appellant failed to raise such objections and
to refute them.
The alleged inconsistencies in the testimony of the
prosecution witnesses merely refer to minor details, which
cannot destroy their credibility (People v. Doctolero, 193
SCRA 632 [1991]). This is also true where statements
made while on the witness stand are claimed to be
inconsistent with the affidavit, which are generally
incomplete (People v. Lagota, 194 SCRA 92 [1991];
People v. Avanzado, 158 SCRA 427 [1988]).
With regard to the second assignment of error, appellant
insists that his conviction arose from insufficient evidence
and his failure to prove his innocence.
Indeed, the circumstantial evidence established at the trial
are more than sufficient to prove the guilt of appellant. The
Medico-Legal Report on Precila, taken within 48 hours
from the commission of rape confirmed that her hymen
had "deep, healing lacerations at 4, 6 and 9 o'clock
position" and Precila was "in non-virgin state physically"
(Exh. "A"). Furthermore, the report confirms that Precila
had at least six needle puncture marks and swellings,
17
which confirm that appellant had injected her several
times.
On the two occasions that Precila woke up, she positively
stated that appellant was with her on the bed and that they
were both naked. She also tried to free herself on both
attempts from accused, but, he made her unconscious
through injections (TSN, February 9, 1984, pp. 3-5). This
is corroborated by the testimony of Agustina, who saw her
daughter and accused together naked on bed (TSN,
January 27, 1981, p. 9). These unbroken chain of events
leads one to a fair and reasonable conclusion that
accused actually raped Precila.
As held in People v. Yambao, supra, credence is given to
the findings of the trial court where the rape victim's
testimony is buttressed by the corroborative testimony of
the mother and the medico-legal report, as well as the
report of the police investigator.
It must also be borne in mind that at the time of the
commission of the crime, Precila was just sixteen years
old. No young lady at the prime of her youth would
concoct a story of defloration, allow an examination of her
intimate parts and later bare herself to the disgrace
brought to her honor in a public trial unless she was
motivated solely by a desire to have the culprit
apprehended and brought to justice (People v. Patilan,
197 SCRA 354 [1991]; People v. Yambao, 193 SCRA 571
[1991]).
Appellant claims that his right to be presumed innocent
was violated. He cites the trial court's decision holding that
it -
"x x x finds that with these circumstantial evidences (sic)
pieced together the prosecution has proved the crime of
rape, and the burden shifted on the defense to show the
contrary" (Rollo, p. 40).
Appellant was afforded a fair trial and in fact he availed of
sur-rebuttal evidence. The statement of the trial court, as
correctly argued by the Solicitor General, implies that the
circumstantial evidence is sufficient to support appellant's
conviction unless the defense is able to provide evidence
to the contrary.
With respect to his conviction of illegal practice of
medicine, appellant presented inconsistent claims. On
one hand, he claims that the drugs and other
paraphernalia were planted by the raiding team; while on
the other hand, he claims that these were seized without
any warrant.
If indeed the evidence were all planted, how can appellant
explain his handwriting on the prescription pads in the
name of Dr. Jesus Yap? A perusal of the photographs
showing accused during the raid, fails to indicate any
protestation by him. In fact, the other photographs (Exhs.
"G-1", "G-2", "G-4" - "G-8") do not bear any sign of
disorder, in contrast to appellant's testimony that his
room was made into a mess during the raid.
The records fail to disclose a copy of a search warrant.
However, the prosecution was able to present its return
(Exh. "ZZ") and we are satisfied that indeed a lawful
search warrant was obtained. Besides, the judge who
granted the search warrant was the same judge who
initially heard both criminal cases. It can therefore be
presumed, that the search was made with a search
warrant and absent of any showing that it was procured
maliciously, the items seized are admissible in evidence
(People v. Umali, 193 SCRA 493 [1991]).
The evidence is overwhelming that appellant actually
treated and diagnosed Precila and Wilma Borja. The
positive testimony of Agustina, Precila, Wilma and
Josefina Borja; the medico-legal reports (Exhs. "A", "A-7",
"C", "L" and "L-1") which attest to the needle marks; the
Handwriting Identification Report (Exh. I); the
photographs (Exhs. "G-1" - "G-8") showing assorted
drugs and medical equipment in appellant's room; and the
chemistry reports (Exhs. "J" - "J-1") prove that appellant
was engaged in the practice of medicine. And as to his
allegation that there was no proof of payment, the law
specifically punishes said act whether or not done for a
fee.
Appellant claims that Precila admitted in her cross-
examination that she was in school the whole day of July
6, 1979 and it was therefore impossible for him to have
treated and diagnosed her on that date. An accurate
reading of the transcript, however, will show that Precila's
testimony was in response to a question regarding her
school schedule for that day.
Finally, appellant claims that the ponente of both
decisions was not the trial judge, ergo said judge was
thus deprived of the opportunity to assess the credibility
of the prosecution witnesses.
Admittedly, the ponente's participation was limited to the
resolution of the cases. The fact that the judge who heard
the evidence is not the one who rendered the judgment,
and for that reason the latter did not have the opportunity
to observe the demeanor of the witnesses during the trial
but merely relied on the records of the case, does not
render the judgment erroneous (People v. Ramos, Jr.,
203 SCRA 237 [1991]; People v. Villamayor, 199 SCRA
472 [1991]), especially where the evidence on record is
sufficient to support its conclusion.
WHEREFORE, the judgments appealed from are
AFFIRMED in toto. Costs de oficio.
LIABILITIES
a. Criminal in Nature (People v. Quebral)
b. Intent is immaterial
[G.R. No. L-14160. June 30, 1960.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v.
ANUNCIACION VDA. DE GOLEZ, Defendant-
Appellee.
Assistant Solicitor General Antonio A. Torres and
18
Solicitor Jorge R. Coquia for Appellant. 5342; People v. Ferrer, 100 Phil., 124; 55 Off.
Gaz. 620).
Aniceto V. Zezobrado for Appellee.
4. ID.; FAILURE OF ACCUSED TO FILE BRIEF
AND RAISE QUESTION ON APPEAL;
DEFENSE OF JEOPARDY NOT AFFECTED. —
SYLLABUS
The failure of the accused to file a brief and raise
the question of double jeopardy in this appeal
does not mean that section 2, Rule 118, providing
1. CRIMINAL LAW; HOMICIDE THRU RECKLESS that the People can not appeal if the defendant
IMPRUDENCE AND ILLEGAL PRACTICE OF would be placed in double jeopardy would no
MEDICINE DISTINGUISHED; WHEN ACTOR longer apply (People v. Bao, 106 Phil., 243).
LIABLE FOR BOTH OFFENSES. — The crime of
illegal practice of medicine is a statutory offense
wherein criminal intent is taken for granted, so
DECISION
that a person may be convicted thereof
irrespective of his intention and in spite of his
having acted in good faith and without malice; that
is, even if he was not motivated by an evil desire REYES, J.B.L., J.:
to injure or hurt another, but by an honest desire
to cure or alleviate the pain of a patient. Also, the
offense consists in the mere act of practicing
On October 2, 1957, the provincial fiscal of
medicine in violation of the Medical Law, even if
Negros Occidental filed an information in the Court of
no injury to another, much less death, results from
First Instance of that province charging Anunciacion
such malpractice. When, therefore, the patient
Vda. de Golez with the crime of homicide through
dies, the illegal practitioner should be equally
reckless imprudence, as
responsible for the death of his patient, an offense
follows:jgc:chanrobles.com.ph
independent of and distinct from the illegal
practice of medicine.
"That on or about the period comprised from
December 12, 1956 to December 24, 1956, in the
2. ID.; ID.; WHEN INFORMATION DEEMED AS
municipality of San Carlos, province of Negros
SUFFICIENTLY CHARGING CRIME OF
Occidental, Philippines, and within the jurisdiction of
HOMICIDE THRU RECKLESS IMPRUDENCE.
this Honorable Court, the herein accused, without
— The allegations in the information in this case
being duly licensed to practice medicine and with
that the accused acted with reckless negligence
reckless negligence and without taking due
in diagnosing, prescribing for, and treating the
precaution, did, then and there, wilfully, unlawfully,
deceased, knowing that she did not possess the
and feloniously diagnose, prescribe, and treat one
necessary technical knowledge or skill to do so,
Susana Tam, who had been suffering for sometime
thus causing her death, sufficiently charge the
with bodily ailment, knowing fully well that she is
crime of homicide through reckless imprudence,
incompetent and not possessing the necessary
since ordinary diligence counsels one not to
technical or scientific knowledge or skill, and as a
tamper with human life by trying to treat a sick
consequence of such negligence and carelessness
man when he knows that he does not have the
and lack of medical skill, said Susana Tam died
special skill, knowledge, and competence to
thereafter."cralaw virtua1aw library
attempt such treatment and cure, and may
consequently reasonably foresee harm or injury
to the latter. (U.S. v. Feliciano Divino, 12 Phil.,
175). The accused pleaded not guilty to the
information.
3. CRIMINAL PROCEDURE; DOUBLE
JEOPARDY; VALID AND SUFFICIENT
INFORMATION; DISMISSAL WITHOUT
When the case was called for trial, the assistant
CONSENT OF ACCUSED AND AFTER PLEA
fiscal made a manifestation that the accused had also
OF NOT GUILTY. — The present information
been charged with the crime of illegal practice of
being valid and sufficient in form and substance
medicine before another sala of the same court. In
to sustain a conviction, the dismissal thereof by
view of this manifestation, the trial court motu proprio
the court after the accused had pleaded not guilty
dismissed the information for being fatally defective,
to the charge and without his consent constitutes
without prejudice to the filing of the proper information
jeopardy as to bar further proceedings upon the
against the same accused. The grounds given for the
case (U.S. v. Yam Tung Way, 21 Phil., 67; People
dismissal were the following:jgc:chanrobles.com.ph
v. Hernandez, 94 Phil., 49; 49 Off. Gaz. No. 12,
19

"In view of the foregoing manifestation of the Fiscal,
the Court finds that the information is fatally defective
and, therefore, should be dismissed under Par. (a),
Sec. 2 of Rule 113 of the Rules of Court inasmuch as
the facts charged do not constitute the offense of
homicide thru reckless imprudence because illegal
practice of medicine is malicious per se, and when the
accused practiced medicine without academical
preparation and without a license to do so, then she
is per se committing a criminal act for which the
criminal intent is presumed. Although the crime of
homicide thru reckless imprudence can be committed
by a duly licensed physician when in the practice of
his profession he fails to exercise due care and
diligence from which the criminal act arises, this crime
cannot be imputed to a person who has no authority
to practice this profession, which act is malicious per
se. The crime described in Article 365 of the Revised
Penal Code results from the performance of a lawful
act which was done without exercising the care and
diligence that is required by the circumstances, and
not from the performance of an unlawful act which is
the subject of the information in this case because a
quack doctor who practices medicine does so against
the law, and, therefore, his act is necessarily
malicious and criminal."cralaw virtua1aw library
From the above order, the provincial fiscal appealed
to this Court, and, through the Solicitor General, urges
that the court below erred in dismissing the
information for being fatally defective because the
facts charged therein allegedly do not constitute the
crime of homicide thru reckless imprudence.
We agree with appellant that the order of dismissal is
erroneous, in that the crime of illegal practice of
medicine is a statutory offense wherein criminal intent
is taken for granted, so that a person may be
convicted thereof irrespective of his intention and in
spite of his having acted in good faith and without
malice; i.e., even if he was not motivated by an evil
desire to injure or hurt another, but by an honest
desire to cure or alleviate the pain of a patient. In fact,
as defined by Section 2678 of the Revised
Administrative Code (the law then in force), the
offense consists in the mere act of practicing
medicine in violation of the Medical Law, even if no
injury to another, much less death, results from such
malpractice. When, therefore, the patient dies, the
illegal practitioner should be equally responsible for
the death of his patient, an offense independent of
and distinct from the illegal practice of medicine.
The allegations in the information in this case that the
accused acted with reckless negligence in
diagnosing, prescribing for, and treating the
deceased Susana Tam, knowing that she did not
possess the necessary technical knowledge or skill to
do so, thus causing her death, sufficiently charge the
crime of homicide through reckless imprudence, since
ordinary diligence counsels one not to tamper with
human life by trying to treat a sick man when he
knows that he does not have the special skill,
knowledge, and competence to attempt such
treatment and cure, and may consequently
reasonably foresee harm or injury to the latter. In a
similar case wherein the accused, not being a regular
practitioner, undertook to render medical assistance
to another, causing physical injuries to the latter, said
accused was found guilty and convicted by this Court
of physical injuries through imprudence under the old
Penal Code (U.S. v. Feliciano Divino, 12 Phil., 175).
However, in view of the error of the lower court in
dismissing the information, we cannot sustain this
appeal for the reason that it would place the accused
in double jeopardy. The present information being
valid and sufficient in form and substance to sustain
a conviction, the dismissal thereof by the court after
the accused had pleaded not guilty to the charge and
without his consent constitutes jeopardy as to bar
further proceedings upon the case (U.S. v. Yam Tung
Way, 21 Phil., 67; People v. Hernandez, 94 Phil., 49;
49 Off. Gaz. No. 12, 5342; People v. Ferrer, 100 Phil.,
124; 55 Off. Gaz. [4] 620). The failure of the accused
to file a brief and raise the question of double jeopardy
in this appeal does not mean that section 2, Rule 118,
providing that the People can not appeal if the
defendant would be placed in double jeopardy would
no longer apply (People v. Bao, 106 Phil., 243; 56 Off.
Gaz. [51] 7768).
The unfortunate result in this case could have been
avoided if the trial court had proceeded more
deliberately, without allowing its judgment to be
influenced by preconceived notions or undue haste in
dispatching cases.
The appeal is, therefore, dismissed, with costs de
oficio.
IV. PHYSICIAN-PATIEN RELATIONSHIP
G.R. No. 118141 September 5, 1997
LEONILA GARCIA-RUEDA, petitioner,
vs.
WILFRED L. PASCASIO, RAUL R. ARNAU,
ABELARDO L. APORTADERA JR., Honorable
CONRADO M. VASQUEZ, all of the Office of the
Ombudsman; JESUS F. GUERRERO, PORFIRIO
MACARAEG, and GREGORIO A. ARIZALA, all of the
Office of the City Prosecutor, Manila, respondents.
20
ROMERO, J.:
May this Court review the findings of the Office of the
Ombudsman? The general rule has been enunciated
in Ocampo v. Ombudsman1 which states:
In the exercise of its investigative
power, this Court has consistently
held that courts will not interfere with
the discretion of the fiscal or the
Ombudsman to determine the
specificity and adequacy of the
averments of the offense charged. He
may dismiss the complaint forthwith if
he finds it to be insufficient in form
and substance or if he otherwise finds
no ground to continue with the
inquiry; or he may proceed with the
investigation of the complaint if, in his
view, it is in due and proper form.
Does the instant case warrant a departure from the
foregoing general rule? When a patient dies soon
after surgery under circumstances which indicate
that the attending surgeon and anaesthesiologist
may have been guilty of negligence but upon their
being charged, a series of nine prosecutors toss the
responsibility of conducting a preliminary
investigation to each other with contradictory
recommendations, "ping-pong" style, perhaps the
distraught widow is not to be blamed if she finally
decides to accuse the City Prosecutors at the end of
the line for partiality under the Anti-Graft and Corrupt
Practices Act. Nor may she be entirely faulted for
finally filing a petition before this Court against the
Ombudsman for grave abuse of discretion in
dismissing her complaint against said City
Prosecutors on the ground of lack of evidence. Much
as we sympathize with the bereaved widow, however,
this Court is of the opinion that the general rule still
finds application in instant case. In other words, the
respondent Ombudsman did not commit grave abuse
of discretion in deciding against filing the necessary
information against public respondents of the Office
of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila
Garcia-Rueda, underwent surgical operation at the
UST hospital for the removal of a stone blocking his
ureter. He was attended by Dr. Domingo Antonio, Jr.
who was the surgeon, while Dr. Erlinda Balatbat-
Reyes was the anaesthesiologist. Six hours after the
surgery, however, Florencio died of complications of
"unknown cause," according to officials of the UST
Hospital.2
Not satisfied with the findings of the hospital, petitioner
requested the National Bureau of Investigation (NBI) to
conduct an autopsy on her husband's body.
Consequently, the NBI ruled that Florencio's death was
due to lack of care by the attending physician in
administering anaesthesia. Pursuant to its findings, the
NBI recommended that Dr. Domingo Antonio and Dr.
Erlinda Balatbat-Reyes be charged for Homicide through
Reckless Imprudence before the Office of the City
Prosecutor.
During the preliminary investigation, what transpired was
a confounding series of events which we shall try to
disentangle. The case was initially assigned to Prosecutor
Antonio M. Israel, who had to inhibit himself because he
was related to the counsel of one of the doctors. As a
result, the case was re-raffled to Prosecutor Norberto G.
Leono who was, however, disqualified on motion of the
petitioner since he disregarded prevailing laws and
jurisprudence regarding preliminary investigation. The
case was then referred to Prosecutor Ramon O. Carisma,
who issued a resolution recommending that only Dr.
Reyes be held criminally liable and that the complaint
against Dr. Antonio be dismissed.
The case took another perplexing turn when Assistant
City Prosecutor Josefina Santos Sioson, in the "interest of
justice and peace of mind of the parties," recommended
that the case be re-raffled on the ground that Prosecutor
Carisma was partial to the petitioner. Thus, the case was
transferred to Prosecutor Leoncia R. Dimagiba, where
a volte face occurred again with the endorsement that the
complaint against Dr. Reyes be dismissed and instead, a
corresponding information be filed against Dr. Antonio.
Petitioner filed a motion for reconsideration, questioning
the findings of Prosecutor Dimagiba.
Pending the resolution of petitioner's motion for
reconsideration regarding Prosecutor Dimagiba's
resolution, the investigative "pingpong" continued when
the case was again assigned to another prosecutor,
Eudoxia T. Gualberto, who recommended that Dr. Reyes
be included in the criminal information of Homicide
through Reckless Imprudence. While the
recommendation of Prosecutor Gualberto was pending,
the case was transferred to Senior State Prosecutor
Gregorio A. Arizala, who resolved to exonerate Dr. Reyes
from any wrongdoing, a resolution which was approved
by both City Prosecutor Porfirio G. Macaraeg and City
Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for
violation of Section 3(e) of Republic Act No. 30193 against
Prosecutors Guerrero, Macaraeg, and Arizala for
manifest partiality in favor of Dr. Reyes before the Office
of the Ombudsman. However, on July 11, 1994, the
Ombudsman issued the assailed resolution dismissing
the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary
power of the Ombudsman to review the recommendations
of the government prosecutors and to approve and
21
disapprove the same. Petitioner faults the Ombudsman
for, allegedly in grave abuse of discretion, refusing to find
that there exists probable cause to hold public respondent
City Prosecutors liable for violation of Section 3(e) of R.A.
No. 3019.
Preliminarily, the powers and functions of the
Ombudsman have generally been categorized into the
following: investigatory powers, prosecutory power, public
assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement
preventive measures.4
As protector of the people, the Office of the Ombudsman
has the power, function and duty "to act promptly on
complaints filed in any form or manner against public
officials" and "to investigate any act or omission of any
public official when such act or omission appears to be
illegal, unjust, improper or inefficient."5
While the Ombudsman has the full discretion to determine
whether or not a criminal case should be filed, this Court
is not precluded from reviewing the Ombudsman's action
when there is an abuse of discretion, in which case Rule
65 of the Rules of Court may exceptionally be invoked
pursuant to Section I, Article VIII of the 1987 Constitution.6
In this regard, "grave abuse of discretion" has been
defined as "where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility so patent and gross as to amount to evasion of
positive duty or virtual refusal to perform a duty enjoined
by, or in contemplation of law.7
From a procedural standpoint, it is certainly odd why the
successive transfers from one prosecutor to another were
not sufficiently explained in the Resolution of the
Ombudsman. Being the proper investigating authority
with respect to misfeasance, non-feasance and
malfeasance of public officials, the Ombudsmans should
have been more vigilant and assiduous in determining the
reasons behind the "buckpassing" to ensure that no
irregularity took place.
Whether such transfers were due to any outside pressure
or ulterior motive is a matter of evidence. One would have
expected the Ombudsman, however, to inquire into what
could hardly qualify as "standard operating procedure,"
given the surrounding circumstances of the case.
While it is true that a preliminary investigation is
essentially inquisitorial, and is often the only means to
discover who may be charged with a crime, its function is
merely to determine the existence of probable
cause.8 Probable cause has been defined as "the
existence of such fact and circumstances as would excite
the belief, in a reasonable mind, acting on the facts within
the knowledge of the prosecution, that the person
charged was guilty of the crime for which he was
prosecuted."9
"Probable cause is a reasonable ground of presumption
that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so." The term
does not mean actual and positive cause nor does it
import absolute certainty. It is merely based on opinion
and reasonable belief. Thus, a finding of probable cause
does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial
for the reception of evidence of the prosecution in support
of the charge. 10
In the instant case, no less than the NBI pronounced after
conducting an autopsy that there was indeed negligence
on the part of the attending physicians in administering
the anaesthesia. 11 The fact of want of competence or
diligence is evidentiary in nature, the veracity of which can
best be passed upon after a full-blown trial for it is virtually
impossible to ascertain the merits of a medical negligence
case without extensive investigation, research, evaluation
and consultations with medical experts. Clearly, the City
Prosecutors are not in a competent position to pass
judgment on such a technical matter, especially when
there are conflicting evidence and findings. The bases of
a party's accusation and defenses are better ventilated at
the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has
been called medical malpractice or, more
appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a
wrong committed by a medical professional which has
caused bodily harm.
In order to successfully pursue such a claim, a patient
must prove that a health care provider, in most cases
a physician, either failed to do something which a
reasonably prudent health care provider would have
done, or that he or she did something that a
reasonably prudent provider would not have done; and
that that failure or action caused injury to the patient. 12
Hence, there are four elements involved in medical
negligence cases: duty, breach, injury and proximate
causation.
Evidently, when the victim employed the services of Dr.
Antonio and Dr. Reyes, a physician-patient relationship
was created. In accepting the case, Dr. Antonio and Dr.
Reyes in effect represented that, having the needed
training and skill possessed by physicians and surgeons
22
practicing in the same field, they will employ such training,
care and skill in the treatment of their patients. 13 They
have a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a
condition under the same circumstances. The breach of
these professional duties of skill and care, or their
improper performance, by a physician surgeon whereby
the patient is injured in body or in health, constitutes
actionable malpractice. 14 Consequently, in the event that
any injury results to the patient from want of due care or
skill during the operation, the surgeons may be held
answerable in damages for negligence. 15
Moreover, in malpractice or negligence cases involving
the administration of anaesthesia, the necessity of expert
testimony and the availability of the charge of res ipsa
loquitur to the plaintiff; have been applied in actions
against anaesthesiologists to hold the defendant liable for
the death or injury of a patient under excessive or
improper anaesthesia. 16 Essentially, it requires two-
pronged evidence: evidence as to the recognized
standards of the medical community in the particular kind
of case, and a showing that the physician in question
negligently departed from this standard in his treatment. 17
Another element in medical negligence cases is causation
which is divided into two inquiries: whether the doctor's
actions in fact caused the harm to the patient and whether
these were the proximate cause of the patient's
injury. 18 Indeed here, a causal connection is discernible
from the occurrence of the victim's death after the
negligent act of the anaesthesiologist in administering the
anesthesia, a fact which, if confirmed, should warrant the
filing of the appropriate criminal case. To be sure, the
allegation of negligence is not entirely baseless.
Moreover, the NBI deduced that the attending surgeons
did not conduct the necessary interview of the patient prior
to the operation. It appears that the cause of the death of
the victim could have been averted had the proper drug
been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an
antidote was readily available to counteract whatever
deleterious effect the anaesthesia might produce. 19 Why
these precautionary measures were disregarded must be
sufficiently explained.
The City Prosecutors were charged with violating Section
3(e) of the Anti-Graft and Corrupt Practices Act which
requires the following facts:
1. The accused is a public officer discharging
administrative or official functions or private
persons charged in conspiracy with them;
2. The public officer committed the prohibited act
during the performance of his official duty or in
relation to his public position;
3. The public officer acted with manifest partiality,
evident bad faith or gross, inexcusable negligence;
and
4. His action caused undue injury to the
Government or any private party, or gave any party
any unwarranted benefit, advantage or preference
to such parties. 20
Why did the complainant, petitioner in instant case, elect
to charge respondents under the above law?
While a party who feels himself aggrieved is at liberty to
choose the appropriate "weapon from the armory," it is
with no little surprise that this Court views the choice
made by the complainant widow.
To our mind, the better and more logical remedy under
the circumstances would have been to appeal the
resolution of the City Prosecutors dismissing the criminal
complaint to the Secretary of Justice under the
Department of Justice's Order No. 223, 21 otherwise
known as the "1993 Revised Rules on Appeals From
Resolutions In Preliminary
Investigations/Reinvestigations," as amended by
Department Order No. 359, Section 1 of which provides:
Sec. 1. What May Be Appealed. — Only
resolutions of the Chief State Prosecutor/Regional
State Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be the subject
of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the
appeal? Section 9 of Order No. 223 states: "The
Secretary of Justice may reverse, affirm or modify the
appealed resolution." On the other hand, "He may motu
proprio or on motion of the appellee, dismiss outright the
appeal on specified grounds." 22
In exercising his discretion under the circumstances, the
Ombudsman acted within his power and authority in
dismissing the complaint against the Prosecutors and this
Court will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant
petition is DISMISSED, without prejudice to the filing of an
appeal by the petitioner with the Secretary of Justice
assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs.
SO ORDERED.
G.R. No. 88265 December 21, 1989
SANTIAGO A. DEL ROSARIO, GEORGE G. GACULA,
EDGARDO G. SANTOS, ALBANO S. SIBAL, ALBERTO
23
C. REYES, NONITO P. ARROYO, EMMANUEL F.
TERENCIO, DOMINGO S. DE LEON, MODESTO O.
LLAMAS, FARIDA U. ALONTO, ZENAIDA A.
FLOIRENDO, ISABEL A. MEJIA, LUZ P. MABANAG,
RAMON H. RABAGO, JR., SAMUEL D. TROCIO and
OSCAR M. BRION, petitioners,
vs.
HON. ALFREDO R. BENGZON, in his capacity as
Secretary of the Department of Health, respondent.
Facundo T. Bautista for petitioners.
GRIÑO-AQUINO, J.:
This is a class suit filed by officers of the Philippine
Medical Association, the national organization of medical
doctors in the Philippines, on behalf of their professional
brethren who are of kindred persuasion, wherein this
Court is asked to declare as unconstitutional, hence, null
and void, some provisions of the Generics Act of 1988
(Rep. Act No. 6675), and of the implementing
Administrative Order No. 62 issued pursuant thereto,
specifically:
(a) Section 6, Pars. (a) and (b) of the Generics Act which
provide:
a) All government health agencies and their
personnel as well as other government agencies
shall use generic terminology or generic names in
all transactions related to purchasing, prescribing,
dispensing and administering of drugs and
medicines.
b) All medical, dental and veterinary practitioners,
including private practitioners, shall write
prescriptions using the generic name. The brand
name may be included if so desired. (p. 6, Rollo.)
(b) Section 12, Pars. (b), (c) and (d) of the same law which
provide:
b) For the second conviction, the penalty of file in
the amount of not less than two thousand pesos
(P2,000.00) but not exceeding five thousand pesos
(P5,000.00) at the discretion of the court.
c) For the third conviction, the penalty of fine in the
amount of not less than five thousand pesos
(P5,000.00) but not exceeding ten thousand pesos
(P10,000.00) and suspension of his license to
practice his profession for thirty (30) days at the
discretion of the court.
d) For the fourth and subsequent convictions, the
penalty of fine of not less than ten thousand pesos
(P10,000.00) and suspension of his license to
practice his profession for one year or longer at the
discretion of the court. (pp. 6-7, Rollo.) and
(c) Sections 4 and 7, Phase 3 of Administrative Order No.
62, Series of 1989 dated March 9, 1989, of the respondent
Secretary of Health, which read as follows:
Section 4. Violative Erroneous, and Impossible
Prescriptions.
4.1. Violative Prescriptions:
4.1.1 Where the generic name is not written;
4.1.2 Where the generic name is not legible and a
brand name which is legible is written;
4.1.3 Where the brand name is indicated and
instructions added, such as the phase 'No
Substitution' which tend to obstruct, hinder or
prevent proper generic dispensing.
4.2 What to do with Violative Prescriptions.
Violative prescriptions shall not be filled. They shall
be kept and reported by the pharmacist of the drug
outlet or any other interested party to the nearest
DOH Officer for appropriate action. The pharmacist
shall advise the prescriber of the problem and/or
instruct the customer to get the proper prescription.
4.3 Erroneous Prescriptions:
4.3.1 When the brand name precedes the generic
name.
4.3.2 Where the generic name is the one in
parenthesis.
4.3.3 Where the brand name in (sic) not in
parenthesis.
4.3.4 Where more than one drug product is
prescribed in one prescription form.
4.4 What to do with erroneous prescriptions.
Erroneous prescriptions shall be filled. Such
prescriptions shall also be kept and reported by the
pharmacist of the drug outlet or any other
interested party to the nearest DOH Office for
appropriate action.
xxx xxx xxx
Section 7. Timetable of Implementation.
In order to give all affected parties adequate time
for learning and adjustment, the implementation of
24
 these Rules and Regulations shall be in three
phases, as follows:
Phase 1 Education Drive ...
Phase 2 Monitoring of Compliance
xxx xxx xxx
Phase 3 Implementation.
Beginning September 1, 1989 the DOH and the
other relevant agencies of government shall
monitor compliance with these Rules and
Regulations and all violations shall be subject to the
appropriate sanctions and penalties provided for
under these Rules and Regulations and the
Generics Act of 1988. (pp. 7-9, Rollo.)
On March 15, 1989, the full text of Republic Act No. 6675
was published in two newspapers of general circulation in
the Philippines. The law took effect on March 30, 1989,
fifteen (15) days after its publication, as provided in
Section 15 thereof.
Section 7, Phase 3 of Administrative Order No. 62 was
amended by Administrative Order No. 76 dated August
28, 1989 by postponing to January 1, 1990 the effectivity
of the sanctions and penalties for violations of the law,
provided in Sections 6 and 12 of the Generics Act and
Sections 4 and 7 of the Administrative Order.
The petitioners allege that "as of this date, there is no
breach or violation yet" of the law (p. 9, Rollo), which took
effect on March 30, 1989. However, as the penal
provisions will only take effect on January 1, 1990, it
would have been more accurate to state that "as of this
date, no breaches or violations of the law have been
punished yet" (p. 9, Rollo).
The petition is captioned as an action for declaratory
relief, over which this Court does not exercise jurisdiction.
Nevertheless, in view of the public interest involved, we
decided to treat it as a petition for prohibition instead.
The petitioner's main argument against paragraphs (a)
and (b), Section 6 of the law, is the alleged unequal
treatment of government physicians, dentists, and
veterinarians, on one hand, and those in private practice
on the other hand, in the manner of prescribing generic
drugs, for, while the former are allegedly required to use
only generic terminology in their prescriptions, the latter
may write the brand name of the drug in parenthesis
below the generic name. The favored treatment of private
doctors, dentists and veterinarians under the law is
allegedly a specie of invalid class legislation.
There is no merit in that argument for it proceeds from a
misreading and misinterpretation of the letter and intent of
paragraphs (a) and (b), Section 6 of the Generics Act.
Indeed, as explained by the public respondent:
... while paragraph (a) enumerates the government
transactions ('Purchasing, prescribing, dispensing
and administering of drugs and medicines') where
the sole use of generic terminology has been
required, the 'prescription' of drugs is further
governed by paragraph (b). And the use of the
word 'all' in the latter provision emphasizes the
absence of any distinction between government
and private physicians. In other words, in
prescribing drugs, physicians, whether in
government service or in private practice, are both
governed by exactly the same rules, and thus, are
both authorized to include the brand name in their
respective prescriptions. (p. 44, Rollo.)
Furthermore, it may be observed that while paragraph (a)
refers to "all government health agencies, and their
personnel as well as other government agencies" (not
necessarily physicians, dentists and veterinarians),
paragraph (b) refers to "all medical, dental and veterinary
practitioners, including private practitioners."
Petitioners concede that the requirement for doctors,
dentists, and veterinarians to use the generic terminology
in writing their prescriptions, followed by the brand name
in parenthesis, is "well and good" (p. 12, Rollo). However,
they complain that under paragraph (d) of the law which
reads:
(d) Drug outlets, including drugstores, hospital and
non-hospital pharmacies and non-traditional
outlets such as supermarkets and stores, shall
inform any buyer about any and all other drug
products having the same generic name, together
with their corresponding prices so that the buyer
may adequately exercise his option. Within one (1)
year after approval of this Act, the drug outlets
referred to herein, shall post in conspicuous places
in their establishments, a list of drug products with
the same generic name and their corresponding
prices. (Annex A, p. 23, Rollo.)
the salesgirl at the drugstore counter is authorized to
"substitute the prescribed medicine with another medicine
belonging to the same generic group." Since doctors are
not allowed to instruct the druggist not to substitute the
prescription, or to "Dispense only as Prescribed" (per Sec.
4, Adm. Order No. 62), the petitioners argue that "the act
of prescribing the correct medicine for the patient
becomes the act of the salesgirl at the drugstore counter,
no longer the act of the physician, dentist, or veterinarian"
(p. 12, Rollo).
Here again, the petitioners have distorted the clear
provisions of the law and the implementing administrative
25
order. For it is plain to see that neither paragraph (d) of
Section 6 of the Generics Act, nor Section 4 of
Administrative Order No. 62, gives the salesgirl and/or
druggist the discretion to substitute the doctor's
prescription.
On the contrary, Section 4, par. 4.1, of Administrative
Order No. 62 directs the pharmacist not to fill "violative
prescriptions" (where the generic name is not written, or
illegibly written, and the prescription of a brand name is
accompanied by the doctor's instruction not to substitute
it), as well as "impossible prescriptions" (par. 4.5). Even a
doctor's "erroneous" prescriptions "shall be filled," not
substituted (par. 4.3, Adm. Order No. 62). And, Sections
3 and 5 of Adm. Order No. 63 enjoin the drug outlets not
(to) favor or suggest" or "impose" a particular brand or
product on the customer. The administrative older
provides:
In order to ensure the informed choice and use of
drugs by the patient/ buyer, the drug outlet is
required to:
3.1.1 Inform the patient/buyer of all available
drug products generically equivalent to the one
prescribed with their corresponding prices. In so
doing, the drug outlet shall not favor or suggest
any particular product so that the patient/buyer
may fully and adequately exercise his option to
choose (Sec. 3, Adm. Order No. 63 s. 1989).
xxx xxx xxx
The following acts or omissions are considered
violations of these rules and regulations:
5.1 Imposing a particular brand or product on
the buyer. ... (pp. 46-47, Rollo.)
The salesgirl at the drugstore counter, merely informs the
customer, but does not determine (for she is incompetent
to do so) all the other drug products or brands that have
the same generic name, and their corresponding prices.
That information she may obtain from the list of drug
products determined by the Bureau of Food and Drugs to
have the same generic name, or which are the chemical,
biological, and therapeutic equivalent of the generic drug.
All drugstores or drug outlets are required by the law to
post such list in a conspicuous place in their premises for
the information of the customers, for the choice of whether
to buy the expensive brand name drug, or the less
expensive generic, should be exercised by the customer
alone.
The purpose of the Generics Act is to carry out the policy
of the State:
To promote, encourage and require the use of
generic terminology in the importation,
manufacture, distribution, marketing, advertising
and promotion, prescription and dispensing of
drugs;
To ensure the adequate supply of drugs with
generic names at the lowest possible cost and
endeavor to make them available for free to
indigent patients;
To encourage the extensive use of drugs with
generic names through a rational system of
procurement and distribution;
To emphasize the scientific basis for the use of
drugs, in order that health professionals may
become more aware and cognizant of their
therapeutic effectiveness; and
To promote drug safety by minimizing duplication
in medications and/or use of drugs with potentially
adverse drug interactions. (pp. 3839, Rollo.)
or, as stated by the public respondent, "to promote and
require the use of generic drug products that are
therapeutically equivalent to their brand-name counter-
parts" (p. 39, Rollo) for "the therapeutic effect of a drug
does not depend on its 'brand' but on the 'active
ingredients' which it contains." The medicine that cures is
the "active ingredient" of the drug, and not the brand name
by which it has been baptized by the manufacturer.
The public respondent points out that the institution of
generics in the Philippines will compel physicians to
prescribe drugs based on their therapeutic or "active
ingredient," instead of their well-known brand names.
Multiple medications which may produce potentially
adverse, even lethal, chemical reactions in the patient will
thereby be avoided. Patients with limited means will be
able to buy generic drugs that cost less but possess the
same active ingredients, dosage form, and strength as
brand names, many of which are priced beyond the reach
of the common tao because the high costs of advertising,
packaging, royalties, and other inputs of production
determine their pricing for the market.
The Court has been unable to find any constitutional
infirmity in the Generics Act. It, on the contrary,
implements the constitutional mandate for the State "to
protect and promote the right to health of the people" and
"to make essential goods, health and other social services
available to all the people at affordable cost" (Section 15,
Art. II and Section 11, Art. XIII, 1987 Constitution).
The prohibition against the use by doctors of "no
substitution" and/or words of similar import in their
prescription, is a valid regulation to prevent the
circumvention of the law. It secures to the patient the right
to choose between the brand name and its generic
equivalent since his doctor is allowed to write both the
26
generic and the brand name in his prescription form. If a
doctor is allowed to prescribe a brand-name drug with "no
substitution," the patient's option to buy a lower-priced,
but equally effective, generic equivalent would thereby be
curtailed. The law aims to benefit the impoverished (and
often sickly) majority of the population in a still developing
country like ours, not the affluent and generally healthy
minority.
There is no merit in the petitioners' theory that the
Generics Act impairs the obligation of contract between a
physician and his patient, for no contract ever results from
a consultation between patient and physician. A doctor
may take in or refuse a patient, just as the patient may
take or refuse the doctor's advice or prescription. As aptly
observed by the public respondent, no doctor has ever
filed an action for breach of contract against a patient who
refused to take prescribed medication, undergo surgery,
or follow a recommended course treatment by his doctor
( p. 53, Rollo). In any event, no private contract between
doctor and patient may be allowed to override the power
of the State to enact laws that are reasonably necessary
to secure the health, safety, good order, comfort, or
general welfare of the community. This power can neither
be abdicated nor bargained away. All contractual and
property rights are held subject to its fair exercise (Anglo-
Fil Trading Corporation vs. Lazaro, 124 SCRA 495.)
Petitioners have also assailed Section 12, paragraphs b,
c and d, of the Generics Act prescribing graduated
penalties (ranging from a reprimand to a fine of not less
that P10,000 and the suspension of the physician's
license to practice his profession for one [1]) year or
longer, at the discretion of the court) for violations of its
provisions. Petitioners' allegation that these penalties
violate the constitutional guarantee against excessive
fines and cruel and degrading punishment, has no merit.
Penal sanctions are indispensable if the law is to be
obeyed. They are the "teeth" of the law. Without them, the
law would be toothless, not worth the paper it is printed
on, for physicians, dentists and veterinarians may freely
ignore its prescriptions and prohibitions. The penalty of
suspension or cancellation of the physician's license is
neither cruel, inhuman, or degrading. It is no different from
the penalty of suspension or disbarment that this Court
inflicts on lawyers and judges who misbehave or violate
the laws and the Codes of Professional and Judicial
Conduct.
We hold that the Generics Act and the implementing
administrative orders of the Secretary of Health are
constitutional. In light of its beneficial provisions, we
cannot heed the petitioners' plea to kill it aborning, i.e.,
before it has had a chance to prove its value to our people
as envisioned by its makers.
WHEREFORE, the petition is dismissed for lack of merit.
Costs against the petitioners.
G.R. No. 86890 January 21, 1994
LEANDRO CARILLO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Balane, Tamase, Alampay Law Office for petitioner.
The Solicitor General for the people.
FELICIANO, J.:
Petitioner Dr. Leandro Carillo, an anesthetist, seeks
review of the Decision of the Court of Appeals dated 28
November 1988, which affirmed his conviction by the
Regional Trial Court of the crime of simple negligence
resulting in homicide, for the death of his thirteen (13) year
old patient
Catherine Acosta. The trial court had sentenced him to
suffer the penalty of arresto mayor in its medium period
(four [4] months' imprisonment), as well as to pay the heirs
of his patient an indemnity of P30,000.00 for her death,
P10,000.00 as reimbursement for actual expenses
incurred, P50,000.00 as moral damages and to pay the
costs of the suit.1
The information filed against petitioner and his co-
accused, the surgeon Dr. Emilio Madrid, alleged the
following:
That on or about the 31st of May 1981, in the
municipality of Parañaque, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring and confederating together and mutually
helping and aiding with one another, without taking
the necessary care and precaution to avoid injury
to person, did then and there willfully, unlawfully
and feloniously operate, in a reckless, careless and
imprudent manner and neglected to exercise their
respective medical knowhow and tasks and/or
departed from the recognized standard in their
treatment, diagnosis of the condition, and operation
of the patient, one Catherine Acosta, 13 years old,
which negligence caused the death of the said
Catherine Acosta.2
Petitioner and Dr. Emilio Madrid entered pleas of not guilty
at arraignment and the case proceeded to trail with Judge
Job B. Madayag presiding.3
The prosecution presented as its principal evidence the
testimony of four (4) witnesses, namely: 1) Yolanda
Acosta, Catherine's mother, who was able to observe the
conduct of the accused outside the operating theater
before, during and after the appendectomy procedure
carried out on her daughter;4 2) Domingo Acosta,
Catherine's father, who corroborated some parts of his
wife's
testimony;5 3) Dr. Horacio Buendia, an expert witness
27
who described before the trial court the relationship
between a surgeon and an anesthetist in the course of a
surgical operation, as well as define the likelihood of
cardiac arrest as a post operative complication;6 and 4)
Dr. Nieto Salvador, an expert witness who analyzed and
explained the significance of the results of the
pathological study and autopsy conducted on Catherine's
body by one Dr. Alberto Reyes.7
After the prosecution had rested its case, the defense was
granted leave to file a demurrer to the evidence.8 After
failing to file the demurrer within the reglementary period,
Judge Manuel Yuzon, who had in the meantime taken
over as presiding judge of the sala where this case was
pending, denied the defense motion for extension of time
to file demurrer and declared the case submitted for
decision.9
On 19 September 1985, the trial court promulgated its
decision convicting both the accused of the crime
charged. 10
On appeal, the Court of Appeals affirmed the judgment of
conviction, and specified that the civil liability of the two
(2) accused was solidary in nature. 11
Petitioner Dr. Carillo alone filed the present Petition for
Review with the Court, seeking reversal of his conviction,
or in the alternative, the grant of a new trial. Dr. Madrid did
not try to appeal further the Court of Appeals Decision.
Accordingly, the judgment of conviction became final
insofar as the accused surgeon Dr. Madrid is concerned.
The facts of the case as established by the Court of
Appeals are as follows:
The deceased, Catherine Acosta, a 13 year old girl,
daughter of spouses Domingo and Yolanda
Acosta, complained to her father at about 10:30
o'clock in the morning of May 31, 1981 of pains in
the lower part of her abdomen. Catherine was then
brought to Dr. Elva Peña. Dra. Peña called for Dr.
Emilio Madrid and the latter examined Catherine
Acosta. According to Dr. Madrid, his findings might
be appendicitis. Then Dr. Peña told Catherine's
parents to bring the child to the hospital in Baclaran
so that the child will be observed.
At the Baclaran General Hospital, a nurse took
blood sample form the child. The findings became
known at around 3:00 o'clock in the afternoon and
the child was scheduled for operation at 5:00
o'clock in the afternoon. The operation took place
at 5:45 p.m. because Dr. Madrid arrived only at that
time.
When brought inside the operating room, the child
was feeling very well and they did not subject the
child to ECG (electrocardiogram) and
X-ray.
The appellant Dr. Emilio Madrid, a surgeon,
operated on Catherine. He was assisted by
appellant, Dr. Leandro Carillo, an
anesthesiologists.
During the operation, while Yolanda Acosta,
Catherine's mother, was staying outside the
operating room, she "noticed something very
unfamiliar." The three nurses who assisted in the
operation were going in and out of the operating
room, they were not carrying anything, but in going
out of the operating room, they were already
holding something.
Yolanda asked one of the nurses if she could enter
the operating room but she was refused.
At around 6:30 p.m., Dr. Emilio Madrid went outside
the operating room and Yolanda Acosta was
allowed to enter the first door.
The appendicitis (sic) was shown to them by Dr.
Madrid, because, according to Dr. Madrid, they
might be wondering because he was going to install
drainage near the operating (sic) portion of the
child.
When asked, the doctor told them the child was
already out of danger but the operation was not yet
finished.
It has also been established that the deceased was
not weighed before the administration of
anesthesia on her.
The operation was finished at 7:00 o'clock in the
evening and when the child was brought out from
the operating room, she was observed to be
shivering (nanginginig); her heart beat was not
normal; she was asleep and did not wake up; she
was pale; and as if she had difficulty in breathing
and Dr. Emilio Madrid suggested that she placed
under oxygen tank; that oxygen was administered
to the child when she was already in the room.
Witness Yolanda Acosta further testified that
shortly before the child was transferred from the
operating room to her room, she (witness) was
requested by the anesthesiologist to go home and
get a blanket.
A portion of Yolanda Acosta's testimony on what
happened when she returned to the hospital are
reproduced hereunder as follows:
Q What happened afterward?
28
A When I arrived in the hospital, my child was
being transferred to her bed.
Q What else happened?
Q I noticed that the heartbeat of my daughter
was not normal. And I noticed that her
hospital gown is rising up and down.
Q What transpired after that?
A I asked Dr. Madrid why it was like that, that
the heartbeat of my daughter is not normal.
Q And did the doctor make any reply?
A The doctor said because of the lesion of
the child.
Q What else happened?
A After they have revived the heartbeat of
the child, Dr. Carillo and Dr. Madrid left.
Q Now do you remember what time was it
when Dr. Carillo stepped out?
A Only a minute after they have transferred
the child to the bed.
Q What happened later on after Dr. Carillo
and Dr. Madrid stepped out of the hospital?
A After 15 or 30 minutes has lapsed at about
7:15 or 7:30, the child had developed
convulsion and stiffening of the body.
Q When you observed convulsion and
stiffening of the body, did you do anything?
A We requested the nurse who was
attending to her to call for a doctor.
Q And the nurse who was attending to the
patient called for a doctor?
A They called for Dra. Peña, their family
physician.
Q What transpired afterwards?
A What Dra. Peña did was call for Dr. Madrid
and the cardiologist.
Q Did this doctor arrived?
A Yes.
Q What transpired after the doctor arrived?
A They examined the child.
Q After they examined the child, did they
inform you of the result of the examination?
A The cardiologist was the one whom
informed us after he stepped out of the room
when we followed him. The doctor told us
that she suffered severe infection which went
up to her head.
Q After you were informed of the result of his
examination, what transpired next?
A According to them, they will do their best
for the child and that they will call for
Dr. Carillo.
Q Did Dr. Carillo arrived?
A At around 10:30 in the evening.
Q Did Dr. Carillo do anything when he
arrived on 31 May 1981?
A When he arrived, he noticed that there
were two small bottles and big bottles of
dextrose which were hanging above the bed
of the child. Then he said, "What is this?
Christmas tree or what?" He told us that one
bottle of dextrose be removed. And the big
one will remain.
Q What happened after that?
A After that we talked to Dr. Carillo and
asked him how did this happen to the child.
Q What did Dr. Carillo reply (sic) to you?
A He answered "that is nothing, the child will
regain consciousness and if the child will not
regain consciousness, I will resign (sic) as a
doctor."12
(Emphasis supplied)
When Catherine remained unconscious until noontime
the next day, a neurologist examined her and she was
diagnosed as comatose. 13 Three (3) days later,
Catherine died without regaining consciousness.14
The Court of Appeals held that Catherine had suffered
from an overdose of, or an adverse reaction to,
anesthesia, particularly the arbitrary administration of
29
Nubain, a pain killer, without benefit of prior weighing of
the patient's body mass, which weight determines the
dosage of Nubain which can safely be given to a
patient. 15 The Court of Appeals held that this condition
triggered off a heart attack as a post-operative
complication, depriving Catherine's brain of oxygen,
leading to the brain's hemorrhage. 16 The Court of
Appeals identified such cardiac arrest as the immediate
cause of Catherine's death. 17
The Court of Appeals found criminal negligence on the
part of petitioner Dr. Carillo and his co-accused Dr.
Madrid, holding that both had failed to observe the
required standard of diligence in the examination of
Catherine prior to the actual administration of
anesthesia; 18 that it was "a bit rash" on the part of the
accused Dr. Carillo "to have administered Nubain without
first weighing Catherine"; 19 and that it was an act of
negligence on the part of both doctors when, (a) they
failed to monitor Catherine's heartbeat after the operation
and
(b) they left the hospital immediately after reviving
Catherine's heartbeat, depriving the latter
of immediate and expert medical assistance when she
suffered a heart attack approximately fifteen (15) to thirty
(30) minutes later. 20
Since neither petitioner nor his co-accused presented
evidence in their own behalf, the present Petition seeks to
question the soundness of the factual conclusions drawn
by the Court of Appeals, upon which the affirmance of
petitioner's conviction was based.
Close examination of the instant Petition for Review
shows that petitioner's main arguments are two-fold: (1)
the Court of Appeals "completely brushed aside" and
"misapprehended" Catherine's death certificate and
biopsy report which allegedly showed that the cause of
death was a ruptured appendix, which led to blood
poisoning, 21 rather than faulty anesthetic treatment;
and (2) there was no direct evidence of record showing
that Nubain was administered to Catherine
either during the appendectomy procedure or after such
operation. 22
Two (2) related issues are thus posed for the Court's
consideration. The first is whether the Court of Appeals so
drastically "misapprehended" the relevant, operative facts
in this case as to compel this Court to examine and
resolve question(s) of fact which would have a decisive
significance for the disposition of the case. The rule is too
firmly settled to require much documentation that only
questions of law may be raised before this Court in a
petition for review on certiorari, subject to certain well-
known exceptions. 23 After careful scrutiny of petitioner's
contentions before us and the record of this case, we do
not believe that petitioner has shown "misapprehension of
facts" on the part of the Court of Appeals which would
require this Court to overturn the judgment reached by the
former.
The second issue is whether or not the findings of fact of
the Court of Appeals adequately support the conclusion
that petitioner Dr. Carillo was, along with Dr. Madrid, guilty
of simple negligence which resulted in homicide. Our
review of the record leads us to an affirmative answer.
Petitioner contends that the Court of Appeals seriously
erred in finding that an overdose of, or an allergic reaction
to, the anesthetic drug Nubain had led to the death of
Catherine Acosta and that the true cause of Catherine's
death was that set out in the death certificate of Catherine:
"Septicemia (or blood poisoning) due to perforated
appendix with peritonitis." 24 The concept of causation in
general, and the cause of death in human beings in
particular, are complex and difficult notions. What is fairly
clear is that death, understood as a physical condition
involving cessation of vital signs in the brain and heart, is
preceded by a series of physiological events, any one of
which events can, with equal cogency, be described as a
"cause of death". The Court of Appeals found that an
overdose of, or an adverse reaction to, Nubain, an
anesthetic or
pain-killing drug the appropriate dose of which depends
on the body weight or mass of the patient, had generated
or triggered off cardiac arrest, which in
turn led to lack of oxygen in Catherine's brain, which then
brought about hemorrhaging in the brain. Vital activity in
the brain thereupon ceased. The medical evidence
presented at the trial was quite consistent with the findings
of the Court of Appeals which concluded that cardiac
arrest was the cause of Catherine's death. 25
For his part, petitioner insists that cardiac arrest is not the
only cause of oxygen-starvation of the brain, that
septicemia with peritonitis or severe infection which had
"gone up to the head" of Catherine was an equally
efficient cause of deprivation of the brain of oxygen and
hence of brain hemorrhage. The medical testimony of the
expert witnesses for the prosecution on which petitioner
relies is also consistent with petitioner's theory that
septicemia with peritonitis was, or at least could have
been, the cause of Catherine's death. 26
Indeed, it appears to the Court that there was no medical
proof submitted to the trial court to show that one or the
other "cause" was necessarily an exclusive cause of
death in the case of Catherine Acosta; that an overdose
or allergic reaction to Nubain could not have combined
with septicemia and peritonitis in bringing about
Catherine's death.
What is of critical importance for present purposes is not
so much the identification of the "true cause" or "real
cause" of Catherine's death but rather the set of
circumstances which both the trial court and the Court of
Appeals found constituted simple (as distinguished from
reckless) negligence on the part of the two accused Dr.
Madrid and Dr. Carillo leading to the death of Catherine.
30
When the patient was wheeled out of the operating room
after completion of surgery, she manifested signs of
medical instability (i.e., shivering, paleness, irregular
breathing and weak heart beat). 27 She was not brought
to a properly equipped recovery room, or intensive care
until which the hospital lacked. 28 Such facilities and their
professional staffs, of which an anesthetist is commonly a
part, are essential for providing close observation and
patient care while a post-surgery patient is recovering
from the effects of anesthesia and while the normal
protective mechanisms are still dull or
obtunded. 29 Instead, the patient was merely brought to
her assigned hospital bed and was provided oxygen on
the instructions of Dr. Madrid then "revived" her
heartbeat. 30 Both doctors then left their patient and the
hospital; approximately fifteen minutes later, she suffered
convulsions and cardiac arrest. 31
The conduct of Dr. Madrid and of the petitioner constituted
inadequate care of their patient in view of her vulnerable
condition. Both doctors failed to appreciate the serious
condition of their patient whose adverse physical signs
were quite manifest right after surgery. And after reviving
her heartbeat, both doctors failed to monitor their patient
closely or extend further medical care to her; such
conduct was especially necessary in view of the
inadequate,
post-operative facilities of the hospital. We do not, of
course, seek to hold petitioner responsible for the
inadequate facilities of the Baclaran General Hospital. We
consider, however, that the inadequate nature of those
facilities did impose a somewhat higher standard of
professional diligence upon the accused surgeon and
anesthetist personally than would have been called for in
a modern fully-equipped hospital.
While Dr. Madrid and a cardiologist were containing the
patient's convulsions, and after the latter had diagnosed
that infection had reached the patient's head, these two
(2) apparently after consultation, decided to call-in the
petitioner. 32 There is here a strong implication that the
patient's post-operative condition must have been
considered by the two (2) doctors as in some way related
to the anesthetic treatment she had received from the
petitioner either during or after the surgical procedure.
Once summoned, petitioner anesthesiologist could not be
readily found. When he finally appeared at 10:30 in the
evening, he was evidently in a bad temper, commenting
critically on the dextrose bottles before ordering their
removal. 33 This circumstance indicated he was not
disposed to attend to this unexpected call, in violation of
the canons of his profession that as a physician, he should
serve the interest of his patient "with the greatest of
solicitude, giving them always his best talent and
skill." 34 Indeed, when petitioner finally saw his patient, he
offered the unprofessional bluster to the parents of
Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a
physician to "attend to his patients faithfully and
conscientiously." He should secure for them all possible
benefits that may depend upon his professional skill and
care. As the sole tribunal to adjudge the physician's failure
to fulfill his obligation to his patient is, in most cases, his
own conscience, violation of this rule on his part is
"discreditable and inexcusable". 36
Nubain was an experimental drug for anesthesia and
post-operative pain and the medical literature required
that a patient be weighed first before it is administered and
warned that there was no (or inadequate) experience
relating to the administration thereof to a patient less that
eighteen (18) ears of age. 37 Yet, the doctor's order sheet
(Exhibit "C") did not contain this precaution but instead
directed a reader to apply the drug only when warranted
by the circumstances. 38 During the offer of Exhibit "C" by
the prosecution, Dr. Madrid admitted that this prescription,
which was unsigned, was made in his own
handwriting. 39 It must be observed that the instruction
was open-ended in that some other individual still had to
determine if circumstances existed warranting
administration of the drug to the patient. The document
thus indicated the abdication of medical responsibility on
an extremely critical matter.
Since petitioner anesthesiologist
entered subsequent prescriptions or orders in the same
order sheet, which were signed by him, at 7:15 p.m. on
the same evening of 31 May 1981, he was in a position to
appreciate the dangers inherent in the prior prescription,
which was within his (petitioner's) area of specialization,
and to order measures to correct this anomaly and protect
his patient's well-being. So far as the condition of the
evidence shows, he failed to do so. In sum, only a low
level of diligence was exhibited by petitioner and Dr.
Madrid in the prescription of medication for their patient.
As noted earlier, petitioner relied heavily in this
proceeding on the testimony on cross-examination of the
expert witnesses for the prosecution to show that blood
poisoning resulting from a ruptured appendix could also
be responsible for the patient's death.
No suggestion has been made that the rupture of the
patient's occurred prior to surgery. After her blood sample
was examined, the patient was merely diagnosed as a
case of appendicitis, without further
elaboration. 40 No intensive preoperative preparations,
like the immediate administration of antibiotics, was
thereafter undertaken on the patient. This is a standard
procedure for patients who are, after being diagnosed,
suspected of suffering from a perforated appendix and
consequent peritonitis. 41 The mother also testified that
petitioner anesthesiologist merely injected a drug, "pre-
anesthesia" intended to put the patient to sleep, into the
container of fluids being administered to her daughter
intravenously at her room, prior to surgery. 42 We note
further that the surgeon Dr. Madrid was forty-five minutes
late in arriving at the operating theater. 43 Considering that
delay in treatment of appendicitis increases the morbidity
of the patient, 44 Dr. Madrid's conduct can only be
31
explained by a pre-operative diagnosis on his part that the
condition of appendicitis was not yet attended by
complications (i.e., a ruptured appendix and peritonitis).
The above circumstances do strongly indicate that the
rupture of the patient's appendix occurred during the
appendectomy procedure, that is, at a time and place —
the operating room — where the two (2) accused were in
full control of the situation and could determine decisively
what needed to be done in respect of the patient. 45 This
circumstance must be considered in conjunction with
other related circumstances which the prosecution had
proven: that the patient was ambulatory when brought to
the operating room; 46 that she left the operating room two
(2) hours later in obviously serious condition; and that an
appendectomy accompanied or followed by sustained
antibiotic treatment is a fairly common and generally
accepted medical procedure for dealing with ruptured
appendix and peritonitis, 47 a fact of which judicial note
may be taken.
As early as in People v. Vistan, 48 the Court defined
simple negligence, penalized under what is now Article
365 of the Revised Penal Code, as "a mere lack
of prevision in a situation where either the threatened
harm is
not immediate or the danger not openly visible." Put in a
slightly different way, the gravamen of the offense of
simple negligence is the failure to exercise the diligence
necessitated or called for the situation which was not
immediately
life-destructive but which culminated, in the present case,
in the death of a human being three (3) days later. Such
failure to exercise the necessary degree of care and
diligence is a negative ingredient of the offense charged.
The rule in such cases is that while the prosecution must
prove the negative ingredient of the offense, it needs only
to present the best evidence procurable under the
circumstances, in order to shift the burden of disproving
or countering the proof of the negative ingredient to the
accused, provided that such initial evidence establishes
at least on a prima facie basis the guilt of the
accused. 49 This rule is particularly applicable where the
negative ingredient of the offense is of such a nature or
character as, under the circumstances, to be specially
within the knowledge or control of the accused. 50 In the
instant case, the Court is bound to observe that the events
which occurred during the surgical procedure (including
whether or not Nubain had in fact been administered as
an anesthesia immediately before or during the surgery)
were peculiarly within the knowledge and control of Dr.
Carillo and Dr. Madrid. It was, therefore, incumbent upon
the two (2) accused to overturn the prima facie case
which the prosecution had established, by reciting the
measures which they had actually taken to prevent or to
counter the obviously serious condition of Catherine
Acosta which was evident right after surgery. This they
failed or refused to do so.
Still another circumstance of which account must be taken
is that both petitioner and Dr. Madrid failed to inform the
parents of their minor patient of the nature of her illness,
or to explain to them either during the surgery
(if feasible) or at any time after the surgery, the events
which comprised the dramatic deterioration of her
condition immediately after surgery as compared with her
pre-surgery condition. To give a truthful explanation to the
parents was a duty imposed upon them by the canons of
their profession. 51 Petitioner should have explained to
Catherine's parents the actual circumstances surrounding
Catherine's death, how, in other words, a simple
appendectomy procedure upon an ambulatory patient
could have led to such fatal consequences.
By way of resume, in the case at bar, we consider that the
chain of circumstances above noted, namely: (1) the
failure of petitioner and Dr. Madrid to appreciate the
serious post-surgery condition of their patient and to
monitor her condition and provide close patient care to
her; (2) the summons of petitioner by Dr. Madrid and the
cardiologist after the patient's heart attack on the very
evening that the surgery was completed; (3) the low level
of care and diligence exhibited by petitioner in failing to
correct Dr. Madrid's prescription of Nubain for post-
operative pain; (4) the extraordinary failure or refusal of
petitioner and Dr. Madrid to inform the parents of
Catherine Acosta of her true condition after surgery, in
disregard of the requirements of the Code of Medical
Ethics; and (5) the failure of petitioner and Dr. Madrid to
prove that they had in fact exercised the necessary and
appropriate degree of care and diligence to prevent the
sudden decline in the condition of Catherine Acosta and
her death three (3) days later, leads the Court to the
conclusion, with moral certainty, that petitioner and Dr.
Madrid were guilty of simple negligence resulting in
homicide.
In addition to the main arguments raised by petitioner
earlier, he also raised an ancillary, constitutional claim of
denial of due process. He contends that he was deprived
of his right to have competent representation at trial, and
to have his cause adequately heard, because his counsel
of record, Atty. Jose B. Puerto, was "incompetent" and
exhibited "gross negligence" by manifesting an intent to
file a demurrer to the evidence, in failing to present
evidence in his behalf and in omitting to file a defense
memorandum for the benefit of
Judge Yuzon, after the latter took over the case at the end
of trial and before the Judge rendered his
decision. 52 Petitioner submits he is entitled to a new
trial. 53
These contentions do not persuade. An examination of
the record indicates that Atty. Puerto represented
petitioner during trial with reasonable competence.
Except for the two hearing sessions when witnesses
Domingo Acosta was cross-examined and recross-
examined by Atty. Puerto, petitioner was present during
all the sessions when the other prosecution witnesses
32
were presented and during which Atty. Puerto extensively
cross-examined them in behalf of petitioner and Dr.
Madrid. This counsel elicited from the two (2) expert
witnesses for the prosecution testimony favorable to
petitioner and which was relied upon by the latter in this
proceeding. 54 The record further indicates that if
petitioner indeed entertained substantial doubts about the
capability of Atty. Puerto, he could have easily terminated
the services of that counsel and retained a new one, or
sought from the trial court the appointment of counsel
de oficio, during the ample opportunity given from the time
Atty. Puerto manifested his intent to file a demurrer on 16
October 1985, to the submission of the case for decision
on 25 June 1986 and before the promulgation of judgment
on 19 September 1986. 55 During all this time, petitioner
could have obtained leave of court to present evidence in
his behalf in lieu of a demurrer, or to submit a
memorandum for the defense. After promulgation of the
judgment of conviction, petitioner did not seek a new trial,
but permitted Atty. Puerto to obtain leave from the trial
court to continue on bail during the pendency of the
proceedings before the Court of Appeals. 56 Indeed,
petitioner replaced
Atty. Puerto as counsel only upon institution of the present
petition. 57
Petitioner's constitutional objection is plainly an
afterthought.
WHEREFORE, the Decision of the Court of Appeals
dated 28 November 1988 is hereby AFFIRMED, subject
only to the modification that the indemnity for the death of
Catherine Acosta is hereby increased to P50,000.00, in
line with current jurisprudence. 58
SO ORDERED.
V. MEDICAL MALPRACTICE
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner, vs.
COURT OF APPEALS and LYDIA
UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are
not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual
consequences. Furthermore they are not liable for honest
mistakes of judgment . . . 1
The present case against petitioner is in the nature of a
medical malpractice suit, which in simplest terms 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. 2 In this jurisdiction,
however, such claims are most often brought as a civil
action for damages under Article 2176 of the Civil
Code, 3 and in some instances, as a criminal case under
Article 365 of the Revised Penal Code 4 with which the
civil action for damages is impliedly instituted. It is via the
latter type of action that the heirs of the deceased sought
redress for the petitioner's alleged imprudence and
negligence in treating the deceased thereby causing her
death. The petitioner and one Dr. Lina Ercillo who was the
attending anaesthesiologist during the operation of the
deceased were charged with "reckless imprudence and
negligence resulting to (sic) homicide" in an information
which reads:
That on or about March 23, 1991, in the City of San
Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused
above named, being then the attending
anaesthesiologist and surgeon, respectively, did
then and there, in a negligence (sic), careless,
imprudent, and incompetent manner, and failing to
supply or store sufficient provisions and facilities
necessary to meet any and all exigencies apt to
arise before, during and/or after a surgical
operation causing by such negligence,
carelessness, imprudence, and incompetence, and
causing by such failure, including the lack of
preparation and foresight needed to avert a
tragedy, the untimely death of said Lydia Umali on
the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo
pleaded not guilty to the above-mentioned charge. On
March 4, 1994, the Municipal Trial Court in Cities (MTCC)
of San Pablo City rendered a decision, the dispositive
portion of which is hereunder quoted as follows:
WHEREFORE, the court finds the accused Dra.
Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused
Dra. Ninevetch Cruz is hereby held responsible
for the death of Lydia Umali on March 24, 1991,
and therefore guilty under Art. 365 of the
Revised Penal Code, and she is hereby
sentenced to suffer the penalty of 2 months and
1 day imprisonment of arresto mayor with
costs. 6
The petitioner appealed her conviction to the
Regional Trial Court (RTC) which affirmed in
toto the decision of the MTCC 7 prompting the
petitioner to file a petition for review with the Court
of Appeals but to no avail. Hence this petition for
review on certiorari assailing the decision
promulgated by the Court of Appeals on October
24, 1995 affirming petitioner's conviction with
modification that she is further directed to pay the
heirs of Lydia Umali P50,000.00 as indemnity for
her death.8
33
 In substance, the petition brought before this Court
raises the issue of whether or not petitioner's
conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged
medical malpractice, is supported by the evidence
on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali
De Ocampo, accompanied her mother to the Perpetual
Help Clinic and General Hospital situated in Balagtas
Street, San Pablo City, Laguna. They arrived at the said
hospital at around 4:30 in the afternoon of the same
day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner
who found a "myoma" 10 in her uterus, and scheduled her
for a hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the
evening of March 22, 1991 as the latter was to be
operated on the next day at 1:00 o'clock in the
afternoon. 12 According to Rowena, she noticed that the
clinic was untidy and the window and the floor were very
dusty prompting her to ask the attendant for a rag to wipe
the window and the floor with. 13 Because of the untidy
state of the clinic, Rowena tried to persuade her mother
not to proceed with the operation. 14 The following day,
before her mother was wheeled into the operating room,
Rowena asked the petitioner if the operation could be
postponed. The petitioner called Lydia into her office and
the two had a conversation. Lydia then informed Rowena
that the petitioner told her that she must be operated on
as scheduled. 15
Rowena and her other relatives, namely her husband, her
sister and two aunts waited outside the operating room
while Lydia underwent operation. While they were waiting,
Dr. Ercillo went out of the operating room and instructed
them to buy tagamet ampules which Rowena's sister
immediately bought. About one hour had passed when
Dr. Ercillo came out again this time to ask them to buy
blood for Lydia. They bought type "A" blood from the St.
Gerald Blood Bank and the same was brought by the
attendant into the operating room. After the lapse of a few
hours, the petitioner informed them that the operation was
finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty minutes
after, Lydia was brought out of the operating room in a
stretcher and the petitioner asked Rowena and the other
relatives to buy additional blood for Lydia. Unfortunately,
they were not able to comply with petitioner's order as
there was no more type "A" blood available in the blood
bank. Thereafter, a person arrived to donate blood which
was later transfused to Lydia. Rowena then noticed her
mother, who was attached to an oxygen tank, gasping for
breath. Apparently the oxygen supply had run out and
Rowena's husband together with the driver of the accused
had to go to the San Pablo District Hospital to get oxygen.
Lydia was given the fresh supply of oxygen as soon as it
arrived. 16 But at around 10:00 o'clock P.M. she went into
shock and her blood pressure dropped to 60/50. Lydia's
unstable condition necessitated her transfer to the San
Pablo District Hospital so she could be connected to a
respirator and further examined. 17 The transfer to the
San Pablo District Hospital was without the prior consent
of Rowena nor of the other relatives present who found
out about the intended transfer only when an ambulance
arrived to take Lydia to the San Pablo District Hospital.
Rowena and her other relatives then boarded a tricycle
and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she
was wheeled into the operating room and the petitioner
and Dr. Ercillo re-operated on her because there was
blood oozing from the abdominal incision. 19 The
attending physicians summoned Dr. Bartolome Angeles,
head of the Obstetrics and Gynecology Department of the
San Pablo District Hospital. However, when Dr. Angeles
arrived, Lydia was already in shock and possibly dead as
her blood pressure was already 0/0. Dr. Angeles then
informed petitioner and Dr. Ercillo that there was nothing
he could do to help save the patient. 20 While the
petitioner was closing the abdominal wall, the patient
died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the
morning, Lydia Umali was pronounced dead. Her death
certificate states "shock" as the immediate cause of death
and "Disseminated Intravascular Coagulation (DIC)" as
the antecedent cause. 22
In convicting the petitioner, the MTCC found the following
circumstances as sufficient basis to conclude that she
was indeed negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision
like blood and oxygen to prepare for any contingency
that might happen during the operation. The manner
and the fact that the patient was brought to the San
Pablo District Hospital for reoperation indicates that
there was something wrong in the manner in which
Dra. Cruz conducted the operation. There was no
showing that before the operation, accused Dra.
Cruz had conducted a cardio pulmonary clearance or
any typing of the blood of the patient. It was (sic) said
in medical parlance that the "the abdomen of the
person is a temple of surprises" because you do not
know the whole thing the moment it was open (sic)
and surgeon must be prepared for any eventuality
thereof. The patient (sic) chart which is a public
document was not presented because it is only there
that we could determine the condition of the patient
before the surgery. The court also noticed in Exh. "F-
1" that the sister of the deceased wished to postpone
the operation but the patient was prevailed upon by
Dra. Cruz to proceed with the surgery. The court
finds that Lydia Umali died because of the
negligence and carelessness of the surgeon Dra.
Ninevetch Cruz because of loss of blood during the
operation of the deceased for evident
unpreparedness and for lack of skill, the reason why
the patient was brought for operation at the San
34
 Pablo City District Hospital. As such, the surgeon
should answer for such negligence. With respect to
Dra. Lina Ercillo, the anaesthesiologist, there is no
evidence to indicate that she should be held jointly
liable with Dra. Cruz who actually did the
operation. 23
The RTC reiterated the abovementioned findings of the
MTCC and upheld the latter's declaration of
"incompetency, negligence and lack of foresight and skill
of appellant (herein petitioner) in handling the subject
patient before and after the operation." 24 And likewise
affirming the petitioner's conviction, the Court of Appeals
echoed similar observations, thus:
. . . While we may grant that the untidiness and
filthiness of the clinic may not by itself indicate
negligence, it nevertheless shows the absence of
due care and supervision over her subordinate
employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments
properly sterilized? Could the conditions in the OR
have contributed to the infection of the patient? Only
the petitioner could answer these, but she opted not
to testify. This could only give rise to the presumption
that she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the
prosecution witness" remains unchallenged and
unrebutted.
Likewise undisputed is the prosecution's version
indicating the following facts: that the accused asked
the patient's relatives to buy Tagamet capsules while
the operation was already in progress; that after an
hour, they were also asked to buy type "A" blood for
the patient; that after the surgery, they were again
asked to procure more type "A" blood, but such was
not anymore available from the source; that the
oxygen given to the patient was empty; and that the
son-in-law of the patient, together with a driver of the
petitioner, had to rush to the San Pablo City District
Hospital to get the much-needed oxygen. All these
conclusively show that the petitioner had not
prepared for any unforeseen circumstances before
going into the first surgery, which was not emergency
in nature, but was elective or pre-scheduled; she had
no ready antibiotics, no prepared blood, properly
typed and cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions that keep
nagging Us. Was the patient given any cardio-
pulmonary clearance, or at least a clearance by an
internist, which are standard requirements before a
patient is subjected to surgery. Did the petitioner
determine as part of the pre-operative evaluation, the
bleeding parameters of the patient, such as bleeding
time and clotting time? There is no showing that
these were done. The petitioner just appears to have
been in a hurry to perform the operation, even as the
family wanted a postponement to April 6, 1991.
Obviously, she did not prepare the patient; neither
did she get the family's consent to the operation.
Moreover, she did not prepare a medical chart with
instructions for the patient's care. If she did all these,
proof thereof should have been offered. But there is
none. Indeed, these are overwhelming evidence of
recklessness and imprudence. 25
This Court, however, holds differently and finds the
foregoing circumstances insufficient to sustain a judgment
of conviction against the petitioner for the crime of
reckless imprudence resulting in homicide. The elements
of reckless imprudence are: (1) that the offender does or
fails to do an act; (2) that the doing or the failure to do that
act is voluntary; (3) that it be without malice; (4) that
material damage results from the reckless imprudence;
and (5) that there is inexcusable lack of precaution on the
part of the offender, taking into consideration his
employment or occupation, degree of intelligence,
physical condition, and other circumstances regarding
persons, time and place.
Whether or not a physician has committed an
"inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of
care observed by other members of the profession in
good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of
treatment or the present state of medical science. 26 In the
recent case of Leonila Garcia-Rueda v. Wilfred
L. Pascasio, et al., 27 this Court stated that in accepting a
case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training,
care and skill in the treatment of his patients. He therefore
has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a
condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the
profession but also that the physician's conduct in the
treatment and care falls below such standard. 28 Further,
inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion
as to causation. 29
Immediately apparent from a review of the records of this
case is the absence of any expert testimony on the matter
of the standard of care employed by other physicians of
good standing in the conduct of similar operations. The
prosecution's expert witnesses in the persons of Dr.
Floresto Arizala and Dr. Nieto Salvador, Jr. of the National
Bureau of Investigation (NBI) only testified as to the
possible cause of death but did not venture to illuminate
the court on the matter of the standard of care that
petitioner should have exercised.
35
All three courts below bewail the inadequacy of the
facilities of the clinic and its untidiness; the lack of
provisions such as blood, oxygen, and certain medicines;
the failure to subject the patient to a cardio-pulmonary test
prior to the operation; the omission of any form of blood
typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But while
it may be true that the circumstances pointed out by the
courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is
still best arrived at not through the educated surmises nor
conjectures of laymen, including judges, but by the
unquestionable knowledge of expert witnesses. For
whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his
patient is, in the generality of cases, a matter of expert
opinion. 30 The deference of courts to the expert opinion
of qualified physicians stems from its realization that the
latter possess unusual technical skills which laymen in
most instances are incapable of intelligently
evaluating. 31 Expert testimony should have been offered
to prove that the circumstances cited by the courts below
are constitutive of conduct falling below the standard of
care employed by other physicians in good standing when
performing the same operation. It must be remembered
that when the qualifications of a physician are admitted,
as in the instant case, there is an inevitable presumption
that in proper cases he takes the necessary precaution
and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently
established. 32 This presumption is rebuttable by expert
opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the
facilities and untidiness of the clinic; the lack of provisions;
the failure to conduct pre-operation tests on the patient;
and the subsequent transfer of Lydia to the San Pablo
Hospital and the reoperation performed on her by the
petitioner do indicate, even without expert testimony, that
petitioner was recklessly imprudent in the exercise of her
duties as a surgeon, no cogent proof exists that any of
these circumstances caused petitioner's death. Thus, the
absence of the fourth element of reckless imprudence:
that the injury to the person or property was a
consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has
the burden of establishing appellant's negligence and for
a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well
as a causal connection of such breach and the resulting
death of his patient. 33 In Chan Lugay v. St. Luke's
Hospital, Inc., 34 where the attending physician was
absolved of liability for the death of the complainant's wife
and newborn baby, this Court held that:
In order that there may be a recovery for an injury,
however, it must be shown that the "injury for which
recovery is sought must be the legitimate
consequence of the wrong done; the connection
between the negligence and the injury must be a
direct and natural sequence of events, unbroken by
intervening efficient causes." In other words, the
negligence must be the proximate cause of the
injury. For, "negligence, no matter in what it
consists, cannot create a right of action unless it is
the proximate cause of the injury complained of ."
And "the proximate cause of an injury is that cause,
which, in natural and continuous sequence,
unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the
deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report
which has been marked as Exh. "A-1-b". There
appears here a signature above the typewritten
name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh.
"A-1-b"?
A. Only as to the autopsy report no. 91-09, the time
and place and everything after the post mortem
findings, sir.
Q. You mentioned on your "Post Mortem Findings"
about surgical incision, 14:0 cm., infraumbilical
area, anterior abdominal area, midline, will you
please explain that in your own language?
A. There was incision wound (sic) the area just
below the navel, sir.
Q. And the last paragraph of the postmortem
findings which I read: Uterus, pear-shaped and
pale measuring 7.5 x 5.5 x 5.0 cm. with some
surface nodulation of the fundic area posteriorly.
Cut-section shows diffusely pale myometrium with
areas of streak induration. The ovaries and adnexal
structures are missing with the raw surfaces
patched with clotted blood. Surgical sutures were
noted on the operative site.
Intestines and mesenteries are pale with blood
clots noted between the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
36
 100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.,
will you please explain that on (sic) your own
language or in ordinary. . . . . . . . . . . .
A. There was a uterus which was not attached to
the adnexal structures namely ovaries which were
not present and also sign of previous surgical
operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical
sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are
place (sic) with blood clots noted between the
mesenteric folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are mostly
perritonial blood . . . . . . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood
vessel. Blood were (sic) outside as a result of the
injuries which destroyed the integrity of the vessel
allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings
indicated in Exh. A-1-B, can you tell the court the
cause of death?
A. Yes, sir. The cause of death is: Gross findings
are compatible with hemorrhagic shock.
Q. Can you tell the us what could have caused this
hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood
loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (Emphasis
supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the cause of
death by virtue of the examination of the specimen
submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it
would be difficult for me to determine the cause of
death, sir.
Q. Have you also examined the post mortem of Dr.
Arizala?
A. Yes, sir, and by virtue of the autopsy report in
connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible
with the person who died, sir.
Q. Will you explain to us the meaning of
hemorrhagic compatible?
A. It means that a person died of blood
loss. Meaning a person died of non-replacement of
blood and so the victim before she died there was
shock of diminish of blood of the circulation. She
died most probably before the actual complete
blood loss, sir.
Court: Is it possible doctor that the loss of the blood
was due on (sic) operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone
surgery. Another may be a blood vessel may be cut
while on operation and this cause (sic) bleeding, or
may be set in the course of operation, or may be
(sic) he died after the operation. Of course there
are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood
replacement?
A. Yes, sir. 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or
hemorrhagic shock as the cause of death. However, as
37
likewise testified to by the expert witnesses in open court,
hemorrhage or hemorrhagic shock during surgery may be
caused by several different factors. Thus, Dr. Salvador's
elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that
you mentioned you said that it could be at the
moment of operation when one losses (sic) control
of the presence, is that correct? During the
operation there is lost (sic) of control of the cut
vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of
considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may
have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible
also to some clotting defect, is that correct?
A. May be (sic). 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following
expert opinion:
Q. Doctor even a patient after an operations (sic)
would suffer hemorrage what would be the possible
causes of such hemorrage (sic)?
A. Among those would be what we call
Intravascular Coagulation and this is the reason for
the bleeding, sir, which cannot be prevented by
anyone, it will happen to anyone, anytime and to
any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the
cutting or the operations done in the body?
A. Not related to this one, the bleeding here is not
related to any cutting or operation that I (sic) have
done.
Q. Aside from the DIC what could another causes
(sic) that could be the cause for the hemorrhage or
bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic)
and it is possible that the ligature in the suture was
(sic) become (sic) loose, it is (sic) becomes loose if
proven..
xxx xxx xxx
Q. If the person who performed an autopsy does
not find any untight (sic) clot (sic) blood vessel or
any suture that become (sic) loose the cause of the
bleeding could not be attributed to the fault of the
subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of
hemorrhage during an operation are: (1) the failure of the
surgeon to tie or suture a cut blood vessel; (2) allowing a
cut blood vessel to get out of control; (3) the subsequent
loosening of the tie or suture applied to a cut blood vessel;
and (4) and a clotting defect known as DIC. It is significant
to state at this juncture that the autopsy conducted by Dr.
Arizala on the body of Lydia did not reveal any untied or
unsutured cut blood vessel nor was there any indication
that the tie or suture of a cut blood vessel had become
loose thereby causing the hemorrhage. 40 Hence the
following pertinent portion of Dr. Arizala's testimony:
Q: Doctor, in examining these structures did you
know whether these were sutured ligature or plain
ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the
cut structures were tied by first suturing it and then
tying a knot or the tie was merely placed around the
cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because
you did not even bothered (sic) to examine, is that
correct?
A: Well, I bothered enough to know that they were
sutured, sir.
Q: So, therefore, Doctor, you would not know
whether any of the cut structures were not sutured
or tied neither were you able to determine whether
any loose suture was found in the peritoneal
cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not
preclude the probability that DIC caused the hemorrhage
38
and consequently, Lydia's death. DIC which is a clotting
defect creates a serious bleeding tendency and when
massive DIC occurs as a complication of surgery leaving
raw surface, major hemorrhage occurs. 42 And as testified
to by defense witness, Dr. Bu C. Castro, hemorrhage due
to DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the
possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be
prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that
will tell you whether this patient suffered among
such things as DIC?
A. Well, I did reserve because of the condition of
the patient.
Q. Now, Doctor you said that you went through the
record of the deceased Lydia Umali looking for the
chart, the operated (sic) records, the post mortem
findings on the histophanic (sic) examination based
on your examination of record, doctor, can you
more or less says (sic) what part are (sic)
concerned could have been the caused (sic) of
death of this Lydia Umali?
A. As far as the medical record is concern (sic) the
caused (sic) of death is dessimulated (sic) Intra
Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is
knowing (sic) the doctor would say whether the
doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on
finding they just read the chart as well as the other
record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the
surgeon, sir. 44
This Court has no recourse but to rely on the expert
testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict
petitioner's allegation that the cause of Lydia's death was
DIC which, as attested to by an expert witness, cannot be
attributed to the petitioner's fault or negligence. The
probability that Lydia's death was caused by DIC was
unrebutted during trial and has engendered in the mind of
this Court a reasonable doubt as to the petitioner's guilt.
Thus, her acquittal of the crime of reckless imprudence
resulting in homicide. While we condole with the family of
Lydia Umali, our hands are bound by the dictates of
justice and fair dealing which hold inviolable the right of
an accused to be presumed innocent until proven guilty
beyond reasonable doubt. Nevertheless, this Court finds
the petitioner civilly liable for the death of Lydia Umali, for
while a conviction of a crime requires proof beyond
reasonable doubt, only a preponderance of evidence is
required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts
his life and limb. For insufficiency of evidence this Court
was not able to render a sentence of conviction but it is
not blind to the reckless and imprudent manner in which
the petitioner carried out her duties. A precious life has
been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the
deceased continue to feel the loss of their mother up to
the present time 46 and this Court is aware that no amount
of compassion and commiseration nor words of
bereavement can suffice to assuage the sorrow felt for the
loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali
are proper in the instant case.
WHEREFORE, premises considered, petitioner DR.
NINEVETCH CRUZ is hereby ACQUITTED of the crime
of reckless imprudence resulting in homicide but is
ordered to pay the heirs of the deceased Lydia Umali the
amount of FIFTY THOUSAND PESOS (P50,000.00) as
civil liability, ONE HUNDRED THOUSAND PESOS
(P100,000.00) as moral damages, and FIFTY
THOUSAND PESOS (P50,000.00) as exemplary
damages.
39
Let a copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action.
SO ORDERED.
G.R. No. 178763 April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS
LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of
the Revised Rules of Court, petitioners Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian
Lucas seek the reversal of the 27 September 2006
Decision2 and 3 July 2007 Resolution,3 both of the Court
of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas v. Prospero Ma. C. Tuaño."
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil case
entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas,
Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuaño," docketed as Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick
Lucas (Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and
swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr.
Tuaño), an ophthalmologist at St. Luke’s Medical Center,
for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that it
had been nine (9) days since the problem with his right
eye began; and that he was already taking Maxitrol to
address the problem in his eye. According to Dr. Tuaño,
he performed "ocular routine examination" on Peter’s
eyes, wherein: (1) a gross examination of Peter’s eyes
and their surrounding area was made; (2) Peter’s visual
acuity were taken; (3) Peter’s eyes were palpated to
check the intraocular pressure of each; (4) the motility of
Peter’s eyes was observed; and (5) the
ophthalmoscopy4 on Peter’s eyes was used. On that
particular consultation, Dr. Tuaño diagnosed that Peter
was suffering from conjunctivitis5 or "sore eyes." Dr.
Tuaño then prescribed Spersacet-C6 eye drops for Peter
and told the latter to return for follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9
September 1988. Upon examination, Dr. Tuaño told Peter
that the "sore eyes" in the latter’s right eye had already
cleared up and he could discontinue the Spersacet-C.
However, the same eye developed Epidemic Kerato
Conjunctivitis (EKC),7 a viral infection. To address the
new problem with Peter’s right eye, Dr. Tuaño prescribed
to the former a steroid-based eye drop called Maxitrol,8 a
dosage of six (6) drops per day.9 To recall, Peter had
already been using Maxitrol prior to his consult with Dr.
Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a follow-
up consultation. After examining both of Peter’s eyes, Dr.
Tuaño instructed the former to taper down10 the dosage
of Maxitrol, because the EKC in his right eye had already
resolved. Dr. Tuaño specifically cautioned Peter that,
being a steroid, Maxitrol had to be withdrawn gradually;
otherwise, the EKC might recur.11
Complaining of feeling as if there was something in his
eyes, Peter returned to Dr. Tuaño for another check-up
on 6 October 1988. Dr. Tuaño examined Peter’s eyes and
found that the right eye had once more developed EKC.
So, Dr. Tuaño instructed Peter to resume the use of
Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of
Maxitrol, as it was out of stock. Consequently, Peter was
told by Dr. Tuano to take, instead, Blephamide12 another
steroid-based medication, but with a lower concentration,
as substitute for the unavailable Maxitrol, to be used three
(3) times a day for five (5) days; two (2) times a day for
five (5) days; and then just once a day.13
Several days later, on 18 October 1988, Peter went to see
Dr. Tuaño at his clinic, alleging severe eye pain, feeling
as if his eyes were about to "pop-out," a headache and
blurred vision. Dr. Tuaño examined Peter’s eyes and
discovered that the EKC was again present in his right
eye. As a result, Dr. Tuaño told Peter to resume the
maximum dosage of Blephamide.
Dr. Tuaño saw Peter once more at the former’s clinic on
4 November 1988. Dr. Tuaño’s examination showed that
only the periphery of Peter’s right eye was positive for
EKC; hence, Dr. Tuaño prescribed a lower dosage of
Blephamide.
40
It was also about this time that Fatima Gladys Lucas
(Fatima), Peter’s spouse, read the accompanying
literature of Maxitrol and found therein the following
warning against the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to
the optic nerve, defects in visual acuity and fields of vision,
and posterior, subcapsular cataract formation. Prolonged
use may suppress the host response and thus increase
the hazard of secondary ocular infractions, in those
diseases causing thinning of the cornea or sclera,
perforations have been known to occur with the use of
topical steroids. In acute purulent conditions of the eye,
steroids may mask infection or enhance existing infection.
If these products are used for 10 days or longer,
intraocular pressure should be routinely monitored even
though it may be difficult in children and uncooperative
patients.
Employment of steroid medication in the treatment of
herpes simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-
infective combination drugs which can be attributed to the
steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available
since no denominator of treated patients is available.
Reactions occurring most often from the presence of the
anti-infective ingredients are allergic sensitizations. The
reactions due to the steroid component in decreasing
order to frequency are elevation of intra-ocular pressure
(IOP) with possible development of glaucoma, infrequent
optic nerve damage; posterior subcapsular cataract
formation; and delayed wound healing.
Secondary infection: The development of secondary has
occurred after use of combination containing steroids and
antimicrobials. Fungal infections of the correa are
particularly prone to develop coincidentally with long-term
applications of steroid. The possibility of fungal invasion
must be considered in any persistent corneal ulceration
where steroid treatment has been used.
Secondary bacterial ocular infection following
suppression of host responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaño’s
clinic, complaining of "feeling worse."14 It appeared that
the EKC had spread to the whole of Peter’s right eye yet
again. Thus, Dr. Tuaño instructed Peter to resume the use
of Maxitrol. Petitioners averred that Peter already made
mention to Dr. Tuaño during said visit of the above-quoted
warning against the prolonged use of steroids, but Dr.
Tuaño supposedly brushed aside Peter’s concern as
mere paranoia, even assuring him that the former was
taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November
1988 visit to Dr. Tuaño, Peter continued to suffer pain in
his right eye, which seemed to "progress," with the ache
intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter
had no vision in his right eye. Fatima observed that
Peter’s right eye appeared to be bloody and
swollen.15 Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he
had been suffering from constant headache in the
afternoon and blurring of vision.
Upon examination, Dr. Tuaño noted the hardness of
Peter’s right eye. With the use of a tonometer16 to verify
the exact intraocular pressure17 (IOP) of Peter’s eyes, Dr.
Tuaño discovered that the tension in Peter’s right eye
was 39.0 Hg, while that of his left was 17.0 Hg.18 Since
the tension in Peter’s right eye was way over the normal
IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr.
Tuaño ordered20 him to immediately discontinue the use
of Maxitrol and prescribed to the latter Diamox21 and
Normoglaucon, instead.22 Dr. Tuaño also required Peter
to go for daily check-up in order for the former to closely
monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s
right eye yielded a high normal level, i.e., 21.0 Hg.
Hence, Dr. Tuaño told Peter to continue using Diamox
and Normoglaucon. But upon Peter’s complaint of
"stomach pains and tingling sensation in his fingers,"23 Dr.
Tuaño discontinued Peter’s use of Diamox.24
Peter went to see another ophthalmologist, Dr. Ramon T.
Batungbacal (Dr. Batungbacal), on 21 December 1988,
who allegedly conducted a complete ophthalmological
examination of Peter’s eyes. Dr. Batungbacal’s diagnosis
was Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December
1988,28 the tonometer measured the IOP of Peter’s right
eye to be 41.0 Hg,29 again, way above normal. Dr. Tuaño
addressed the problem by advising Peter to resume
taking Diamox along with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed
in bed most of the time and was not able to celebrate the
season with his family because of the debilitating effects
of Diamox.30
On 28 December 1988, during one of Peter’s regular
follow-ups with Dr. Tuaño, the doctor conducted another
ocular routine examination of Peter’s eyes. Dr. Tuaño
41
noted the recurrence of EKC in Peter’s right eye.
Considering, however, that the IOP of Peter’s right eye
was still quite high at 41.0 Hg, Dr. Tuaño was at a loss as
to how to balance the treatment of Peter’s EKC vis-à-vis
the presence of glaucoma in the same eye. Dr. Tuaño,
thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr.
Agulto), another ophthalmologist specializing in the
treatment of glaucoma.31 Dr. Tuaño’s letter of referral to
Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible
management. I initially saw him Sept. 2, 1988 because of
conjunctivitis. The latter resolved and he developed EKC
for which I gave Maxitrol. The EKC was recurrent after
stopping steroid drops. Around 1 month of steroid
treatment, he noted blurring of vision & pain on the R.
however, I continued the steroids for the sake of the EKC.
A month ago, I noted iris atrophy, so I took the IOP and it
was definitely elevated. I stopped the steroids
immediately and has (sic) been treating him medically.
It seems that the IOP can be controlled only with oral
Diamox, and at the moment, the EKC has recurred and
I’m in a fix whether to resume the steroid or not
considering that the IOP is still uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at
the latter’s clinic. Several tests were conducted thereat to
evaluate the extent of Peter’s condition. Dr. Agulto wrote
Dr. Tuaño a letter containing the following findings and
recommendations:
Thanks for sending Peter Lucas. On examination
conducted vision was 20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on Normoglaucon BID OD
& Diamox ½ tab every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal
defect outer OD. There was circumferential peripheral iris
atrophy, OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6
L with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both
eyes with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained
significant glaucoma damage. I suggest that we do a
baseline visual fields and push medication to lowest
possible levels. If I may suggest further, I think we should
prescribe Timolol37 BID38 OD in lieu of Normoglaucon. If
the IOP is still inadequate, we may try D’epifrin39 BID OD
(despite low PAS). I’m in favor of retaining Diamox or
similar CAI.40
If fields show further loss in say – 3 mos. then we should
consider trabeculoplasty.
I trust that this approach will prove reasonable for you and
Peter.41
Peter went to see Dr. Tuaño on 31 December 1988,
bearing Dr. Agulto’s aforementioned letter. Though
Peter’s right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a
prescription for Timolol B.I.D. so Peter could immediately
start using said medication. Regrettably, Timolol B.I.D.
was out of stock, so Dr. Tuaño instructed Peter to just
continue using Diamox and Normoglaucon in the
meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s
right eye remained elevated at 21.0 Hg,42 as he had been
without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field
study43 of Peter’s eyes, which revealed that the latter had
tubular vision44 in his right eye, while that of his left eye
remained normal. Dr. Tuaño directed Peter to religiously
use the Diamox and Normoglaucon, as the tension of the
latter’s right eye went up even further to 41.0 Hg in just a
matter of two (2) days, in the meantime that Timolol B.I.D.
and D’epifrin were still not available in the market. Again,
Dr. Tuaño advised Peter to come for regular check-up so
his IOP could be monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th, 13th,
16th and 20th of January 1989 for check-up and IOP
monitoring.
In the interregnum, however, Peter was prodded by his
friends to seek a second medical opinion. On 13 January
1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz),
an ophthalmologist, who, in turn, referred Peter to Dr.
Mario V. Aquino, M.D. (Dr. Aquino), another
ophthalmologist who specializes in the treatment of
glaucoma and who could undertake the long term care of
Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peter’s eyes, the said doctor
informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr. Tuaño’s
diagnosis of tubular vision in Peter’s right eye. Petitioners
claimed that Dr. Aquino essentially told Peter that the
latter’s condition would require lifetime medication and
follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to control
the high IOP of his right eye.
Claiming to have steroid-induced glaucoma45 and
blaming Dr. Tuaño for the same, Peter, joined by: (1)
Fatima, his spouse46; (2) Abbeygail, his natural child47;
and (3) Gillian, his legitimate child48 with Fatima, instituted
42
on 1 September 1992, a civil complaint for damages
against Dr. Tuaño, before the RTC, Branch 150, Quezon
City. The case was docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as
the "direct consequence of [Peter’s] prolonged use of
Maxitrol, [he] suffered from steroid induced glaucoma
which caused the elevation of his intra-ocular pressure.
The elevation of the intra-ocular pressure of [Peter’s right
eye] caused the impairment of his vision which
impairment is not curable and may even lead to total
blindness."49
Petitioners additionally alleged that the visual impairment
of Peter’s right eye caused him and his family so much
grief. Because of his present condition, Peter now needed
close medical supervision forever; he had already
undergone two (2) laser surgeries, with the possibility that
more surgeries were still needed in the future; his career
in sports casting had suffered and was continuing to
suffer;50 his anticipated income had been greatly reduced
as a result of his "limited" capacity; he continually suffered
from "headaches, nausea, dizziness, heart palpitations,
rashes, chronic rhinitis, sinusitis,"51 etc.; Peter’s
relationships with his spouse and children continued to be
strained, as his condition made him highly irritable and
sensitive; his mobility and social life had suffered; his
spouse, Fatima, became the breadwinner in the
family;52 and his two children had been deprived of the
opportunity for a better life and educational prospects.
Collectively, petitioners lived in constant fear of Peter
becoming completely blind.53
In the end, petitioners sought pecuniary award for their
supposed pain and suffering, which were ultimately
brought about by Dr. Tuaño’s grossly negligent conduct in
prescribing to Peter the medicine Maxitrol for a period of
three (3) months, without monitoring Peter’s IOP, as
required in cases of prolonged use of said medicine, and
notwithstanding Peter’s constant complaint of intense eye
pain while using the same. Petitioners particularly prayed
that Dr. Tuaño be adjudged liable for the following
amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter
Lucas as and by way of compensation for his
impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas
as and by way of actual damages plus such
additional amounts that may be proven during
trial.
3. The amount of ₱1,000,000.00 as and by way
of moral damages.
4. The amount of ₱500,000.00 as and by way of
exemplary damages.
5. The amount of ₱200,000.00 as and by way of
attorney’s fees plus costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño asserted
that the "treatment made by [him] more than three years
ago has no causal connection to [Peter’s] present
glaucoma or condition."55 Dr. Tuaño explained that
"[d]rug-induced glaucoma is temporary and curable,
steroids have the side effect of increasing intraocular
pressure. Steroids are prescribed to treat Epidemic
Kerato Conjunctivitis or EKC which is an infiltration of the
cornea as a result of conjunctivitis or sore eyes."56 Dr.
Tuaño also clarified that (1) "[c]ontrary to [petitioners’]
fallacious claim, [he] did NOT continually prescribe the
drug Maxitrol which contained steroids for any prolonged
period"57 and "[t]he truth was the Maxitrol was
discontinued x x x as soon as EKC disappeared and was
resumed only when EKC reappeared"58; (2) the entire
time he was treating Peter, he "continually monitored the
intraocular pressure of [Peter’s eyes] by palpating the
eyes and by putting pressure on the eyeballs," and no
hardening of the same could be detected, which meant
that there was no increase in the tension or IOP, a
possible side reaction to the use of steroid medications;
and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right
eye, and upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the right eye
had an elevated value.
But granting for the sake of argument that the "steroid
treatment of [Peter’s] EKC caused the steroid induced
glaucoma,"59 Dr. Tuaño argued that:
[S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is
reduced. Thus, [Peter’s] glaucoma can only be due to
other causes not attributable to steroids, certainly not
attributable to [his] treatment of more than three years ago
x x x.
From a medical point of view, as revealed by more current
examination of [Peter], the latter’s glaucoma can only be
long standing glaucoma, open angle glaucoma, because
of the large C:D ratio. The steroids provoked the latest
glaucoma to be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence, the
steroid treatment was in fact beneficial to [Peter] as it
revealed the incipient open angle glaucoma of [Peter] to
allow earlier treatment of the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil
Case No. 92-2482 "for insufficiency of evidence."61 The
decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is
dismissed for insufficiency of evidence. The counter claim
(sic) is likewise dismissed in the absence of bad faith or
malice on the part of plaintiff in filing the suit.62
43
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuaño was negligent
in his treatment of Peter’s condition. In particular, the
record of the case was bereft of any evidence to establish
that the steroid medication and its dosage, as prescribed
by Dr. Tuaño, caused Peter’s glaucoma. The trial court
reasoned that the "recognized standards of the medical
community has not been established in this case, much
less has causation been established to render [Tuaño]
liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a
medical practitioner against which Peter Paul’s treatment
by defendant can be compared with. They did not present
any medical expert or even a medical doctor to convince
and expertly explain to the court the established norm or
duty required of a physician treating a patient, or whether
the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure
a deviation from the norm or his non-discovery of the
glaucoma in the course of treatment constitutes
negligence. It is important and indispensable to establish
such a standard because once it is established, a medical
practitioner who departed thereof breaches his duty and
commits negligence rendering him liable. Without such
testimony or enlightenment from an expert, the court is at
a loss as to what is then the established norm of duty of a
physician against which defendant’s conduct can be
compared with to determine negligence.64
The RTC added that in the absence of "any medical
evidence to the contrary, this court cannot accept
[petitioners’] claim that the use of steroid is the proximate
cause of the damage sustained by [Peter’s] eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s medical
opinion that "Peter Paul must have been suffering from
normal tension glaucoma, meaning, optic nerve damage
was happening but no elevation of the eye pressure is
manifested, that the steroid treatment actually unmasked
the condition that resulted in the earlier treatment of the
glaucoma. There is nothing in the record to contradict
such testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to
support them."
Undaunted, petitioners appealed the foregoing RTC
decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a
decision in CA-G.R. CV No. 68666 denying petitioners’
recourse and affirming the appealed RTC Decision. The
fallo of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is
AFFIRMED.66
The Court of Appeals faulted petitioners because they –
[D]id not present any medical expert to testify that Dr.
Tuano’s prescription of Maxitrol and Blephamide for the
treatment of EKC on Peter’s right eye was not proper and
that his palpation of Peter’s right eye was not enough to
detect adverse reaction to steroid. Peter testified that Dr.
Manuel Agulto told him that he should not have used
steroid for the treatment of EKC or that he should have
used it only for two (2) weeks, as EKC is only a viral
infection which will cure by itself. However, Dr. Agulto was
not presented by [petitioners] as a witness to confirm what
he allegedly told Peter and, therefore, the latter’s
testimony is hearsay. Under Rule 130, Section 36 of the
Rules of Court, a witness can testify only to those facts
which he knows of his own personal knowledge, x x x.
Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great weight to
Dr. Tuaño’s medical judgment, specifically the latter’s
explanation that:
[W]hen a doctor sees a patient, he cannot determine
whether or not the latter would react adversely to the use
of steroids, that it was only on December 13, 1989, when
Peter complained for the first time of headache and
blurred vision that he observed that the pressure of the
eye of Peter was elevated, and it was only then that he
suspected that Peter belongs to the 5% of the population
who reacts adversely to steroids.68
Petitioners’ Motion for Reconsideration was denied by the
Court of Appeals in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule
45 of the Revised Rules of Court premised on the
following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN AFFIRMING THE DECISION
OF THE TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND THAT NO
MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR
MEDICAL NEGLIGENCE AGAINST THE
RESPONDENT; AND
III.
44
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN NOT FINDING THE
RESPONDENT LIABLE TO THE PETITIONERS’ FOR
ACTUAL, MORAL AND EXEMPLARY DAMAGES,
ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT,
AS A RESULT OF HIS GROSS NEGLIGENCE.69
A reading of the afore-quoted reversible errors
supposedly committed by the Court of Appeals in its
Decision and Resolution would reveal that petitioners are
fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to
establish petitioners’ entitlement to any kind of damage.
Therefore, it could be said that the sole issue for our
resolution in the Petition at bar is whether the Court of
Appeals committed reversible error in affirming the
judgment of the RTC that petitioners failed to prove, by
preponderance of evidence, their claim for damages
against Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as we
are asked to revisit anew the factual findings of the Court
of Appeals, as well as of the RTC. In effect, petitioners
would have us sift through the evidence on record and
pass upon whether there is sufficient basis to establish Dr.
Tuaño’s negligence in his treatment of Peter’s eye
condition. This question clearly involves a factual inquiry,
the determination of which is not within the ambit of this
Court’s power of review under Rule 45 of the 1997 Rules
Civil Procedure, as amended.70
Elementary is the principle that this Court is not a trier of
facts; only errors of law are generally reviewed in petitions
for review on certiorari criticizing decisions of the Court of
Appeals. Questions of fact are not entertained.71
Nonetheless, the general rule that only questions of law
may be raised on appeal in a petition for review under
Rule 45 of the Rules of Court admits of certain exceptions,
including the circumstance when the finding of fact of the
Court of Appeals is premised on the supposed absence
of evidence, but is contradicted by the evidence on record.
Although petitioners may not explicitly invoke said
exception, it may be gleaned from their allegations and
arguments in the instant Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the
Honorable Court of Appeals, [they] were more than able
to establish that: Dr. Tuaño ignored the standard medical
procedure for ophthalmologists, administered medication
with recklessness, and exhibited an absence of
competence and skills expected from him."72 Petitioners
reject the necessity of presenting expert and/or medical
testimony to establish (1) the standard of care respecting
the treatment of the disorder affecting Peter’s eye; and (2)
whether or not negligence attended Dr. Tuaño’s treatment
of Peter, because, in their words –
That Dr. Tuaño was grossly negligent in the treatment of
Peter’s simple eye ailment is a simple case of cause and
effect. With mere documentary evidence and based on
the facts presented by the petitioners, respondent can
readily be held liable for damages even without any expert
testimony. In any case, however, and contrary to the
finding of the trial court and the Court of Appeals, there
was a medical expert presented by the petitioner showing
the recklessness committed by [Dr. Tuaño] – Dr. Tuaño
himself. [Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient
evidence to establish his gross negligence that ultimately
caused the impairment of the vision of Peter’s right
eye,73 i.e., that "[d]espite [Dr. Tuaño’s] knowledge that 5%
of the population reacts adversely to Maxitrol, [he] had no
qualms whatsoever in prescribing said steroid to Peter
without first determining whether or not the (sic) Peter
belongs to the 5%."74
We are not convinced. The judgments of both the Court
of Appeals and the RTC are in accord with the evidence
on record, and we are accordingly bound by the findings
of fact made therein.
Petitioners’ position, in sum, is that Peter’s glaucoma is
the direct result of Dr. Tuaño’s negligence in his improper
administration of the drug Maxitrol; "thus, [the latter]
should be liable for all the damages suffered and to be
suffered by [petitioners]."75 Clearly, the present
controversy is a classic illustration of a medical
negligence case against a physician based on the latter’s
professional negligence. In this type of suit, the patient or
his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to
exercise that degree of skill, care, and learning possessed
by other persons in the same profession; and that as a
proximate result of such failure, the patient or his heirs
suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical
profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just
like any other proceeding for damages, four essential (4)
elements i.e., (1) duty; (2) breach; (3) injury; and (4)
proximate causation,76 must be established by the
plaintiff/s. All the four (4) elements must co-exist in order
to find the physician negligent and, thus, liable for
damages.
45
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and
purposes, represents that he has the needed training and
skill possessed by physicians and surgeons practicing in
the same field; and that he will employ such training, care,
and skill in the treatment of the patient.77 Thus, in treating
his patient, a physician is under a duty to [the former] to
exercise that degree of care, skill and diligence which
physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and
exercise in like cases.78 Stated otherwise, the physician
has the duty to use at least the same level of care that any
other reasonably competent physician would use to treat
the condition under similar circumstances.
This standard level of care, skill and diligence is a matter
best addressed by expert medical testimony, because the
standard of care in a medical malpractice case is a matter
peculiarly within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the
improper performance of such duty, by the attending
physician when the patient is injured in body or in health
[and this] constitutes the actionable malpractice.80 Proof
of such breach must likewise rest upon the testimony of
an expert witness that the treatment accorded to the
patient failed to meet the standard level of care, skill and
diligence which physicians in the same general
neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the
attending physician is insufficient, for there must be a
causal connection between said breach and the resulting
injury sustained by the patient. Put in another way, in
order that there may be a recovery for an injury, it must
be shown that the "injury for which recovery is sought
must be the legitimate consequence of the wrong done;
the connection between the negligence and the injury
must be a direct and natural sequence of events,
unbroken by intervening efficient causes";81 that is, the
negligence must be the proximate cause of the injury.
And the proximate cause of an injury is that cause, which,
in the natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.82
Just as with the elements of duty and breach of the same,
in order to establish the proximate cause [of the injury] by
a preponderance of the evidence in a medical malpractice
action, [the patient] must similarly use expert testimony,
because the question of whether the alleged professional
negligence caused [the patient’s] injury is generally one
for specialized expert knowledge beyond the ken of the
average layperson; using the specialized knowledge and
training of his field, the expert’s role is to present to the
[court] a realistic assessment of the likelihood that [the
physician’s] alleged negligence caused [the patient’s]
injury.83
From the foregoing, it is apparent that medical negligence
cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the
same general line of practice as defendant physician or
surgeon. The deference of courts to the expert opinion of
qualified physicians [or surgeons] stems from the former’s
realization that the latter possess unusual technical skills
which laymen in most instances are incapable of
intelligently evaluating;84 hence, the indispensability of
expert testimonies.
In the case at bar, there is no question that a physician-
patient relationship developed between Dr. Tuaño and
Peter when Peter went to see the doctor on 2 September
1988, seeking a consult for the treatment of his sore eyes.
Admittedly, Dr. Tuaño, an ophthalmologist, prescribed
Maxitrol when Peter developed and had recurrent EKC.
Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in sterile
form for topical application.85 It is the drug which
petitioners claim to have caused Peter’s glaucoma.
However, as correctly pointed out by the Court of Appeals,
"[t]he onus probandi was on the patient to establish before
the trial court that the physicians ignored standard
medical procedure, prescribed and administered
medication with recklessness and exhibited an absence
of the competence and skills expected of general
practitioners similarly situated."86 Unfortunately, in this
case, there was absolute failure on the part of petitioners
to present any expert testimony to establish: (1) the
standard of care to be implemented by competent
physicians in treating the same condition as Peter’s under
similar circumstances; (2) that, in his treatment of Peter,
Dr. Tuaño failed in his duty to exercise said standard of
care that any other competent physician would use in
treating the same condition as Peter’s under similar
circumstances; and (3) that the injury or damage to
Peter’s right eye, i.e., his glaucoma, was the result of his
use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’
failure to prove the first element alone is already fatal to
their cause.
Petitioners maintain that Dr. Tuaño failed to follow in
Peter’s case the required procedure for the prolonged use
of Maxitrol. But what is actually the required procedure in
situations such as in the case at bar? To be precise, what
is the standard operating procedure when
ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required
of Dr. Tuaño under the circumstances, we have no means
to determine whether he was able to comply with the
same in his diagnosis and treatment of Peter. This Court
has no yardstick upon which to evaluate or weigh the
attendant facts of this case to be able to state with
confidence that the acts complained of, indeed,
46
constituted negligence and, thus, should be the subject of
pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr.
Tuaño should have determined first whether Peter was a
"steroid responder."87 Yet again, petitioners did not
present any convincing proof that such determination is
actually part of the standard operating procedure which
ophthalmologists should unerringly follow prior to
prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that
what is only required of ophthalmologists, in cases such
as Peter’s, is the conduct of standard tests/procedures
known as "ocular routine examination,"88 composed of
five (5) tests/procedures – specifically, gross examination
of the eyes and the surrounding area; taking of the visual
acuity of the patient; checking the intraocular pressure of
the patient; checking the motility of the eyes; and using
ophthalmoscopy on the patient’s eye – and he did all
those tests/procedures every time Peter went to see him
for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaño’s assertion that when
a doctor sees a patient, he cannot determine immediately
whether the latter would react adversely to the use of
steroids; all the doctor can do is map out a course of
treatment recognized as correct by the standards of the
medical profession. It must be remembered that a
physician is not an insurer of the good result of treatment.
The mere fact that the patient does not get well or that a
bad result occurs does not in itself indicate failure to
exercise due care.89 The result is not determinative of the
performance [of the physician] and he is not required to
be infallible.90
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to
Peter was justified by the fact that the latter was already
using the same medication when he first came to see Dr.
Tuaño on 2 September 1988 and had exhibited no
previous untoward reaction to that particular drug. 91
Also, Dr. Tuaño categorically denied petitioners’ claim
that he never monitored the tension of Peter’s eyes while
the latter was on Maxitrol. Dr. Tuaño testified that he
palpated Peter’s eyes every time the latter came for a
check-up as part of the doctor’s ocular routine
examination, a fact which petitioners failed to rebut. Dr.
Tuaño’s regular conduct of examinations and tests to
ascertain the state of Peter’s eyes negate the very basis
of petitioners’ complaint for damages. As to whether Dr.
Tuaño’s actuations conformed to the standard of care and
diligence required in like circumstances, it is presumed to
have so conformed in the absence of evidence to the
contrary.
Even if we are to assume that Dr. Tuaño committed
negligent acts in his treatment of Peter’s condition, the
causal connection between Dr. Tuaño’s supposed
negligence and Peter’s injury still needed to be
established. The critical and clinching factor in a medical
negligence case is proof of the causal connection
between the negligence which the evidence established
and the plaintiff’s injuries.92 The plaintiff must plead and
prove not only that he has been injured and defendant has
been at fault, but also that the defendant’s fault caused
the injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation must be
proven within a reasonable medical probability based
upon competent expert testimony.93
The causation between the physician’s negligence and
the patient’s injury may only be established by the
presentation of proof that Peter’s glaucoma would not
have occurred but for Dr. Tuaño’s supposed negligent
conduct. Once more, petitioners failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol involves
the risk of increasing a patient’s IOP. In fact, this was the
reason why he made it a point to palpate Peter’s eyes
every time the latter went to see him -- so he could monitor
the tension of Peter’s eyes. But to say that said
medication conclusively caused Peter’s glaucoma is
purely speculative. Peter was diagnosed with open-angle
glaucoma. This kind of glaucoma is characterized by an
almost complete absence of symptoms and a chronic,
insidious course.94 In open-angle glaucoma, halos around
lights and blurring of vision do not occur unless there has
been a sudden increase in the intraocular vision.95 Visual
acuity remains good until late in the course of the
disease.96 Hence, Dr. Tuaño claims that Peter’s
glaucoma "can only be long standing x x x because of the
large C:D97 ratio," and that "[t]he steroids provoked the
latest glaucoma to be revealed earlier" was a blessing in
disguise "as [Peter] remained asymptomatic prior to
steroid application."
Who between petitioners and Dr. Tuaño is in a better
position to determine and evaluate the necessity of using
Maxitrol to cure Peter’s EKC vis-à-vis the attendant risks
of using the same?
That Dr. Tuaño has the necessary training and skill to
practice his chosen field is beyond cavil. Petitioners do
not dispute Dr. Tuaño’s qualifications – that he has been
a physician for close to a decade and a half at the time
Peter first came to see him; that he has had various
medical training; that he has authored numerous papers
in the field of ophthalmology, here and abroad; that he is
a Diplomate of the Philippine Board of Ophthalmology;
that he occupies various teaching posts (at the time of the
filing of the present complaint, he was the Chair of the
Department of Ophthalmology and an Associate
Professor at the University of the Philippines-Philippine
General Hospital and St. Luke’s Medical Center,
respectively); and that he held an assortment of positions
in numerous medical organizations like the Philippine
Medical Association, Philippine Academy of
Ophthalmology, Philippine Board of Ophthalmology,
Philippine Society of Ophthalmic Plastic and
47
Reconstructive Surgery, Philippine Journal of
Ophthalmology, Association of Philippine Ophthalmology
Professors, et al.
It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes the
necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the
contrary is sufficiently established.98 In making the
judgment call of treating Peter’s EKC with Maxitrol, Dr.
Tuaño took the necessary precaution by palpating Peter’s
eyes to monitor their IOP every time the latter went for a
check-up, and he employed the best of his knowledge and
skill earned from years of training and practice.
In contrast, without supporting expert medical opinions,
petitioners’ bare assertions of negligence on Dr. Tuaño’s
part, which resulted in Peter’s glaucoma, deserve scant
credit.
Our disposition of the present controversy might have
been vastly different had petitioners presented a medical
expert to establish their theory respecting Dr. Tuaño’s so-
called negligence. In fact, the record of the case reveals
that petitioners’ counsel recognized the necessity of
presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino
would be presented. Alas, no follow-through on said
undertaking was made.1avvphi1
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the
course of trial in a civil case, once plaintiff makes out a
prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiff’s prima
facie case; otherwise, a verdict must be returned in favor
of plaintiff.99 The party having the burden of proof must
establish his case by a preponderance of
evidence.100 The concept of "preponderance of evidence"
refers to evidence which is of greater weight or more
convincing than that which is offered in opposition to
it;101 in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy
of belief than that which is offered in opposition
thereto.102 Rule 133, Section 1 of the Revised Rules of
Court provides the guidelines for determining
preponderance of evidence, thus:
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight
of evidence on the issues involved lies the court may
consider all the facts and circumstances of the case, the
witnesses’ manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their
interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the
trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily
with the greater number.
Herein, the burden of proof was clearly upon petitioners,
as plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable
connection between Dr. Tuaño’s alleged breach of duty
and the damage sustained by Peter’s right eye. This, they
did not do. In reality, petitioners’ complaint for damages is
merely anchored on a statement in the literature of
Maxitrol identifying the risks of its use, and the purported
comment of Dr. Agulto – another doctor not presented as
witness before the RTC – concerning the prolonged use
of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical
treatment is a medical question that should have been
presented to experts. If no standard is established
through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach
thereof by the physician or surgeon. The RTC and Court
of Appeals, and even this Court, could not be expected to
determine on its own what medical technique should have
been utilized for a certain disease or injury. Absent expert
medical opinion, the courts would be dangerously
engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable for
any medical negligence or malpractice where there is no
evidence, in the nature of expert testimony, to establish
that in treating Peter, Dr. Tuaño failed to exercise
reasonable care, diligence and skill generally required in
medical practice. Dr. Tuaño’s testimony, that his
treatment of Peter conformed in all respects to standard
medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals
correctly held that they had no basis at all to rule that
petitioners were deserving of the various damages prayed
for in their Complaint.
WHEREFORE, premises considered, the instant petition
is DENIED for lack of merit. The assailed Decision dated
27 September 2006 and Resolution dated 3 July 2007,
both of the Court of Appeals in CA-G.R. CV No. 68666,
are hereby AFFIRMED. No cost.
SO ORDERED.
G.R. No. 101683 February 23, 1995
LBC AIR CARGO, INC. FERNANDO M. YU and JAIME
TANO, petitioners,
vs.
HON. COURT OF APPEALS, Fourth Division,
SHERWIN MONTEROLA y OYON-OYON, represented
by PATROCENIA GRONDIANO y MONTEROLA, and
PATROCENIA GRONDIANO y
MONTEROLA, respondents.
48
 1. Indemnity for the death of
Rogelio Monterola P50,000.00
VITUG, J.:
2. For Moral damages P20,000.00
In this petition for review, the application of the doctrines
of "proximate cause" and "last clear chance" is, once To PATROCINIA GRONDIANO Y
again, being put to test. The petition questions the MONTEROLA:
decision of the Court of Appeals, dated 18 July 1991,
which has reversed that of the trial court. 3. Actual Damages P7,361.00

The case arose from a vehicular collision which occurred
at about 11:30 in the morning of 15 November 1987.
Rogelio Monterola, a licensed driver, was traveling on
board his Suzuki motorcycle towards Mangagoy on the
right lane along a dusty national road in Bislig, Surigao del
Sur. At about the same time, a cargo van of the LBC Air
Cargo Incorporated, driven by defendant Jaime Tano, Jr.,
was coming from the opposite direction on its way to the
Bislig Airport. On board were passengers Fernando Yu,
Manager of LBC Air Cargo, and his son who was seated
beside Tano. When Tano was approaching the vicinity of
the airport road entrance on his left, he saw two vehicles
racing against each other from the opposite direction.
Tano stopped his vehicle and waited for the two racing
vehicles to pass by. The stirred cloud of dust made
visibility extremely bad. Instead of waiting for the dust to
settled, Tano started to make a sharp left turn towards the
airport road. When he was about to reach the center of
the right lane, the motorcycle driven by Monterola
suddenly emerged from the dust and smashed head-on
against the right side of the LBC van. Monterola died from
the severe injuries he sustained.
A criminal case for "homicide thru reckless imprudence"
was filed against Tano. A civil suit was likewise instituted
by the heirs of deceased Monterola against Tano, along
with Fernando Yu and LBC Air Cargo Incorporated, for the
recovery of damages. The two cases were tried jointly by
the Regional Trial Court, Branch 29, of Surigao del Sur.
On 29 July 1990, the trial court dismissed both cases on
the ground that the proximate cause of the "accident" was
the negligence of deceased Rogelio Monterola.
4. Hospitals & Burial Expenses
15,000.00
5. Attorneys' Fees and expenses
of Litigation 10,000.00
Plus the costs.
Actual payment of the aforementioned
amounts should however be reduced to
twenty (20%) percent.1
In the instant petition for review, petitioners contend that
—
1. The Court of Appeals erred in finding
that Jaime Tano, Jr. was negligent in the
driving of his vehicle and in failing to give
a signal to approaching vehicles of his
intention to make a left turn.
2. The Court of Appeals erred in not
finding that the proximate cause of the
accident was the victim's negligence in
the driving of his motorcycle in a very fast
speed and thus hitting the petitioner's
cargo van.2
The issues raised are thus essentially factual. The
intrinsic merit of, as well as cogency in, the detailed
analyses made by the Court of Appeals in arriving at its
findings is at once apparent. Said the appellate court:

Private respondent appealed the dismissal of the civil That visibility was poor when Jaime Tano
case to the Court of Appeals. On 18 July 1991, the made a left turn was admitted by the
appellate court reversed the court a quo. It held: latter.

WHEREFORE, the judgment appealed Q When these two

from is REVERSED, and another one is vehicles passed by your
hereby rendered ordering the defendants parked vehicle, as you
Jaime Tano and LBC Air Cargo, Inc. to said, there were clouds
jointly and severally pay the plaintiff of dust, did I get you
Patrocinia Monterola the following right?
amounts:
A Yes sir, the road was
To SHERWIN MONTEROLA: dusty.

49
Q So much so that you
could no longer see the
vehicles from the
opposite direction
following these
vehicles?
A It is not clear, sir, so I
even turned on my left
signal and the headlight.
Q What do you mean by
it was not clear, you
could not see the
incoming vehicles?
A I could not see
because of the cloud of
dust.
Q And it was at this
juncture, when you were
to follow your theory,
when you started your
LBC van again and
swerved to the left
leading to the Bislig
airport?
A I did not enter
immediately the airport, I
waited the dust to clear a
little before I drove.
xxx xxx xxx
Q In other words when
you said that it was
slightly clear, you would
like to tell the Honorable
Court that you could only
clearly see big vehicles .
. . but not small vehicles
like a motorcycle?
A I could see clearly big
vehicles but not small
vehicles like a approaching may be affected by such
motorcycle.
Q Like the motorcycle of
Rogelio Monterola?
A Yes, sir. I could not
see clearly. (Tano, tsn,
April 18, 1989, pp. 26-
30) (p. 15, Appellant's
brief).
Tano should not have made a left turn
under the conditions admitted by him.
Under the Land Transportation and
Traffic Code, the driver of any vehicle
upon a highway, before starting, stopping
or turning from a direct line, is called upon
to first see that such movement can be
made in safety, and whenever the
operation of any other vehicle
approaching may be affected by such
movement, shall give a signal plainly
visible to the driver of such other vehicles
of the intention to make such movement
(Sec. 44, R.A. 4136, as amended). This
means that before a driver turns from a
direct line, in this case to the left, the
driver must first see to it that there are no
approaching vehicles and, if there are, to
make the turn only if it can be made in
safety, or at the very least give a signal
that is plainly visible to the driver of such
other vehicle. Tano did neither in this
case, for he recklessly made a left turn
even as visibility was still very poor, and
thus failed to see the approaching
motorcycle and warn the latter, of his
intention to make a left turn. This is plain
and simple negligence.
In thus making the left turn, he placed his
vehicle directly at the path of the
motorcycle which, unaware of Tano's
intention to make a left turn, smashed at
Tano's vehicle. It was Tano's negligence
that created the risk or the condition of
danger that set into operation the event
that led to the smashedup and untimely
death of Rogelio Monterola.
Rogelio Monterola's motorcycle would
not have hit the cargo van had Tano, in
operating it, not recklessly turned left
when visibility was still poor, and instead
observed the direct line of the Land
Transportation Code that before doing
so, he should first see to it that such
movement can be made in safety, and
that whenever any other vehicle
movement, should give a signal plainly
visible to the driver of such other vehicle
of the intention to make such movement.
That Rogelio Monterola was running fast
despite poor visibility as evidenced by the
magnitude of the damage to the vehicles
is no defense. His negligence would at
most be contributory (Article 2179,
N.C.C.). Having negligently created the
condition of danger, defendants may not
50
avoid liability by pointing to the
negligence of the former.
xxx xxx xxx
Tano's proven negligence created a
presumption of negligence on the part of
his employer, the LBC Air Cargo
Corporation, in supervising its employees
properly and adequately (Phoenix
Construction, Inc. vs. Intermediate
Appellate Court, supra), which may only
be destroyed by proof of due diligence in
the selection and supervision of his
employees to prevent the damage
(Article 2180, N.C.C.). No such defense
was interposed by defendants in their
answer.
We, however, fail to see Fernando Yu's
liability as Manager of LBC-Mangagoy
Branch Office, there being no employer-
employee relationship between him and
Jaime Tano who is a driver of the LBC Air
Cargo Inc. It was held in Philippine
Rabbit Bus Lines Inc. et
al. vs. Phil. American Forwarders, Inc.,
63 SCRA 231, that the term "Manager" in
Article 2180 is used in the sense of
"employer." Hence, no tortuous or quasi-
delictual liability can be fastened on
Fernando Yu as branch manager of LBC
Air Cargo Inc.
Now for the amount of damages. Aside
from the indemnity for death which has
been pegged at P50,000.00
(Resolution En Banc, August 30, 1990,
cited in People vs. Sazon, 189 SCRA
700), the evidence disclose that as a
result of the accident, Rogelio
Monterola's motorcycle was damaged,
the repair cost of which amounted to
P7,361.00 (Exh. E-1), for hospitalization,
wake and burial expenses, plaintiff spent
P15,000.00. There is likewise no
question that by reason of Rogelio
Monterola's untimely death, his only child
14 years old Sherwin Monterola, suffered
mental anguish, fright, serious anxiety,
wounded feelings and moral shock that
entitles him to moral damages which we
hereby fix at P20,000.00. Because of
defendants' refusal to indemnify the
plaintiff for his father's death, the latter
was compelled to litigate and engage the
services of counsel. He is therefore
entitled to an additional amount of
P10,000.00 for attorney's fees and
expenses of litigation.
Considering, however, the contributory
negligence of Rogelio Monterola in
driving at a fast clip despite the fact that
the road was dusty, we reduce the
aggregate amount of damages to which
the plaintiff is entitled by twenty per cent
(Phoenix Construction Inc. vs.
Intermediate Appellate Court, Supra). 3
From every indication, the proximate cause of the
accident was the negligence of Tano who, despite
extremely poor visibility, hastily executed a left turn
(towards the Bislig airport road entrance) without first
waiting for the dust to settle. It was this negligent act of
Tano, which had placed his vehicle (LBC van) directly on
the path of the motorcycle coming from the opposite
direction, that almost instantaneously caused the collision
to occur. Simple prudence required him not to attempt to
cross the other lane until after it would have been safe
from and clear of any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear
chance" (also referred to, at times, as "supervening
negligence" or as "discovered peril"). The doctrine, in
essence, is to the effect that where both parties are
negligent, but the negligent act of one is appreciably later
in time than that of the other, or when it is impossible to
determine whose fault or negligence should be attributed
to the incident, the one who had the last clear opportunity
to avoid the impending harm and failed to do so is
chargeable with the consequences thereof (see Picart vs.
Smith, 37 Phil. 809). Stated differently, the rule would also
mean that an antecedent negligence of a person does not
preclude the recovery of damages for supervening
negligence of, or bar a defense against the liability sought
by, another if the latter, who had the last fair chance, could
have avoided the impending harm by the exercise of due
diligence (Pantranco North Express, Inc. vs. Baesa, 179
SCRA 384; Glan People's Lumber and Hardware vs.
Intermediate Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along the
lane where he was rightly supposed to be. The incident
occurred in an instant. No appreciable time had elapsed,
from the moment Tano swerved to his left to the actual
impact; that could have afforded the victim a last clear
opportunity to avoid the collision.
It is true however, that the deceased was not all that free
from negligence in evidently speeding too closely behind
the vehicle he was following. We, therefore, agree with
the appellate court that there indeed was contributory
negligence on the victim's part that could warrant a
mitigation of petitioners liability for damages.
WHEREFORE, the appealed decision is AFFIRMED.
Costs against petitioners.
SO ORDERED.
51
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D.
ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution. Some
4,000 years ago, the Code of Hammurabi1 then already
provided: "If a physician make a deep incision upon a man
with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet
and destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates3 wrote what was to
become part of the healer's oath: "I will follow that method
of treatment which according to my ability and judgment,
I consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. . . . While I
continue to keep this oath unviolated may it be granted
me to enjoy life and practice the art, respected by all men
at all times but should I trespass and violate this oath, may
the reverse be my lot." At present, the primary objective
of the medical profession if the preservation of life and
maintenance of the health of the people.4
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his patient,
he must be made to answer therefor. Although society
today cannot and will not tolerate the punishment meted
out by the ancients, neither will it and this Court, as this
case would show, let the act go uncondemned.
5 Salud Kho examined Mrs. Villegas at the Holy Child's
The petitioners appeal from the decision of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision6 of 21 December 1990 of Branch 30
of the Regional Trial Court (RTC) of Negros Oriental in
Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987
and September, 1989 she was also the Actg. Head
of the Department of Obstetrics and Gynecology at
the said Hospital.
Mrs. Villegas is a married woman who submitted to
Dr. Batiquin for prenatal care as the latter's private
patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin,
with the assistance of Dr. Doris Teresita Sy who was
also a Resident Physician at the same Hospital, C.I.
and O.R. Nurse Arlene Diones and some student
nurses performed a simple caesarean section on
Mrs. Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas delivered
her first child, Rachel Acogido, at about 11:45 that
morning. Thereafter, Plaintiff remained confined at
the Hospital until September 27, 1988 during which
period of confinement she was regularly visited by
Dr. Batiquin. On September 28, 1988 Mrs. Villegas
checked out of the Hospital. . . and on that same day
she paid Dr. Batiquin, thru the latter's secretary, the
amount of P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began
to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she
had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988. . .
certifying to her physical fitness to return to her work
on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work
at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the
pains became unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy
Child's Hospital in Dumaguete City on January 20,
1989.
The evidence of Plaintiffs show that when Dr. Ma.
Hospital on January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast.
Upon examination she felt an abdominal mass one
finger below the umbilicus which she suspected to be
either a tumor of the uterus or an ovarian cyst, either
of which could be cancerous. She had an x-ray taken
of Mrs. Villegas' chest, abdomen and kidney. She
also took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection inside
her abdominal cavity. The results of all those
examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter
agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas
she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries
which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the
uterus embedded on [sic] the ovarian cyst, 2 inches
52
 by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked
like a piece of a "rubber glove". . . and which is [sic]
also "rubber-drain like". . . . It could have been a torn
section of a surgeon's gloves or could have come
from other sources. And this foreign body was the
cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs.
Villegas after her delivery on September 21, 1988.7
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented in
court, and although Dr. Ma. Salud Kho Testified that she
sent it to a pathologist in Cebu City for examination,8 it
was not mentioned in the pathologist's Surgical Pathology
Report.9
Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical
Certificate,10 a Progress Record,11 an Anesthesia
Record,12 a Nurse's Record,13 and a Physician's
Discharge Summary.14 The trial court, however, regarded
these documentary evidence as mere hearsay, "there
being no showing that the person or persons who
prepared them are deceased or unable to testify on the
facts therein stated. . . . Except for the Medical Certificate
(Exhibit "F"), all the above documents were allegedly
prepared by persons other than Dr. Kho, and she merely
affixed her signature on some of them to express her
agreement thereto. . . ."15 The trial court also refused to
give weight to Dr. Kho's testimony regarding the subject
piece of rubber as Dr. Kho "may not have had first-hand
knowledge" thereof,16 as could be gleaned from her
statement, thus:
A . . . I have heard somebody that [sic] says [sic]
there is [sic] a foreign body that goes with the
tissues but unluckily I don't know where the rubber
was. 17
The trial court deemed vital Dr. Victoria Batiquin's
testimony that when she confronted Dr. Kho regarding the
piece of rubber, "Dr. Kho answered that there was rubber
indeed but that she threw it away."18 This statement, the
trial court noted, was never denied nor disputed by Dr.
Kho, leading it to conclude:
There are now two different versions on the
whereabouts of that offending "rubber" — (1) that it
was sent to the Pathologist in Cebu as testified to
in Court by Dr. Kho and (2) that Dr. Kho threw it
away as told by her to Defendant. The failure of the
Plaintiffs to reconcile these two different versions
serve only to weaken their claim against Defendant
Batiquin.19
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's
uterus. Thus, the Court of Appeals reversed the decision
of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin
is established by preponderance of evidence. The
trial court itself had narrated what happened to
appellant Flotilde after the caesarean operation
made by appellee doctor. . . . After the second
operation, appellant Flotilde became well and
healthy. Appellant Flotilde's troubles were caused
by the infection due to the "rubber" that was left
inside her abdomen. Both appellant; testified that
after the operation made by appellee doctor, they
did not go to any other doctor until they finally
decided to see another doctor in January, 1989
when she was not getting any better under the care
of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin
admitted on the witness stand that she alone
decided when to close the operating area; that she
examined the portion she operated on before
closing the same. . . Had she exercised due
diligence, appellee Dr. Batiquin would have found
the rubber and removed it before closing the
operating area.20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total
of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses together with
doctor's fees in the total amount P9,900.00 (Exhs.
G and G-2)] for the second operation that saved her
life.
For the miseries appellants endured for more than
three (3) months, due to the negligence of appellee
Dr. Batiquin they are entitled to moral damages in
the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the
amount of P25,000.00.
The fact that appellant Flotilde can no longer bear
children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration
as it is not shown that the removal of said organs
were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is
that the rubber left by appellee caused infection,
placed the life of appellant Flotilde in jeopardy and
caused appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing
the complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered
ordering defendants-appellees to pay plaintiffs-
53
 appellants the amounts of P17,000.00 as and for
actual damages; P100,000.00 as and for moral
damages; P20,000.00 as and for exemplary
damages; and P25,000.00 as and for attorney's
fees plus the costs of litigation.
SO ORDERED.21
From the above judgment, the petitioners appealed to this
Court claiming that the appellate court: (1) committed
grave abuse of discretion by resorting to findings of fact
not supported by the evidence on record, and (2)
exceeded its discretion, amounting to lack or excess of
jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.
While the rule is that only questions of law may be raised
in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial
court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record,
or when the appellate court misapprehended the facts.22
After deciphering the cryptic petition, we find that the focal
point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of
Appeals misappreciated the following portion of Dr. Kho's
testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my
mind, just in case this would turn out to be a
medico-legal
case, I have heard somebody that [sic] says [sic] t
here is [sic] a
foreign body that goes with the tissues but unluckil
y I don't know where the rubber was. It was not in
the Lab, it was not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of
the above testimony, i.e., that Dr. Kho's knowledge of
the piece of rubber was based on hearsay. The Court
of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the
trial court. According to the Court of Appeals, the trial
court should have likewise considered the other
portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-
yellow discharge inside the abdomen, there was an
ovarian cyst on the left and side and there was also
an ovarian cyst on the right which, on opening up
or freeing it up from the uterus, turned out to be pus.
Both ovaries turned out. . . to have pus. And then,
cleaning up the uterus, at the back of the uterus it
was very dirty, it was full of pus. And there was a
[piece of] rubber, we found a [piece of] rubber on
the right side. 24
We agree with the Court of Appeals. The phrase relied
upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent Villegas's
abdomen, and that she sent it to a laboratory and then to
Cebu City for examination by a pathologist.25 Not even the
Pathologist's Report, although devoid of any mention of a
piece of rubber, could alter what Dr. Kho saw.
Furthermore, Dr. Kho's knowledge of the piece of rubber
could not be based on other than first-hand knowledge
for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of
rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents
never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said
that there was a piece of rubber but that she threw it away.
Although hearsay, Dr. Batiquin's claim was not objected
to, and hence, the same is admissible27 but it carries no
probative value.28 Nevertheless, assuming otherwise, Dr.
Batiquin's statement cannot belie the fact that Dr. Kho
found a piece of rubber near private respondent Villegas's
uterus. And even if we were to doubt Dr. Kho as to what
she did to the piece of rubber, i.e., whether she threw it
away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber from
private respondent Villegas's abdomen. On this score, it
is perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve his
testimony with respect to other facts. And it has been aptly
said that even when a witness is found to have
deliberately falsified in some material particulars, it is not
required that the whole of his uncorroborated testimony
be rejected, but such portions thereof deemed worthy of
belief may be credited.29
It is here worth noting that the trial court paid heed to the
following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation,30 and that there
was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing
her gloves.31 Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris
54
Sy, Dr. Batiquin's assistant during the operation on private
respondent Villegas.32 But the trial court failed to
recognize that the assertions of Drs. Batiquin and Sy were
denials or negative testimonies. Well-settled is the rule
that positive testimony is stronger than negative
testimony.33 Of course, as the petitioners advocate, such
positive testimony must come from a credible source,
which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a regarding of the said
testimony reveals no such infirmity and establishes Dr.
Kho as a credible witness. Dr. Kho was frank throughout
her turn on the witness stand. Furthermore, no motive to
state any untruth was ever imputed against Dr. Kho,
leaving her trustworthiness unimpaired.34 The trial court's
following declaration shows that while it was critical of the
lack of care with which Dr. Kho handled the piece of
rubber, it was not prepared to doubt Dr. Kho's credibility,
thus only supporting our appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest
when she testified about her findings, but it can also
be said that she did not take the most appropriate
precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should
there be a "legal problem" which she claim[s] to
have anticipated.35
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villega's
abdomen] prevails over the negative testimony in favor of
the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus:
"Where the thing which causes injury is shown to
be under the management of the defendant, and
the accident is such as in the ordinary course of
things does not happen in those who have the
management use proper care, it affords reasonable
evidence, in the absence of an explanation by the
defendant, that the accident arose from want of
care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself.
Rebuctable presumption or inference that
defendant was negligent, which arises upon
proof that [the] instrumentality causing injury
was in defendant's exclusive control, and
that the accident was one which ordinary
does not happen in absence of negligence.
Res ipsa loquitur is [a] rule of evidence
whereby negligence of [the] alleged
wrongdoer may be inferred from [the] mere
fact that [the] accident happened provided
[the] character of [the] accident and
circumstances attending it lead reasonably
to belief that in [the] absence of negligence it
would not have occurred and that thing
which caused injury is shown to have been
under [the] management and control of [the]
alleged wrongdoer. . . . Under [this] doctrine
. . . the happening of an injury permits an
inference of negligence where plaintiff
produces substantial evidence that [the]
injury was caused by an agency or
instrumentality under [the] exclusive control
and management of defendant, and that the
occurrence [sic] was such that in the ordinary
course of things would not happen if
reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of
evidence is peculiar to the law of negligence
which recognizes that prima
facie negligence may be established without
direct proof and furnishes a substitute for
specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a
mode of proof or a mere procedural
convenience. The rule, when applicable to
the facts and circumstances of a particular
case, is not intended to and does not
dispense with the requirement of proof of
culpable negligence on the party charged. It
merely determines and regulates what shall
be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a
breach of the duty of due care. The doctrine
can be invoked when and only when, under
the circumstances involved, direct evidence
is absent and not readily available.36
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of Dr.
Batiquin. In this light, the private respondents were bereft
of direct evidence as to the actual culprit or the exact
cause of the foreign object finding its way into private
respondent Villegas's body, which, needless to say, does
not occur unless through the intersection of negligence.
Second, since aside from the caesarean section, private
respondent Villegas underwent no other operation which
could have caused the offending piece of rubber to appear
in her uterus, it stands to reason that such could only have
been a by-product of the caesarean section performed by
Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from
resort to the doctrine of res ipsa loquitur. Dr. Batiquin is
therefore liable for negligently leaving behind a piece of
rubber in private respondent Villegas's abdomen and for
all the adverse effects thereof.
55
As a final word, this Court reiterates its recognition of the
vital role the medical profession plays in the lives of the
people,3 7 and the State's compelling interest to enact
measures to protect the public from "the potentially deadly
effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease
or trauma."38 Indeed, a physician is bound to serve the
interest of his patients "with the greatest of solicitude,
giving them always his best talent and skill."39 Through
her tortious conduct, the petitioner endangered the life of
Flotilde Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal standards
set forth for professionals, in general,40 and members of
the medical profession,41 in particular.
WHEREFORE, the challenged decision of 11 May 1994
of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is
made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may
spell the difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether
a surgeon, an anesthesiologist and a hospital should be
made liable for the unfortunate comatose condition of a
patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court
of Appeals, dated 29 May 1995, which overturned the
decision 4 of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages
arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of
June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10). Except for
occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her
gall bladder (TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three
children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with
her normal ways, she sought professional 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
56
with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three
nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia.
Although not a member of the hospital staff,
Herminda introduced herself as Dean of the
College of Nursing at the Capitol Medical Center
who was to provide moral support to the patient, to
them. Herminda was allowed to stay inside the
operating room.
At around 9:30 A.M., Dr. Gutierrez reached a
nearby phone to look for Dr. Hosaka who was not
yet in (TSN, January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda Cruz about
the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The former
replied, "Huwag kang mag-alaala, darating na iyon"
(Ibid.).
Thereafter, Herminda went out of the operating
room and informed the patient's husband, Rogelio,
that the doctor was not yet around (id., p. 13). When
she returned to the operating room, the patient told
her, "Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor." So, she went out again and told
Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was
"already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody
who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his wife, who
was inside the operating room waiting for the doctor
to arrive (ibid.). At almost 12:00 noon, he met Dr.
Garcia who remarked that he (Dr. Garcia) was also
tired of waiting for Dr. Hosaka to arrive (id., p. 21).
While talking to Dr. Garcia at around 12:10 P.M.,
he came to know that Dr. Hosaka arrived as a nurse
remarked, "Nandiyan na si Dr. Hosaka, dumating
na raw." Upon hearing those words, he went down
to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was
inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here."
She then saw people inside the operating room
"moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988,
p. 16). As she held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr. Gutierrez say,
"ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish discoloration of
the nailbeds of the left hand of the hapless Erlinda
even as Dr. Hosaka approached her. She then
heard Dr. Hosaka issue an order for someone to
call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating
room, she saw this anesthesiologist trying to
intubate the patient. The patient's nailbed became
bluish and the patient was placed in a
trendelenburg position — a position where the
head of the patient is placed in a position lower than
her feet which is an indication that there is a
decrease of blood supply to the patient's brain (Id.,
pp. 19-20). Immediately thereafter, she went out of
the operating room, and she told Rogelio E. Ramos
"that something wrong was . . . happening" (Ibid.).
Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating
room, saw a respiratory machine being rushed
towards the door of the operating room. He also
saw several doctors rushing towards the operating
room. When informed by Herminda Cruz that
something wrong was happening, he told her
(Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-
28).
Herminda Cruz immediately rushed back, and saw
that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M.
of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was
able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the
intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of
his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by
the hospital to explain what happened to the
patient. The doctors explained that the patient had
bronchospasm (TSN, November 15, 1990, pp. 26-
27).
Erlinda Ramos stayed at the ICU for a month.
About four months thereafter or on November 15,
1985, the patient was released from the hospital.
During the whole period of her confinement, she
incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a
57
 comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see
or hear. She is living on mechanical means. She
suffered brain damage as a result of the absence
of oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying
in their residence, still needing constant medical
attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage" (Exh.
"G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence in
the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the sustained by Erlinda was due to
lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during
the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlinda's allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the
finding of facts set forth earlier, and applying the
aforecited provisions of law and jurisprudence to
the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least,
negligence in the performance of their duty to
plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court
finds that she omitted to exercise reasonable care
in not only intubating the patient, but also in not
repeating the administration of atropine (TSN,
August 20, 1991, pp. 5-10), without due regard to
the fact that the patient was inside the operating
room for almost three (3) hours. For after she
committed a mistake in intubating [the] patient, the
patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position,
because of the decrease of blood supply to the
patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of
the absence of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn,
caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds
that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on
the patient as part of his obligation to provide the
patient a good anesthesiologist', and for arriving for
the scheduled operation almost three (3) hours
late.
On the part of DLSMC (the hospital), this Court
finds that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the
operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably
failed to arrive on time.
In having held thus, this Court rejects the defense
raised by defendants that they have acted with due
care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not
have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the
patient after her (the patient's) nailbed turned
bluish, belie their claim. Furthermore, the
defendants should have rescheduled the operation
to a later date. This, they should have done, if
defendants acted with due care and prudence as
the patient's case was an elective, not an
emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing,
judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the
latter are ordered to pay, jointly and severally,
the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly
expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in
the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable
attorney's fees;
3) the sum of P800,000.00 by way of moral
damages and the further sum of
P200,000,00 by way of exemplary
damages; and,
4) the costs of the suit.
SO ORDERED. 7
58
Private respondents seasonably interposed an appeal to
the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the
trial court. The decretal portion of the decision of the
appellate court reads:
WHEREFORE, for the foregoing
premises the appealed decision is
hereby REVERSED, and the complaint
below against the appellants is hereby
ordered DISMISSED. The counterclaim
of appellant De Los Santos Medical
Center is GRANTED but only insofar as
appellees are hereby ordered to pay the
unpaid hospital bills amounting to
P93,542.25, plus legal interest for justice
must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9
June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy
of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of petitioners.
Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four
(4) days before the expiration of the reglementary period
for filing a motion for reconsideration. On the same day,
Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The
motion for reconsideration was submitted on 4 July 1995.
However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July
1995. 9 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 pleading on the assailed decision had
not yet commenced to run as the Division Clerk of Court
of the Court of Appeals had not yet served a copy thereof
to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the motion
for reconsideration of petitioners in its Resolution, dated
29 March 1996, primarily on the ground that the fifteen-
day (15) period for filing a motion for reconsideration had
already expired, to wit:
We said in our Resolution on July 25, 1995, that the
filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo,
p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received
a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court
of Appeals already on July 4, necessarily, the 15-day
period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty.
Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for
extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty
(30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The due date
fell on 27 May 1996. The petition was filed on 9 May 1996,
well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on
the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES
IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first
dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed
by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the
petition should not be given due course since the motion
for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary
period. We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
59
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of
the decision of the counsel on record. Petitioner, not being
a lawyer and unaware of the prescriptive period for filing
a motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by
counsel, all notices should be sent to the party's lawyer at
his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of
the appellate court was not sent to the counsel on record
of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner.
Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995,
and denied the motion for reconsideration of petitioner,
we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was
submitted on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself." The phrase
"res ipsa loquitur'' is a maxim for the rule that the fact of
the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to
meet with an explanation. 13 Where the thing which
caused the injury complained of is shown to be under the
management of the defendant or his servants and the
accident is such as in ordinary course of things does not
happen if those who have its management or control use
proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's
want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of
the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of
occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality
causing the injury in the absence of some explanation by
the defendant who is charged with negligence. 15 It is
grounded in the superior logic of ordinary human
experience and on the basis of such experience or
common knowledge, negligence may be deduced from
the mere occurrence of the accident itself. 16 Hence, res
ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is not
a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of
liability. 17 Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. 18 It is regarded as a
mode of proof, or a mere procedural of convenience since
it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. 19 In
other words, mere invocation and application of the
doctrine does not dispense with the requirement of proof
of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the
proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with
the proof. 20 Still, before resort to the doctrine may be
allowed, the following requisites must be satisfactorily
shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated. 21
In the above requisites, the fundamental element is the
"control of instrumentality" which caused the
damage. 22 Such element of control must be shown to be
within the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable,
and must establish that the essential elements of the
doctrine were present in a particular incident. 23
Medical malpractice 24 cases do not escape the
application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the
harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. 25 The
application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial
function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference. 26
60
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury
itself provides the proof of negligence. 27 The reason is
that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of
medical science, and not to matters that are within the
common knowledge of mankind which may be testified to
by anyone familiar with the facts. 28 Ordinarily, only
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses. 29 Hence, in cases
where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care. 30 Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why
it occurred. 31 When the doctrine is appropriate, all that
the patient must do is prove a nexus between the
particular act or omission complained of and the injury
sustained while under the custody and management of
the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient
can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an
operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as
to mechanically shift the burden of proof to the defendant
to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case.
It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of
professional care were not as such as would ordinarily
have followed if due care had been
exercised. 37 A distinction must be made between the
failure to secure results, and the occurrence of something
more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that
the doctrine of res ipsa loquitur can have no application in
a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. 38 The
physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired
result. 39 Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired
result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether
or not in the process of the operation any extraordinary
incident or unusual event outside of the routine
performance occurred which is beyond the regular scope
of customary professional activity in such operations,
which, if unexplained would themselves reasonably speak
to the average man as the negligent cause or causes of
the untoward consequence. 41 If there was such
extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he
could. 42
We find the doctrine of res ipsa loquitur appropriate in the
case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application
of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in
applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for
a mastoid operation and delivered his
person over to the care, custody and
control of his physician who had
complete and exclusive control over him,
but the operation was never performed.
At the time of submission he was
neurologically sound and physically fit in
mind and body, but he suffered
irreparable damage and injury rendering
him decerebrate and totally
incapacitated. The injury was one which
does not ordinarily occur in the process
of a mastoid operation or in the absence
of negligence in the administration of an
anesthetic, and in the use and
employment of an endoctracheal tube.
Ordinarily a person being put under
61
 anesthesia is not rendered decerebrate
as a consequence of administering such
anesthesia in the absence of negligence.
Upon these facts and under these
circumstances a layman would be able to
say, as a matter of common knowledge
and observation, that the consequences
of professional treatment were not as
such as would ordinarily have followed if
due care had been exercised.
Here the plaintiff could not have been
guilty of contributory negligence because
he was under the influence of anesthetics
and unconscious, and the circumstances
are such that the true explanation of
event is more accessible to the
defendants than to the plaintiff for they
had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it is
held that a cause of action is stated under
the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall
bladder. On that fateful day she delivered her person over
to the care, custody and control of private respondents
who exercised complete and exclusive control over her.
At the time of submission, Erlinda was neurologically
sound and, except for a few minor discomforts, was
likewise physically fit in mind and body. However, during
the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery,
she went out of the operating room already decerebrate
and totally incapacitated. Obviously, brain damage, which
Erlinda sustained, is an injury which does not normally
occur in the process of a gall bladder operation. In fact,
this kind of situation does not in the absence of negligence
of someone in the administration of anesthesia and in the
use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because
she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient
is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical
administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter
of common knowledge and observation, if negligence
attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to
secure the desired results of an operation nor on an
alleged lack of skill in the diagnosis or treatment as in fact
no operation or treatment was ever performed on Erlinda.
Thus, upon all these initial determination a case is made
out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own
light and scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in the
affirmative, whether the alleged negligence was the
proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of
Appeals erred in relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private respondents, the
Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight
to the testimony of Dra. Gutierrez, the Court of Appeals
rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal
intubation 45 of the patient and thus, cannot be said to be
covering her negligence with falsehood. The appellate
court likewise opined that private respondents were able
to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to
the allergic reaction of the patient to the drug Thiopental
Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand,
the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of intubation.
In so holding, the appellate court returned a verdict in
favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her
family.
We disagree with the findings of the Court of Appeals. We
hold that private respondents were unable to disprove the
62
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 have said, I was with the patient, I was
beside the stretcher holding the left hand of the
patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She
was saying "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words
"lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan,"
what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the
nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particular time?
A: I saw him approaching the patient during that
time.
Q: When he approached the patient, what did he
do, if any?
A: He made an order to call on the
anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive
inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the
patient, after a while the patient's nailbed became
bluish and I saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was
placed in that trendelenburg position?
A: As far as I know, when a patient is in that
position, there is a decrease of blood supply to
the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part
of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is
fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz,
63
 admittedly, did not peep into the throat of the patient.
(TSN, July 25, 1991, p. 13). More importantly, there
is no evidence that she ever auscultated the patient
or that she conducted any type of examination to
check if the endotracheal tube was in its proper
place, and to determine the condition of the heart,
lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so
clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman in
the process of intubation, witness Cruz is not competent
to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist,
she can very well testify upon matters on which she is
capable of observing such as, the statements and acts of
the physician and surgeon, external appearances, and
manifest conditions which are observable by any
one. 48 This is precisely allowed under the doctrine of res
ipsa loquitur where the testimony of expert witnesses is
not required. It is the accepted rule that expert testimony
is not necessary for the proof of negligence in non-
technical matters or those of which an ordinary person
may be expected to have knowledge, or where the lack of
skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the
fact that anesthesia procedures have become so
common, that even an ordinary person can tell if it was
administered properly. As such, it would not be too difficult
to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical
degree to be acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol
Medical Center School at Nursing, was fully capable of
determining whether or not the intubation was a success.
She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor
in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of
Nursing. 50 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 . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were
you referring to?
A: "Mahirap yata itong i-intubate," that was the
patient.
Q: So, you found some difficulty in inserting the
tube?
A: Yes, because of (sic) my first attempt, I did
not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person) 52 making
it harder to locate and, since Erlinda is obese and has a
short neck and protruding teeth, it made intubation even
more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-
operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's
medical records and visits with the patient, traditionally,
the day before elective surgery. 53 It includes taking the
patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory
data. 54 The physical examination performed by the
64
anesthesiologist is directed primarily toward the central
nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway
normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. 56 Thus,
physical characteristics of the patient's upper airway that
could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient's airway would go a
long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing
with human lives lie at the core of the physician's
centuries-old Hippocratic Oath. Her failure to follow this
medical procedure is, therefore, a clear indicia of her
negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle
the difference between an elective surgery and an
emergency surgery just so her failure to perform the
required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of
the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends
on the operative procedure of the anesthesiologist
and in my case, with elective cases and normal
cardio-pulmonary clearance like that, I usually don't
do it except on emergency and on cases that have
an abnormalities (sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait for
days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the
patient's beside to do a proper interview and clinical
evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible
hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed
and cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to the
operation and prepare her for anesthesia. However, she
never saw the patient at the bedside. She herself admitted
that she had seen petitioner only in the operating room,
and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself
must fail.
Having established that respondent Dra. Gutierrez failed
to perform pre-operative evaluation of the patient which,
in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate
cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlinda's coma was due
to bronchospasm 59 mediated by her allergic response to
the drug, Thiopental Sodium, introduced into her system.
Towards this end, they presented Dr. Jamora, a Fellow of
the Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, 60 was
due to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority
in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist
and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit,
Thiopental Sodium (Pentothal).
65
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported
by his own admission that he formulated his opinions on
the drug not from the practical experience gained by a
specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you
have any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist
when they have to intubate our patient.
Q: But not in particular when you practice
pulmonology?
A: No.
Q: In other words, your knowledge about pentothal
is based only on what you have read from books
and not by your own personal application of the
medicine pentothal?
A: Based on my personal experience also on
pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm
during my appendectomy.
Q: And because they have used it on you and on
account of your own personal experience you feel
that you can testify on pentothal here with medical
authority?
A: No. That is why I used references to support my
claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within
the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines
of anesthesiology, allergology and pharmacology. On the
basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental
Sodium.
The provision in the rules of evidence 62 regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. — The opinion of
a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of
recognized authorities on the subject or by practical
experience. 63 Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he
lacks the necessary knowledge, skill, and training in the
field of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field, private
respondents' intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental
Sodium may have produced Erlinda's coma by triggering
an allergic mediated response, has no support in
evidence. No evidence of stridor, skin reactions, or
wheezing — some of the more common accompanying
signs of an allergic reaction — appears on record. No
laboratory data were ever presented to the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then
every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought.
Such an explanation was advanced in order to advanced
in order to absolve them of any and all responsibility for
the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which
was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred. 64 An injury or
damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that
the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that
the injury or damage was either a direct result or a
reasonably probable consequence of the act or
66
omission. 65 It is the dominant, moving or producing
cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's
brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of
abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal
intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry
into the esophagus would certainly cause some delay in
oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention
had been observed during the first intubation suggests
that the length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the second
attempt) was fairly significant. Due to the delay in the
delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he noticed that
the nailbeds of Erlinda were already blue. 67 However,
private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done.
We do not think so. No evidence exists on record, beyond
private respondents' bare claims, which supports the
contention that the second intubation was successful.
Assuming that the endotracheal tube finally found its way
into the proper orifice of the trachea, the same gave no
guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding from
this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was
accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was
obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to five
minutes. 68
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries
associated with anesthesia. 69 Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation
of the patient's airway prior to the operation. 70 As stated
beforehand, respondent Dra. Gutierrez failed to observe
the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-
operative evaluation, respondent physician could have
been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the
patient's neck and oral area, defects which would have
been easily overcome by a prior knowledge of those
variations together with a change in technique. 71 In other
words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would
have had little difficulty going around the short neck and
protruding teeth. 72 Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence
resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," 73 it is the surgeon's
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosaka's
negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team)
in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists
to show that respondent Dr. Hosaka verified if respondent
Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different
hospital at the same time as Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's
operation. Because of this, he had little or no time to
confer with his anesthesiologist regarding the anesthesia
delivery. This indicates that he was remiss in his
professional duties towards his patient. Thus, he shares
equal responsibility for the events which resulted in
Erlinda's condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than
real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply
for "consultant" slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
67
hospital who either accept or reject the application. 75 This
is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds
for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
physician's performance as a specialist is generally
evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital
or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees,
a point which respondent hospital asserts in denying all
responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for
the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is
solidarily liable with respondent doctors for petitioner's
condition. 76
The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article 2180
of the Civil Code which considers a person accountable
not only for his own acts but also for those of others based
on the former's responsibility under a relationship of patria
potestas. 77 Such responsibility ceases when the persons
or entity concerned prove that they have observed the
diligence of a good father of the family to prevent
damage. 78 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 supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent hospital
thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible
with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown
by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 79 of the
Civil Code.
We now come to the amount of damages due petitioners.
The trial court awarded a total of P632,000.00 pesos
(should be P616,000.00) in compensatory damages to
the plaintiff, "subject to its being updated" covering the
period from 15 November 1985 up to 15 April 1992, based
on monthly expenses for the care of the patient estimated
at P8,000.00.
At current levels, the P8000/monthly amount established
by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of home-
based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved
by the petitioners after they were forced to bring home the
patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a
proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally
made by a dietitian to provide her with the correct daily
caloric requirements and vitamin supplements.
Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a
pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy.
However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he
has duly proved. The Civil Code provides:
68
 Art. 2199. — Except as provided by law or by
stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered
by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as
a consequence of an act of negligence has been
completed and that the cost can be liquidated. However,
these provisions neglect to take into account those
situations, as in this case, where the resulting injury might
be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult
to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates
for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the
case, be made with certainty. 80 In other words, temperate
damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is
chronic and continuing. And because of the unique nature
of such cases, no incompatibility arises when both actual
and temperate damages are provided for. The reason is
that these damages cover two distinct phases.
As it would not be equitable — and certainly not in the
best interests of the administration of justice — for the
victim in such cases to constantly come before the courts
and invoke their aid in seeking adjustments to the
compensatory damages previously awarded —
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having
premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it
would be now much more in step with the interests of
justice if the value awarded for temperate damages would
allow petitioners to provide optimal care for their loved one
in a facility which generally specializes in such care. They
should not be compelled by dire circumstances to provide
substandard care at home without the aid of
professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were
difficult to estimate because while they would have been
a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only
in the future. We awarded P1,000,000.00 in moral
damages in that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be
deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will
be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the stump
from the process of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During the
lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of
her lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic
will have to be adjusted to respond to the changes
in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-
menopausal women. In other words, the damage
done to her would not only be permanent and
lasting, it would also be permanently changing and
adjusting to the physiologic changes which her
body would normally undergo through the years.
The replacements, changes, and adjustments will
require corresponding adjustive physical and
occupational therapy. All of these adjustments, it
has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the
lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are
inestimable. 83
The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious
than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for
over fourteen years now. The burden of care has so far
been heroically shouldered by her husband and children,
69
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 by
the victim or those actually affected by the victim's
condition. 84 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.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of
life and, they rarely set out to intentionally cause injury or
death to their patients. However, intent is immaterial in
negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right
to reparation for the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished
career using unorthodox methods without incident.
However, when failure to follow established procedure
results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made
between the deviation and the injury or damage, the
physician would necessarily be called to account for it. In
the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as
to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation
of this decision plus a monthly payment of P8,000.00 up
to the time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's
fees; and, 5) the costs of the suit.
SO ORDERED.
G.R. No. 130547 October 3, 2000
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY,
and minors LLOYD and KRISTINE, all surnamed
REYES, represented by their mother, LEAH ALESNA
REYES, petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE
PALACIO, DR. MARVIE BLANES, and DR. MARLYN
RICO, respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision1 of the Court of
Appeals in CA-G.R. CV No. 36551 affirming the decision
of the Regional Trial Court, Branch IX, Cebu City which
dismissed a complaint for damages filed by petitioners
against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge
Reyes. The other petitioners, namely, Rose Nahdja,
Johnny, Lloyd, and Kristine, all surnamed Reyes, were
their children. Five days before his death on January 8,
1987, Jorge had been suffering from a recurring fever with
chills. After he failed to get relief from some home
medication he was taking, which consisted of analgesic,
antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and
admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted that
at the time of his admission, Jorge was conscious,
ambulatory, oriented, coherent, and with respiratory
distress.2 Typhoid fever was then prevalent in the locality,
as the clinic had been getting from 15 to 20 cases of
typhoid per month.3 Suspecting that Jorge could be
suffering from this disease, Dr. Rico ordered a Widal Test,
a standard test for typhoid fever, to be performed on
Jorge. Blood count, routine urinalysis, stool examination,
and malarial smear were also made.4 After about an hour,
the medical technician submitted the results of the test
from which Dr. Rico concluded that Jorge was positive for
70
typhoid fever. As her shift was only up to 5:00 p.m., Dr.
Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the
evening. She also took Jorge’s history and gave him a
physical examination. Like Dr. Rico, her impression was
that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be done
on Jorge. Said test was administered by nurse Josephine
Pagente who also gave the patient a dose of triglobe. As
she did not observe any adverse reaction by the patient
to chloromycetin, Dr. Blanes ordered the first five hundred
milligrams of said antibiotic to be administered on Jorge
at around 9:00 p.m. A second dose was administered on
Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
called as Jorge’s temperature rose to 41°C. The patient
also experienced chills and exhibited respiratory distress,
nausea, vomiting, and convulsions. Dr. Blanes put him
under oxygen, used a suction machine, and administered
hydrocortisone, temporarily easing the patient’s
convulsions. When he regained consciousness, the
patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest pains in
the past. Jorge replied he did not.5 After about 15 minutes,
however, Jorge again started to vomit, showed
restlessness, and his convulsions returned. Dr. Blanes re-
applied the emergency measures taken before and, in
addition, valium was administered. Jorge, however, did
not respond to the treatment and slipped into cyanosis, a
bluish or purplish discoloration of the skin or mucous
membrane due to deficient oxygenation of the blood. At
around 2:00 a.m., Jorge died. He was forty years old. The
cause of his death was "Ventricular Arrythemia
Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional
Trial Court of Cebu City a complaint6 for damages against
respondents Sisters of Mercy, Sister Rose Palacio, Dr.
Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended
their complaint to implead respondent Mercy Community
Clinic as additional defendant and to drop the name of
Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal
contention was that Jorge did not die of typhoid
fever.7 Instead, his death was due to the wrongful
administration of chloromycetin. They contended that had
respondent doctors exercised due care and diligence,
they would not have recommended and rushed the
performance of the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and administered
chloromycetin without first conducting sufficient tests on
the patient’s compatibility with said drug. They charged
respondent clinic and its directress, Sister Rose Palacio,
with negligence in failing to provide adequate facilities and
in hiring negligent doctors and nurses.8
Respondents denied the charges. During the pre-trial
conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due
to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community
Clinic was negligent in the hiring of its employees; and (3)
whether either party was entitled to damages. The case
was then heard by the trial court during which, in addition
to the testimonies of the parties, the testimonies of doctors
as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar
Vacalares, Chief Pathologist at the Northern Mindanao
Training Hospital, Cagayan de Oro City. On January 9,
1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he
did not open the skull to examine the brain. His
findings9 showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of
typhoid fever. He also stated that he had not seen a
patient die of typhoid fever within five days from the onset
of the disease.
For their part, respondents offered the testimonies of Dr.
Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
diplomate in internal medicine whose expertise is
microbiology and infectious diseases. He is also a
consultant at the Cebu City Medical Center and an
associate professor of medicine at the South Western
University College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patient’s history and positive
Widal Test results ratio of 1:320 would make him suspect
that the patient had typhoid fever. As to Dr. Vacalares’
observation regarding the absence of ulceration in Jorge’s
gastro-intestinal tract, Dr. Gotiong said that such
hyperplasia in the intestines of a typhoid victim may be
microscopic. He noted that since the toxic effect of typhoid
fever may lead to meningitis, Dr. Vacalares’ autopsy
should have included an examination of the brain.10
The other doctor presented was Dr. Ibarra Panopio, a
member of the American Board of Pathology, examiner of
the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief
pathologist of the Andres Soriano Jr. Memorial Hospital in
Toledo City. Dr. Panopio stated that although he was
partial to the use of the culture test for its greater reliability
in the diagnosis of typhoid fever, the Widal Test may also
be used. Like Dr. Gotiong, he agreed that the 1:320 ratio
in Jorge’s case was already the maximum by which a
conclusion of typhoid fever may be made. No additional
information may be deduced from a higher dilution.11 He
said that Dr. Vacalares’ autopsy on Jorge was incomplete
and thus inconclusive.
71
On September 12, 1991, the trial court rendered its
decision absolving respondents from the charges of
negligence and dismissing petitioners’ action for
damages. The trial court likewise dismissed respondents’
counterclaim, holding that, in seeking damages from
respondents, petitioners were impelled by the honest
belief that Jorge’s death was due to the latter’s
negligence.
Petitioners brought the matter to the Court of Appeals. On
July 31, 1997, the Court of Appeals affirmed the decision
of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR WHEN IT
RULED THAT THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE IN THE
INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR WHEN IT
MADE AN UNFOUNDED ASSUMPTION THAT
THE LEVEL OF MEDICAL PRACTICE IS
LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT RULED FOR A
LESSER STANDARD OF CARE AND DEGREE
OF DILIGENCE FOR MEDICAL PRACTICE IN
ILIGAN CITY WHEN IT APPRECIATE[D] NO
DOCTOR’S NEGLIGENCE IN THE
TREATMENT OF JORGE REYES.
Petitioner’s action is for medical malpractice. This is a
particular form of negligence which consists in the failure
of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar
conditions, and in like surrounding circumstances.12 In
order to successfully pursue such a claim, a patient must
prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or
surgeon would have done, or that he or she did something
that a reasonably prudent physician or surgeon would not
have done, and that the failure or action caused injury to
the patient.13 There are thus four elements involved in
medical negligence cases, namely: duty, breach, injury,
and proximate causation.
In the present case, there is no doubt that a physician-
patient relationship existed between respondent doctors
and Jorge Reyes. Respondents were thus duty-bound to
use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the
same circumstances. It is breach of this duty which
constitutes actionable malpractice.14 As to this aspect of
medical malpractice, the determination of the reasonable
level of care and the breach thereof, expert testimony is
essential. Inasmuch as the causes of the injuries involved
in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion
as to causation.15
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed
with, and that is under the doctrine of res ipsa loquitur. As
held in Ramos v. Court of Appeals:16
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitor is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that
the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of
medical science, and not to matters that are within the
common knowledge of mankind which may be testified to
by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care. Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why
it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular
act or omission complained of and the injury sustained
while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitor is allowed because there is no other way,
under usual and ordinary conditions, by which the patient
can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, injuries
sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong
72
part of the body when another part was intended,
knocking out a tooth while a patient’s jaw was under
anesthetic for the removal of his tonsils, and loss of an
eye while the patient was under the influence of
anesthetic, during or following an operation for
appendicitis, among others.17
Petitioners asserted in the Court of Appeals that the
doctrine of res ipsa loquitur applies to the present case
because Jorge Reyes was merely experiencing fever and
chills for five days and was fully conscious, coherent, and
ambulant when he went to the hospital. Yet, he died after
only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the
application of res ipsa loquitur were present, namely: (1)
the accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive
control of the person in charge; and (3) the injury suffered
must not have been due to any voluntary action or
contribution of the person injured.18
The contention is without merit. We agree with the ruling
of the Court of Appeals. In the Ramos case, the question
was whether a surgeon, an anesthesiologist, and a
hospital should be made liable for the comatose condition
of a patient scheduled for cholecystectomy.19 In that case,
the patient was given anesthesia prior to her operation.
Noting that the patient was neurologically sound at the
time of her operation, the Court applied the doctrine of res
ipsa loquitur as mental brain damage does not normally
occur in a gallblader operation in the absence of
negligence of the anesthesiologist. Taking judicial notice
that anesthesia procedures had become so common that
even an ordinary person could tell if it was administered
properly, we allowed the testimony of a witness who was
not an expert. In this case, while it is true that the patient
died just a few hours after professional medical
assistance was rendered, there is really nothing unusual
or extraordinary about his death. Prior to his admission,
the patient already had recurring fevers and chills for five
days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he had
been suffering from a serious illness and professional
medical help came too late for him.
Respondents alleged failure to observe due care was not
immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required
expert opinion on the alleged breach by respondents of
the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her
diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico.As held in Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to
be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of
professional care were not as such as would ordinarily
have followed if due care had been exercised. A
distinction must be made between the failure to secure
results, and the occurrence of something more unusual
and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a
suit against a physician or a surgeon which involves the
merits of a diagnosis or of a scientific treatment. The
physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired
result.20
Specific Acts of Negligence
We turn to the question whether petitioners have
established specific acts of negligence allegedly
committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
erroneously relied upon the Widal test, diagnosed Jorge’s
illness as typhoid fever, and immediately prescribed the
administration of the antibiotic chloromycetin;21 and (2) Dr.
Marvie Blanes erred in ordering the administration of the
second dose of 500 milligrams of chloromycetin barely
three hours after the first was given.22 Petitioners
presented the testimony of Dr. Apolinar Vacalares, Chief
Pathologist of the Northern Mindanao Training Hospital,
Cagayan de Oro City, who performed an autopsy on the
body of Jorge Reyes. Dr. Vacalares testified that, based
on his findings during the autopsy, Jorge Reyes did not
die of typhoid fever but of shock undetermined, which
could be due to allergic reaction or chloromycetin
overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares
as an expert witness, we do not find him to be so as he is
not a specialist on infectious diseases like typhoid fever.
Furthermore, although he may have had extensive
experience in performing autopsies, he admitted that he
had yet to do one on the body of a typhoid victim at the
time he conducted the postmortem on Jorge Reyes. It is
also plain from his testimony that he has treated only
about three cases of typhoid fever. Thus, he testified
that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never
seen a patient who died of typhoid fever?
A In autopsy. But, that was when I was a resident
physician yet.
73
Q But you have not performed an autopsy of a patient who
died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient
who died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you
were in the general practice of medicine?
A In our case we had no widal test that time so we cannot
consider that the typhoid fever is like this and like that.
And the widal test does not specify the time of the typhoid
fever.
Q The question is: how many typhoid fever cases had you
seen in your general practice regardless of the cases now
you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred
in her diagnosis. Both lower courts were therefore correct
in discarding his testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to oxygen
deprivation after the patient had
bronchospasms24 triggered by her allergic response to a
drug,25 and not due to faulty intubation by the
anesthesiologist. As the issue was whether the intubation
was properly performed by an anesthesiologist, we
rejected the opinion of the pulmonologist on the ground
that he was not: (1) an anesthesiologist who could
enlighten the court about anesthesia practice, procedure,
and their complications; nor (2) an allergologist who could
properly advance expert opinion on allergic mediated
processes; nor (3) a pharmacologist who could explain
the pharmacologic and toxic effects of the drug allegedly
responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by
respondents clearly were experts on the subject. They
vouched for the correctness of Dr. Marlyn Rico’s
diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology and
an associate professor at the Southwestern University
College of Medicine and the Gullas College of Medicine,
testified that he has already treated over a thousand
cases of typhoid fever.26 According to him, when a case
of typhoid fever is suspected, the Widal test is normally
used,27 and if the 1:320 results of the Widal test on Jorge
Reyes had been presented to him along with the patient’s
history, his impression would also be that the patient was
suffering from typhoid fever.28 As to the treatment of the
disease, he stated that chloromycetin was the drug of
choice.29 He also explained that despite the measures
taken by respondent doctors and the intravenous
administration of two doses of chloromycetin,
complications of the disease could not be discounted. His
testimony is as follows:30
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320,
what treatment if any would be given?
A If those are the findings that would be presented to me,
the first thing I would consider would be typhoid fever.
Q And presently what are the treatments commonly
used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have
administered chloramphenical about 3 1/2 hours later, the
patient associated with chills, temperature - 41oC, what
could possibly come to your mind?
A Well, when it is change in the clinical finding, you have
to think of complication.
Q And what will you consider on the complication of
typhoid?
A One must first understand that typhoid fever is toximia.
The problem is complications are caused by toxins
produced by the bacteria . . . whether you have suffered
complications to think of -- heart toxic myocardities; then
you can consider a toxic meningitis and other
complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received
medication of chloromycetin of 500 milligrams
intravenous, after the skin test, and received a second
dose of chloromycetin of 500 miligrams, 3 hours later, the
patient developed chills . . . rise in temperature to 41oC,
and then about 40 minutes later the temperature rose to
100oF, cardiac rate of 150 per minute who appeared to be
coherent, restless, nauseating, with seizures: what
significance could you attach to these clinical changes?
74
A I would then think of toxemia, which was toxic meningitis
and probably a toxic meningitis because of the high
cardiac rate.
Q Even if the same patient who, after having given
intramuscular valium, became conscious and coherent
about 20 minutes later, have seizure and cyanosis and
rolling of eyeballs and vomitting . . . and death: what
significance would you attach to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you
expect on the post-mortem examination?
A No, the finding would be more on the meninges or
covering of the brain.
Q And in order to see those changes would it require
opening the skull?
A Yes.
As regards Dr. Vacalares’ finding during the autopsy that
the deceased’s gastro-intestinal tract was normal, Dr.
Rico explained that, while hyperplasia31 in the payer’s
patches or layers of the small intestines is present in
typhoid fever, the same may not always be grossly visible
and a microscope was needed to see the texture of the
cells.32
Respondents also presented the testimony of Dr. Ibarra
T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the
Philippine Board of Pathology, and chief pathologist at the
MetroCebu Community Hospital, Perpetual Succor
Hospital, and the Andres Soriano Jr. Memorial Medical
Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients,
although he did not encourage its use because a single
test would only give a presumption necessitating that the
test be repeated, becoming more conclusive at the
second and third weeks of the disease.33 He corroborated
Dr. Gotiong’s testimony that the danger with typhoid fever
is really the possible complications which could develop
like perforation, hemorrhage, as well as liver and cerebral
complications.34 As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no additional
information could be obtained from a higher ratio.35 He
also agreed with Dr. Gotiong that hyperplasia in the
payer’s patches may be microscopic.36
Indeed, the standard contemplated is not what is actually
the average merit among all known practitioners from the
best to the worst and from the most to the least
experienced, but the reasonable average merit among the
ordinarily good physicians.37 Here, Dr. Marlyn Rico did not
depart from the reasonable standard recommended by
the experts as she in fact observed the due care required
under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for
typhoid fever and, in the present case, greater accuracy
through repeated testing was rendered unobtainable by
the early death of the patient. The results of the Widal test
and the patient’s history of fever with chills for five days,
taken with the fact that typhoid fever was then prevalent
as indicated by the fact that the clinic had been getting
about 15 to 20 typhoid cases a month, were sufficient to
give upon any doctor of reasonable skill the impression
that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the
administration of the drug chloromycetin, the drug of
choice for typhoid fever. The burden of proving that Jorge
Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on
this, preponderant evidence to support their contention is
clearly absent.
Third. Petitioners contend that respondent Dr. Marvie
Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of
500 milligrams of chloromycetin at an interval of less than
three hours. Petitioners claim that Jorge Reyes died of
anaphylactic shock38 or possibly from overdose as the
second dose should have been administered five to six
hours after the first, per instruction of Dr. Marlyn Rico. As
held by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is
best established by medical authority. Wilson, et. al.,
in Harrison’s Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of
chloromycetin) is the drug of choice for typhoid fever and
that no drug has yet proven better in promoting a
favorable clinical response. "Chlorampenicol
(Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections,
bacteriodes infections, etc." (PIMS Annual, 1994, p.
211) The dosage likewise including the first administration
of five hundred milligrams (500 mg.) at around nine
o’clock in the evening and the second dose at around
11:30 the same night was still within medically acceptable
limits, since the recommended dose of chloromycetin is
one (1) gram every six (6) hours. (cf. Pediatric Drug
Handbook, 1st Ed., Philippine Pediatric Society,
Committee on Therapeutics and Toxicology, 1996). The
intravenous route is likewise correct. (Mansser, O’Nick,
Pharmacology and Therapeutics) Even if the test was not
administered by the physician-on-duty, the evidence
introduced that it was Dra. Blanes who interpreted the
results remain uncontroverted. (Decision, pp. 16-17)
Once more, this Court rejects any claim of professional
negligence in this regard.
....
As regards anaphylactic shock, the usual way of guarding
against it prior to the administration of a drug, is the skin
75
test of which, however, it has been observed: "Skin testing
with haptenic drugs is generally not reliable. Certain drugs
cause nonspecific histamine release, producing a weal-
and-flare reaction in normal individuals. Immunologic
activation of mast cells requires a polyvalent allergen, so
a negative skin test to a univalent haptenic drug does not
rule out anaphylactic sensitivity to that drug." (Terr,
"Anaphylaxis and Urticaria" in Basic and Clinical
Immunology, p. 349) What all this means legally is that
even if the deceased suffered from an anaphylactic
shock, this, of itself, would not yet establish the
negligence of the appellee-physicians for all that the law
requires of them is that they perform the standard tests
and perform standard procedures. The law cannot require
them to predict every possible reaction to all drugs
administered. The onus probandi was on the appellants
to establish, before the trial court, that the appellee-
physicians ignored standard medical procedure,
prescribed and administered medication with
recklessness and exhibited an absence of the
competence and skills expected of general practitioners
similarly situated.39
Fourth. Petitioners correctly observe that the medical
profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they
assert that since the law imposes upon common carriers
the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers,40 physicians and surgeons should have the
same duty toward their patients.41 They also contend that
the Court of Appeals erred when it allegedly assumed that
the level of medical practice is lower in Iligan City, thereby
reducing the standard of care and degree of diligence
required from physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to
common carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them, according to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only
by qualified individuals.1âwphi1 It is a right earned
through years of education, training, and by first obtaining
a license from the state through professional board
examinations. Such license may, at any time and for
cause, be revoked by the government. In addition to state
regulation, the conduct of doctors is also strictly governed
by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon
themselves in recognition and acceptance of their great
responsibility to society. Given these safeguards, there is
no need to expressly require of doctors the observance of
"extraordinary" diligence. As it is now, the practice of
medicine is already conditioned upon the highest degree
of diligence. And, as we have already noted, the standard
contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is
reasonable diligence for doctors or, as the Court of
Appeals called it, the reasonable "skill and competence .
. . that a physician in the same or similar locality . . . should
apply."
WHEREFORE, the instant petition is DENIED and the
decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 160889 April 27, 2007
DR. MILAGROS L. CANTRE, Petitioner,
vs.
SPS. JOHN DAVID Z. GO and NORA S.
GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October
3, 2002 and Resolution2 dated November 19, 2003 of the
Court of Appeals in CA-G.R. CV No. 58184, which
affirmed with modification the Decision3 dated March 3,
1997 of the Regional Trial Court of Quezon City, Branch
98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in
Obstetrics and Gynecology at the Dr. Jesus Delgado
Memorial Hospital. She was the attending physician of
respondent Nora S. Go, who was admitted at the said
hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth
child, a baby boy. However, at around 3:30 a.m., Nora
suffered profuse bleeding inside her womb due to some
parts of the placenta which were not completely expelled
from her womb after delivery. Consequently, Nora
suffered hypovolemic shock, resulting in a drop in her
blood pressure to "40" over "0." Petitioner and the
assisting resident physician performed various medical
procedures to stop the bleeding and to restore Nora’s
blood pressure. Her blood pressure was frequently
monitored with the use of a sphygmomanometer. While
petitioner was massaging Nora’s uterus for it to contract
and stop bleeding, she ordered a droplight to warm Nora
and her baby.4 Nora remained unconscious until she
recovered.
While in the recovery room, her husband, respondent
John David Z. Go noticed a fresh gaping wound two and
a half (2 ½) by three and a half (3 ½) inches in the inner
portion of her left arm, close to the armpit.5 He asked the
76
nurses what caused the injury. He was informed it was a
burn. Forthwith, on April 22, 1992, John David filed a
request for investigation.6 In response, Dr. Rainerio S.
Abad, the medical director of the hospital, called petitioner
and the assisting resident physician to explain what
happened. Petitioner said the blood pressure cuff caused
the injury.
On May 7, 1992, John David brought Nora to the National
Bureau of Investigation for a physical examination, which
was conducted by medico-legal officer Dr. Floresto
Arizala, Jr.7 The medico-legal officer later testified that
Nora’s injury appeared to be a burn and that a droplight
when placed near the skin for about 10 minutes could
cause such burn.8 He dismissed the likelihood that the
wound was caused by a blood pressure cuff as the scar
was not around the arm, but just on one side of the arm.9
On May 22, 1992, Nora’s injury was referred to a plastic
surgeon at the Dr. Jesus Delgado Memorial Hospital for
skin grafting.10 Her wound was covered with skin sourced
from her abdomen, which consequently bore a scar as
well. About a year after, on April 30, 1993, scar revision
had to be performed at the same hospital.11 The surgical
operation left a healed linear scar in Nora’s left arm about
three inches in length, the thickest portion rising about
one-fourth (1/4) of an inch from the surface of the skin.
The costs of the skin grafting and the scar revision were
shouldered by the hospital.12
Unfortunately, Nora’s arm would never be the
same.1a\^/phi1.net Aside from the unsightly mark, the
pain in her left arm remains. When sleeping, she has to
cradle her wounded arm. Her movements now are also
restricted. Her children cannot play with the left side of her
body as they might accidentally bump the injured arm,
which aches at the slightest touch.
Thus, on June 21, 1993, respondent spouses filed a
complaint13 for damages against petitioner, Dr. Abad, and
the hospital. Finding in favor of respondent spouses, the
trial court decreed:
In view of the foregoing consideration, judgment is hereby
rendered in favor of the plaintiffs and against the
defendants, directing the latters, (sic) jointly and severally
–
(a) to pay the sum of Five Hundred Thousand
Pesos (P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty
Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos
(P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for
and as attorney’s fees; and
(e) to pay Six Thousand Pesos (P6,000.00)
litigation expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the
Court of Appeals, which affirmed with modification the trial
court decision, thus:
WHEREFORE, in view of all the foregoing, and finding no
reversible error in the appealed Decision dated March 3,
1997 of Branch 98 of the Regional Trial Court of Quezon
City in Civil Case No. Q-93-16562, the same is hereby
AFFIRMED, with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros
[L.] Cantre only to pay plaintiffs-appellees John
David Go and Nora S. Go the sum of
P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages,
attorney’s fees and expenses of
litigation;1awphi1.nét
3. Dismissing the complaint with respect to
defendants-appellants Dr. Rainerio S. Abad and
Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-
appellants for lack of merit; and
5. Ordering defendant-appellant Dra. Milagros
[L.] Cantre only to pay the costs.
SO ORDERED.15
Petitioner’s motion for reconsideration was denied by the
Court of Appeals. Hence, the instant petition assigning the
following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE
COURT OF APPEALS COMMITTED GRAVE ABUSE OF
THEIR DISCRETION WHEN, NOTWITHSTANDING
THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT
ADMITTED THE ADDITIONAL EXHIBITS FURTHER
OFFERED BY RESPONDENTS NOT TESTIFIED TO BY
ANY WITNESS AND THIS DECISION OF THE LOWER
COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
II.
77
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN,
CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT
THE PETITIONER HAS NOT AMPLY SHOWED THAT
THE DROPLIGHT DID NOT TOUCH THE BODY OF
MRS. NORA GO, AND THIS DECISION OF THE LOWER
COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN,
CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT
PETITIONER DRA. CANTRE WAS NOT ABLE TO
AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN
THE LEFT INNER ARM OF RESPONDENT MRS. GO
CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF ITS DISCRETION
WHEN IT MADE A RULING ON THE RESPONDENT’S
INJURY QUOTING THE TESTIMONY OF SOMEONE
WHO WAS NOT PRESENT AND HAS NOT SEEN THE
ORIGINAL, FRESH INJURY OF RESPONDENT MRS.
NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS
GRAVELY ABUSING ITS DISCRETION RULED THAT
PETITIONER DRA. CANTRE SHOULD HAVE
INTENDED TO INFLICT THE INJURY TO SAVE THE
LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE
COURT [OF] APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION WHEN, CONTRARY TO THE
DETAILED PROCEDURES DONE BY PETITIONER,
BOTH RULED THAT THE RESPONDENT WAS LEFT
TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY
TO THE MEDICAL PURPOSES OF COSMETIC
SURGERY, IT RULED THAT THE COSMETIC
SURGERY MADE THE SCARS EVEN MORE UGLY
AND DECLARED THE COSMETIC SURGERY A
FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY
ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO
RESPONDENTS’ CONTRARY TESTIMONIES AND THE
ABSENCE OF ANY TESTIMONY, IT RULED THAT
THEY ARE ENTITLED TO DAMAGES AND WHICH WAS
UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF
APPEALS LIKEWISE ABUSING ITS DISCRETION.16
Petitioner contends that additional documentary exhibits
not testified to by any witness are inadmissible in
evidence because they deprived her of her constitutional
right to confront the witnesses against her. Petitioner
insists the droplight could not have touched Nora’s body.
She maintains the injury was due to the constant taking of
Nora’s blood pressure. Petitioner also insinuates the
Court of Appeals was misled by the testimony of the
medico-legal officer who never saw the original injury
before plastic surgery was performed. Finally, petitioner
stresses that plastic surgery was not intended to restore
respondent’s injury to its original state but rather to
prevent further complication.
Respondents, however, counter that the genuineness and
due execution of the additional documentary exhibits
were duly admitted by petitioner’s counsel. Respondents
point out that petitioner’s blood pressure cuff theory is
highly improbable, being unprecedented in medical
history and that the injury was definitely caused by the
droplight. At any rate, they argue, even if the injury was
brought about by the blood pressure cuff, petitioner was
still negligent in her duties as Nora’s attending physician.
Simply put, the threshold issues for resolution are: (1) Are
the questioned additional exhibits admissible in
evidence? (2) Is petitioner liable for the injury suffered by
respondent Nora Go? Thereafter, the inquiry is whether
the appellate court committed grave abuse of discretion
in its assailed issuances.
As to the first issue, we agree with the Court of Appeals
that said exhibits are admissible in evidence. We note that
the questioned exhibits consist mostly of Nora’s medical
records, which were produced by the hospital during trial
pursuant to a subpoena duces tecum. Petitioner’s
counsel admitted the existence of the same when they
were formally offered for admission by the trial court. In
any case, given the particular circumstances of this case,
a ruling on the negligence of petitioner may be made
based on the res ipsa loquitur doctrine even in the
absence of such additional exhibits.
Petitioner’s contention that the medico-legal officer who
conducted Nora’s physical examination never saw her
original injury before plastic surgery was performed is
without basis and contradicted by the records. Records
show that the medico-legal officer conducted the physical
examination on May 7, 1992, while the skin grafting and
78
the scar revision were performed on Nora on May 22,
1992 and April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner liable
for the injury suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give
primordial consideration to the well-being of their patients.
If a doctor fails to live up to this precept, he is accountable
for his acts. This notwithstanding, courts face a unique
restraint in adjudicating medical negligence cases
because physicians are not guarantors of care and, they
never set out to intentionally cause injury to their patients.
However, intent is immaterial in negligence cases
because where negligence exists and is proven, it
automatically gives the injured a right to reparation for the
damage caused.17
In cases involving medical negligence, the doctrine of res
ipsa loquitur allows the mere existence of an injury to
justify a presumption of negligence on the part of the
person who controls the instrument causing the injury,
provided that the following requisites concur:
1. The accident is of a kind which ordinarily does
not occur in the absence of 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.18
As to the first requirement, the gaping wound on Nora’s
arm is certainly not an ordinary occurrence in the act of
delivering a baby, far removed as the arm is from the
organs involved in the process of giving birth. Such injury
could not have happened unless negligence had set in
somewhere.
Second, whether the injury was caused by the droplight
or by the blood pressure cuff is of no moment. Both
instruments are deemed within the exclusive control of the
physician in charge under the "captain of the ship"
doctrine. This doctrine holds the surgeon in charge of an
operation liable for the negligence of his assistants during
the time when those assistants are under the surgeon’s
control.19 In this particular case, it can be logically inferred
that petitioner, the senior consultant in charge during the
delivery of Nora’s baby, exercised control over the
assistants assigned to both the use of the droplight and
the taking of Nora’s blood pressure. Hence, the use of the
droplight and the blood pressure cuff is also within
petitioner’s exclusive control.
Third, the gaping wound on Nora’s left arm, by its very
nature and considering her condition, could only be
caused by something external to her and outside her
control as she was unconscious while in hypovolemic
shock. Hence, Nora could not, by any stretch of the
imagination, have contributed to her own injury.
Petitioner’s defense that Nora’s wound was caused not by
the droplight but by the constant taking of her blood
pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As testified
to by the medico-legal officer, Dr. Arizala, Jr., the medical
practice is to deflate the blood pressure cuff immediately
after each use. Otherwise, the inflated band can cause
injury to the patient similar to what could have happened
in this case. Thus, if Nora’s wound was caused by the
blood pressure cuff, then the taking of Nora’s blood
pressure must have been done so negligently as to have
inflicted a gaping wound on her arm,20 for which petitioner
cannot escape liability under the "captain of the ship"
doctrine.
Further, petitioner’s argument that the failed plastic
surgery was not intended as a cosmetic procedure, but
rather as a measure to prevent complication does not help
her case. It does not negate negligence on her part.
Based on the foregoing, the presumption that petitioner
was negligent in the exercise of her profession stands
unrebutted. In this connection, the Civil Code provides:
ART. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done.…
ART. 2217. Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendant’s wrongful act or omission.
Clearly, under the law, petitioner is obliged to pay Nora for
moral damages suffered by the latter as a proximate result
of petitioner’s negligence.
We note, however, that petitioner has served well as
Nora’s obstetrician for her past three successful
deliveries. This is the first time petitioner is being held
liable for damages due to negligence in the practice of her
profession. The fact that petitioner promptly took care of
Nora’s wound before infection and other complications set
in is also indicative of petitioner’s good intentions. We also
take note of the fact that Nora was suffering from a critical
condition when the injury happened, such that saving her
life became petitioner’s elemental concern. Nonetheless,
it should be stressed that all these could not justify
negligence on the part of petitioner.
79
Hence, considering the specific circumstances in the
instant case, we find no grave abuse of discretion in the
assailed decision and resolution of the Court of Appeals.
Further, we rule that the Court of Appeals’ award of Two
Hundred Thousand Pesos (₱200,000) as moral damages
in favor of respondents and against petitioner is just and
equitable.21
WHEREFORE, the petition is DENIED. The Decision
dated October 3, 2002 and Resolution dated November
19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
CRIMINAL LAW
G.R. No. L-3246 November 29, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO FORMIGONES, defendant-appellant.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First
Instance of Camarines Sur finding the appellant guilty of
parricide and sentencing him to reclusion perpetua, to
indemnify the heirs of the deceased in the amount of
P2,000, and to pay the costs. The following facts are not
disputed.
In the month of November, 1946, the defendant Abelardo
Formigones was living on his farm in Bahao, Libmanan,
municipality of Sipocot, Camarines Sur, with his wife, Julia
Agricola, and his five children. From there they went to
live in the house of his half-brother, Zacarias Formigones,
in the barrio of Binahian of the same municipality of
Sipocot, to find employment as harvesters of palay. After
about a month's stay or rather on December 28, 1946, late
in the afternoon, Julia was sitting at the head of the stairs
of the house. The accused, without any previous quarrel
or provocation whatsoever, took his bolo from the wall of
the house and stabbed his wife, Julia, in the back, the
blade penetrating the right lung and causing a severe
hemorrhage resulting in her death not long thereafter. The
blow sent Julia toppling down the stairs to the ground,
immediately followed by her husband Abelardo who,
taking her up in his arms, carried her up the house, laid
her on the floor of the living room and then lay down
beside her. In this position he was found by the people
who came in response to the shouts for help made by his
eldest daughter, Irene Formigones, who witnessed and
testified to the stabbing of her mother by her father.
Investigated by the Constabulary, defendant Abelardo
signed a written statement, Exhibit D, wherein he
admitted that he killed The motive was admittedly of
jealousy because according to his statement he used to
have quarrels with his wife for the reason that he often
saw her in the company of his brother Zacarias; that he
suspected that the two were maintaining illicit relations
because he noticed that his had become indifferent to him
(defendant).
During the preliminary investigation conducted by the
justice of the peace of Sipocot, the accused pleaded
guilty, as shown by Exhibit E. At the trial of the case in the
Court of First Instance, the defendant entered a plea of
not guilty, but did not testify. His counsel presented the
testimony of two guards of the provincial jail where
Abelardo was confined to the effect that his conduct there
was rather strange and that he behaved like an insane
person; that sometimes he would remove his clothes and
go stark naked in the presence of his fellow prisoners; that
at times he would remain silent and indifferent to his
surroundings; that he would refused to take a bath and
wash his clothes until forced by the prison authorities; and
that sometimes he would sing in chorus with his fellow
prisoners, or even alone by himself without being asked;
and that once when the door of his cell was opened, he
suddenly darted from inside into the prison compound
apparently in an attempt to regain his liberty.
The appeal is based merely on the theory that the
appellant is an imbecile and therefore exempt from
criminal liability under article 12 of the Revised Penal
Code. The trial court rejected this same theory and we are
inclined to agree with the lower court. According to the
very witness of the defendant, Dr. Francisco Gomez, who
examined him, it was his opinion that Abelardo was
suffering only from feeblemindedness and not imbecility
and that he could distinguish right from wrong.
In order that a person could be regarded as an imbecile
within the meaning of article 12 of the Revised Penal
Code so as to be exempt from criminal liability, he must
be deprived completely of reason or discernment and
freedom of the will at the time of committing the crime.
The provisions of article 12 of the Revised Penal Code
are copied from and based on paragraph 1, article 8, of
the old Penal Code of Spain. Consequently, the decisions
of the Supreme Court of Spain interpreting and applying
said provisions are pertinent and applicable. We quote
Judge Guillermo Guevara on his Commentaries on the
Revised Penal Code, 4th Edition, pages 42 to 43:
The Supreme Court of Spain held that in order
that this exempting circumstances may be taken
into account, it is necessary that there be a
complete deprivation of intelligence in committing
the act, that is, that the accused be deprived of
reason; that there be no responsibility for his own
acts; that he acts without the least
discernment;1 that there be a complete absence
of the power to discern, or that there be a total
deprivation of freedom of the will. For this reason,
80
 it was held that the imbecility or insanity at the
time of the commission of the act should
absolutely deprive a person of intelligence or
freedom of will, because mere abnormality of his
mental faculties does not exclude imputability.2
The Supreme Court of Spain likewise held that
deaf-muteness cannot be equaled to imbecility or
insanity.
The allegation of insanity or imbecility must be
clearly proved. Without positive evidence that the
defendant had previously lost his reason or was
demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that
he was in a normal condition. Acts penalized by
law are always reputed to be voluntary, and it is
improper to conclude that a person acted
unconsciously, in order to relieve him from
liability, on the basis of his mental condition,
unless his insanity and absence of will are
proved.
As to the strange behaviour of the accused during his
confinement, assuming that it was not feigned to stimulate
insanity, it may be attributed either to his being
feebleminded or eccentric, or to a morbid mental condition
produced by remorse at having killed his wife. From the
case of United States vs. Vaquilar (27 Phil. 88), we quote
the following syllabus:
Testimony of eye-witnesses to a parricide, which
goes no further than to indicate that the accused
was moved by a wayward or hysterical burst of
anger or passion, and other testimony to the
effect that, while in confinement awaiting trial,
defendant acted absentmindedly at times, is not
sufficient to establish the defense of insanity. The
conduct of the defendant while in confinement
appears to have been due to a morbid mental
condition produced by remorse.
After a careful study of the record, we are convinced that
the appellant is not an imbecile. According to the
evidence, during his marriage of about 16 years, he has
not done anything or conducted himself in anyway so as
to warrant an opinion that he was or is an imbecile. He
regularly and dutifully cultivated his farm, raised five
children, and supported his family and even maintained in
school his children of school age, with the fruits of his
work. Occasionally, as a side line he made copra. And a
man who could feel the pangs of jealousy to take violent
measure to the extent of killing his wife whom he
suspected of being unfaithful to him, in the belief that in
doing so he was vindicating his honor, could hardly be
regarded as an imbecile. Whether or not his suspicions
were justified, is of little or no import. The fact is that he
believed her faithless.
But to show that his feeling of jealousy had some color of
justification and was not a mere product of hallucination
and aberrations of a disordered mind as that an imbecile
or a lunatic, there is evidence to the following effect. In
addition to the observations made by appellant in his
written statement Exhibit D, it is said that when he and his
wife first went to live in the house of his half brother,
Zacarias Formigones, the latter was living with his
grandmother, and his house was vacant. However, after
the family of Abelardo was settled in the house, Zacarias
not only frequented said house but also used to sleep
there nights. All this may have aroused and even partly
confirmed the suspicions of Abelardo, at least to his way
of thinking.
The appellant has all the sympathies of the Court. He
seems to be one of those unfortunate beings, simple, and
even feebleminded, whose faculties have not been fully
developed. His action in picking up the body of his wife
after she fell down to the ground, dead, taking her
upstairs, laying her on the floor, and lying beside her for
hours, shows his feeling of remorse at having killed his
loved one though he thought that she has betrayed him.
Although he did not exactly surrender to the authorities,
still he made no effort to flee and compel the police to hunt
him down and arrest him. In his written statement he
readily admitted that he killed his wife, and at the trial he
made no effort to deny or repudiate said written
statement, thus saving the government all the trouble and
expense of catching him, and insuring his conviction.
Although the deceased was struck in the back, we are not
prepared to find that the aggravating circumstance of
treachery attended the commission of the crime. It seems
that the prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged in the
complaint either in the justice of the peace court or in the
Court of First Instance. We are inclined to give him the
benefit of the doubt and we therefore declined to find the
existence of this aggravating circumstance. On the other
hand, the fact that the accused is feebleminded warrants
the finding in his favor of the mitigating circumstance
provided for in either paragraph 8 or paragraph 9 of article
13 of the Revised Penal Code, namely that the accused
is "suffering some physical defect which thus restricts his
means of action, defense, or communication with his
fellow beings," or such illness "as would diminish the
exercise of his will power." To this we may add the
mitigating circumstance in paragraph 6 of the same
article, — that of having acted upon an impulse so
powerful as naturally to have produced passion or
obfuscation. The accused evidently killed his wife in a fit
of jealousy.
With the presence of two mitigating circumstances without
any aggravating circumstance to offset them, at first we
thought of the possible applicability of the provisions of
article 64, paragraph 5 of the Revised Penal Code for the
purpose of imposing the penalty next lower to that
prescribed by article 246 for parricide, which is reclusion
81
perpetua to death. It will be observed however, that article
64 refers to the application of penalties which contain
three periods whether it be a single divisible penalty or
composed of three different penalties, each one of which
forms a period in accordance with the provisions of
articles 76 and 77, which is not true in the present case
where the penalty applicable for parricide is composed
only of two indivisible penalties. On the other hand, article
63 of the same Code refers to the application of indivisible
penalties whether it be a single divisible penalty, or two
indivisible penalties like that of reclusion perpetua to
death. It is therefore clear that article 63 is the one
applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when
the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance,
the lesser penalty shall be applied. Interpreting a similar
legal provision the Supreme Court in the case of United
States vs. Guevara (10 Phil. 37), involving the crime of
parricide, in applying article 80, paragraph 2 (rule 3 of the
old Penal Code) which corresponds to article 63,
paragraph 2 (rule 3 of the present Revised Penal Code),
thru Chief Justice Arellano said the following:
And even though the court should take into
consideration the presence of two mitigating
circumstances of a qualifying nature, which it can
not afford to overlook, without any aggravating
one, the penalty could not be reduced to the next
lower to that imposed by law, because, according
to a ruling of the court of Spain, article 80 above-
mentioned does not contain a precept similar to
that contained in Rule 5 of article 81 (now Rule 5,
art. 64 of the Rev. Penal Code.) (Decision of
September 30, 1879.)
Yet, in view of the excessive penalty imposed, the
strict application of which is inevitable and which,
under the law, must be sustained, this court now
resorts to the discretional power conferred by
paragraph 2 of article 2 of the Penal Code; and.
Therefore, we affirm the judgment appealed from
with costs, and hereby order that a proper petition
be filed with the executive branch of the
Government in order that the latter, if it be
deemed proper in the exercise of the prerogative
vested in it by the sovereign power, may reduce
the penalty to that of the next lower.
Then, in the case of People vs. Castañeda (60 Phil. 604),
another parricide case, the Supreme Court in affirming the
judgment of conviction sentencing defendant to reclusion
perpetua, said that notwithstanding the numerous
mitigating circumstances found to exist, inasmuch as the
penalty for parricide as fixed by article 246 of the Revised
Penal Code is composed of two indivisible penalties,
namely, reclusion perpetua to death, paragraph 3 of
article 63 of the said Code must be applied. The Court
further observed:
We are likewise convinced that appellant did not
have that malice nor has exhibited such moral
turpitude as requires life imprisonment, and
therefore under the provisions of article 5 of the
Revised Penal Code, we respectfully invite the
attention of the Chief Executive to the case with a
view to executive clemency after appellant has
served an appreciable amount of confinement.
In conclusion, we find the appellant guilty of parricide and
we hereby affirm the judgment of the lower court with the
modification that the appellant will be credited with one-
half of any preventive imprisonment he has undergone.
Appellant will pay costs.
Following the attitude adopted and the action taken by this
same court in the two cases above cited, and believing
that the appellant is entitled to a lighter penalty, this case
should be brought to the attention of the Chief Executive
who, in his discretion may reduce the penalty to that next
lower to reclusion perpetua to death or otherwise apply
executive clemency in the manner he sees fit.
G.R. No. L-26361 January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee,
vs.
CRISPINO MANCAO and CIRIACO
AGUILAR, defendants-appellants.
VILLA-REAL, J.:
This is an appeal taken by Crispino Mancao and Ciriaco
Aguilar from a judgment of the Court of First Instance of
Cebu convicting them, in accordance with the complaint,
of the crime of homicide, and sentencing each of them to
fourteen years, eight months and one day reclusion
temporal, with accesories of the law, to indemnify, jointly
and severally, the heirs of the deceased Roberto Villela in
the sum of P1,000, and each to pay one-half of the costs.
In support of their appeal, the appellants assign the
following alleged errors as committed by the trial court in
its judgment, to wit: (1) The lower court erred in giving too
much weight to the testimony of Baldomero Villela and
Eusebio Villela, aged 15 and 14 years, respectively, and
in basing its judgment upon said testimony; (2) the lower
court also erred in not holding that the evidence for the
defense preponderates and is more worthy of credit than
that for the prosecution; (3) the lower court likewise erred
in not finding that, in view of the evidence presented by
both parties, the accused are at least entitled to the
benefit of reasonable doubt; (4) the lower court erred in
not holding that the accused Ciriaco Aguilar is mentally
deficient and is, therefore, not criminally liable, and, (5)
82
the lower court erred in sentencing the accused instead of
acquitting them as it should have done in view of the
absence of incriminating evidence.
The prosecution and the defense are agreed that Hilaria
Dejan, upon her death, left personal property, cattle and
real property, the latter consisting of corn fields, some of
which were in the possession of Roberto Villela who had
leased them. The probate of the will of said deceased
Hilaria Dejan, wherein she bequeathed one-half of her
property to her nephew Roberto Villela and her niece
Josefa Billones, having been denied and proceedings for
the administration of the property left by her having been
instituted, Crispino Mancao was appointed administrator
thereof on June 26, 1916. Roberto Villela refused to
deliver the lands in his possession to the administrator,
alleging that the products of the same were to go to the
deceased's creditors. On January 31, 1918, Crispino
Mancao, as administrator of the property of the intestate
estate of Hilaria Dejan, was cited to appear before the
Court of First Instance to explain why almost all the
deceased's property did not appear in the inventory.
As to the disputed facts, the prosecution tried to prove the
following: In the afternoon of August 10, 1925, Crispino
Mancao, accompanied by three men and several women,
approached Graciana Sedimo, Roberto Villela's tenant,
and inquired if there was still corn to be harvested and
divided between her and Roberto Villela by virtue of the
lease. The unharvested and undivided portion of the corn
field having been pointed out to them, the accused
Crispino Mancao ordered the persons with him to begin
harvesting said corn. In view of Crispino Mancao's
actions, Graciana Sedimo ordered her nephew
Baldomero Villela to notify Roberto Villela of the matter.
Upon arriving at the corn field Roberto Villela asked the
harvesters who ordered them to harvest the corn.
Crispino Mancao, who was in the corn field, replied that
he was the one who ordered them to do so and started
towards Roberto Villela. The latter then asked the former
if he had an order from the court to harvest the products.
Crispino Mancao struck him with a bamboo stick and said:
"This is the order." Roberto Villela dodged the blow and
snatched the cane. Having been deprived of his bamboo
stick, Crispino Mancao took hold of his bolo and
attempted to strike Roberto Villela which the latter warded
off with a stick he had in his hand. Crispino Mancao
continued to strike Roberto Villela inflicting but slight
wounds. Upon being attacked, Roberto Villela rushed at
Crispino Mancao and a hand to hand fight ensued, in the
course of which they fell down and the former succeeded
in disarming the latter. After getting up, they continued to
fight, Crispino Mancao receiving a wound on his right
hand and another on the right calf, and seeing that he was
getting the worst of it, shouted for help. A men dressed in
khaki immediately appeared upon the scene and struck
Roberto Villela a blow on the thigh as a result of which he
fell to his knees. While in this position another man,
wearing an undershirt, approached and, after striking him
twice on the thigh, ran away. Crispino Mancao then took
hold of Roberto Villela by the hands and while thus held,
the accused Ciriaco Aguilar struck him with his sickle in
the back as a result of which Roberto Villela fell to the
ground unconscious. Upon Graciana Sedimo and the boy
Baldomero Villela shouting for help, Crispino Mancao left
the place and at about 6:30 in the evening presented
himself to the councilman of the barrio, Victor Bienvenido,
carrying a bolo in his belt, and informed the latter what
had happened. The justice of the peace of Alonguisan,
Cebu, accompanied by the chief of police, upon
investigation at the scene of the combat, found the stick
Exhibit A, and Roberto Villela's belt which had been slit
with a sharp instrument. Upon examination of Roberto
Villela's body which had been taken to Graciana Sedimo's
house, he found a wound caused by a sharp instrument
on the right side of the forehead; a small wound on the
right side of the throat just below the Adam's apple; a large
wound above the left knee; two wounds below the left
knee, one over the other; a deep wound on the spine
which almost completely severed the lumbar region; five
deep wounds in about the same place and a wound in the
palm of the left hand. Conscious of the seriousness of his
condition and the hopelessness of living, Roberto Villela
made a declaration which is contained in Exhibit C. The
wounded man died on August 26, 1925 as a result of said
wounds.
The defense tried to prove that while the accused and his
companions were harvesting the corn on Hilaria Dejan's
land on the afternoon of August 10, 1925, Roberto Villela
approached and inquired: "Who ordered the harvesting of
the corn?" that the accused Crispino Mancao replied: "I
did it by order of the court and not of my own accord," and
at the same time Roberto Villela drew his bolo and
attempted to strike Crispino Mancao a blow on the neck
which the latter succeeded in warding off, only striking the
brim of his hat; that Roberto Villela continued to strike him
and he defended himself by means of the stick which he
had, but in spite of it he received a wound on the left hand,
the stick falling from his hand; that once unarmed Crispino
Mancao rushed at Roberto Villela and grasped him in
order to take the bolo from him; that in doing so Crispino
Mancao took hold of the blade of Roberto Villela's bolo,
wounding the first and second fingers of his right hand;
that in the course of the fight both fell to the ground, and
as Roberto Villela was the taller and stronger of the two,
he succeeded in pinning Crispino Mancao to the ground,
who shouted for help; that the other accused Ciriaco
Aguilar approached and said: "What have you done to
him, he has done you no wrong;" that as Roberto Villela
did not pay any attention to him the accused Ciriaco
Aguilar struck him on the back with a sickle which he
carried; that as Roberto Villela still did not mind him
notwithstanding the wounds he had received on his back,
the accused put the sickle around the former's left thigh
and pulled it, forcing him to incline and free Crispino
Mancao; that while Roberto Villela was on top of Crispino
Mancao he continued kicking Ciriaco Aguilar who
wounded him on the right thigh with his sickle; that one of
the bolo blows of Ciriaco Aguilar aimed at Roberto Villela
hit Crispino Mancao wounding him below the right knee;
83
that Crispino Mancao had no bolo at the time; that the
accused Ciriaco Aguilar is an epileptic and as such is
susceptible to fits which deprive him of his reason and
attempt to commit suicide or homicide without being
aware of it; that, at times, due to his affliction, the accused
Ciriaco Aguilar speaks at random, particularly when
talking for any length of time.
Of the five assignments of error, four relate to findings of
fact made by the trial court, and the fifth to the conclusion
of law based upon said findings of fact.
A careful and detailed examination of the oral and
documentary evidence presented by both parties, and the
consideration given the antecedents of the case and the
circumstances surrounding the commission of the
criminal act, convince us that the accused Crispino
Mancao was the instigator and aggressor, Roberto Villela
having done nothing but to defendant himself, first
disarming the former of his stick with which he was
assaulted, and later of his bolo which he used after having
been assaulted, and later of his bolo which he used after
having been deprived of his stick. Roberto Villela might
have had the advantage in the fight had not one of
Crispino Mancao's laborers, dressed in khaki, come to his
rescue, upon his cry for help, and struck Roberto Villela
on the thigh; then, another man wearing an undershirt
who stuck Roberto Villela several times on the left knee;
and, lastly, the accused Ciriaco Aguilar who struck
Roberto Villela several blows on the back with his sickle,
one of which nearly severed his spine in the lumbar region
which later caused his death.
The allegation of self-defense made by the accused
Crispino Mancao is groundless. The evidence sufficiently
proves that he carried a stick and a bolo while Roberto
Villela was unarmed. The latter refused to surrender the
lands belonging to the intestate estate of the deceased
Hilaria Dejan which were in his possession. And in view
of this and of the fact that it did not appear in the inventory
presented by Crispino Mancao, as administrator, that he
was in possession of said lands, the court cited him to
appear and explain his side of the matter, and ordered him
to take the necessary steps to obtain possession of said
lands. Crispino Mancao ordered the harvesting of the corn
on said lands without any judicial order that effect,
knowing full well that Roberto Villela would object to his
doing so. Crispino Mancao's behaviour showed that he
was ready to face the consequences of his act. In this
state of mind he undoubtedly became annoyed upon
being asked by Roberto Villela, on the afternoon in
question , if he had an order from the court to harvest the
corn, and he replied by striking said Roberto Villela with a
stick, saying that was the order of the court.
While it is true that the wounds which caused Roberto
Villela's death were not inflicted by Crispino Mancao but
by his coaccused Ciriaco Aguilar, yet said Crispino
Mancao having been the instigator and aggressor, and
having called his harvesters to his aid, among them the
said Ciriaco Aguilar, he wanted them to carry out, as in
fact they did, the criminal act started by him and,
therefore, he is liable not only for his own acts, but also
for the acts of those who aided him.
Neither can the defense of lack of free will of the accused
Ciriaco Aguilar, who is an epileptic, be sustained. While
Ciriaco Aguilar, as an epileptic, was susceptible to
nervous attacks that may momentarily deprive him of his
mental faculties and lead him to unconsciously attempt to
take his own life and the lives of others, nevertheless, it
has not been shown that he was under the influence of an
epileptic fit before, during, and immediately after the
aggression.
For the foregoing, we arrive at the conclusion that the said
accused are guilty beyond a reasonable doubt of the
crime imputed to them, each being criminally liable as
principal for having taken direct part in the commission of
the crime.
Wherefore, and no error being found in the judgment
appealed from, the same is hereby affirmed in all its parts,
with the costs against the appellants. So ordered.
G.R. No. L-37673 March 31, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee,
vs.
POTENCIANO TANEO, defendant-appellant.
Carlos S. Tan for appellant.
Attorney-General Jaranilla for appellee.
AVANCEÑA, C.J.:
Potenciano Tadeo live with his wife in his parent's house
of the barrio of Dolores, municipality of Ormoc, Leyte. On
January 16, 1932, a fiesta was being celebrated in the
said barrio and visitors were entertained in the house.
Among them were Fred Tanner and Luis Malinao. Early
that afternoon, Potenciano Taneo, went to sleep and
while sleeping, he suddenly got up, left the room bolo in
hand and, upon meeting his wife who tried to stop him, he
wounded her in the abdomen. Potenciano Taneo attacked
Fred Tanner and Luis Malinao and tried to attack his
father after which he wounded himself. Potenciano's wife
who was then seven months pregnant, died five days later
as a result of her wound, and also the foetus which was
asphyxiated in the mother's womb.
An information for parricide was filed against Potenciano
Taneo, and upon conviction he was sentenced by the trial
court to reclusion perpetua with the accessory penalties,
to indemnity the heirs of the deceased in the sum of P500
and to pay the costs. From this sentence, the defendant
appealed.
84
It appears from the evidence that the day before the
commission of the crime the defendant had a quarrel over
a glass of "tuba" with Enrique Collantes and Valentin
Abadilla, who invited him to come down to fight, and when
he was about to go down, he was stopped by his wife and
his mother. On the day of the commission of the crime, it
was noted that the defendant was sad and weak, and
early in the afternoon he had a severe stomachache
which made it necessary for him to go to bed. It was then
when he fell asleep. The defendant states that when he
fell asleep, he dreamed that Collantes was trying to stab
him with a bolo while Abadilla held his feet, by reason of
which he got up; and as it seemed to him that his enemies
were inviting him to come down, he armed himself with a
bolo and left the room. At the door, he met his wife who
seemed to say to him that she was wounded. Then he
fancied seeing his wife really wounded and in desperation
wounded himself. As his enemies seemed to multiply
around him, he attacked everybody that came his way.
The evidence shows that the defendant not only did not
have any trouble with his wife, but that he loved her
dearly. Neither did he have any dispute with Tanner and
Malinao, or have any motive for assaulting them.
Our conclusion is that the defendant acted while in a
dream and his acts, with which he is charged, were not
voluntary in the sense of entailing criminal liability.
In arriving at this conclusion, we are taking into
consideration the fact that the apparent lack of a motive
for committing a criminal act does not necessarily mean
that there are none, but that simply they are not known to
us, for we cannot probe into depths of one's conscience
where they may be found, hidden away and inaccessible
to our observation. We are also conscious of the fact that
an extreme moral perversion may lead a man commit a
crime without a real motive but just for the sake of
committing it. But under the special circumstances of the
case, in which the victim was the defendant's own wife
whom he dearly loved, and taking into consideration the
fact that the defendant tried to attack also his father, in
whose house and under whose protection he lived,
besides attacking Tanner and Malinao, his guests, whom
he himself invited as may be inferred from the evidence
presented, we find not only a lack of motives for the
defendant to voluntarily commit the acts complained of,
but also motives for not committing said acts.
Doctor Serafica, an expert witness in this case, is also of
the same opinion. The doctor stated that considering the
circumstances of the case, the defendant acted while in a
dream, under the influence of an hallucination and not in
his right mind.
We have thus far regarded the case upon the supposition
that the wound of the deceased was direct result of the
defendant's act performed in order to inflict it.
Nevertheless we may say further that the evidence does
not clearly show this to have been the case, but that it may
have been caused accidentally. Nobody saw how the
wound was inflicted. The defendant did not testify that he
wounded his wife. He only seemed to have heard her say
that she was wounded. What the evidence shows is that
the deceased, who was in the sala, intercepted the
defendant at the door of the room as he was coming out.
The defendant did not dream that he was assaulting his
wife but he was defending himself from his enemies. And
so, believing that his wife was really wounded, in
desperation, he stabbed himself.
In view of all these considerations, and reserving the
judgment appealed from, the courts finds that the
defendant is not criminally liable for the offense with which
he is charged, and it is ordered that he be confined in the
Government insane asylum, whence he shall not be
released until the director thereof finds that his liberty
would no longer constitute a menace, with costs de oficio.
So ordered.
G.R. No. L-33877 February 6, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-
Appellee, vs. JUAN N. GIMENA, Defendant-Appellant.
OSTRAND, J.:
The defendant Juan N. Gimena is charged with the crime
of parricide. It appears from the evidence that on the
morning of April 9, 1930, in the municipality of Ronda,
Province of Cebu, the defendant helped his father-in-law,
Gregorio Diana, in cleaning bamboo. After having finished
the cleaning he went home and upon arriving there he
found his wife Crispina Diana and a child 2 weeks of age
sleeping together on the floor. Shortly afterwards
Gregorio Diana heard his daughter, the defendant's wife,
cry for help. He went to the defendant's house which was
close to his own and there found the defendant attacking
Crispina with a bolo. With the assistance of Teodulo
Gimena, a brother of the defendant, Gregorio succeeded
in disarming the defendant and tied him to a post of the
house. The matter was then reported to the authorities
and the justice of the peace, the chief of police, a sanitary
inspector and a policeman appeared on the scene. The
justice of the peace asked the defendant why he had
attacked his wife and received the answer that it was
because she had given the sum of P2.70 to one Apolinar
Sereno whom he, the defendant, suspected of illicit
relations with the wife. A few hours later on the same day
Crispina Diana died and the examination subsequently
made disclosed ten wounds in different parts of her
body.chanroblesvirtualawlibrary chanrobles virtual law
library
After trial the court below found the defendant guilty of
parricide and considering in his favor the mitigating
circumstances of obfuscation and lack of instruction,
sentenced him to suffer fourteen years and eight months
and one day of cadena temporal with the accessory
penalties prescribed by law and to pay the costs. From
85
this judgment the defendant
appealed.chanroblesvirtualawlibrary chanrobles virtual
law library
The appellant's argument in his favor is that he was in a
state of somnambulism when he attacked his wife. We do
not think that this theory can serve as a defense in the
present case. By order of the trial court the defendant was
placed under observation for some time by Dr. Luis B.
Gomez, but the doctor apparently did not discover any
somnambulism on the part of the defendant. A defense of
that character must be proven and such proof is lacking
in this case.
The defense that the offense charged was committed by
the accused during the prevalence of or in a state of
somnambulism has been recognized; but the latest
holding of courts is to the effect that it does not constitute
a defense other than that embraced in a plea of insanity.
(Wharton's Criminal Law, Vol. 1, p. 574.)
We can find no error in the decision of the court below and
the appealed judgment is therefore affirmed with the costs
against the appellant. So ordered.
[G.R. No. 46836. January 11, 1940.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
LAMBERTO YCO y GUEVARRA, (alias LAMBERTO
ICO), Defendant-Appellant.
Antonio T. Carrascaso, Jr.; for Appellant.
Solicitor-General Roman Ozaeta and Assistant
Attorney Rafael Amparo; for Appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE, EFFECT OF
PLEA OF GUILTY TO INFORMATION CHARGING
ROBBERY IN AN INHABITED HOUSE. — The appellant
was charged with robbery in an inhabited house and the
information contains specific averments to that effect. By
the appellants plea of guilty, he admitted unqualifiedly the
facts alleged in the information. The lower court,
therefore, erred in finding him guilty of robbery in an
uninhabited house.
DECISION
LAUREL, J.:
On June 27, 1939, Lamberto Yco y Guevarra (alias
Lamberto Ico), was charged in the Court of First Instance
of Manila with robbery in an inhabited house.
Notwithstanding the plea of guilty entered by him, the trial
court found him guilty of robbery in an uninhabited house
and sentenced him to an indeterminate penalty of not less
than four months and one day of arresto mayor, nor more
than six years of prision correctional, with the accessory
penalties of the law and to pay the costs. From this
judgment, he has appealed to this Court.
The appellant was charged with robbery in an inhabited
house and the information contains specific averments to
that effect. By the appellants plea of guilty, he admitted
unqualifiedly the facts alleged in the information. The
lower court, therefore, erred in finding him guilty of
robbery in an uninhabited house.
The judgment appealed from is hereby modified, and the
appellant held guilty of robbery in an inhabited house,
defined and punished under article 299 (b), penultimate
paragraph of the Revised Penal code, and sentenced to
suffer an interminate sentence of four months of arresto
mayor to two years and four months prision correccional,
with the accessory penalties, to indemnify the offended
party, Sancho Tolentino, in the sum of P92, and to pay the
costs. So ordered.
G.R. No. 208719 June 9, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROGER RINGOR UMAWID, Accused-Appellant.
RESOLUTION
PERLAS-BERNABE, J.:
Assailed in this ordinary appeal1 filed by accused-
appellant Roger Ringor Umawid (Umawid) is the
Decision2 dated February 28, 2013 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 05332 which
affirmed the Joint Decision3 dated November 8, 2011 of
the Regional Trial Court of Roxas, Isabela, Branch 23
(RTC) in Criminal Case Nos. 23-04714 and 23-0543,
finding Umawid guilty of the crimes of Murder and
Frustrated Murder, defined and penalized under Article
248 of the Revised Penal Code, as amended (RPC). The
Informations5 therefor read as follows:
Criminal Case No. Br. 23-0471
That on or about the 26th day of November, 2002, in the
municipality of San Manuel, province of Isabela,
Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with intent to kill and with evident
premeditation and treachery, did then and there, willfully,
unlawfully and feloniously, assault, attack and hack with a
long bolo (panabas) one Maureen Joy Ringor, a two year
old baby girl, inflicting upon her body mortal wounds,
which directly and instantaneously caused her death.
CONTRARY TO LAW.
86
Roxas, Isabela, November 27, 2002.6
Criminal Case No. 23-0543
That on or about the 26th day of November, 2002, in the
municipality of San Manuel, province of Isabela,
Philippines and within the jurisdiction of this Honorable
Court, the said accused, with intent to kill and with evident
premeditation and treachery, did then and there, willfully,
unlawfully and feloniously, assault, attack and hack for
several times with a long bolo (Panabas) one, Jeffrey R.
Mercado, inflicting upon him, incised wounds on the (R)
and (L), hand and on the parietal area, which injuries
would ordinarily cause the death of the said Jeffrey R.
Mercado, thus, performing all the acts of execution which
should have produced the crime of Murder, as a
consequence, but nevertheless, did not produce it, by
reason of causes independent of his will, that is, by the
timely and able medical assistance rendered to the said
Jeffrey R. Mercado, which prevented his death.
CONTRARY TO LAW.
Ilagan for Roxas, Isabela, April 3, 2003.7
The Facts
The prosecution presents the following version of the
facts:
At around 4 o’clock in the afternoon of November 26,
2002, Vicente Ringor (Vicente) was staying with his two
(2)-year old granddaughter, Maureen Joy Ringor
(Maureen), at the terrace of their house located at
Villanueva, San Manuel, Isabela. Suddenly, Umawid
appeared and started attacking Vicente with a panabas
with neither reason nor provocation. While Vicente was
able to evade Umawid’s blows, the latter nevertheless hit
Maureen on her abdomen and back, causing her
instantaneous death. Upon seeing Maureen bloodied,
Umawid walked away.8
Thereafter, Umawid went to a nearby house which was
only five (5) meters away from Vicente’s house9 where his
nephew, Jeffrey R. Mercado (Jeffrey), was sleeping.
Awakened by the commotion, Jeffrey went outside only to
see his uncle charging at him with his panabas.
Instinctively, Jeffrey, along with his sister and cousin,
rushedinside the house to seek for safety. However,
Umawid was able to prevent Jeffrey from closing the door
of the house, and, as such, the former was able to barge
into the said house. Cornered and nowhere else to go,
Jeffrey crouched and covered his head with his arms to
shield him from Umawid’s impending attacks. Eventually,
Umawid delivered fatal hacking blows to Jeffrey, causing
the mutilation of the latter’s fingers. Umawid only stopped
his barrage upon seeing Jeffrey, who was then pretending
to be dead, leaning on the wall and blood-stained.10
For his part, Umawid set up the defense of insanity, but
did not, however, take the witness stand to attestto the
same. Instead, he presented the testimonies of Dr. Arthur
M. Quincina (Dr. Quincina) and Dr. Leonor Andres Juliana
(Dr. Juliana) to bolster his claim. Dr. Quincina testified that
he evaluated Umawid’s psychiatric condition in May 2002,
February 2003, and on March 24, 2003 and found that the
latter was manifesting psychotic symptoms. However, he
could not tell with certainty whether Umawid was
psychotic at the time of the commission of the crimes. On
the other hand, Dr. Juliana failed to testify on Umawid’s
mental state since she merely referred the latter to
another doctor for further evaluation.11
The RTC Ruling
In a Joint Decision12 dated November 8,2011, the RTC
found Umawid guilty beyond reasonable doubt of the
crime of Murder in Criminal Case No. 23-0471, and
sentenced him to suffer the penalty of reclusion perpetua
and ordered him to pay the heirs of Maureen the amounts
of ₱50,000.00 as civil indemnity and ₱50,000.00 as moral
damages. Umawid was also found guilty beyond
reasonable doubt of the crime of Frustrated Murder in
Criminal Case No. 23-0543, and sentenced to suffer the
penalty of imprisonment for an indeterminate period of six
(6) years, eight (8) months, and one (1) day of prision
mayor, as minimum, to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal, as
maximum, and ordered to pay Jeffrey the sum of
₱10,000.00 as moral damages.13
The RTC found that Umawid committed the acts
complained of in the informations and that they were done
in a treacherous manner, considering that Maureen was
only two (2) years old at the time of the attack and thus,
cannot be expected to put up a defense,and that Jeffrey
was never given an opportunity to defend himself.
Further, it did not lend credence to Umawid’s alleged
insanity as the defense failed to show that he was indeed
of unsound mind at the time of the commission of the
crimes.14
Aggrieved, Umawid appealed to the CA.
The CA Ruling
In a Decision15 dated February 28, 2013, the CA affirmed
Umawid’s conviction. It held that by invoking the defense
of insanity, Umawid had, in effect, admitted the
commission of the crimes but nevertheless pleaded to be
exonerated from criminal liability. However, he failed to
prove by clear and positive evidence that he was
actuallyinsane immediately preceding the time of the
commission of the crimes or during their execution.
Dissatisfied with the CA’s ruling, Umawid filed the instant
appeal.
87
The Issue Before the Court
The issue for the Court’s resolution is whether or not
Umawid’s conviction for the crimes of Murderand
Frustrated Murder should be upheld.
The Court's Ruling
Umawid’s appeal is bereft of merit.
A. The Defense of Insanity
Umawid’s plea of insanity as an exempting circumstance
to exonerate himself from criminal liability rests on Article
12 of the RPC which provides:
Art. 12. Circumstances which exempt from criminal
liability.– The following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has
acted during a lucid interval.
Where the imbecile or an insane person has committed
an act which the law defines as a felony (delito), the court
shall order his confinement in one of the hospitals or
asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the
permission of the same court.
xxxx
As case law instructs, the defense of insanity is in the
nature of confession and avoidance because an accused
invoking the same admits to have committed the crime but
claims that he or she is not guilty because of such
insanity. As there is a presumption in favor of sanity,
anyone who pleads the said defense bears the burden of
proving it with clear and convincing evidence.
Accordingly, the evidence on this matter must relate to the
time immediately preceding or simultaneous with the
commission of the offense/s with which he is charged.16
Insanity exists when there is a complete deprivation of
intelligence while committing the act, i.e., when the
accused is deprived of reason, he acts without the least
discernment because there is a complete absence of
power to discern, or there is total deprivation of freedom
of the will. Mere abnormality of the mental faculties is not
enough, especially if the offender has not lost
consciousness of his acts. Insanity is evinced by a
deranged and perverted condition of the mental faculties
and is manifested in language and conduct. Thus, in order
to lend credence to a defense of insanity, it must be
shown that the accused had no full and clear
understanding of the nature and consequences of his or
her acts.17
In this case, Umawid solely relied on the testimonies of
Dr. Quincina and Dr. Juliana to substantiate his plea of
insanity. Records, however, reveal that Dr. Quincina’s
testimony only showed that he evaluated Umawid’s
mental condition in May 2002, February 2003, and March
2003.18 In other words, he only examined Umawid six (6)
months before the latter committed the crimes and three
(3) months and four (4) months thereafter. Notably, he
admitted that his findings did not include Umawid’s mental
disposition immediately before or at the very moment
when he committed such crimes.19 As such, Dr.
Quincina’s testimony cannot prove Umawid’s insanity.
Neither would Dr. Juliana’s testimony shore up Umawid’s
cause as the former failed to attest to the latter’s mental
condition and even referred him to another doctor for
further evaluation. Given these circumstances, Umawid’s
defense of insanity remained unsubstantiated and, hence,
he was properly adjudged by the RTC and the CA as
criminally liable.
With Umawid’s criminal liability having been established,
the Court now proceeds to examine whether or not
treachery was correctly appreciated as a qualifying
circumstance for the crimes charged.
B. The Qualifying Circumstance of Treachery
Under Article 248 of the RPC, treachery qualifies the
killing of a person to the crime of Murder: Art. 248. Murder.
Any person who, not falling within the provisions of Article
246, shall kill another, shall be guiltyof murder and shall
be punished by reclusion perpetua, to death if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to weaken
the defense, or of means or persons to insure or afford
impunity; (Emphases and underscoring supplied)
xxxx
The concept of treachery in criminallaw is well-
established – there is treachery when the offender
commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended
party might make.20 Based on the foregoing, it may then
be deduced thattwo (2) conditions must concur for
treachery to be appreciated: first, the employment of
means of execution that gives the person attacked no
opportunity to defend himself or to retaliate; and, second,
the means of execution was deliberate or consciously
adopted.21
In this relation, jurisprudence states that an unexpected
and sudden attack which renders the victim unable and
unprepared to put up a defense is the essence of
treachery.22 Likewise, it has been held that the killing of a
88
child is characterized by treachery even if the manner of
the assault is not shown because the weakness of the
victim due to her tender age results in the absence of any
danger to the accused.23
With these principles in mind, the Court agrees with the
findings of the RTC and the CA that treachery was
attendant in the killing of Maureen. The facts of this case
show that Umawid suddenly appeared at the terrace of
Vicente’s house and started attacking Vicente with
panabas. However, the latter was able to evade Umawid’s
attacks, resulting in Maureen being inadvertently hit and
killed in the process. While it was not shown that Umawid
consciously employed treachery so as to insure the death
of Maureen, who was then just two (2) years old at the
time, it is well to reiterate that the killing by an adult of a
minor child is treacherous,24 and thus, qualifies
Maureen’s killing to Murder.
In the same manner, treachery exists in Umawid’s attack
on Jeffrey, albeit the Court disagrees with the RTC and
the CA’s finding that Umawid employed means, methods,
and forms that rendered Jeffrey incapable of raising a
credible defense.25 While it is true that treachery may also
be appreciated even when the victim was warned of the
danger to his person and what is decisive is that the
execution of the attack made it impossible for the victim to
defend himself or to retaliate,26 a review of the factual
circumstances herein would reveal thatit was not
impossible for Jeffrey to put up a defense against
Umawid’s attacks. In fact, Jeffrey was sufficiently
informed of Umawid’s impending assault upon him as he
saw the latter charging at him. Jeffrey even attempted to
prevent Umawid from entering the house, albeit he was
unsuccessful in doing so. Despite this, Jeffrey was still
capable of mounting a defense against Umawid’s attacks
– but it was simply unfortunate that he chose not to do so
when he crouched and covered his head with his arms.
Nevertheless, treachery may still be appreciated on
account of Jeffrey’s minority, considering that he was just
15 years of age when Umawid attacked him. Instructive
on this point is the case of People v. Guzman,27 where it
was held that treachery attended the killing of a 17-year
old victim due to his minority, viz:28
As viewed from the foregoing, the suddenness and
unexpectedness of the attack of appellant and his two
companions rendered Michael defenseless, vulnerable
and without means of escape. It appears that Michael was
unarmed and alone at the time of the attack. Further, he
was merely seventeen years of agethen. In such a
helpless situation, it was absolutely impossible for
Michael to escape or to defend himself against the assault
of appellant and his two companions. Being young and
weak, Michael is certainly no match against adult persons
like appellant and his two companions. Michael was also
outnumbered since he had three assailants, and, was
unarmed when hewas stabbed to death. Appellant and his
two companions took advantage of their size, number,
and weapon in killing Michael. They also deliberately
adopted means and methods in exacting the cruel death
of Michael by first surrounding him, then grabbing his
shoulders and overpowering him. Afterwards, each of
them repeatedly stabbed Michael with a knife at the
stomach until the latter fell lifeless to the ground. The stab
wounds sustained by Michael proved to be fatal as they
severely damaged the latter’s large intestine. The fact that
the place where the incident occurred was lighted and
many people were walking then in different directions
does not negate treachery. It should be made clear that
the essence of treachery is the sudden and unexpected
attack on an unsuspecting victim without the slightest
provocation on his part. This is even more true if the
assailant is an adult and the victim is a minor. Minor
children, who by reason of their tender years, cannot be
expected to put up a defense. Thus, when an adult person
illegally attacks a minor, treachery exists.As we earlier
found, Michael was peacefullywalking and not provoking
anyone to a fight when he was stabbed todeath by
appellant and his two companions. Further, Michael was
a minor at the time of his death while appellant and his
two companions were adult persons.1âwphi1 (Emphases
and underscoring supplied)
In this light, there is no reason not to appreciate the
qualifying circumstance of treachery in an attackagainst a
minor, asin this case.
C. Aberratio Ictus; Due Process Considerations
As a final point, the Court observes that Maureen’s death
is a case of aberratio ictus, given that the fatal blow
therefor was only delivered by mistake as it was actually
Vicente who was Umawid’s intended target. In this regard,
Umawid’s single deed actually resulted in the: (a)
Attempted Murder of Vicente; and (b) Consummated
Murder of Maureen. This may be classified as species of
complex crime defined under Article 4829 of the RPC,
particularly, a delito compuesto, or a compound crime
where a single act produces two (2) or more grave or less
grave felonies.30 Based on the foregoing, Umawid should
have been punished for committing the complex crime of
Murder and Attempted Murder, pursuant to Article 48 in
relation to Article 4(1)31 of the RPC. However, considering
that the information in Criminal Case No. 23-0471 only
charged him with the Murder of Maureen, Umawid cannot
be convicted of a complex crime because to do so would
be violative of his right to due process.32 As held in the
case of Burgos v. Sandiganbayan:33
In criminal cases, where the life and liberty of the accused
is at stake, due process requires that the accused be
informed of the nature and cause of the accusation
against him. An accused cannot be convicted of an
offense unless it is clearly charged in the complaint or
information. To convict him of an offense other than that
charged in the complaint or information would be a
violation of this constitutional right.34 (Emphasis and
underscoring supplied)
89
All told, the Court hereby finds Umawid guilty beyond
reasonable doubt of the crimes of Murder in Criminal
Case No. 23-0471 and Frustrated Murder in Criminal
Case No. 23-0543, defined and penalized under Article
248 of the RPC.
In addition, interest at the rate of six percent (6%) per
annum shall be imposed on all damages awarded from
the date of finality of judgement until fully paid, pursuant
to prevailing jurisprudence.35
WHEREFORE, the appeal is DENIED. The Decision
dated February 28, 2013 of the Court of Appeals in CA-
G.R. CR-HC No. 05332 is hereby AFFIRMED with
MODIFICATION in that interest at the rate of six percent
(6%) per annum shall be imposed on all damages
awarded from the date of finality of judgment, until fully
paid.
SO ORDERED.
G.R. No. 202122 January 15, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BERNABE PAREJA y CRUZ, Accused-Appellant.
DECISION
LEOANRDO-DE CASTRO, J.:
The accused-appellant Bernabe Pareja y Cruz (Pareja) is
appealing the January 19, 2012 Decision1 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 03794, which affirmed
in toto the conviction for Rape and Acts of Lasciviousness
meted out by Branch 113, Regional Trial Court (RTC) of
Pasay City in Criminal Case Nos. 04-1556-CFM and 04-
1557-CFM.2
On May 5, 2004, Pareja was charged with two counts of
Rape and one Attempted Rape. The Informations for the
three charges read as follows:
I. For the two counts of Rape:
Criminal Case No. 04-15 5 6-CFM
That on or about and sometime in the month of February,
2004, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, Bernabe Pareja y Cruz, being the common law
spouse of the minor victim’s mother, through force,
threats and intimidation, did then and there willfully,
unlawfully and feloniously commit an act of sexual assault
upon the person of [AAA3], a minor 13 years of age, by
then and there mashing her breast and inserting his finger
inside her vagina against her will.4
Criminal Case No. 04-1557-CFM
That on or about and sometime in the month of
December, 2003, in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, Bernabe Pareja y Cruz, being the
stepfather of [AAA], a minor 13 years of age, through
force, threats and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of said
minor against her will.5
II. For the charge of Attempted Rape:
Criminal Case No. 04-1558-CFM
That on or about the 27th day of March, 2004, in Pasay
City, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused,
BERNABE PAREJA Y CRUZ, being the common law
spouse of minor victim’s mother by means of force,
threats and intimidation, did then and there willfully,
unlawfully and feloniously commence the commission of
the crime of Rape against the person of minor, [AAA], a13
years old minor by then and there crawling towards her
direction where she was sleeping, putting off her skirt, but
did not perform all the acts of execution which would have
produce[d] the crime of rape for the reason other than his
own spontaneous desistance, that is the timely arrival of
minor victim’s mother who confronted the accused, and
which acts of child abuse debased, degraded and
demeaned the intrinsic worth and dignity of said minor
complainant as a human being.6
On June 17, 2004, Pareja, during his arraignment,
pleaded not guilty to the charges filed against him.7 After
the completion of the pre-trial conference on September
16, 2004,8 trial on the merits ensued.
The antecedents of this case, as narrated by the Court of
Appeals, are as follows:
AAA was thirteen (13) years of age when the alleged acts
of lasciviousness and sexual abuse took place on three
(3) different dates, particularly [in December 2003],
February 2004, and March 27, 2004.
AAA’s parents separated when she was [only eight years
old9]. At the time of the commission of the aforementioned
crimes, AAA was living with her mother and with herein
accused-appellant Bernabe Pareja who, by then, was
cohabiting with her mother, together with three (3) of their
children, aged twelve (12), eleven (11) and nine (9), in x
x x, Pasay City.
The first incident took place [i]n December 2003 [the
December 2003 incident]. AAA’s mother was not in the
house and was with her relatives in Laguna. Taking
advantage of the situation, [Pareja], while AAA was
asleep, placed himself on top of [her]. Then, [Pareja], who
90
was already naked, begun to undress AAA. [Pareja] then
started to suck the breasts of [AAA]. Not satisfied, [Pareja]
likewise inserted his penis into AAA’s anus. Because of
the excruciating pain that she felt, AAA immediately stood
up and rushed outside of their house.
Despite such traumatic experience, AAA never told
anyone about the [December 2003] incident for fear that
[Pareja] might kill her. [Pareja] threatened to kill AAA in
the event that she would expose the incident to anyone.
AAA further narrated that the [December 2003] incident
had happened more than once. According to AAA, in
February 2004 [the February 2004 incident], she had
again been molested by [Pareja]. Under the same
circumstances as the [December 2003 incident], with her
mother not around while she and her half-siblings were
asleep, [Pareja] again laid on top of her and started to
suck her breasts. But this time, [Pareja] caressed [her]
and held her vagina and inserted his finger [i]n it.
With regard to the last incident, on March 27, 2004 [the
March 2004 incident], it was AAA’s mother who saw
[Pareja] in the act of lifting the skirt of her daughter AAA
while the latter was asleep. Outraged, AAA’s mother
immediately brought AAA to the barangay officers to
report the said incident. AAA then narrated to the
barangay officials that she had been sexually abused by
[Pareja] x x x many times x x x.
Subsequently, AAA, together with her mother, proceeded
to the Child Protection Unit of the Philippine General
Hospital for a medical and genital examination. On March
29, 2004, Dr. Tan issued Provisional Medico-Legal Report
Number 2004-03-0091. Her medico-legal report stated
the following conclusion:
Hymen: Tanner Stage 3, hymenal remnant from 5-7
o’clock area, Type of hymen: Crescentic
xxxx
Genital findings show Clear Evidence of Blunt Force or
Penetrating Trauma.
After the results of the medico-legal report confirmed that
AAA was indeed raped, AAA’s mother then filed a
complaint for rape before the Pasay City Police Station.
To exculpate himself from liability, [Pareja] offered both
denial and ill motive of AAA against him as his defense.
He denied raping [AAA] but admitted that he knew her as
she is the daughter of his live-in partner and that they all
stay in the same house.
Contrary to AAA’s allegations, [Pareja] averred that it
would have been impossible that the alleged incidents
happened. To justify the same, [Pareja] described the
layout of their house and argued that there was no way
that the alleged sexual abuses could have happened.
According to [Pareja], the house was made of wood, only
about four (4) meters wide by ten (10) meters, and was so
small that they all have to sit to be able to fit inside the
house. Further, the vicinity where their house is located
was thickly populated with houses constructed side by
side. Allegedly, AAA also had no choice but to sleep
beside her siblings.
All taken into account, [Pareja] asseverated that it was
hard to imagine how he could possibly still go about with
his plan without AAA’s siblings nor their neighbors
noticing the same.
Verily, [Pareja] was adamant and claimed innocence as
to the imputations hurled against him by AAA. He
contended that AAA filed these charges against him only
as an act of revenge because AAA was mad at [him] for
being the reason behind her parents’ separation.10
Ruling of the RTC
On January 16, 2009, the RTC acquitted Pareja from the
charge of attempted rape but convicted him of the crimes
of rape and acts of lasciviousness in the December 2003
and February 2004 incidents, respectively. The
dispositive portion of the Decision11 reads as follows:
WHEREFORE, the herein accused Bernabe Pareja y
Cruz is hereby acquitted from the charge of attempted
rape in Crim. Case No. 04-1558, for want of evidence.
In Crim. Case No. 04-1556, the said accused is
CONVICTED with Acts of Lasciviousness and he is meted
out the penalty of imprisonment, ranging from 2 years, 4
months and 1 day as minimum to 4 years and 2 months
of prision [correccional] as maximum.
In Crim. Case No. 04-1557, the said accused is
CONVICTED as charged with rape, and he is meted the
penalty of reclusion perpetua.
The accused shall be credited in full for the period of his
preventive imprisonment.
The accused is ordered to indemnify the offended party
[AAA], the sum of ₱50,000.00, without subsidiary
imprisonment, in case of insolvency.12
The RTC, in convicting Pareja of the crime of Rape and
Acts of Lasciviousness, gave more weight to the
prosecution’s evidence as against Pareja’s baseless
denial and imputation of ill motive. However, due to the
failure of the prosecution to present AAA’s mother to
testify about what she had witnessed in March 2004, the
RTC had to acquit Pareja of the crime of Attempted Rape
91
in the March 2004 incident for lack of evidence. The RTC
could not convict Pareja on the basis of AAA’s testimony
for being hearsay evidence as she had no personal
knowledge of what happened on March 27, 2004 because
she was sleeping at that time.
Ruling of the Court of Appeals
Wanting to reverse his two convictions, Pareja
appealed13 to the Court of Appeals, which on January 19,
2012, affirmed in toto the judgment of the RTC in Criminal
Case Nos. 04-1556 and 04-1557, to wit:
WHEREFORE, in view of the foregoing premises, the
instant appeal is hereby DENIED and, consequently,
DISMISSED. The appealed Decisions rendered by
Branch 113 of the Regional Trial Court of the National
Capital Judicial Region in Pasay City on January 16, 2009
in Criminal Cases Nos. 04-1556 to 04-1557 are hereby
AFFIRMED in toto.14
Issues
Aggrieved, Pareja elevated his case to this Court15 and
posited before us the following errors as he did before the
Court of Appeals:
I
THE TRIAL COURT SERIOUSLY ERRED IN
CONVICTING [PAREJA] OF THE CRIMES CHARGED
NOTWITHSTANDING THAT HIS GUILT HAS NOT BEEN
PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
[PAREJA] BASED SOLELY ON THE PROSECUTION
WITNESS’ TESTIMONY.16
In his Supplemental Brief17 Pareja added the following
argument:
The private complainant’s actuations after the incident
negate the possibility that she was raped.18
Pareja’s main bone of contention is the reliance of the
lower courts on the testimony of AAA in convicting him for
rape and acts of lasciviousness. Simply put, Pareja is
attacking the credibility of AAA for being inconsistent.
Moreover, he claimed, AAA acted as if nothing happened
after the alleged sexual abuse.
Ruling of this Court
This Court finds no reason to reverse Pareja’s conviction.
Core Issue: Credibility of AAA
Pareja claims that AAA’s testimony cannot be the lone
basis of his conviction as it was riddled with
inconsistencies.19
We find such argument untenable.
When the issue of credibility of witnesses is presented
before this Court, we follow certain guidelines that have
overtime been established in jurisprudence. In People v.
Sanchez,20 we enumerated them as follows:
First, the Court gives the highest respect to the RTC’s
evaluation of the testimony of the witnesses, considering
its unique position in directly observing the demeanor of a
witness on the stand. From its vantage point, the trial court
is in the best position to determine the truthfulness of
witnesses.
Second, absent any substantial reason which would
justify the reversal of the RTC’s assessments and
conclusions, the reviewing court is generally bound by the
lower court’s findings, particularly when no significant
facts and circumstances, affecting the outcome of the
case, are shown to have been overlooked or disregarded.
And third, the rule is even more stringently applied if the
CA concurred with the RTC. (Citations omitted.)
The recognized rule in this jurisdiction is that the
"assessment of the credibility of witnesses is a domain
best left to the trial court judge because of his unique
opportunity to observe their deportment and demeanor on
the witness stand; a vantage point denied appellate
courts-and when his findings have been affirmed by the
Court of Appeals, these are generally binding and
conclusive upon this Court."21 While there are recognized
exceptions to the rule, this Court has found no substantial
reason to overturn the identical conclusions of the trial and
appellate courts on the matter of AAA’s credibility.
Besides, inaccuracies and inconsistencies in a rape
victim’s testimony are generally expected.22 As this Court
stated in People v. Saludo23:
Rape is a painful experience which is oftentimes not
remembered in detail. For such an offense is not
analogous to a person’s achievement or accomplishment
as to be worth recalling or reliving; rather, it is something
which causes deep psychological wounds and casts a
stigma upon the victim, scarring her psyche for life and
which her conscious and subconscious mind would opt to
forget. Thus, a rape victim cannot be expected to
mechanically keep and then give an accurate account of
the traumatic and horrifying experience she had
undergone. (Citation omitted.)
Since human memory is fickle and prone to the stresses
of emotions, accuracy in a testimonial account has never
been used as a standard in testing the credibility of a
92
witness.24 The inconsistencies mentioned by Pareja are
trivial and non-consequential matters that merely caused
AAA confusion when she was being questioned. The
inconsistency regarding the year of the December
incident is not even a matter pertaining to AAA’s
ordeal.25 The date and time of the commission of the
crime of rape becomes important only when it creates
serious doubt as to the commission of the rape itself or
the sufficiency of the evidence for purposes of conviction.
In other words, the "date of the commission of the rape
becomes relevant only when the accuracy and
truthfulness of the complainant’s narration practically
hinge on the date of the commission of the
crime."26 Moreover, the date of the commission of the
rape is not an essential element of the crime.27
In this connection, Pareja repeatedly invokes our ruling in
People v. Ladrillo,28 implying that our rulings therein are
applicable to his case. However, the factual
circumstances in Ladrillo are prominently missing in
Pareja’s case. In particular, the main factor for Ladrillo’s
acquittal in that case was because his constitutional right
to be informed of the nature and cause of the accusation
against him was violated when the Information against
him only stated that the crime was committed "on or about
the year 1992." We said:
The peculiar designation of time in the Information clearly
violates Sec. 11, Rule 110, of the Rules Court which
requires that the time of the commission of the offense
must be alleged as near to the actual date as the
information or complaint will permit. More importantly, it
runs afoul of the constitutionally protected right of the
accused to be informed of the nature and cause of the
accusation against him. The Information is not sufficiently
explicit and certain as to time to inform accused-appellant
of the date on which the criminal act is alleged to have
been committed.
The phrase "on or about the year 1992" encompasses not
only the twelve (12) months of 1992 but includes the years
prior and subsequent to 1992, e.g., 1991 and 1993, for
which accused-appellant has to virtually account for his
whereabouts. Hence, the failure of the prosecution to
allege with particularity the date of the commission of the
offense and, worse, its failure to prove during the trial the
date of the commission of the offense as alleged in the
Information, deprived accused-appellant of his right to
intelligently prepare for his defense and convincingly
refute the charges against him. At most, accused-
appellant could only establish his place of residence in the
year indicated in the Information and not for the particular
time he supposedly committed the rape.
xxxx
Indeed, the failure of the prosecution to prove its
allegation in the Information that accused-appellant raped
complainant in 1992 manifestly shows that the date of the
commission of the offense as alleged was based merely
on speculation and conjecture, and a conviction anchored
mainly thereon cannot satisfy the quantum of evidence
required for a pronouncement of guilt, that is, proof
beyond reasonable doubt that the crime was committed
on the date and place indicated in the
Information.29 (Citation omitted.)
In this case, although the dates of the December 2003
and February 2004 incidents were not specified, the
period of time Pareja had to account for was fairly short,
unlike "on or about the year 1992." Moreover, Ladrillo was
able to prove that he had only moved in the house where
the rape supposedly happened, in 1993, therefore
negating the allegation that he raped the victim in that
house in 1992.30
While it may be true that the inconsistencies in the
testimony of the victim in Ladrillo contributed to his
eventual acquittal, this Court said that they alone were not
enough to reverse Ladrillo’s conviction, viz:
Moreover, there are discernible defects in the complaining
witness’ testimony that militates heavily against its being
accorded the full credit it was given by the trial court.
Considered independently, the defects might not suffice
to overturn the trial court’s judgment of conviction, but
assessed and weighed in its totality, and in relation to the
testimonies of other witnesses, as logic and fairness
dictate, they exert a powerful compulsion towards
reversal of the assailed judgment.31 (Emphasis supplied.)
It is worthy to note that Ladrillo also offered more than just
a mere denial of the crime charged against him to
exculpate him from liability. He also had an alibi, which,
together with the other evidence, produced reasonable
doubt that he committed the crime as charged. In contrast,
Pareja merely denied the accusations against him and
even imputed ill motive on AAA.
As regards Pareja’s concern about AAA’s lone testimony
being the basis of his conviction, this Court has held:
Furthermore, settled is the rule that the testimony of a
single witness may be sufficient to produce a conviction,
if the same appears to be trustworthy and reliable. If
credible and convincing, that alone would be sufficient to
convict the accused. No law or rule requires the
corroboration of the testimony of a single witness in a rape
case.32 (Citations omitted.)
Improbability of sexual abuse in their small house and in
the presence of AAA’s sleeping siblings
Pareja argues that it was improbable for him to have
sexually abused AAA, considering that their house was so
small that they had to sleep beside each other, that in fact,
when the alleged incidents happened, AAA was sleeping
beside her younger siblings, who would have noticed if
anything unusual was happening.33
93
This Court is not convinced. Pareja’s living conditions
could have prevented him from acting out on his beastly
desires, but they did not. This Court has observed that
many of the rape cases appealed to us were not always
committed in seclusion. Lust is no respecter of time or
place,34 and rape defies constraints of time and space. In
People v. Sangil, Sr.,35 we expounded on such
occurrence in this wise:
In People v. Ignacio, we took judicial notice of the
interesting fact that among poor couples with big families
living in small quarters, copulation does not seem to be a
problem despite the presence of other persons around
them. Considering the cramped space and meager room
for privacy, couples perhaps have gotten used to quick
and less disturbing modes of sexual congresses which
elude the attention of family members; otherwise, under
the circumstances, it would be almost impossible to
copulate with them around even when asleep. It is also
not impossible nor incredible for the family members to be
in deep slumber and not be awakened while the sexual
assault is being committed. One may also suppose that
growing children sleep more soundly than grown-ups and
are not easily awakened by adult exertions and
suspirations in the night. There is no merit in appellant’s
contention that there can be no rape in a room where
other people are present. There is no rule that rape can
be committed only in seclusion. We have repeatedly
declared that "lust is no respecter of time and place," and
rape can be committed in even the unlikeliest of places.
(Citations omitted.)
Demeanor of AAA as a rape victim
Pareja asseverates that AAA’s demeanor and conduct
belie her claim that she was raped. He said that "the
ordinary Filipina [would have summoned] every ounce of
her strength and courage to thwart any attempt to
besmirch her honor and blemish her purity." Pareja
pointed out that they lived in a thickly populated area such
that any commotion inside their house would have been
easily heard by the neighbors, thus, giving AAA the
perfect opportunity to seek their help.36 Moreover, Pareja
said, AAA’s delay in reporting the incidents to her mother
or the authorities negates the possibility that he indeed
committed the crimes. AAA’s belated confession, he
claimed, "cannot be dismissed as trivial as it puts into
serious doubt her credibility."37
A person accused of a serious crime such as rape will
tend to escape liability by shifting the blame on the victim
for failing to manifest resistance to sexual abuse.
However, this Court has recognized the fact that no clear-
cut behavior can be expected of a person being raped or
has been raped. It is a settled rule that failure of the victim
to shout or seek help do not negate rape. Even lack of
resistance will not imply that the victim has consented to
the sexual act, especially when that person was
intimidated into submission by the accused. In cases
where the rape is committed by a relative such as a father,
stepfather, uncle, or common law spouse, moral influence
or ascendancy takes the place of violence.38 In this case,
AAA’s lack of resistance was brought about by her fear
that Pareja would make good on his threat to kill her if she
ever spoke of the incident.
AAA’s conduct, i.e., acting like nothing happened, after
being sexually abused by Pareja is also not enough to
discredit her. Victims of a crime as heinous as rape,
cannot be expected to act within reason or in accordance
with society’s expectations. It is unreasonable to demand
a standard rational reaction to an irrational experience,
especially from a young victim. One cannot be expected
to act as usual in an unfamiliar situation as it is impossible
to predict the workings of a human mind placed under
emotional stress. Moreover, it is wrong to say that there is
a standard reaction or behavior among victims of the
crime of rape since each of them had to cope with different
circumstances.39
Likewise, AAA’s delay in reporting the incidents to her
mother or the proper authorities is insignificant and does
not affect the veracity of her charges. It should be
remembered that Pareja threatened to kill her if she told
anyone of the incidents. In People v. Ogarte,40 we
explained why a rape victim’s deferral in reporting the
crime does not equate to falsification of the accusation, to
wit:
The failure of complainant to disclose her defilement
without loss of time to persons close to her or to report the
matter to the authorities does not perforce warrant the
conclusion that she was not sexually molested and that
her charges against the accused are all baseless, untrue
and fabricated. Delay in prosecuting the offense is not an
indication of a fabricated charge. Many victims of rape
never complain or file criminal charges against the rapists.
They prefer to bear the ignominy and pain, rather than
reveal their shame to the world or risk the offenders’
making good their threats to kill or hurt their victims.
(Citation omitted.)
Medical examination not indispensable
Pareja avers that the Medico-Legal Report indicating that
there is evidence of blunt force or penetrating trauma
upon examination of AAA’s hymen, "cannot be given any
significance, as it failed to indicate how and when the said
signs of physical trauma were inflicted." Furthermore,
Pareja said, the findings that AAA’s hymen sustained
trauma cannot be utilized as evidence against him as the
alleged sexual abuse that occurred in December, was not
by penetration of the vagina.41
This Court has time and again held that an accused can
be convicted of rape on the basis of the sole testimony of
the victim. In People v. Colorado,42 we said:
94
[A] medical certificate is not necessary to prove the
commission of rape, as even a medical examination of the
victim is not indispensable in a prosecution for rape.
Expert testimony is merely corroborative in character and
not essential to conviction. x x x.
Therefore, the absence of testimony or medical certificate
on the state of AAA’s anus at the time she was examined
is of no consequence. On the contrary, the medical
examination actually bolsters AAA’s claim of being raped
by Pareja on more than one occasion, and not just by anal
penetration. However, as the prosecution failed to
capitalize on such evidence and prove the incidence of
carnal knowledge, Pareja cannot be convicted of rape
under paragraph 1 of Article 266-A of the Revised Penal
Code.
In People v. Perez,43 this Court aptly held:
This Court has held time and again that testimonies of
rape victims who are young and immature deserve full
credence, considering that no young woman, especially
of tender age, would concoct a story of defloration, allow
an examination of her private parts, and thereafter pervert
herself by being subject to a public trial, if she was not
motivated solely by the desire to obtain justice for the
wrong committed against her. Youth and immaturity are
generally badges of truth. It is highly improbable that a girl
of tender years, one not yet exposed to the ways of the
world, would impute to any man a crime so serious as
rape if what she claims is not true. (Citations omitted.)
Criminal Case No. 04-1557-CFM:
The December 2003 Incident
In Criminal Case No. 04-1557-CFM or the December
2003 incident, Pareja was charged and convicted of the
crime of rape by sexual assault. The enactment of
Republic Act No. 8353 or the Anti-Rape Law of 1997,
revolutionized the concept of rape with the recognition of
sexual violence on "sex-related" orifices other than a
woman’s organ is included in the crime of rape; and the
crime’s expansion to cover gender-free rape. "The
transformation mainly consisted of the reclassification of
rape as a crime against persons and the introduction of
rape by ‘sexual assault’ as differentiated from the
traditional ‘rape through carnal knowledge’ or ‘rape
through sexual intercourse.’"44 Republic Act No. 8353
amended Article 335, the provision on rape in the Revised
Penal Code and incorporated therein Article 266-A which
reads:
Article 266-A. Rape, When and How Committed. – Rape
is committed –
1) By a man who shall have carnal knowledge of a woman
under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is
otherwise unconscious,
c) By means of fraudulent machination or grave abuse of
authority;
d) When the offended party is under twelve (12) years of
age or is demented, even though none of the
circumstances mentioned above be present;
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another person’s
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person.
Thus, under the new provision, rape can be committed in
two ways:
1. Article 266-A paragraph 1 refers to Rape
through sexual intercourse, also known as "organ
rape" or "penile rape."45 The central element in
rape through sexual intercourse is carnal
knowledge, which must be proven beyond
reasonable doubt.46
2. Article 266-A paragraph 2 refers to rape by
sexual assault, also called "instrument or object
rape," or "gender-free rape."47 It must be
attended by any of the circumstances
enumerated in subparagraphs (a) to (d) of
paragraph 1.48
In People v. Abulon,49 this Court differentiated the two
modes of committing rape as follows:
(1) In the first mode, the offender is always a man,
while in the second, the offender may be a man
or a woman;
(2) In the first mode, the offended party is always
a woman, while in the second, the offended party
may be a man or a woman;
(3) In the first mode, rape is committed through
penile penetration of the vagina, while the second
is committed by inserting the penis into another
person’s mouth or anal orifice, or any instrument
or object into the genital or anal orifice of another
person; and
(4) The penalty for rape under the first mode is
higher than that under the second.
Under Article 266-A, paragraph 2 of the Revised Penal
Code, as amended, rape by sexual assault is "by any
95
person who, under any of the circumstances mentioned
in paragraph 1 hereof, shall commit an act of sexual
assault by inserting his penis into another person’s mouth
or anal orifice, or any instrument or object, into the genital
or anal orifice of another person."
AAA positively and consistently stated that Pareja, in
December 2003, inserted his penis into her anus. While
she may not have been certain about the details of the
February 2004 incident, she was positive that Pareja had
anal sex with her in December 2003, thus, clearly
establishing the occurrence of rape by sexual assault. In
other words, her testimony on this account was, as the
Court of Appeals found, clear, positive, and probable.50
However, since the charge in the Information for the
December 2003 incident is rape through carnal
knowledge, Pareja cannot be found guilty of rape by
sexual assault even though it was proven during trial. This
is due to the material differences and substantial
distinctions between the two modes of rape; thus, the first
mode is not necessarily included in the second, and vice-
versa. Consequently, to convict Pareja of rape by sexual
assault when what he was charged with was rape through
carnal knowledge, would be to violate his constitutional
right to be informed of the nature and cause of the
accusation against him.51
Nevertheless, Pareja may be convicted of the lesser
crime of acts of lasciviousness under the variance
doctrine embodied in Section 4, in relation to Section 5,
Rule 120 of the Rules of Criminal Procedure,52 to wit:
SEC. 4. Judgment in case of variance between allegation
and proof. – When there is a variance between the
offense charged in the complaint or information and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is included
in the offense charged, or of the offense charged which is
included in the offense proved.
SEC. 5. When an offense includes or is included in
another. – An offense charged necessarily includes the
offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged
is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part
of those constituting the latter.
Article 336 of the Revised Penal Code provides:
Art. 336. Acts of lasciviousness. — Any person who shall
commit any act of lasciviousness upon other persons of
either sex, under any of the circumstances mentioned in
the preceding article, shall be punished by prisión
correccional.
The elements of the above crime are as follows:
(1) That the offender commits any act of
lasciviousness or lewdness;
(2) That it is done under any of the following
circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of
reason or otherwise unconscious; or
c. When the offended party is under 12
years of age; and
(3) That the offended party is another person of
either sex.53 (Citation omitted.)
Clearly, the above-mentioned elements are present in the
December 2003 incident, and were sufficiently
established during trial. Thus, even though the crime
charged against Pareja was for rape through carnal
knowledge, he can be convicted of the crime of acts of
lasciviousness without violating any of his constitutional
rights because said crime is included in the crime of
rape.54
Nonetheless, the Court takes this case as an opportunity
to remind the State, the People of the Philippines, as
represented by the public prosecutor, to exert more
diligence in crafting the Information, which contains the
charge against an accused. The primary duty of a lawyer
in public prosecution is to see that justice is done55 – to
the State, that its penal laws are not broken and order
maintained; to the victim, that his or her rights are
vindicated; and to the offender, that he is justly punished
for his crime. A faulty and defective Information, such as
that in Criminal Case No. 04-1556-CFM, does not render
full justice to the State, the offended party, and even the
offender. Thus, the public prosecutor should always see
to it that the Information is accurate and appropriate.
Criminal Case No. 04-1556-CFM:
The February 2004 Incident
It is manifest that the RTC carefully weighed all the
evidence presented by the prosecution against Pareja,
especially AAA’s testimony. In its scrutiny, the RTC found
AAA’s declaration on the rape in the December 2003
incident credible enough to result in a conviction, albeit
this Court had to modify it as explained above. However,
it did not find that the same level of proof, i.e., beyond
reasonable doubt, was fully satisfied by the prosecution in
its charge of attempted rape and a second count of rape
against Pareja. In Criminal Case No. 04-1556-CFM, or the
February 2004 incident, the RTC considered AAA’s
96
confusion as to whether or not she was actually
penetrated by Pareja, and eventually resolved the matter
in Pareja’s favor.
This Court agrees with such findings. AAA, in her
Sinumpaang Salaysay,56 stated that aside from sucking
her breasts, Pareja also inserted his finger in her vagina.
However, she was not able to give a clear and convincing
account of such insertion during her testimony. Despite
being repeatedly asked by the prosecutor as to what
followed after her breasts were sucked, AAA failed to
testify, in open court, that Pareja also inserted his finger
in her vagina. Moreover, later on, she added that Pareja
inserted his penis in her vagina during that incident. Thus,
because of the material omissions and inconsistencies,
Pareja cannot be convicted of rape in the February 2004
incident. Nonetheless, Pareja’s acts of placing himself on
top of AAA and sucking her breasts, fall under the crime
of acts of lasciviousness, which, as we have discussed
above, is included in the crime of rape.
Verily, AAA was again positive and consistent in her
account of how Pareja sucked both her breasts in the
February 2004 incident. Thus, Pareja was correctly
convicted by the courts a quo of the crime of acts of
lasciviousness.
Defense of Denial and Improper Motive
Pareja sought to escape liability by denying the charges
against him, coupled with the attribution of ill motive
against AAA. He claims that AAA filed these cases
against him because she was angry that he caused her
parents’ separation. Pareja added that these cases were
initiated by AAA’s father, as revenge against him.57
Such contention is untenable. "AAA’s credibility cannot be
diminished or tainted by such imputation of ill
motives.1âwphi1 It is highly unthinkable for the victim to
falsely accuse her father solely by reason of ill motives or
grudge."58 Furthermore, motives such as resentment,
hatred or revenge have never swayed this Court from
giving full credence to the testimony of a minor rape
victim.59 In People v. Manuel,60 we held:
Evidently, no woman, least of all a child, would concoct a
story of defloration, allow examination of her private parts
and subject herself to public trial or ridicule if she has not,
in truth, been a victim of rape and impelled to seek justice
for the wrong done to her being. It is settled jurisprudence
that testimonies of child-victims are given full weight and
credit, since when a woman or a girl-child says that she
has been raped, she says in effect all that is necessary to
show that rape was indeed committed.
Liability for Acts of Lasciviousness
The penalty for acts of lasciviousness under Article 336 of
the Revised Penal Code is prisión correccional in its full
range. Applying the Indeterminate Sentence Law,61 the
minimum of the indeterminate penalty shall be taken from
the full range of the penalty next lower in degree,62 i.e.,
arresto mayor, which ranges from 1 month and 1 day to 6
months.63 The maximum of the indeterminate penalty
shall come from the proper penalty64 that could be
imposed under the Revised Penal Code for Acts of
Lasciviousness,65 which, in this case, absent any
aggravating or mitigating circumstance, is the medium
period of prisión correccional, ranging from 2 years, 4
months and 1 day to 4 years and 2 months.66
In line with prevailing jurisprudence, the Court modifies
the award of damages as follows: ₱20,000.00 as civil
indemnity;67 ₱30,000.00 as moral damages; and
₱10,000.00 as exemplary damages,68 for each count of
acts of lasciviousness. All amounts shall bear legal
interest at the rate of 6% per annum from the date of
finality of this judgment.
WHEREFORE, premises considered, the Decision of the
Court of Appeals in CA-G.R. CR.-H.C. No. 03794 is
hereby AFFIRMED with MODIFICATION. We find
accused-appellant Bernabe Pareja y Cruz GUILTY of two
counts of Acts of Lasciviousness, defined and penalized
under Article 336 of the Revised Penal Code, as
amended. He is sentenced to two (2) indeterminate prison
terms of 6 months of arresto mayor, as minimum, to 4
years and 2 months of prisi6n correccional, as maximum;
and is ORDERED to pay the victim, AAA, ₱20,000.00 as
civil indemnity, ₱30,000.00 as moral damages, and
₱10,000.00 as exemplary damages, for each count of
acts of lasciviousness, all with interest at the rate of 6%
per annum from the date of finality of this judgment.
SO ORDERED.
G.R. No. 187495 April 21, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
EDGAR JUMAWAN, Accused-Appellant.
DECISION
"Among the duties assumed by the husband are his duties
to love, cherish and protect his wife, to give her a home,
to provide her with the comforts and the necessities of life
within his means, to treat her kindly and not cruelly or
inhumanely. He is bound to honor her x x x; it is his duty
not only to maintain and support her, but also to protect
her from oppression and wrong."1
REYES, J.:
Husbands do not have property rights over their wives'
bodies. Sexual intercourse, albeit within the realm of
marriage, if not consensual, is rape. This is the clear State
policy expressly legislated in Section 266-A of the
97
Revised Penal Code (RPC), as amended by Republic Act
(R.A.) No. 8353 or the Anti-Rape Law of 1997.
The Case
This is an automatic review2 of the Decision3 dated July 9,
2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
00353, which affirmed the Judgment4 dated April 1, 2002
of the Regional Trial Court (RTC) of Cagayan de Oro City,
Branch 19, in Criminal Case Nos. 99-668 and 99-669
convicting him to suffer the penalty of reclusion perpetua
for each count.
The Facts
Accused-appellant and his wife, KKK,5 were married on
October 18, 1975. They Ii ved together since then and
raised their four (4) children6 as they put up several
businesses over the years.
On February 19, 1999, KKK executed a Complaint-
Affidavit,7 alleging that her husband, the accused-
appellant, raped her at 3 :00 a.m. of December 3, 1998 at
their residence in Phase 2, Villa Ernesto, Gusa, Cagayan
de Oro City, and that on December 12, 1998, the
accused-appellant boxed her shoulder for refusing to
have sex with him.
On June 11, 1999, the Office of the City Prosecutor of
Cagayan de Oro City issued a Joint Resolution,8 finding
probable cause for grave threats, less serious physical
injuries and rape and recommending that the appropriate
criminal information be filed against the accused-
appellant.
On July 16, 1999, two Informations for rape were filed
before the RTC respectively docketed as Criminal Case
No. 99-6689 and Criminal Case No. 99-669.10 The
Information in Criminal Case No. 99-668 charged the
accused-appellant as follows:
That on or about 10:30 in the evening more or less, of
October 9, 1998, at Gusa, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused by means of force upon
person did then and there wilfully, unlawfully and
feloniously have carnal knowledge with the private
complainant, her [sic] wife, against the latter[']s will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape
Law of 1997.
Meanwhile the Information in Criminal Case No. 99-669
reads:
That on or about 10:30 in the evening more or less, of
October 10, 1998, at Gusa, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused by means of force upon
person did then and there wilfully, unlawfully and
feloniously have carnal knowledge with the private
complainant, her [sic] wife, against the latter's will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape
Law of 1997.
The accused-appellant was arrested upon a warrant
issued on July 21, 1999.11 On August 18, 1999, the
accused-appellant filed a Motion for
Reinvestigation,12 which was denied by the trial court in
an Order13 dated August 19, 1999. On even date, the
accused-appellant was arraigned and he entered a plea
of not guilty to both charges.14
On January 10, 2000, the prosecution filed a Motion to
Admit Amended Information15 averring that the name of
the private complainant was omitted in the original
informations for rape. The motion also stated that KKK,
thru a Supplemental Affidavit dated November 15,
1999,16 attested that the true dates of commission of the
crime are October 16, 1998 and October 1 7, 1998
thereby modifying the dates stated in her previous
complaint-affidavit. The motion was granted on January
18, 2000.17 Accordingly, the criminal informations were
amended as follows:
Criminal Case No. 99-668:
That on or about October 16, 1998 at Gusa, Cagayan de
Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of
force upon person did then and there wilfully, unlawfully
and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.
Contrary to and in violation of R.A. 8353, the Anti-Rape
Law of 1997.18
Criminal Case No. 99-669:
That on or about October 17, 1998 at Gusa, Cagayan de
Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of
force upon person did then and there wilfully, unlawfully
and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.
Contrary to and in violation of R.A. 8353, the Anti-Rape
Law of 1997.19
The accused-appellant was thereafter re-arraigned. He
maintained his not guilty plea to both indictments and a
joint trial of the two cases forthwith ensued.
Version of the prosecution
98
The prosecution's theory was anchored on the
testimonies of KKK, and her daughters MMM and 000,
which, together with pertinent physical evidence, depicted
the following events:
KKK met the accused-appellant at the farm of her parents
where his father was one of the laborers. They got married
after a year of courtship.20 When their first child, MMM,
was born, KKK and the accused-appellant put up a sari-
sari store.21 Later on, they engaged in several other
businesses -trucking, rice mill and hardware. KKK
managed the businesses except for the rice mill, which,
ideally, was under the accused-appellant's supervision
with the help of a trusted employee. In reality, however,
he merely assisted in the rice mill business by
occasionally driving one of the trucks to haul goods.22
Accused-appellant's keenness to make the businesses
flourish was not as fervent as KKK's dedication. Even the
daughters observed the disproportionate labors of their
parents.23 He would drive the trucks sometimes but KKK
was the one who actively managed the businesses.24
She wanted to provide a comfortable life for their children;
he, on the other hand, did not acquiesce with that
objective.25
In 1994, KKK and the accused-appellant bought a lot and
built a house in Villa Ernesto, Gusa, Cagayan de Oro
City.26 Three of the children transferred residence therein
while KKK, the accused-appellant and one of their sons
stayed in Dangcagan, Bukidnon. She shuttled between
the two places regularly and sometimes he accompanied
her.27 In 1998, KKK stayed in Gusa, Cagayan De Oro City
most of the days of the week.28 On Wednesdays, she
went to Dangcagan, Bukidnon to procure supplies for the
family store and then returned to Cagayan de Oro City on
the same day.29
Conjugal intimacy did not really cause marital problems
between KKK and the accused-appellant. It was, in fact,
both frequent and fulfilling. He treated her well and she,
of course, responded with equal degree of
enthusiasm.30 However, in 1997, he started to be brutal in
bed. He would immediately remove her panties and, sans
any foreplay, insert her penis in her vagina. His abridged
method of lovemaking was physically painful for her so
she would resist his sexual ambush but he would threaten
her into submission.31
In 1998, KKK and the accused-appellant started
quarrelling usually upon his complaint that she failed to
attend to him. She was preoccupied with financial
problems in their businesses and a bank loan. He wanted
KKK to stay at home because "a woman must stay in the
house and only good in bed (sic) x x x." She disobeyed
his wishes and focused on her goal of providing a good
future for the children.32
Four days before the subject rape incidents or on October
12, 1998, KKK and the accused-appellant slept together
in Cebu City where the graduation rites of their eldest
daughter were held. By October 14, 1998, the three of
them were already back in Cagayan de Oro City.33
On October 16, 1998, the accused-appellant, his wife
KKK and their children went about their nightly routine.
The family store in their residence was closed at about
9:00 p.m. before supper was taken. Afterwards, KKK and
the children went to the girls' bedroom at the mezzanine
of the house to pray the rosary while the accused-
appellant watched television in the living room.34 OOO
and MMM then prepared their beds. Soon after, the
accused-appellant fetched KKK and bid her to come with
him to their conjugal bedroom in the third floor of the
house. KKK complied.35
Once in the bedroom, KKK changed into a daster and
fixed the matrimonial bed but she did not lie thereon with
the accused-appellant and instead, rested separately in a
cot near the bed. Her reclusive behavior prompted him to
ask angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed."36
KKK insisted to stay on the cot and explained that she had
headache and abdominal pain due to her forthcoming
menstruation. Her reasons did not appease him and he
got angrier. He rose from the bed, lifted the cot and threw
it against the wall causing KKK to fall on the floor.
Terrified, KKK stood up from where she fell, took her
pillow and transferred to the bed.37
The accused-appellant then lay beside KKK and not
before long, expressed his desire to copulate with her by
tapping his fingers on her lap. She politely declined by
warding off his hand and reiterating that she was not
feeling well.38
The accused-appellant again asserted his sexual
yearning and when KKK tried to resist by holding on to her
panties, he pulled them down so forcefully they tore on
the sides.39 KKK stayed defiant by refusing to bend her
legs.40
The accused-appellant then raised KKK's
daster,41 stretched her legs apart and rested his own legs
on them. She tried to wrestle him away but he held her
hands and succeeded in penetrating her. As he was
carrying out his carnal desires, KKK continued to protest
by desperately shouting: "[D]on 't do that to me because
I'm not feeling well."42
With a concrete wall on one side and a mere wooden
partition on the other enclosing the spouses'
bedroom,43 KKK's pleas were audible in the children's
bedroom where MMM lay awake.
99
Upon hearing her mother crying and hysterically shouting:
"Eddie, don't do that to me, have pity on me,"44 MMM
woke up 000 who prodded her to go to their parents'
room.45 MMM hurriedly climbed upstairs, vigorously
knocked on the door of her parents' bedroom and
inquired: "Pa, why is it that Mama is crying?"46 The
accused-appellant then quickly put on his briefs and shirt,
partly opened the door and said: "[D]on 't interfere
because this is a family trouble," before closing it
again.47 Since she heard her mother continue to cry,
MMM ignored his father's admonition, knocked at the
bedroom door again, and then kicked it.48 A furious
accused-appellant opened the door wider and rebuked
MMM once more: "Don't interfere us. Go downstairs
because this is family trouble!" Upon seeing KKK
crouching and crying on top of the bed, MMM boldly
entered the room, approached her mother and asked:
"Ma, why are you crying?" before asking her father: "Pa,
what happened to Mama why is it that her underwear is
torn[?]"49
When MMM received no definite answers to her
questions, she helped her mother get up in order to bring
her to the girls' bedroom. KKK then picked up her tom
underwear and covered herself with a
blanket.50 However, their breakout from the room was not
easy. To prevent KKK from leaving, the accused-
appellant blocked the doorway by extending his arm
towards the knob. He commanded KKK to "[S]tay here,
you sleep in our room," when the trembling KKK pleaded:
"Eddie, allow me to go out." He then held KKK's hands but
she pulled them back. Determined to get away, MMM
leaned against door and embraced her mother tightly as
they pushed their way out.51
In their bedroom, the girls gave their mother some water
and queried her as to what happened.52 KKK relayed:
"[Y]our father is an animal, a beast; he forced me to have
sex with him when I'm not feeling well." The girls then
locked the door and let her rest."53
The accused-appellant's aggression recurred the
following night. After closing the family store on October
17, 1998, KKK and the children took their supper. The
accused-appellant did not join them since, according to
him, he already ate dinner elsewhere. After resting for a
short while, KKK and the children proceeded to the girls'
bedroom and prayed the rosary. KKK decided to spend
the night in the room's small bed and the girls were
already fixing the beddings when the accused-appellant
entered.
"Why are you sleeping in the room of our children", he
asked KKK, who responded that she preferred to sleep
with the children.54 He then scoffed: "Its alright if you will
not go with me, anyway, there are women that could be
paid [P] 1,000.00." She dismissed his comment by turning
her head away after retorting: "So be it." After that, he left
the room.55
He returned 15 minutes later56 and when KKK still refused
to go with him, he became infuriated. He lifted her from
the bed and attempted to carry her out of the room as he
exclaimed: "Why will you sleep here[?] Lets go to our
bedroom." When she defied him, he grabbed her short
pants causing them to tear apart.57 At this point, MMM
interfered, "Pa, don't do that to Mama because we are in
front of you."58
The presence of his children apparently did not pacify the
accused-appellant who yelled, "[E]ven in front of you, I
can have sex of your mother [sic J because I'm the head
of the family." He then ordered his daughters to leave the
room. Frightened, the girls obliged and went to the
staircase where they subsequently heard the pleas of
their helpless mother resonate with the creaking bed.59
The episodes in the bedroom were no less disturbing. The
accused-appellant forcibly pulled KKK's short pants and
panties. He paid no heed as she begged, "[D]on 't do that
to me, my body is still aching and also my abdomen and I
cannot do what you wanted me to do [sic]. I cannot
withstand sex."60
After removing his own short pants and briefs, he flexed
her legs, held her hands, mounted her and forced himself
inside her. Once gratified, the accused-appellant put on
his short pants and briefs, stood up, and went out of the
room laughing as he conceitedly uttered: "[I]t s nice, that
is what you deserve because you are [a] flirt or fond of
sex." He then retreated to the masters' bedroom.61
Sensing that the commotion in their bedroom has ceased,
MMM and OOO scurried upstairs but found the door
locked. MMM pulled out a jalousie window, inserted her
arm, reached for the doorknob inside and disengaged its
lock. Upon entering the room, MMM and OOO found their
mother crouched on the bed with her hair disheveled. The
girls asked: "Ma, what happened to you, why are you
crying?" KKK replied: "[Y}our father is a beast and animal,
he again forced me to have sex with him even if I don't
feel well. "62
Version of the defense
The defense spun a different tale. The accused-
appellant's father owned a land adjacent to that of KKK's
father. He came to know KKK because she brought food
for her father's laborers. When they got married on
October 18, 1975, he was a high school graduate while
she was an elementary graduate.
Their humble educational background did not deter them
from pursuing a comfortable life. Through their joint hard
work and efforts, the couple gradually acquired personal
properties and established their own businesses that
included a rice mill managed by the accused-appellant.
He also drove their trucks that hauled coffee, copra, or
com.63
100
The accused-appellant denied raping his wife on October
16 and 17, 1998. He claimed that on those dates he was
in Dangcagan, Bukidnon, peeling com. On October 7, his
truck met an accident somewhere in Angeles Ranch,
Maluko, Manolo Fortich, Bukidnon. He left the truck by the
roadside because he had to attend MMM's graduation in
Cebu on October 12 with KKK. When they returned to
Bukidnon on October 14, he asked KKK and MMM to
proceed to Cagayan de Oro City and just leave him
behind so he can take care of the truck and buy some
com.64
Ryle Equia (Equia), the spouses' driver from January
1996 until June 1999 corroborated the above claims.
According to him, on October 16, 1998, the accused-
appellant was within the vicinity of the rice mill's loading
area in Dangcagan, Bukidnon, cleaning a pick-up truck.
On October 17, 1998, he and the accused-appellant were
in Dangcagan, Bukidnon, loading sacks of com into the
truck. They finished loading at 3 :00 p.m. The accused-
appellant then instructed Equia to proceed to Maluko,
Manolo Fortich, Bukidnon while the former attended a
fiesta in New Cebu, Kianggat, Dangcagan, Bukidnon. At
around 4:00 p.m., Equia, together with a helper and a
mechanic, left for Maluko in order to tow the stalled truck
left there by the accused-appellant in October 7 and
thereafter, bring it to Cagayan de Oro City together with
the separate truck loaded with com.
They arrived in Maluko at 7:00 p.m. and it took them three
hours to turn the truck around and hoist it to the towing
bar of the other truck. At around 10:00 p.m., the accused-
appellant arrived in Maluko. The four of them then
proceeded to Cagayan de Oro City where they arrived at
3 :00 a.m. of October 18, 1998. The accused-appellant
went to Gusa while the other three men brought the
damaged truck to Cugman.65
The accused-appellant asserted that KKK merely
fabricated the rape charges as her revenge because he
took over the control and management of their businesses
as well as the possession of their pick-up truck in January
1999. The accused-appellant was provoked to do so
when she failed to account for their bank deposits and
business earnings. The entries in their bank account
showed the balance of ₱3,190,539.83 on October 31,
1996 but after only a month or on November 30, 1996, the
amount dwindled to a measly ₱9,894.88.66 Her failure to
immediately report to the police also belies her rape
allegations.67
KKK wanted to cover-up her extra-marital affairs, which
the accused-appellant gradually detected from her odd
behavior. While in Cebu on October 12, 1998 for MMM's
graduation rites, the accused-appellant and KKK had
sexual intercourse. He was surprised when his wife asked
him to get a napkin to wipe her after having sex. He
tagged her request as "high-tech," because they did not
do the same when they had sex in the past. KKK had also
become increasingly indifferent to him. When he arrives
home, it was an employee, not her, who opened the door
and welcomed him. She prettied herself and would no
longer ask for his permission whenever she went out.68
Bebs,69 KKK's cousin and a cashier in their Bukidnon
store, gave the accused-appellant several love letters
purportedly addressed to Bebs but were actually intended
for KKK.70
KKK had more than ten paramours some of whom the
accused-appellant came to know as: Arsenio, Jong-Jong,
Joy or Joey, somebody from the military or the Philippine
National Police, another one is a government employee,
a certain Fernandez and three other priests.71 Several
persons told him about the paramours of his wife but he
never confronted her or them about it because he trusted
her.72
What further confirmed his suspicions was the statement
made by OOO on November 2, 1998. At that time, OOO
was listening loudly to a cassette player. Since he wanted
to watch a television program, he asked OOO to tum
down the volume of the cassette player. She got annoyed,
unplugged the player, spinned around and hit the
accused-appellant's head with the socket. His head bled.
An altercation between the accused-appellant and KKK
thereafter followed because the latter took OOO's side.
During the argument, OOO blurted out that KKK was
better off without the accused-appellant because she had
somebody young, handsome, and a businessman unlike
the accused-appellant who smelled bad, and was old, and
ugly.73
KKK also wanted their property divided between them
with three-fourths thereof going to her and one-fourth to
the accused-appellant. However, the separation did not
push through because the accused-appellant's parents
intervened.74 Thereafter, KKK pursued legal separation
from the accused-appellant by initiating Barangay Case
No. 00588-99 before the Office of Lupong Tagapamayapa
of Gusa, Cagayan de Oro City and thereafter obtaining a
Certificate to File Action dated February 18, 1999.75
Ruling of the RTC
In its Judgment76 dated April 1, 2002, the RTC sustained
the version proffered by the prosecution by giving greater
weight and credence to the spontaneous and
straightforward testimonies of the prosecution's
witnesses. The trial court also upheld as sincere and
genuine the two daughters' testimonies, as it is not natural
in our culture for daughters to testify against their own
father for a crime such as rape if the same was not truly
committed.
The trial court rejected the version of the defense and
found unbelievable the accused-appellant's accusations
of extra-marital affairs and money squandering against
KKK. The trial court shelved the accused-appellant's alibi
101
for being premised on inconsistent testimonies and the
contradicting declarations of the other defense witness,
Equia, as to the accused-appellant's actual whereabouts
on October 16, 1998. Accordingly, the RTC ruling
disposed as follows:
WHEREFORE, the Court hereby finds accused Edgar
Jumawan "GUILTY" beyond reasonable doubt of the two
(2) separate charges of rape and hereby sentences him
to suffer the penalty of reclusion perpetua for each, to pay
complainant [P]50,000.00 in each case as moral
damages, indemnify complainant the sum of (P]75,000.00
in each case, [P]50,000.00 as exemplary damages and to
pay the costs.
SO ORDERED.77
Ruling of the CA
In its Decision78 dated July 9, 2008, the CA affirmed in toto
the RTC ruling. The CA held that Section 14, Rule 110 of
the Rules of Criminal Procedure, sanctioned the
amendment of the original informations. Further, the
accused-appellant was not prejudiced by the amendment
because he was re-arraigned with respect to the
amended informations.
The CA found that the prosecution, through the
straightforward testimony of the victim herself and the
corroborative declarations of MMM and OOO, was able to
establish, beyond reasonable doubt, all the elements of
rape under R.A. No. 8353. The accused-appellant had
carnal knowledge of KKK by using force and intimidation.
The CA also ruled that KKK's failure to submit herself to
medical examination did not negate the commission of the
crime because a medical certificate is not necessary to
prove rape.
The CA rejected the accused-appellant's argument that
since he and KKK are husband and wife with mutual
obligations of and right to sexual intercourse, there must
be convincing physical evidence or manifestations of the
alleged force and intimidation used upon KKK such as
bruises. The CA explained that physical showing of
external injures is not indispensable to prosecute and
convict a person for rape; what is necessary is that the
victim was forced to have sexual intercourse with the
accused.
In addition, the CA noted that the fact that KKK and the
accused-appellant are spouses only reinforces the
truthfulness of KKK's accusations because no wife in her
right mind would accuse her husband of having raped her
if it were not true.
The delay in the filing of the rape complaint was
sufficiently explained by KKK when she stated that she
only found out that a wife may charge his husband with
rape when the fiscal investigating her separate complaint
for grave threats and physical injuries told her about it.
Finally, the CA dismissed the accused-appellant's alibi for
lack of convincing evidence that it was physically
impossible for him to be at his residence in Cagayan de
Oro City at the time of the commission of the crimes,
considering that Dangcagan, Bukidnon, the place where
he allegedly was, is only about four or five hours away.
Accordingly, the decretal portion of the decision read:
WHEREFORE, in the light of the foregoing, the appealed
Judgment is hereby AFFIRMED.
SO ORDERED.79
Hence, the present review. In the Court
Resolution80 dated July 6, 2009, the Court notified the
parties that, if they so desire, they may file their respective
supplemental briefs. In a Manifestation and
Motion81 dated September 4, 2009, the appellee, through
the Office of the Solicitor General, expressed that it
intends to adopt its Brief before the CA. On April 16, 2012,
the accused-appellant, through counsel, filed his
Supplemental Brief, arguing that he was not in Cagayan
de Oro City when the alleged rape incidents took place,
and the presence of force, threat or intimidation is negated
by: (a) KKK's voluntary act of going with him to the
conjugal bedroom on October 16, 1998; (b) KKK's failure
to put up resistance or seek help from police authorities;
and ( c) the absence of a medical certificate and of blood
traces in KKK's panties.82
Our Ruling
I. Rape and marriage: the historical connection
The evolution of rape laws is actually traced to two ancient
English practices of 'bride capture' whereby a man
conquered a woman through rape and 'stealing an
heiress' whereby a man abducted a woman and married
her.83
The rape laws then were intended not to redress the
violation of the woman's chastity but rather to punish the
act of obtaining the heiress' property by forcible
marriage84 or to protect a man's valuable interest in his
wife's chastity or her daughter's virginity.85
If a man raped an unmarried virgin, he was guilty of
stealing her father's property and if a man raped his wife,
he was merely using his property.86
Women were subjugated in laws and society as objects
or goods and such treatment was justified under three
ideologies.
102
Under the chattel theory prevalent during the 6th century,
a woman was the property of her father until she marries
to become the property of her husband.87 If a man
abducted an unmarried woman, he had to pay the owner,
and later buy her from the owner; buying and marrying a
wife were synonymous.88
From the 11th century to the 16th century, a woman lost
her identity upon marriage and the law denied her political
power and status under the feudal doctrine of coverture.89
A husband had the right to chastise his wife and beat her
if she misbehaved, allowing him to bring order within the
family.90
This was supplanted by the marital unity theory, which
espoused a similar concept. Upon marrying, the woman
becomes one with her husband. She had no right to make
a contract, sue another, own personal property or write a
will.91
II. The marital exemption rule
In the 17th century, Sir Matthew Hale (Hale), a Chief
Justice in England, conceived the irrevocable implied
consent theory that would later on emerge as the marital
exemption rule in rape. He stated that:
[T]he husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given up
herself in this kind unto her husband, which she cannot
retract.92
The rule was observed in common law countries such as
the United States of America (USA) and England. It gives
legal immunity to a man who forcibly sexually assaults his
wife, an act which would be rape if committed against a
woman not his wife.93 In those jurisdictions, rape is
traditionally defined as "the forcible penetration of the
body of a woman who is not the wife of the perpetrator."94
The first case in the USA that applied the marital
exemption rule was Commonwealth v.
Fogerty95 promulgated in 1857. The Supreme Judicial
Court of Massachusetts pronounced that it would always
be a defense in rape to show marriage to the victim.
Several other courts adhered to a similar rationale with all
of them citing Hale's theory as basis.96
The rule was formally codified in the Penal Code of New
York in 1909. A husband was endowed with absolute
immunity from prosecution for the rape of his wife.97 The
privilege was personal and pertained to him alone. He had
the marital right to rape his wife but he will be liable when
he aids or abets another person in raping her.98
In the 1970s, the rule was challenged by women's
movements in the USA demanding for its abolition for
being violative of married women's right to be equally
protected under rape laws.99
In 1978, the rule was qualified by the Legislature in New
York by proscribing the application of the rule in cases
where the husband and wife are living apart pursuant to a
court order "which by its terms or in its effects requires
such living apart," or a decree, judgment or written
agreement of separation.100
In 1983, the marital exemption rule was abandoned in
New York when the Court of Appeals of New York
declared the same unconstitutional in People v.
Liberta101 for lack of rational basis in distinguishing
between marital rape and non-marital rape. The decision,
which also renounced Hale's irrevocable implied consent
theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing
between marital rape and nonmarital rape. The various
rationales which have been asserted in defense of the
exemption are either based upon archaic notions about
the consent and property rights incident to marriage or are
simply unable to withstand even the slightest scrutiny. We
therefore declare the marital exemption for rape in the
New York statute to be unconstitutional.
Lord Hale's notion of an irrevocable implied consent by a
married woman to sexual intercourse has been cited most
frequently in support of the marital exemption. x x x Any
argument based on a supposed consent, however, is
untenable. Rape is not simply a sexual act to which one
party does not consent. Rather, it is a degrading, violent
act which violates the bodily integrity of the victim and
frequently causes severe, long-lasting physical and
psychic harm x x x. To ever imply consent to such an act
is irrational and absurd. Other than in the context of rape
statutes, marriage has never been viewed as giving a
husband the right to coerced intercourse on demand x x
x. Certainly, then, a marriage license should not be
viewed as a license for a husband to forcibly rape his wife
with impunity. A married woman has the same right to
control her own body as does an unmarried woman x x x.
If a husband feels "aggrieved" by his wife's refusal to
engage in sexual intercourse, he should seek relief in the
courts governing domestic relations, not in "violent or
forceful self-help x x x."
The other traditional justifications for the marital
exemption were the common-law doctrines that a woman
was the property of her husband and that the legal
existence of the woman was "incorporated and
consolidated into that of the husband x x x." Both these
doctrines, of course, have long been rejected in this State.
Indeed, "[nowhere] in the common-law world - [or] in any
modem society - is a woman regarded as chattel or
demeaned by denial of a separate legal identity and the
dignity associated with recognition as a whole human
being x x x."102 (Citations omitted)
103
By 1993, marital rape was a crime in all 50 states, with 17
of them, as well as the District of Columbia, outlawing the
act without exemptions. Meanwhile, the 33 other states
granted some exemptions to a husband from prosecution
such as when the wife is mentally or physically impaired,
unconscious, asleep, or legally unable to consent.103
III. Marital Rape in the Philippines
Interestingly, no documented case on marital rape has
ever reached this Court until now. It appears, however,
that the old provisions of rape under Article 335 of the
RPC adhered to Hale's irrevocable implied consent
theory, albeit in a limited form. According to Chief Justice
Ramon C. Aquino,104 a husband may not be guilty of rape
under Article 335 of Act No. 3815 but, in case there is
legal separation, the husband should be held guilty of
rape if he forces his wife to submit to sexual
intercourse.105
In 1981, the Philippines joined 180 countries in ratifying
the United Nations Convention on the Elimination of all
Forms of Discrimination Against Women (UN-
CEDAW).106 Hailed as the first international women's bill
of rights, the CEDAW is the first major instrument that
contains a ban on all forms of discrimination against
women. The Philippines assumed the role of promoting
gender equality and women's empowerment as a vital
element in addressing global concerns.107 The country
also committed, among others, to condemn discrimination
against women in all its forms, and agreed to pursue, by
all appropriate means and without delay, a policy of
eliminating discrimination against women and, to this end,
undertook:
(a) To embody the principle of the equality of men
and women in their national constitutions or other
appropriate legislation if not yet incorporated
therein and to ensure, through law and other
appropriate means, the practical realization of
this principle;
(b) To adopt appropriate legislative and other
measures, including sanctions where
appropriate, prohibiting all discrimination against
women;
xxxx
(f) To take all appropriate measures, including
legislation, to modify or abolish existing laws,
regulations, customs and practices which
constitute discrimination against women;
(g) To repeal all national penal provisions which
constitute discrimination against women.108
In compliance with the foregoing international
commitments, the Philippines enshrined the principle of
gender equality in the 1987 Constitution specifically in
Sections 11 and 14 of Article II thereof, thus:
Sec. 11. The State values the dignity of every human
person and guarantees full respect for human rights.
xxxx
Sec. 14. The State recognizes the role of women in
nation-building, and shall ensure the fundamental equality
before the law of women and men. The Philippines also
acceded to adopt and implement the generally accepted
principles of international law such as the CEDA W and
its allied issuances, viz:
Article II, Section 2. The Philippines renounces war as an
instrument of national policy, and adopts the generally
accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
(Emphasis ours)
The Legislature then pursued the enactment of laws to
propagate gender equality. In 1997, R.A. No. 8353
eradicated the stereotype concept of rape in Article 335 of
the RPC.109 The law reclassified rape as a crime against
person and removed it from the ambit of crimes against
chastity. More particular to the present case, and perhaps
the law's most progressive proviso is the 2nd paragraph
of Section 2 thereof recognizing the reality of marital rape
and criminalizing its perpetration, viz:
Article 266-C. Effect of Pardon. - The subsequent valid
marriage between the offended party shall extinguish the
criminal action or the penalty imposed.
In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty:
Provided, That the crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ab initio.
Read together with Section 1 of the law, which
unqualifiedly uses the term "man" in defining rape, it is
unmistakable that R.A. No. 8353 penalizes the crime
without regard to the rapist's legal relationship with his
victim, thus:
Article 266-A. Rape: When And How Committed. - Rape
is committed:
1) By a man who shall have carnal knowledge of a woman
under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason
or otherwise unconscious;
104
 c) By means of fraudulent machination or grave
abuse of authority; and
d) When the offended party is under twelve (12)
years of age or is demented, even though none
of the circumstances mentioned above be
present.
The explicit intent to outlaw marital rape is deducible from
the records of the deliberations of the 10th Congress on
the law's progenitor's, House Bill No. 6265 and Senate Bill
No. 650. In spite of qualms on tagging the crime as
'marital rape' due to conservative Filipino impressions on
marriage, the consensus of our lawmakers was clearly to
include and penalize marital rape under the general
definition of 'rape,' viz:
MR. DAMASING: Madam Speaker, Your Honor, one
more point
of clarification in the House version on Anti-Rape Bill,
House Bill No. 6265, we never agreed to marital rape. But
under Article 266-C, it says here: "In case it is the legal
husband who is the offender... " Does this presuppose
that there is now marital rape? x x x.
MR. LARA: x x x [I]n this jurisdiction, well, I only have a
limited, very limited 17 years of private practice in the legal
profession, Madam Speaker, and I believe that I can put
at stake my license as a lawyer in this jurisdiction there is
no law that prohibits a husband from being sued by the
wife for rape. Even jurisprudence, we don't have any
jurisprudence that prohibits a wife from suing a husband.
That is why even if we don't provide in this bill expanding
the definition of crime that is now being presented for
approval, Madam Speaker, even if we don't provide here
for marital rape, even if we don't provide for sexual rape,
there is the right of the wife to go against the husband.
The wife can sue the husband for marital rape and she
cannot be prevented from doing so because in this
jurisdiction there is no law that prohibits her from doing so.
This is why we had to put second paragraph of 266-C
because it is the belief of many of us. x x x, that if it is true
that in this jurisdiction there is marital rape even if we don't
provide it here, then we must provide for something that
will unify and keep the cohesion of the family together that
is why we have the second paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under
the House version specifically House Bill No. 6265 our
provision on a husband forcing the wife is not marital rape,
it is marital sexual assault.
MR. LARA: That is correct, Madam Speaker.
MR. DAMASING: But here it is marital rape because there
is no crime of sexual assault. So, Your Honor, direct to the
point, under Article 266-C, is it our understanding that in
the second paragraph, quote: "In case it is the legal
husband who is the offender, this refers to marital rape
filed against the husband? Is that correct?
MR. LARA: No, Madam Speaker, not entirely, no. The
answer is no.
MR. DAMASING: So if the husband is guilty of sexual
assault, what do you call- it?
MR. LARA: Sexual assault, Madam Speaker.
MR. DAMASING: There is no crime of sexual assault,
Your Honor, we have already stated that. Because under
1 and 2 it is all denominated as rape, there is no crime of
sexual assault. That is why I am sorry that our House
version which provided for sexual assault was not carried
by the Senate version because all sexual crimes under
this bicameral conference committee report are all now
denominated as rape whether the penalty is from
reclusion perpetua to death or whether the penalty is only
prision mayor. So there is marital rape, Your Honor, is that
correct?
xxxx
MR. DAMASING: Madam Speaker, Your Honor, I am in
favor of this. I am in favor of punishing the husband who
forces the wife even to 30 years imprisonment. But please
do not call it marital rape, call it marital sexual assault
because of the sanctity of marriage. x x x.110 (Emphasis
ours)
HON. APOSTOL: In our version, we did not mention
marital rape but marital rape is not excluded.
HON. ROCO: Yeah. No. But I think there is also no
specific mention.
HON. APOSTOL: No. No. No. Silent lang 'yung marital
rape.
xxxx
HON. ROCO: xx x [I]f we can retain the effect of pardon,
then this marital rape can be implicitly contained in the
second paragraph. x x x So marital rape actually was in
the House version x x x. But it was not another definition
of rape. You will notice, it only says, that because you are
the lawful husband does not mean that you cannot commit
rape. Theoretically, I mean, you can beat up your wife until
she's blue. And if the wife complains she was raped, I
guess that, I mean, you just cannot raise the defense x x
x[:] I am the husband. But where in the marriage contract
does it say that I can beat you up? That's all it means.
That is why if we stop referring to it as marital rape,
acceptance is easy. Because parang ang marital rape,
married na nga kami. I cannot have sex. No, what it is
saying is you're [the] husband but you cannot beat me up.
105
x x x. That's why to me it's not alarming. It was just a way
of saying you're [the] husband, you cannot say when I am
charged with rape x x x.
PRESIDING OFFICER SHAHAN!: All right, so how do you
propose it if we put it in[?]
HON. ROCO: x x x [A]ll we are saying [is] that if you are
the lawful husband does not mean you can have carnal
knowledge by force[,] threat or intimidation or by depriving
your wife reason, a grave abuse of authority, I don't know
how that cannot apply. Di ba yung, or putting an
instrument into the, yun ang sinasabi ko lang, it is not
meant to have another classification of rape. It is all the
same definition x x x.
xxxx
HON.ROCO: What is 266-F? x x x. Now if we can retain
266-F x x x, we can say that this rule is implicit already in
the first proviso. It implies na there is an instance when a
husband can be charged [with] rape x x x.
HON. ROXAS: Otherwise, silent na.
HON. ROCO: Otherwise, we are silent na. So parang i-
delete natin ito. But it is understood that this rule of
evidence is now transport[ed], put into 266-F, the effect of
pardon.
PRESIDING OFFICER APOSTOL: We will retain this
effect of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on
page 3 but we will retain the one on page 8, the effect of
pardon. x x x [I]t is inferred but we leave it because after
all it is just a rule of evidence. But I think we should
understand that a husband cannot beat at his wife to have
sex. Di ha? I think that should be made clear. x x x.
xxxx
HON. ROCO: x x x [W]e are not defining a crime of marital
rape. All we are saying is that if you're [the] legal husband,
Jesus Christ, don't beat up to have sex. I almost want, you
are my wife, why do you have to beat me up.
So, ganoon. So, if we both justify it that way in the Report
as inferred in proviso, I mean, we can face up, I hope, to
the women and they would understand that it is half
achieved.
HON. ZAMORA: I think, Raul, as long as we understand
that we are not defining or creating a new crime but
instead, we are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to
clarify as a rule of evidence the fact that he is husband is
not, does not negate.111
CHAIRMAN LARA: x x x We all agree on the substance
of the point in discussion. The only disagreement now is
where to place it. Let us clear this matter. There are two
suggestions now on marital rape. One is that it is rape if it
is done with force or intimidation or any of the
circumstances that would define rape x x x immaterial.
The fact that the husband and wife are separated does
not come into the picture. So even if they are living under
one roof x x x for as long as the attendant circumstances
of the traditional rape is present, then that is rape.112
PRESIDING OFFICER ANGARA-CASTILLO: Mr.
Chairman, x x x [t]his provision on marital rape, it does not
actually change the meaning of rape. It merely erases the
doubt in anybody's mind, whether or not rape can indeed
be committed by the husband against the wife. So the bill
really says, you having been married to one another is not
a legal impediment. So I don't really think there is any
need to change the concept of rape as defined presently
under the revised penal code. This do[es] not actually add
anything to the definition of rape. It merely says, it is
merely clarificatory. That if indeed the wife has evidence
to show that she was really brow beaten, or whatever or
forced or intimidated into having sexual intercourse
against her will, then the crime of rape has been
committed against her by the husband, notwithstanding
the fact that they have been legally married. It does not
change anything at all, Mr. Chairman.
PRESIDING OFFICER APOSTOL: Yes, I think, there is
no change on this x x x.113
The paradigm shift on marital rape in the Philippine
jurisdiction is further affirmed by R.A. No. 9262,114 which
regards rape within marriage as a form of sexual violence
that may be committed by a man against his wife within or
outside the family abode, viz:
Violence against women and their children refers to any
act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within
or without the family abode, which result in or is likely to
result in. physical, sexual, psychological harm or
suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the
following acts:
A. "Physical Violence" refers to acts that include
bodily or physical harm;
106
 B. "Sexual violence" refers to an act which is
sexual in nature, committed against a woman or
her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her
child as a sex object, making demeaning
and sexually suggestive remarks,
physically attacking the sexual parts of
the victim's body, forcing her/him to
watch obscene publications and indecent
shows or forcing the woman or her child
to do indecent acts and/or make films
thereof, forcing the wife and
mistress/lover to live in the conjugal
home or sleep together in the same room
with the abuser;
b) acts causing or attempting to cause
the victim to engage in any sexual activity
by force, threat of force, physical or other
harm or threat of physical or other harm
or coercion;
c) Prostituting the woman or child.
Statistical figures confirm the above characterization.
Emotional and other forms of non-personal violence are
the most common type of spousal violence accounting for
23% incidence among ever-married women. One in
seven ever-married women experienced physical
violence by their husbands while eight percent (8%)
experienced sexual violence.115
IV. Refutation of the accused-appellant's arguments
The crux of the accused-appellant's plea for acquittal
mirrors the irrevocable implied consent theory. In his
appeal brief before the CA, he posits that the two incidents
of sexual intercourse, which gave rise to the criminal
charges for rape, were theoretically consensual,
obligatory even, because he and the victim, KKK, were a
legally married and cohabiting couple. He argues that
consent to copulation is presumed between cohabiting
husband and wife unless the contrary is proved.
The accused-appellant further claims that this case
should be viewed and treated differently from ordinary
rape cases and that the standards for determining the
presence of consent or lack thereof must be adjusted on
the ground that sexual community is a mutual right and
obligation between husband and wife.116
The contentions failed to muster legal and rational merit.
The ancient customs and ideologies from which the
irrevocable implied consent theory evolved have already
been superseded by modem global principles on the
equality of rights between men and women and respect
for human dignity established in various international
conventions, such as the CEDAW. The Philippines, as
State Party to the CEDAW, recognized that a change in
the traditional role of men as well as the role of women in
society and in the family is needed to achieve full equality
between them. Accordingly, the country vowed to take all
appropriate measures to modify the social and cultural
patterns of conduct of men and women, with a view to
achieving the elimination of prejudices, customs and all
other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women.117 One of such
measures is R.A. No 8353 insofar as it eradicated the
archaic notion that marital rape cannot exist because a
husband has absolute proprietary rights over his wife's
body and thus her consent to every act of sexual intimacy
with him is always obligatory or at least, presumed.
Another important international instrument on gender
equality is the UN Declaration on the Elimination of
Violence Against Women, which was Promulgated118 by
the UN General Assembly subsequent to the CEDA W.
The Declaration, in enumerating the forms of gender-
based violence that constitute acts of discrimination
against women, identified 'marital rape' as a species of
sexual violence, viz:
Article 1
For the purposes of this Declaration, the term "violence
against women" means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life.
Article 2
Violence against women shall be understood to
encompass, but not be limited to, the following:
(a) Physical, sexual and psychological violence occurring
in the family, including battering, sexual abuse of female
children in the household, dowry-related violence, marital
rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence and
violence related to exploitation;119 (Emphasis ours)
Clearly, it is now acknowledged that rape, as a form of
sexual violence, exists within marriage. A man who
penetrates her wife without her consent or against her will
commits sexual violence upon her, and the Philippines, as
a State Party to the CEDA W and its accompanying
Declaration, defines and penalizes the act as rape under
R.A. No. 8353.
A woman is no longer the chattel-antiquated practices
labeled her to be. A husband who has sexual intercourse
with his wife is not merely using a property, he is fulfilling
107
a marital consortium with a fellow human being with
dignity equal120 to that he accords himself. He cannot be
permitted to violate this dignity by coercing her to engage
in a sexual act without her full and free consent. Surely,
the Philippines cannot renege on its international
commitments and accommodate conservative yet
irrational notions on marital activities121 that have lost their
relevance in a progressive society.
It is true that the Family Code,122 obligates the spouses to
love one another but this rule sanctions affection and
sexual intimacy, as expressions of love, that are both
spontaneous and mutual123 and not the kind which is
unilaterally exacted by force or coercion.
Further, the delicate and reverent nature of sexual
intimacy between a husband and wife excludes cruelty
and coercion. Sexual intimacy brings spouses wholeness
and oneness. It is a gift and a participation in the mystery
of creation. It is a deep sense of spiritual communion. It is
a function which enlivens the hope of procreation and
ensures the continuation of family relations. It is an
expressive interest in each other's feelings at a time it is
needed by the other and it can go a long way in deepening
marital relationship.124 When it is egoistically utilized to
despoil marital union in order to advance a felonious urge
for coitus by force, violence or intimidation, the Court will
step in to protect its lofty purpose, vindicate justice and
protect our laws and State policies. Besides, a husband
who feels aggrieved by his indifferent or uninterested
wife's absolute refusal to engage in sexual intimacy may
legally seek the court's intervention to declare her
psychologically incapacitated to fulfill an essential marital
obligation.125 But he cannot and should not demand
sexual intimacy from her coercively or violently.
Moreover, to treat marital rape cases differently from non-
marital rape cases in terms of the elements that constitute
the crime and in the rules for their proof, infringes on the
equal protection clause. The Constitutional right to equal
protection of the laws126 ordains that similar subjects
should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others; no
person or class of persons shall be denied the same
protection of laws, which is enjoyed, by other persons or
other classes in like circumstances.127
As above discussed, the definition of rape in Section 1 of
R.A. No. 8353 pertains to: (a) rape, as traditionally known;
(b) sexual assault; and (c) marital rape or that where the
victim is the perpetrator's own spouse. The single
definition for all three forms of the crime shows that the
law does not distinguish between rape committed in
wedlock and those committed without a marriage. Hence,
the law affords protection to women raped by their
husband and those raped by any other man alike.
The posture advanced by the accused-appellant
arbitrarily discriminates against married rape victims over
unmarried rape victims because it withholds from married
women raped by their husbands the penal redress equally
granted by law to all rape victims.
Further, the Court adheres to and hereby adopts the
rationale in Liberta in rejecting the argument akin to those
raised by herein accused-appellant. A marriage license
should not be viewed as a license for a husband to forcibly
rape his wife with impunity. A married woman has the
same right to control her own body, as does an unmarried
woman.128 She can give or withhold her consent to a
sexual intercourse with her husband and he cannot
unlawfully wrestle such consent from her in case she
refuses.
Lastly, the human rights of women include their right to
have control over and decide freely and responsibly on
matters related to their sexuality, including sexual and
reproductive health, free of coercion, discrimination and
violence.129 Women do not divest themselves of such
right by contracting marriage for the simple reason that
human rights are inalienable.130
In fine, since the law does not separately categorize
marital rape and non-marital rape nor provide for different
definition or elements for either, the Court, tasked to
interpret and apply what the law dictates, cannot trudge
the forbidden sphere of judicial legislation and unlawfully
divert from what the law sets forth. Neither can the Court
frame distinct or stricter evidentiary rules for marital rape
cases as it would inequitably burden its victims and
unreasonably and irrationally classify them differently
from the victims of non-marital rape.
Indeed, there exists no legal or rational reason for the
Court to apply the law and the evidentiary rules on rape
any differently if the aggressor is the woman's own legal
husband. The elements and quantum of proof that
support a moral certainty of guilt in rape cases should
apply uniformly regardless of the legal relationship
between the accused and his accuser.
Thus, the Court meticulously reviewed the present case
in accordance with the established legal principles and
evidentiary policies in the prosecution and resolution of
rape cases and found that no reversible error can be
imputed to the conviction meted the accused-appellant.
The evidence for the prosecution was
based on credible witnesses who gave
equally credible testimonies
In rape cases, the conviction of the accused rests heavily
on the credibility of the victim. Hence, the strict mandate
that all courts must examine thoroughly the testimony of
the offended party. While the accused in a rape case may
be convicted solely on the testimony of the complaining
witness, courts are, nonetheless, duty-bound to establish
that their reliance on the victim's testimony is justified.
Courts must ensure that the testimony is credible,
108
convincing, and otherwise consistent with human nature.
If the testimony of the complainant meets the test of
credibility, the accused may be convicted on the basis
thereof.131
It is settled that the evaluation by the trial court of the
credibility of witnesses and their testimonies are entitled
to the highest respect. This is in view of its inimitable
opportunity to directly observe the witnesses and their
deportment, conduct and attitude, especially during cross-
examination. Thus, unless it is shown that its evaluation
was tainted with arbitrariness or certain facts of substance
and value have been plainly overlooked, misunderstood,
or misapplied, the same will not be disturbed on appeal.132
After approximating the perspective of the trial court thru
a meticulous scrutiny of the entire records of the trial
proceedings and the transcript of each witnesses'
testimony, the Court found no justification to disturb its
findings.
Rather, the Court observed that KKK and her testimony
were both credible and spontaneous. Hailed to the
witness stand on six separate occasions, KKK never
wavered neither did her statements vacillate between
uncertainty and certitude. She remained consistent,
categorical, straightforward, and candid during the
rigorous cross-examination and on rebuttal examination,
she was able to convincingly explain and debunk the
allegations of the defense.
She vividly recounted how the accused-appellant forced
her to have sex with him despite her refusal on October
16, 1998. He initially ordered her to sleep beside him in
their conjugal bed by violently throwing the cot where she
was resting. In order not to aggravate his temper, KKK
obeyed. On the bed, he insinuated for them to have sex.
When she rejected his advances due to abdominal pain
and headache, his request for intimacy transformed into a
stubborn demand. Unyielding, KKK held her panties but
the accused-appellant forcibly pulled them down. The tug
caused the small clothing to tear apart. She reiterated that
she was not feeling well and begged him to stop. But no
amount of resistance or begging subdued him. He flexed
her two legs apart, gripped her hands, mounted her,
rested his own legs on hers and inserted his penis into her
vagina. She continued pleading but he never desisted.133
Her accurate recollection of the second rape incident on
October 1 7, 1998 is likewise unmistakable. After the
appalling episode in the conjugal bedroom the previous
night, KKK decided to sleep in the children's bedroom.
While her daughters were fixing the beddings, the
accused-appellant barged into the room and berated her
for refusing to go with him to their conjugal bedroom.
When KKK insisted to stay in the children's bedroom, the
accused-appellant got angry and pulled her up. MMM's
attempt to pacify the accused-appellant further enraged
him. He reminded them that as the head of the family he
could do whatever he wants with his wife. To demonstrate
his role as patriarch, he ordered the children to go out of
the room and thereafter proceeded to force KKK into
sexual intercourse. He forcibly pulled down her short
pants and panties as KKK begged "Dont do that to me,
my body is still aching and also my abdomen and I cannot
do what you wanted me to do. I cannot withstand
sex."134 But her pleas fell on deaf ears. The accused-
appellant removed his shorts and briefs, spread KKK's
legs apart, held her hands, mounted her and inserted his
penis into her vagina. After gratifying himself, he got
dressed, left the room as he chuckled: "Its nice, that is
what you deserve because you are [a] flirt or fond of
sex."135
Entrenched is the rule that in the prosecution of rape
cases, the essential element that must be proved is the
absence of the victim's consent to the sexual congress.136
Under the law, consent is absent when: (a) it was wrestled
from the victim by force, threat or intimidation, fraudulent
machinations or grave abuse of authority; or (b) the victim
is incapable of giving free and voluntary consent because
he/she is deprived of reason or otherwise unconscious or
that the offended party is under 12 years of age or is
demented.
Contrary to the accused-appellant's asseverations, KKK's
consent was wrestled from her through force and
intimidation both of which were established beyond moral
certainty by the prosecution through the pertinent
testimony of KKK, viz:
On the October 16, 1998 rape incident:
(Direct Examination)
ATTY. LARGO:
Q So, while you were already lying on the bed together
with your husband, do you remember what happened?
A He lie down beside me and asked me to have sex with
him.
Q How did he manifest that he wanted to have sex with
you?
A He put his hand on my lap and asked me to have sex
with him but I warded off his hand.
Q Can you demonstrate to this Court how did he use his
hand?
A Yes. "witness demonstrating on how the accused used
his finger by touching or knocking her lap which means
that he wanted to have sex."
Q So, what did you do after that?
109
A I warded off his hand and refused because I was not
feeling well. (at this juncture the witness is sobbing)
Q So, what did your husband do when you refused him to
have sex with you?
A He insisted and he pulled my pantie forcibly, that is why
my pantie [sic] was tom.
Q Why, what did you do when he started to pull your
pantie [sic]?
A I resisted and tried to hold my pantie [sic] but I failed,
because he is so strong.
xx xx
Q So, when your pantie [sic] was tom by your husband,
what else did he do?
A He flexed my two legs and rested his two legs on my
legs.
Q So after that what else did he do?
A He succeeded in having sex with me because he held
my two hands no matter how I wrestled but I failed
because he is stronger than me.
COURT: Make it of record that the witness is sobbing
while she is giving her testimony.
ATTY. LARGO: (To the witness cont'ng.)
Q So, what did you do when your husband already
stretched your two legs and rode on you and held your
two hands?
A I told him, "don't do that because I'm not feeling well and
my whole body is aching."
Q How did you say that to your husband?
A I told him, "don't do that to me because I'm not feeling
well."
Q Did you say that in the manner you are saying now?
xxxx
A I shouted when I uttered that words.
xxxx
Q Was your husband able to consummate his desire?
xxxx
A Yes, sir, because I cannot do anything.137
(Cross-Examination)
ATTY. AMARGA;
Q Every time you have sex with your husband it was your
husband normally remove your panty?
A Yes, Sir.
Q It was not unusual for your husband then to remove
your panty because according to you he normally do that
if he have sex with you?
A Yes, Sir.
Q And finally according to you your husband have sex
with you?
A Yes, Sir because he forcibly used me in spite of holding
my panty because I don't want to have sex with him at that
time.
Q You did not spread your legs at that time when he
removed your panty?
A Yes, Sir.
Q Meaning, your position of your legs was normal during
that time?
A I tried to resist by not flexing my legs.
xxxx
Q At that time when your husband allegedly removed your
panty he also remove your nightgown?
A No, Sir.
Q And he did pull out your duster [sic] towards your face?
A He raised my duster [sic] up.
Q In other words your face was covered when he raised
your duster [sic]?
A No, only on the breast level.138
On the October 17, 1998 rape incident:
(Direct Examination)
110
ATTY. LARGO
Q So, after your children went out of the room, what
transpired?
A He successfully having sex with me because he pulled
my short pant and pantie forcible.
Q So, what did you say when he forcibly pulled your short
and pantie?
A I told him, "don't do that to me, my body is still aching
and also my abdomen and I cannot do what you wanted
me to do. I cannot withstand sex."
Q So, what happened to your short when he forcibly
pulled it down?
A It was tom.
Q And after your short and pantie was pulled down by
your husband, what did he do?
A He also removed his short and brief and flexed my two
legs and mounted on me and succeeded in having sex
with me.139
The accused-appellant forced his wife when he knowingly
overpowered her by gripping her hands, flexing her legs
and then resting his own legs thereon in order to facilitate
the consummation of his much-desired non-consensual
sexual intercourse.
Records also show that the accused-appellant employed
sufficient intimidation upon KKK. His actuations prior to
the actual moment of the felonious coitus revealed that he
imposed his distorted sense of moral authority on his wife.
He furiously demanded for her to lay with him on the bed
and thereafter coerced her to indulge his sexual craving.
The fury the accused-appellant exhibited when KKK
refused to sleep with him on their bed, when she insisted
to sleep in the children's bedroom and the fact that he
exercises dominance over her as husband all cowed KKK
into submission.
The fact that KKK voluntarily went with the accused-
appellant to their conjugal bedroom on October 16, 1998
cannot be stretched to mean that she consented to the
forced sexual intercourse that ensued. The accused-
appellant was KKK's husband and hence it was
customary for her to sleep in the conjugal bedroom. No
consent can be deduced from such act of KKK because
at that juncture there were no indications that sexual
intercourse was about to take place. The issue of consent
was still irrelevant since the act for which the same is
legally required did not exist yet or at least unclear to the
person from whom the consent was desired. The
significant point when consent must be given is at that
time when it is clear to the victim that her aggressor is
soliciting sexual congress. In this case, that point is when
the accused-appellant tapped his fingers on her lap, a
gesture KKK comprehended to be an invitation for a
sexual intercourse, which she refused.
Resistance, medical certificate and blood traces.
We cannot give credence to the accused-appellant's
argument that KKK should have hit him to convey that she
was resisting his sexual onslaught. Resistance is not an
element of rape and the law does not impose upon the
victim the burden to prove resistance140 much more
requires her to raise a specific kind thereof.
At any rate, KKK put up persistent, audible and intelligible
resistance for the accused-appellant to recognize that she
seriously did not assent to a sexual congress. She held
on to her panties to prevent him from undressing her, she
refused to bend her legs and she repeatedly shouted and
begged for him to stop.
Moreover, as an element of rape, force or intimidation
need not be irresistible; it may be just enough to bring
about the desired result. What is necessary is that the
force or intimidation be sufficient to consummate the
purpose that the accused had in mind141 or is of such a
degree as to impel the defenseless and hapless victim to
bow into submission.142
Contrary to the accused-appellant's allusions, the
absence of blood traces in KKK's panties or the lack of a
medical certificate do not negate rape. It is not the
presence or absence of blood on the victim's underwear
that determines the fact of rape143 inasmuch as a medical
certificate is dispensable evidence that is not necessary
to prove rape.144 These details do not pertain to the
elements that produce the gravamen of the offense that is
-sexual intercourse with a woman against her will or
without her consent.145
The accused-appellant harps on the acquittal ruling in
People v. Godoy,146 the evidentiary circumstances of
which are, however, disparate from those in the present
case. In Godoy, the testimony of the complainant was
inherently weak, inconsistent, and was controverted by
the prosecution's medico-legal expert witness who stated
that force was not applied based on the position of her
hymenal laceration. This led the Court to conclude that
the absence of any sign of physical violence on the
victim's body is an indication of consent.147 Here,
however, KKK's testimony is, as discussed earlier,
credible, spontaneous and forthright.
The corroborative testimonies of
MMM and OOO are worthy of credence.
111
The accused-appellant's assertion that MMM and OOO's
testimonies lacked probative value as they did not witness
the actual rape is bereft of merit. It must be stressed that
rape is essentially committed in relative isolation, thus, it
is usually only the victim who can testify with regard to the
fact of the forced sexual intercourse.148 Hence, the
probative value of MMM and OOO's testimonies rest not
on whether they actually witnessed the rape but on
whether their declarations were in harmony with KKK's
narration of the circumstances, preceding, subsequent to
and concurrent with, the rape incidents.
MMM and OOO's testimonies substantiated significant
points in KKK's narration. MMM heard KKK shouting and
crying: "Eddie, don’t do that to me, have pity on me"149 on
the night of October 16, 1998 shortly after KKK and the
accused-appellant went to their conjugal bedroom. When
MMM went upstairs to check on her mother, the accused-
appellant admonished her for meddling. Frustrated to aid
her mother who persistently cried, MMM kicked the door
so hard the accused-appellant was prompted to open it
and rebuke MMM once more. OOO heard all these
commotion from the room downstairs.
MMM then saw her mother crouched on the bed, crying,
with her hair disheveled while her tom panty lay on the
floor. After a brief struggle with the accused-appellant,
MMM and KKK were finally able to escape and retreat to
the children's bedroom where KKK narrated to her
daughters: "[Y]our father is an animal, a beast; he forced
me to have sex with him when I'm not feeling well. "
KKK gave a similar narration to MMM and OOO the
following night after the accused-appellant barged inside
the children's bedroom. The couple had an argument and
when MMM tried to interfere, the accused-appellant
ordered her and OOO to get out after bragging that he can
have sex with his wife even in front of the children
because he is the head of the family. The girls then stayed
by the staircase where they afterwards heard their mother
helplessly crying and shouting for the accused-appellant
to stop.
Indeed, the testimonies of KKK, MMM and OOO
coherently depicted that the accused-appellant, through
the use of force and intimidation, had non-consensual and
forced carnal knowledge of his wife, KKK on the nights of
October 16 and 17, 1998.
KKK's helpless screams and pleas from inside the
bedroom coupled with her verbal and physical resistance
were clear manifestations of coercion. Her appearance
when MMM saw her on the bed after the accused
appellant opened the door on October 16, 1998, her
conduct towards the accused-appellant on her way out of
the room, and her categorical outcry to her children after
the two bedroom episodes - all generate the conclusion
that the sexual acts that occurred were against her will.
Failure to immediately report to the police authorities, if
satisfactorily
explained, is not fatal to the credibility of a witness.
The testimonies of KKK and her daughters cannot be
discredited merely because they failed to report the rape
incidents to the police authorities or that KKK belatedly
filed the rape charges. Delay or vacillation by the victims
in reporting sexual assaults does not necessarily impair
their credibility if such delay is satisfactorily explained.150
At that time, KKK and her daughters were not aware that
a husband forcing his wife to submit to sexual intercourse
is considered rape. In fact, KKK only found out that she
could sue his husband for rape when Prosecutor
Benjamin Tabique, Jr. (Prosecutor Tabique) told her
about it when she filed the separate charges for grave
threats and physical injuries against the accused-
appellant.151
It must be noted that the incidents occurred a year into the
effectivity of R.A. No. 8353 abolishing marital exemption
in rape cases hence it is understandable that it was not
yet known to a layman as opposed to legal professionals
like Prosecutor Tabique. In addition, fear of reprisal thru
social humiliation which is the common factor that deter
rape victims from reporting the crime to the authorities is
more cumbersome in marital rape cases. This is in view
of the popular yet outdated belief that it is the wife's
absolute obligation to submit to her husband's carnal
desires. A husband raping his own wife is often dismissed
as a peculiar occurrence or trivialized as simple domestic
trouble.
Unfamiliarity with or lack of knowledge of the law
criminalizing marital rape, the stigma and public scrutiny
that could have befallen KKK and her family had the
intervention of police authorities or even the neighbors
been sought, are acceptable explanations for the failure
or delay in reporting the subject rape incidents.
The victim -S testimony on the witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.
The failure of the prosecution to present KKK's complaint-
affidavit for rape is not fatal in view of the credible, candid
and positive testimony of KKK on the witness stand.
Testimonial evidence carries more weight than the
affidavit since it underwent the rudiments of a direct,
cross, re-direct and re-cross examinations. Affidavits or
statements taken ex parte are generally considered
incomplete and inaccurate. Thus, by nature, they are
inferior to testimony given in court.152
Ill motive imputed to the victim
The ill motive, which the accused-appellant imputed to
KKK, does not inspire belief as it is riddled with loopholes
112
generated by incongruent and flimsy evidence. The
prosecution was able to establish that the ₱3 Million
deposit in the spouses' bank account was the proceeds of
their loan from the Bank of Philippine Islands (BPI).
Exhibit J, which is a BPI ML instruction sheet dated
October 31, 1996 in the amount of ₱3,149,840.63 is the
same amount the accused-appellant claimed to have
entrusted to her wife. Although the accused-appellant
denied being aware of such loan, he admitted that
approximately ₱3 Million was spent for the construction of
their house. These pieces of evidence effectively belie the
accused appellant's allegation that KKK could not account
for the money deposited in the bank.153
Anent, KKK's alleged extra-marital affairs, the accused-
appellant failed to explain how Bebs could be his wife KKK
when the letter-sender greeted Bebs a "happy birthday"
on October 28 while KKK's birthday is June 23. The
accused-appellant also did not present Bebs herself,
being a more competent witness to the existence of the
alleged love letters for KKK. He likewise failed, despite
promise to do so, to present the original copies of such
love letters neither did he substantiate KKK's supposed
extra-marital affairs by presenting witnesses who could
corroborate his claims. Further, the Court finds it
unbelievable that an able man would not have the temerity
to confront his wife who has fooled around with 10 men -
some of whom he has even met. The accused-appellant's
erratic statements on the witness stand are inconsistent
with the theory of extra-marital romance making it
reasonable to infer that he merely made up those
malicious stories as a desperate ploy to extricate himself
out of this legal quandary.
At best, the basis of the alleged illicit affairs of KKK were
the accused-appellant's unfounded suspicions that hold
no evidentiary weight in law and thus incompetent to
destroy KKK's credibility and that of her testimony. In sum,
the defense failed to present sufficiently convincing
evidence that KKK is a mere vindictive wife who is
harassing the accused-appellant with fabricated rape
charges.
Alibi
It must be stressed that in raising the irrevocable implied
consent theory as defense, the accused-appellant has
essentially admitted the facts of sexual intercourse
embodied in the two criminal informations for rape. This
admission is inconsistent with the defense of alibi and any
discussion thereon will thus be irrelevant.
At any rate, the courts a quo correctly rejected his alibi.
Alibi is one of the weakest defenses not only because it is
inherently frail and unreliable, but also because it is easy
to fabricate and difficult to check or rebut. It cannot prevail
over the positive identification of the accused by
eyewitnesses who had no improper motive to testify
falsely.154
For the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time
of the commission of the crime, but also that it was
physically impossible for him to be at the locus delicti or
within its immediate vicinity. Physical impossibility refers
not only to the geographical distance between the place
where the accused was and the place where the crime
was committed when the crime transpired, but more
importantly, the facility of access between the two
places.155
Even granting in arguendo that the accused-appellant had
indeed attended a fiesta in Dangcagan, Bukidnon or was
hauling com with Equia on the dates of commission of the
crime, the same will not easily exonerate him. The
accused-appellant failed to adduce clear and convincing
evidence that it was physically impossible for him to be at
his residence in Cagayan de Oro City at the time of the
commission of the crime. Dangcagan, Bukidnon can be
traversed by about four or five hours from Cagayan de
Oro City, and even less by private vehicle which was
available to the accused appellant at any time.156 Thus, it
was not physically impossible for him to be at the situs
criminis at the dates and times when the two rape
incidents were committed.
Between the accused-appellant's alibi and denial, and the
positive identification and credible testimony of the victim,
and her two daughters, the Court must give weight to the
latter, especially in the absence of ill motive on their part
to falsely testify against the accused-appellant.
Conclusion
All told, the presumption of innocence endowed an
accused-appellant was sufficiently overcome by KKK's
clear, straightforward, credible, and truthful declaration
that on two separate occasions, he succeeded in having
sexual intercourse with her, without her consent and
against her will. Evidence of overwhelming force and
intimidation to consummate rape is extant from KKK's
narration as believably corroborated by the testimonies of
MMM and OOO and the physical evidence of KKK's tom
panties and short pants. Based thereon, the reason and
conscience of the Court is morally certain that the
accused-appellant is guilty of raping his wife on the nights
of October 16 and 17, 1998.
Penalties
The Court affirms the penalty of reclusion perpetua, for
each count of rape, meted upon the accused-appellant for
being in accord with Article 266-A in relation to 266-B of
the RPC. Further, he shall not be eligible for parole
pursuant to Section 3 of R.A. No. 9346, which states that
"persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for
parole under Act No. 4180, otherwise known as the
Indeterminate Sentence Law, as amended."157
113
The Court sustains the moral damages awarded in the
amount of ₱50,000.00. Moral damages are granted to
rape victims without need of proof other than the fact of
rape under the assumption that the victim suffered moral
injuries from the experience she underwent.158
The award of civil indemnity is proper; it is mandatory
upon the finding that rape took
place.1âwphi1 Considering that the crime committed is
simple rape, there being no qualifying circumstances
attendant in its commission, the appropriate amount is
₱50,000.00159 and not ₱75,000.00 as awarded by the
RTC.
To serve as an example for public good and in order to
deter a similar form of domestic violence, an award of
₱30,000.00 as exemplary damages is imperative.160
The damages awarded shall earn legal interest at the rate
of six percent (6%) per annum to be reckoned from the
date of finality of this judgment until fully paid.161
A Final Note
Rape is a crime that evokes global condemnation
because it is an abhorrence to a woman's value and
dignity as a human being. It respects no time, place, age,
physical condition or social status. It can happen
anywhere and it can happen to anyone. Even, as shown
in the present case, to a wife, inside her time-honored
fortress, the family home, committed against her by her
husband who vowed to be her refuge from cruelty. The
herein pronouncement is an affirmation to wives that our
rape laws provide the atonement they seek from their
sexually coercive husbands.
Husbands are once again reminded that marriage is not a
license to forcibly rape their wives. A husband does not
own his wife's body by reason of marriage. By marrying,
she does not divest herself of the human right to an
exclusive autonomy over her own body and thus, she can
lawfully opt to give or withhold her consent to marital
coitus. A husband aggrieved by his wife's unremitting
refusal to engage in sexual intercourse cannot resort to
felonious force or coercion to make her yield. He can seek
succor before the Family Courts that can determine
whether her refusal constitutes psychological incapacity
justifying an annulment of the marriage.
Sexual intimacy is an integral part of marriage because it
is the spiritual and biological communion that achieves
the marital purpose of procreation. It entails mutual love
and self-giving and as such it contemplates only mutual
sexual cooperation and never sexual coercion or
imposition.
The Court is aware that despite the noble intentions of the
herein pronouncement, menacing personalities may use
this as a tool to harass innocent husbands. In this regard,
let it be stressed that safeguards in the criminal justice
system are in place to spot and scrutinize fabricated or
false marital rape complaints and any person who
institutes untrue and malicious charges will be made
answerable under the pertinent provisions of the RPC
and/or other laws.
WHEREFORE, all the foregoing considered, the Decision
dated July 9, 2008 of the Court of Appeals in CA-G.R. CR-
HC No. 00353 is hereby AFFIRMED with
MODIFICATIONS. Accused-appellant Edgar Jumawan is
found GUILTY beyond reasonable doubt of two (2) counts
of RAPE and is sentenced to suffer the penalty of
reclusion perpetua for each count, without eligibility for
parole. He is further ordered to pay the victim, KKK, the
amounts of PS0,000.00 as civil indemnity, ₱50,000.00 as
moral damages, and ₱30,000.00 as exemplary damages,
for each count of rape. The award of damages shall earn
legal interest at the rate of six percent (6%) per annum
from the finality of this judgment until fully paid.
SO ORDERED.
G.R. No. 150501 June 3, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
GERONIMO BOROMEO y MARCO, appellant.
DECISION
PER CURIAM:
Before us on automatic review1 is the Decision2 dated 15
August 2001 of the Regional Trial Court of Lipa City,
Branch 12 ("trial court"), in Criminal Case No. 0759-99.
The trial court convicted appellant Geronimo Boromeo y
Marco ("appellant") of rape and sentenced him to suffer
the death penalty.
On 22 October 1999, Second Assistant City Prosecutor
Danilo S. Sandoval filed an information charging appellant
with rape under Article 266-A, 1(d), and Article 266-B of
the Revised Penal Code,3 committed as follows:
That on or about the 19th day of October, 1999 at
about 10:30 o’clock in the evening, at Sitio
Paninsingin, Barangay Tambo, Lipa City,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, a
common law spouse of the mother of herein
victim, did then and there willfully, unlawfully and
feloniously have carnal knowledge of one
Christine Liezel Mendoza y Tiqui[s], a ten (10)
year old minor against her will and consent to her
damage and prejudice in such amount as may be
awarded to her under the provisions of the Civil
Code.
114
 Contrary to law.4
When arraigned on 10 November 1999, appellant,
assisted by counsel, pleaded not guilty.5 Trial on the
merits ensued.
The prosecution presented two witnesses: the victim
Christine Liezel Mendoza, and Dr. Aletha Silang, Medico-
Legal Officer III of the Lipa City District Hospital.
Born in Lipa City on 23 January 1990, Christine Liezel
Mendoza ("Christine") is one of Luzviminda C. Tiquis’
("Luzviminda") eight children with Sevilla R. Mendoza
("Sevilla"). Luzviminda and Sevilla were lawfully married
on 16 November 19806 but later separated. Sometime in
1997, Luzviminda started living-in with appellant, a
sidewalk vendor. Of her eight children with Sevilla, only
Christine, four-year old Maria Vena, and two-year old Deo
lived with Luzviminda and appellant.7
Christine testified that on 19 October 1999, around 10:30
o’clock in the evening, she and appellant were in their
house in Paninsingin, Tambo, Lipa City. Deo was also in
the house sleeping. Luzviminda was then attending a
relative’s wake.
Christine testified that appellant ordered her to go inside
their room. She obeyed. Appellant then took off his
clothes. Without removing Christine’s T-shirt and shorts,
the only garments she was wearing, appellant placed
himself on top of Christine. Christine stated that appellant
forcibly inserted his organ into hers through the hole in her
shorts. She felt pain. Christine further stated that
appellant had "partially" penetrated her genitalia when
Luzviminda suddenly arrived and caught appellant on top
of her.
Luzviminda was furious on seeing what appellant was
doing to Christine. Christine recalled Luzviminda warning
appellant that she would have him jailed. Christine and
Luzviminda then left their house and went to the house of
Virginia Tiquis ("Virginia"), Luzviminda’s mother. Christine
stated that Luzviminda did not tell Virginia about the rape
incident. However, when Virginia learned of the rape,
Luzviminda decided to bring Christine to the Lipa City
Police Station to file a complaint against
appellant.8 Christine executed a Sinumpaang
Salaysay narrating how appellant raped her.9 She
confirmed the contents of her sworn statement during the
trial.10 Luzviminda also executed her sworn statement, as
follows:
04. T : Bakit ka nagsasalaysay?
S : Akin pong inihahabla itong aking kinakasama
na si GERONIMO BOROMEO, binata, tubo sa
Albay, at naninirahan sa Paninsingin, Brgy
Tambo, Lipa City.
T : Ano ang dahilan at iyong inihahabla itong si
Geronimo Boromeo?
S : Dahil po sa mismong nakita na itong si
Geronimo ay nakapatong sa ibabaw ng aking
anak na noon ay hubo at hubad na ang aking
anak na si Christine Liezel Mendoza.
05. T : Ilang taon na itong iyong anak na si
Christine Liezel?
S : Sampung (10) taon na po siya.
06. T : Kailan at saan naganap ang pangyayaring
ito?
S : Noon ang oras ay humigit kumulang sa alas
10:30 ng gabi petsa 19 ng Octobre 1999 at ito ay
naganap sa loob ng aming bahay sa Sitio
Paninsingin, Brgy. Tambo, Lipa City.
07. T : Maaari mo bang ipaliwanag ang tunay na
pangyayari?
S : Galing po ako sa lamayan noon at noong ako
ay dumating sa aming bahay, napansin ko na
walang ilaw sa loob ng bahay at noong bigla kong
itinulak ang pinto ng cuarto at nakita ko itong si
Geronimo ay nakapatong sa aking anak at siya
ay tumayo na hubo at hubad. Na nakita ko rin na
itong aking anak na si Christine ay hubo at hubad
din. Na, kaagad na aking pinapagdamit si
Christine at kami ay umalis ng aming bahay.
08. T : Ano ang ginawa mo o sinabi sa iyong
kinakasamang si Geronimo?
S : Hindi ko na po siya kinausap dahil lasing po
siya at kami ay nagpunta sa bahay ng aking ina.
Na kami ay nagsumbong dito sa Lipa City Police
Station at matapos na aking masabi ang naganap
sa aking anak, kami ay sinamahan ng pulis at
itong si Geronimo at nahuli dito sa Bus Stop sa
Mataas na Lupa.
09. T : Sino pa ang nadatnan mo sa iyong bahay
noong makauwi ka galing sa lamayan?
S : Ito nga pong aking anak na si Christine at
Geronimo at isa ko pang anak na dalawang taong
gulang.
10. T : Ito bang si Geronimo na sinasabi mong
kinakasama mo ay kapisan ninyo sa bahay?
S : Opo, magdadalawang taon na po akong
kapisan siya sa akin at siyang kinikilalang ama ng
aking anak.
115
 11. T : Sino ba ang ama ng iyong anak na si
Liezel?
S : Sevilla Ramos Mendoza po na kasalukuyan
na kami ay hiwalay.
12. T : Pansamantala ay wala na akong nais pang
itanong sa iyo, ikaw ba ay mayroon pang ibig na
baguhin o idagdag sa salaysay mong ito?
S : Wala na po muna sa ngayon, kung mayroon
man ay sa paglilitis na ng kaso.
13. T : Laan mo bang lagdaan at panumpaan ang
salaysay mong ito?
S : Opo.11
On 21 October 1999, Luzviminda brought Christine to the
Lipa City District Hospital12 where Dr. Aletha Silang ("Dr.
Silang") examined her. Dr. Silang issued a medico-legal
report with the following findings:
This is to certify that I have attended CHRISTINE LIEZEL
MENDOZA, 10 years of age, female, child, Filipino, of
Paninsingin, Tambo, Lipa City at about 7:55 a.m., October
21, 1999 with the following injuries sustained:
- No external signs of physical injury.
- Genitalia – hymen intact.13
For its part, the defense presented two witnesses:
appellant himself and Luzviminda Tiquis.
Appellant denied the accusation against him. Appellant
recounted that after selling his merchandise that
afternoon of 19 October 1999, his friends invited him to a
drinking spree. They started to drink at 6 o’clock in the
evening. On reaching home at 8 o’clock that night,
appellant immediately went to their bedroom and slept, as
he was drunk. He woke up when Luzviminda arrived at 11
o’clock in the evening, without her children whom she left
at a nearby store. Earlier that evening, Luzviminda and
her children had left the house to attend a relative’s wake.
Luzviminda was furious and became shrill because she
saw her Kumareng Elena sleeping beside appellant.
Luzviminda had accommodated Elena in their house
because of Elena’s marital problems. Realizing
Luzviminda was jealous, appellant explained to her that
he "happened to sleep beside Elena" because he was
drunk when he came home. Appellant asserted that he
and Elena were not doing anything wrong. Elena also tried
to explain the matter to Luzviminda, but Luzviminda would
not listen. As Luzviminda would not stop nagging him,
appellant boxed and kicked her. When Luzviminda
retaliated, appellant slapped her.
Appellant then left the house and spent the whole evening
at the bus stop in Mataas na Lupa, Lipa City. He was
about to sell his goods at the bus stop the next day when
a police officer arrived and arrested him. The police officer
brought appellant to the Lipa City Police Station where the
police investigated him for allegedly raping Christine.14
To corroborate his testimony, appellant presented
Luzviminda who testified that when she, Christine and
Maria Vena left their house at 6 o’clock in the evening of
19 October 1999 to attend a relative’s wake, appellant
was left alone resting in their living room. Appellant could
not go with them to the wake because he was drunk.
When she and her children returned home at 10:30
o’clock in the evening, Luzviminda was surprised to see
appellant sleeping beside Elena in their bedroom. She
was so angry that she kicked appellant. Appellant kicked
and slapped her in retaliation. Appellant then left the
house.
Luzviminda asserted that it was not true that appellant
raped Christine. Luzviminda stated that she was just
jealous and wanted to get back at appellant. Hence, she
reported the rape incident to the police and filed a
complaint against appellant. Luzviminda accompanied
the police in their search for appellant. On 20 October
1999, around 8 o’clock in the morning, they found and
arrested appellant at the bus stop in Mataas na Lupa.15
After trial on the merits, the trial court found that appellant
raped Christine. The trial court gave full credence to
Christine’s testimony "which was positive and given in a
straightforward, clear and convincing manner." The trial
court noted that "during the cross-examination, she was
unwavering and her answers were consistent; she never
changed her account of what transpired."16 The
dispositive part17 of the trial court’s decision reads:
WHEREFORE, the Court finds the accused,
GERONIMO BOROMEO, guilty beyond
reasonable doubt, as principal by direct
participation of the crime of Rape, as defined and
penalized under Article 266-A 1(d) and Article
266-B of the Revised Penal Code, as amended
by Republic Act Nos. 7659 and 8353, sentences
him to suffer the supreme penalty of DEATH, to
indemnify [Christine] Liezel Mendoza in the
amount of ₱75,000.00, to pay her moral damages
in the amount of ₱50,000.00 and to pay the cost.
IT IS SO ORDERED.
Hence, this automatic review.
Appellant assigns the following errors:
I. The trial court erred in finding appellant guilty
beyond reasonable doubt of the crime of rape.
116
 II. Assuming arguendo that appellant is guilty of
the crime charged, nonetheless, the trial court
erred in imposing on him the death penalty.18
On 13 February 2003, the Office of the Solicitor General
filed its Appellee’s Brief praying that this Court affirm in
toto the trial court’s decision.19
On 14 March 2003, appellant filed his Reply Brief
reiterating the same arguments he pleaded to seek an
acquittal.20
We affirm the judgment of conviction.
In criminal cases, an appeal throws the whole case wide
open for review. The reviewing tribunal can correct errors
or even reverse the trial court’s decision on grounds other
than those that the parties raise as errors.21
Appellant points to the results of the medical examination
on Christine showing the absence of hymenal laceration
on her genitals. Appellant claims that the medical report
shows that Christine’s hymen remained intact. Appellant
asserts that these findings are incompatible with
Christine’s claim that appellant forced his organ into hers,
much less, that appellant raped her in the evening of 19
October 1999. Appellant also submits that the medical
findings show no visible signs of physical injury even
though Christine was of tender age at the time of the
alleged rape. Appellant argues that if it were true that he
raped Christine, "it is unbelievable that no external
physical injuries or unusual findings could be noted on her
body."
Appellant’s arguments do not persuade us.
In a rape case, what is most important is the credible
testimony of the victim. A medical examination and a
medical certificate are merely corroborative and are not
indispensable to a prosecution for rape. The court may
convict the accused based solely on the victim’s credible,
natural, and convincing testimony.22
Proof of hymenal laceration is not an element of
rape.23 An intact hymen does not negate a finding that the
victim was raped.24 To sustain a conviction for rape, full
penetration of the female genital organ is not necessary.
It is enough that there is proof of entry of the male organ
into the labia of the pudendum of the female organ.
Penetration of the penis by entry into the lips of the
vagina, even without laceration of the hymen, is enough
to constitute rape,25 and even the briefest of contact is
deemed rape.26 As long as the attempt to insert the penis
results in contact with the lips of the vagina, even without
rupture or laceration of the hymen, the rape is
consummated.27 In People v. Tampos,28 this Court held
that rape is committed on the victim’s testimony that she
felt pain.
In the present case, Christine testified that appellant was
able "to partially insert his private organ into hers,"
because of which she felt pain. Christine further testified
that appellant failed to "fully insert his private organ into
hers because Luzviminda arrived."29 Christine’s hymen
remained intact because there was no full penetration due
to Luzviminda’s sudden arrival at the house.
Rape is committed when the accused has carnal
knowledge of the victim by force, threat or intimidation, or
when the victim is deprived of reason or is unconscious,
or when the victim is under 12 years of age.30 Based on
the records, the prosecution proved that appellant had
carnal knowledge of Christine.
If the victim’s testimony meets the test of credibility, that
is enough to convict the accused.31 We entertain no doubt
that Christine told the truth. Her testimony was clear,
candid and consistent. She positively identified appellant
as her rapist.32 On the witness stand, Christine testified
thus:
Q. On October 19, 1999, around 10:30 o’clock in
the evening, where were you if you can still
remember?
A. I was in our house sir.
Q. While you were in your house on that date,
October 19, 1999, around 10:30 o’clock in the
evening, do you know the whereabouts of
Geronimo Boromeo or your Kuya Ronnie?
A. He was also at home sir.
Q. Do you know whether he did anything unusual
to you on October 19, 1999 around 10:30 o’clock
in the evening?
A. Yes sir.
Q. What was it?
A. He ordered me to go inside the room sir.
Q. After you were ordered to go inside the room,
did you follow his instruction?
A. Yes sir.
Q. After that, after you entered inside the room,
what did your Kuya Ronnie do if he did anything?
A. Ginalaw po niya ako.
Q. What did you mean by ginalaw ka?
117
 A. He placed himself on top of me sir. Q. And it happened on October 19, 1999?

Q. What else did he do when your Kuya went
on top of you?
A. He placed his private organ inside my
private organ sir.
A. I cannot remember the date, sir.
Q. But when it happened, your mother then was
out of the house because she attended a wake in
the neighborhood. Am I correct?

Q. Was Geronimo Boromeo or your Kuya A. Yes, sir.

Ronnie able to insert his private organ fully to
your private organ? Q. And when she arrived, she saw you while the
accused was on top of you. Am I correct?
A. No sir, because my mother arrived.
A. Yes, sir.
Q. When your Kuya Ronnie inserted his
private organ into your private organ which he Q. You were then totally naked?
was not able to insert fully, what did you feel
in your private organ? A. There was (sic), sir.

A. It was painful sir.

Q. You were still wearing your panty and your
blouse or t-shirt?
xxx
A. Shorts and t-shirt, sir.
Q. What was the attire of your Kuya Ronnie when
he went on top of you, if he has any clothing at Q. The accused was also wearing his t-shirt and
all? shorts. Am I correct at the time he was on top of
you and your mother arrived?
A. None sir.
A. None, sir.
Q. How about you, when your Kuya Ronnie
went on top of you, did you have any lower
Q. Do (sic) we made to understand that he was
garments?
totally naked while you were still wearing your
shorts and your blouse?
A. Yes sir. My shorts has a hole sir.
A. Yes, sir.
Q. What did your Kuya Ronnie do with your
shorts?
Q. So the accused did not undress you before he
went on top of you. Is that what you mean?
A. He inserted his private organ into my
private organ sir.
A. He undressed me, sir.

Prosecutor
Q. Including your panty?

I am asking, what did your Kuya Ronnie do with A. I was not wearing a panty, sir.
your shorts?
Q. Your panty was removed and your shorts was
A. He forcibly removed it sir.33 (Emphasis removed also?
supplied)
A. No, sir.
On cross-examination, Christine testified, thus:
Q. So it was the shorts of the accused which was
Q. Christine, when you testified before this Court,
removed when he went on top of you while you
you said that you were raped by your stepfather were still wearing shorts?
Geronimo Boromeo. Is that true?
A. Yes, sir.
A. Yes, sir.

118
 ATTY. BRAVO
That will be all for the witness, Your Honor.
PROSECUTOR
Considering Christine Liezel that you were
wearing your shorts when your uncle Geronimo
Boromeo went on top of you and on direct
examination, you said that he was able to partially
insert his private organ to your private organ, how
did it happen that he was able to insert his private
organ into your private organ when you were
wearing shorts?
A. My shorts has a hole and I was not wearing a
panty during that time, sir.
ATTY. BRAVO
Although you claimed that the penis of your
stepfather was partially inserted to your vagina,
you did not bleed? Am I correct?
PROSECUTOR
That was not covered by my re-direct, Your
Honor.
ATTY. BRAVO
Partially. That is the basis of our question.
A. No, sir.34
Courts give full weight and credence to testimonies of
child-victims of rape.35 It is highly improbable that a ten-
year old girl like Christine would impute to the live-in
partner of her own mother a crime as serious as rape and
undergo the humiliation of a public trial, if what she
asserts is not true.36 Appellant did not ascribe any
credible motive to explain why a girl of tender age like
Christine would concoct a story accusing him of rape.37
That Christine bore no physical evidence of any force
against her person is of no moment. Contrary to
appellant’s contention, the absence of external signs of
physical violence on Christine does not prove that he did
not rape her. Proof of physical injury is not an essential
element of rape.38 Admittedly, appellant did not use force
or violence in raping Christine. Christine merely obeyed
when appellant ordered her to enter their bedroom.
Christine did not offer any resistance when appellant
raped her. This explains the absence of any external sign
of injury on Christine’s body. Besides, where the victim is
below 12 years old, the only subject of inquiry is whether
"carnal knowledge" took place. Proof of force, threat or
intimidation is unnecessary since none of these is an
element of statutory rape. There is statutory rape where,
as in this case, the offended party is below 12 years of
age.39 Here, the Information alleged, and the prosecution
proved during trial, that Christine was below 12 years old
when appellant raped her. Under Article 266-A(d)40 of the
Revised Penal Code, when the victim is under twelve (12)
years of age, there is rape even in the absence of force,
threat or intimidation.41
Appellant assails the inconsistencies in Christine’s
statements on whether appellant totally undressed her or
inserted his penis through a hole in her shorts. These
inconsistencies cannot exculpate appellant. Whether
appellant raped Christine after undressing her or inserted
his penis through a hole in her shorts is immaterial. Rape
could take place under either situation. Besides, it is
natural for inconsistencies to creep into the testimony of a
rape victim who is of tender age like Christine. Courts
expect minor inconsistencies when a child-victim narrates
the details of a harrowing experience like
rape.42 Inconsistencies in a rape victim’s testimony do not
impair her credibility, especially if the inconsistencies refer
to trivial matters that do not alter the essential fact of the
commission of rape.43 A rape victim is not expected to
mechanically keep in memory details of the rape incident
and then when called to testify automatically give an
accurate account of the traumatic experience she
suffered.44
Appellant capitalizes on Luzviminda’s turning into a
defense witness as convincing proof of his innocence.
Appellant argues that no sane mother would testify
against her own daughter if the latter were telling the truth.
That Luzviminda turned her back on Christine and
testified for appellant does not militate against Christine’s
credibility. Appellant insists that the charge arose out of
Luzviminda’s desire to exact revenge on him because
Luzviminda caught appellant and Elena "sleeping side by
side" that night.
Appellant argues that Luzviminda’s moral ascendancy
over Christine made it easy for Luzviminda to manipulate
her daughter to tell an "orchestrated story." Appellant
points out that when Luzviminda’s conscience bothered
her, Luzviminda recanted and corroborated his testimony
that he did not rape Christine.
Appellant’s assertions are futile. Luzviminda’s actuations
after the rape incident convince this Court of the
truthfulness of Christine’s testimony. Luzviminda brought
Christine, a ten-year old girl, to the Lipa City Police Station
to report the rape incident. Luzviminda filed the criminal
complaint against appellant. Luzviminda led the police to
the place where appellant was arrested at 8 o’clock in the
morning of 20 October 1999. On 21 October 1999,
Luzviminda executed a sworn statement before the police
narrating her eyewitness account of the rape incident and
pointing to appellant as the culprit. On that same day,
Luzviminda brought Christine to the Lipa City District
Hospital for medical examination.45
119
All these circumstances belie appellant’s claim that
Christine merely concocted the rape incident so that
Luzviminda could get back at appellant. We quote
Luzviminda’s testimony on cross-examination:
Q. Mrs. Witness, when you went to the police for
your complaint and you were the one who
accompanied the police in arresting Geronimo
Boromeo, isn’t it?
A. Yes sir.
Q. You saw Geronimo Boromeo in the early
morning of October 19, 1999 (sic) at the Bus
Station, isn’t it?
A. Yes sir.
Q. You were together with your daughter
Christine Liezel when you accompanied the
policeman in arresting Geronimo Boromeo, isn’t
it?
A. Yes sir.
Q. Around what time did you cause the arrest of
Geronimo Boromeo?
A. Around 8:00 o’clock sir.
Q. Your anger has already subsided by that time
because of the lapse of more than 10 hours from
the date you surprised your husband sleeping
side by side with your kumareng Elena, isn’t it?
A. Yes sir.
Q. But just the same, despite the fact that your
anger to your common law husband Geronimo
Boromeo already subsided, you still caused his
arrest and incarceration, isn’t it?
A. Yes sir.
Q. Three (3) days after you allegedly caught your
husband sleeping side by side with
your kumareng Elena, you gave your statement
to the police, that was October 21, 1999, isn’t it
and this is your sworn statement that you gave to
the police previously marked as an evidence for
the prosecution as Exh. "C", will you look at this
and confirm if this is your statement?
A. Yes sir.
Q. There is a signature appearing above the
typewritten name Luzviminda Tiquis, is this your
signature?
A. Yes sir.
Q. After you have executed this statement, you
went to the Office of the City Prosecutor and you
were made to take an oath?
A. Yes sir.
Q. You were asked by the Prosecutor Wilfredo
Castillo who administered your oath whether you
understand the contents of your statement?
A. Yes sir.
Q. You also affirmed before Pros. Wilfredo
Castillo that the contents of your statement
marked as Exh. "C" are the truth and nothing but
the truth, isn’t it?
A. Yes sir.
Q. And you voluntarily signed this statement in
front of Prosecutor Castillo after you were made
to swear an oath, isn’t it?
A. Yes sir.
Q. When you executed your statement, three (3)
days after you allegedly surprised your husband
sleeping side by side with your kumareng Elena,
your anger to your husband Geronimo Boromeo
had vanished already from your heart because of
the lapse of three (3) days already?
A. Yes sir.
Q. But despite the fact that no anger whatsoever
remained in your heart you pursued with the
execution of this statement and that of your
daughter Christine Liezel Mendoza who also
gave her statement on that date, that was three
(3) days after the incident in question, isn’t it?
A. Yes sir.
Q. You even accompanied your daughter
Christine Liezel on October 21, 1999 three (3)
days after the incident to the police, so that
Christine Liezel could be investigated by the
police and she could give her statement, isn’t it?
A. Yes sir.
Q. Both of you gave?
A. Yes sir.
120
 Q. Both of you gave your statement on October
21, 1999 as shown by the record?
A. Yes sir.
Q. That was three (3) days after the incident in
question?
A. Yes sir.
Q. You did not tell Christine Liezel Mendoza what
she would tell the police investigator when she
gave her statement, isn’t it? You were just an
onlooker when Christine Liezel Mendoza was
being investigated by the police?
A. Because I have already taught her sir.
Q. When did you tell Christine Liezel Mendoza
what she would give to the police investigator?
A. The night before we gave the statement sir.
Q. But the night before you gave this statement,
you have no anger anymore with your husband,
isn’t it, because even before you caused his
arrest, the anger in your heart against your
husband had already vanished?
A. My anger returned sir whenever I remember
what he has done to me.46
Luzviminda testified that after the lapse of ten hours since
she surprised appellant sleeping side by side with Elena
on the night of 19 October 1999, "no anger remained in
her heart." Luzviminda should have then desisted from
executing her sworn statement to the police two days later
on 21 October 1999 because by her own admission she
was no longer angry with appellant. Still, Luzviminda
pursued the criminal complaint against appellant. This
belies appellant’s claim that Christine merely concocted
the rape incident to satisfy Luzviminda’s desire for
revenge against appellant. If Christine merely wanted to
accommodate Luzviminda, Christine should have also
changed her own story when Luzviminda changed hers.
Christine, however, remained steadfast that appellant
raped her even after her mother recanted.
Motives such as resentment, hatred, or revenge have
never swayed this Court from giving full credence to the
testimony of a minor rape victim.47 Besides, the transcript
of stenographic notes fails to show that Christine’s
testimony was elicited by intimidation or undue influence.
Far from being an "orchestrated story," as appellant
claims, Christine’s testimony clearly appears candid,
spontaneous and clear.
It is lamentable that Luzviminda’s concern for appellant
was more intense than her desire to right a grievous
wrong done to her own child. In People v. Dizon,48 this
Court stated:
Truly, some wives are overwhelmed by emotional
attachments to their husbands to such an extent
that the welfare of their own offsprings takes back
seat. Le coeur a ses raisons que la raison ne
connait point. Knowingly or otherwise, they
suppress the truth and act as medium for injustice
to preponderate. Though heavens fall, they would
stand by their man. Teresa exemplifies this breed
of women.
There being proof beyond reasonable doubt that
appellant committed the crime as charged, we affirm his
conviction.
Articles 266-A and 266-B of the Revised Penal Code
partly provide:
Article 266-A. Rape; When and How Committed.
– Rape is committed:
1) By a man who shall have carnal
knowledge of a woman under any of the
following circumstances:
a) x x x
xxx
d) When the offended party is under
twelve (12) years of age or is demented,
even though none of the circumstances
mentioned above be present.
xxx
Article 266-B. Penalties. – Rape under paragraph
1 of the next preceding article shall be punished
by reclusion perpetua.
xxx
The death penalty shall also be imposed if the
crime of rape is committed with any of the
following aggravating/qualifying circumstances:
1) when the victim is under eighteen
(18) years of age and the offender is a
parent, ascendant, stepparent, guardian,
relative by consanguinity or affinity within
the third civil degree, or the common-
law spouse of the parent of the victim;
x x x. (Emphasis supplied)
121
 To justify the imposition of the death penalty, the
information must specifically allege the qualifying
circumstances of minority and relationship.
Moreover, the prosecution must prove during the
trial the presence of these qualifying
circumstances with the same certainty as the
crime itself.49
In the present case, the Information alleged that appellant
is the common-law spouse of Luzviminda who is
Christine’s mother. The Information also alleged that
Christine was only 10 years old when appellant raped her.
During the trial, the prosecution proved Christine’s
minority by presenting in evidence her birth certificate.
The document clearly states that Christine was born on
23 January 1990.50 Christine was thus 9 years and 8
months old when appellant raped her on 19 October 1999,
although the Information stated that she is a "10-year old
minor."
Appellant and Luzviminda categorically admitted in their
testimonies that they are live-in partners.51 The
Information correctly alleged that the appellant is the
"common-law spouse of the mother of herein victim."
Thus, the trial court did not err in sentencing appellant to
death.52
We have ruled that if rape is qualified by any of the
circumstances warranting the death penalty, the civil
indemnity for the victim is ₱75,000.53 The trial court’s
award of ₱75,000 as civil indemnity is thus proper.
We also award the victim moral damages of ₱75,000, as
the anguish and the pain she endured are evident.54 Also,
we award the victim exemplary damages of ₱25,000 to
deter other individuals with aberrant sexual behavior.55
WHEREFORE, the Decision dated 15 August 2001 of the
Regional Trial Court of Lipa City, Branch 12, in Criminal
Case No. 0759-99, finding appellant Geronimo Boromeo
y Marco GUILTY beyond reasonable doubt of qualified
rape and sentencing him to suffer the DEATH penalty,
is AFFIRMED. In addition to the ₱75,000 civil indemnity
and ₱75,000 moral damages, appellant is ordered to pay
₱25,000 exemplary damages to the victim. Costs de
oficio.
In accordance with Article 83 of the Revised Penal Code,
as amended by Section 25 of Republic Act No. 7659,
upon finality of this Decision, let certified true copies of the
records of this case be forwarded forthwith to the
President of the Philippines for the possible exercise of
the pardoning power.
SO ORDERED.
G.R. No. 88582 March 5, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HEINRICH S. RITTER, accused-appellant,
GUTIERREZ, JR., J.:
The appellant challenges his conviction of the crime
involving a young girl of about 12 years old who had been
allegedly raped and who later died because of a foreign
object left inside her vaginal canal.
Heinrich Stefan Ritter was charged with the crime of rape
with homicide under an information which reads:
That on or about the tenth (10th day of October,
1986 in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused with lewd design and with
intent to kill one Rosario Baluyot, a woman under
twelve (12) years of age, did then and there
wilfully, unlawfully and feloniously have carnal
knowledge of said Rosario Baluyot and inserted
a foreign object into the vaginal canal of said
Rosario Baluyot which caused her death shortly
thereafter, to the damage and prejudice of her
relatives. (66)
When arraigned, the accused pleaded "Not Guilty".
Thereafter, the case was set for trial on the merits.
To prove the guilt of the accused, the prosecutor
presented the following witnesses, namely: (1) Jessie
Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano
Victoria, (4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6)
Sumulong Daniel, (7) Jessica Herrera, (8) Sister Eva
Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop,
(11) Dr. Leo Cruz, (12) Paul Maclor, (13) Aida Sarmiento,
(14) Patricia Prollamanta (15) Mel Santos, (16) Lorna
Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini
Alcala, (21) lst Asst. City Fiscal Dorentino Z. Floresta, (22)
Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.
On the other hand, the defense offered in evidence
Exhibits "1" to "24" and the testimonies of (1) Heinrich S.
Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong
(4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr.
Pedro C. Solis.
The facts of the case upon which the lower court based
its finding of guilt beyond reasonable doubt are
summarized in its decision, as follows:
The people's evidence show that on October 10,
1986 about midnight, accused Heinrich Stefan
Ritter brought a boy and girl namely: Jessie
Ramirez and Rosario Baluyot inside his hotel
room at MGM Hotel along Magsaysay Drive,
Olongapo City. These two (2) children were
122
chosen from among a bunch of street children.
Once inside the hotel room accused told them to
take a bath. Jessie Ramirez, alias "Egan", was
the first to take a bath and when he came out
Rosario Baluyot went to the bathroom to do the
same. While Rosario Baluyot was inside the
bathroom, accused Ritter took out some pictures
depicting dressed up young boys, and put them
on top of the table. Other things which were taken
out and placed on top of a table were three (3)
other objects which he described as like that of a
vicks inhaler. One of these objects the accused
played with his hands and placed it on his palms.
The color of which is grayish blue which turned
out later to be the foreign object which was
inserted inside the vagina of Rosario Baluyot. The
other objects were later established to be anti-
nasal inhalers against pollution purchased by the
accused in Bangkok when he went there as a
tourist. While Rosario was in the bathroom,
accused told Ramirez to lay down on bed, and so
did the accused. He then started masturbating
the young boy and also guided the boy's hand for
him to be masturbated, so that they masturbated
each other, while they were both naked, and he
gave Jessie Ramirez an erection. When Rosario
Baluyot came out of the bathroom, she was told
to remove her clothes by accused and to join him
in bed. The accused then placed himself between
the two (2) children and accused started fingering
Rosario.
At this time, Ramirez was already sleepy, but
Rosario touched him to call his attention. He
looked, and he saw accused placing his penis
against the vagina of Rosario and that he was
trying to penetrate the vagina but it would not fit.
After what he saw, Ramirez did not anymore
bother to look because he was sleepy and fell
asleep.
The following morning, the accused, whom the
juveniles described as an "American, paid
Ramirez alias "Egan" P200.00 and Rosario
P300.00. He then left them in the hotel. After the
American left, they went downstairs, and Rosario
told Egan that the American inserted something
in her vagina. But they could not do anything
anymore, because the American had already left,
and neither did they report the matter to the
police. Sometime the following day, Jessie saw
Rosario and he asked her whether the object was
already removed from her body and Rosario said
"Yes". However, Jessie Ramirez claimed that on
the evening of that same date, he saw Rosario
and she was complaining of pain in her vagina
and when Egan asked her, she said that the
foreign object was not yet removed. Then there
was another occasion wherein Jessie was
summoned and when he came he saw Rosario
writhing in pain and when he tried to talk to
Rosario she scolded him with defamatory
remarks. Thereafter, he did not see Rosario
anymore because he already went home to his
aunt's house who resided at Barrio Barretto and
resumed his studies in the primary grades.
On May 14, 1987, Gaspar Alcantara, a defense
witness, while garbage scavenging at Lot 21,
near the gate of the U.S. Naval Base saw Rosario
at Magsaysay Drive near the Happy Bake Shop
near Lot 21, being ogled by people because
Rosario's skirt was bloodied and she was
unconscious and foul smelling. Since nobody
helped Rosario, he took pity on her condition and
brought her to the Olongapo City General
Hospital in an unconscious condition, via
jeepney. He went to the Information desk and he
was the one who gave the personal
circumstances of Rosario as to her name, age,
her residence as Nagbakulaw, Lower Kalaklan,
and Gaspar Alcantara signed as "guardian" of
Rosario, while Rosario was already in the
emergency room. Although Gaspar Alcantara
denied that he did not know the name of Rosario
Baluyot when he brought her to the hospital, this
is belied by the testimony of the Information clerk
Lorna Limos, who was then on duty. Limos
testified that it was Alcantara who supplied the
personal circumstances of Rosario. The Court
gives more credence to the testimony of Miss
Limos as against Gaspar Alcantara who became
a defense witness, for the reason that through his
own testimony, Gaspar Alcantara claimed that
even prior to May 14, 1987, he had already known
Rosario Baluyot for more than one (1) year,
because he has seen the said girl go to the house
of his twin brother, Melchor Alcantara, who is his
immediate neighbor. Rosario used to visit a girl
by the name of "Nora" who was then in the
custody of his brother. His brother Melchor was
also living with their mother, brother and sister-in-
law and their two (2) children in his house.
Rosario as per Gaspar's testimony even stays for
one week or a few days at his brother's house
when she visits Nora. So the Court can safely
assume that of all the more than one (1) year that
he had regularly seen Rosario at his brother's
house, he must have already did come to know
the name of Rosario Baluyot including her age. In
his testimony in Court he stated that he even
asked Rosario for movie and softdrinks money
which can safely be concluded that he knows her
very well. It is against normal behavior especially
to a Filipino who have a characteristic of curiosity
not to have found out the real name of the girl he
claims to know only as "Tomboy".
While Rosario Baluyot was confined at the
Olongapo City General Hospital, nobody was
123
attending to her since she is a street child, having
stowed away from the custody of her
grandmother. Three (3) good samaritans who
belong to religious and civic organizations, in the
persons of Jessica Herrera, Fe Israel and Sr. Eva
Palencia, in one of their missions in the hospital
chanced upon Rosario Baluyot who was all alone
with no relatives attending to her and after finding
out that she was only 12 years old decided to help
her. After a short interview with Rosario,
regarding her name and age only because she
clamped up about her residence and her
relatives, they decided to help her by providing
her the medicine she needed during her
confinement in readiness for an operation. It was
Fe Israel who was able to get the name and age
of Rosario Baluyot from Rosario Baluyot herself
when she saw her for the first time. For Fe Israel,
the age of Rosario Baluyot was an important
factor because their program assisted only
indigent patients from infants up to 13 years old.
Rosario's first ailment at the Olongapo City
General Hospital was loose bowel movement and
vomiting, which was first suspected as gastro-
enteritis, but which came out later as symptoms
of peritonitis due to a massive infection in the
abdominal cavity. Subsequently, on May 17,
1987, after she was examined by the physicians
at the hospital, it was found out that there was a
foreign object lodged in her vaginal canal and she
had vaginal discharge tinged with blood and foul
smelling odor emanating from her body. One of
the doctors who attended to her was Dr. Barcinal,
an OB-GYNE. Dr. Barcinal tried to extract the
foreign object by means of a forceps, but several
attempts proved futile because said object was
deeply embedded in the vaginal canal and was
covered by tissues. Her abdomen was enlarged,
tender and distended, symptoms of peritonitis.
The patient was feverish and incoherent when
she was scheduled for operation on May 19,
1987, after the first attempt for an operation on
May 17 was aborted allegedly because the
consent of Dr. Reino Rosete, the hospital director
was not obtained. The surgeon who operated on
her was Dr. Rosete himself. He testified that
Rosario had to be operated even in that condition
in order to save her life. Her condition was
guarded. This was corroborated by Dr. Leo Cruz,
the anesthesiologist during Rosario's operation. It
was in the evening of May 19 at about 7:00 p.m.
when Dr. Rosete opened her abdomen by making
a 5 inch incision on her stomach. He found out
that the fallopian tubes were congested with pus
and so with the peritonieum, and the pelvic cavity,
and patches of pus in the liver, although the
gallbladder and kidney appeared to have
septicemia, poisoning of the blood. The peritonitis
and septicemia were traced to have been caused
through infection by the foreign object which has
been lodged in the intra-vaginal canal of Rosario.
The foreign object which was already agreed
upon by both parties that it is a portion of a sexual
vibrator was extracted from the vagina of Rosario
while under anesthesia. Said object was coated
with tissues, pus and blood. Dr. Rosete gave it to
the assisting surgical nurse for safekeeping and
gave instructions to release it to the authorized
person. This object was shown by the nurse to Dr.
Leo Cruz. Dr. Rosete considered the operation
successful and the patient was alive when he left
her under Dr. Cruz. Dr. Cruz stayed with said
patient in the ward for about 30 minutes and
thereafter he left. The following day, Rosario got
serious and it was Dr. Leo Cruz who pronounced
her death at 2:00 to 2:15 in the afternoon of May
20, 1987.
Thereafter, a death certificate was prepared
under the direction of Dr. Cruz which was
indicated therein that the cause of death was
cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in
the intra uteral vaginal canal of Rosario Baluyot.
The foreign object was washed by nurse
Obedina, then placed it in a transparent small jar
and labelled "Rosario Baluyot". Jessica Herrera
asked the nurse for the foreign object, and it was
given to her under proper receipt. Herrera then
showed the same to the persons who helped
financially Rosario's case, and afterwards she
gave it to Sister Eva Palencia. Sis. Palencia was
in custody of the said object until Mr. Salonga
came and asked her for the object.
After Rosario Baluyot died, Sis. Palencia and a
companion went to Gaspar Alcantara to ask him
in locating the relatives of Rosario. They were
able to trace Rosario's grandmother, Mrs. Maria
Burgos Turla, and informed her that her
granddaughter was already dead and lying in
state at St. Martin Funeral Parlor. Mrs. Turla went
there with her son, who shouldered all the burial
expenses for Rosario.
Subsequently, Sis. Palencia, Fr. Cullens and Mr.
Salonga came to her residence at Sta. Rita and
asked her if she was interested in filing a case
against the person who caused the death of her
granddaughter. Of course she agreed. Hence,
she was brought to the Fiscal's (City) Office to file
the same.
After the case was filed against the herein
accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that
the accused was willing to settle the case, but that
accused Ritter had only P15,000.00. The old
woman did not accept it because she knows that
124
the accused is liable to pay damages anyway.
After that, she received a letter from Atty. Legaspi
telling her to get a lawyer for her case. By this
time, Mrs. Turla, who wanted to have the case
settled once and for all giving the reason that she
can no longer bear the situation, sent her
nephew, Conrado Marcelo to Atty. Legaspi. Her
nephew obliged and told her that she will be paid
at the office of Atty. Legaspi. On a date not clear
in the records, she went with her nephew
Conrado Marcelo, and Roberto Sundiam, an
assistant barangay tanod of Sta. Rita, and while
they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office
near the bathroom, and thereafter Ritter left. After
he left, Atty. Legaspi told Rosario's grandmother
that they are willing to settle for P20,000.00, but
that Ritter left only P15,000.00, so she received
the money with the understanding that there was
a balance of P5,000.00 yet. She was made to
sign a statement, and she was asked to change
the age of her granddaughter Rosario. With the
document prepared, she and the lawyer's
messenger went to the Fiscal's office to have it
subscribed, and was subscribed before an
assistant city fiscal. But the balance of P5,000.00
was not paid, because later on Atty. Legaspi
became the OIC of Olongapo City and he could
no longer attend to it. Atty. Legaspi, during one of
the hearings before the Court even apologized to
her.
As to the case, P/Cpl. Marino Victoria, as criminal
investigator of Station "A", was directed by Col.
Daos, Station Commander of the Olongapo
Police Department to make a follow up of the
case of Rosario Baluyot. On the other hand, since
the suspect who inserted the foreign object inside
Rosario's vagina was said to be an American, the
NISRA Subic Naval Base also conducted its
investigation headed by criminal investigator
Agent Conrado Salonga. Coordinating with the
local police and with Sister Eva Palencia, since
Rosario was a street child at Magsaysay Drive,
they rounded up about 43 street children and from
some of them they learned that Rosario Baluyot
was with Jessie Ramirez with an American at the
MGM Hotel when the foreign object was inserted
in her vagina. After finding Jessie Ramirez, they
asked him about Rosario Baluyot. They found out
that indeed he was with Rosario Baluyot
sometime before Christmas of 1986 with an
American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval
Base, Olongapo City and took his statement.
Then he was brought to Mr. Edward Lee
Bungarner, a cartographer, and out of the
description supplied by Ramirez, a composite
drawing was photocopied and copies thereof
were distributed to the local police and to the
sentries at the gate of the U.S. Naval Base. Some
American servicemen who had resemblance to
the composite drawing were photographed and
these were shown to Jessie Ramirez, but the
result was negative. Aside from the physical
description by Ramirez about the appearance of
the suspect, he also described him as having the
mannerisms of a homo-sexual.
After obtaining information that foreign homo-
sexuals frequented Ermita, Manila, and thinking
that the so-called American may be European or
Australian national, the team composed of Agent
Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and
P/Cpl. Andres Montaon, Jessie Ramirez and
Michael Johnson, another juvenile, proceeded to
Manila. They first went to the Manila NISRA
Office, and thereafter checked in a hotel. That
was on September 23, 1987. On the first night,
they went to Luneta Park where foreign homo-
sexuals were said to be frequenting, but the result
was negative. Then on September 25, at about
11:00 p.m., while they were standing at the corner
of A. Mabini and M.H. del Pilar Street, a male
caucasian who looked like a homo-sexual
stopped by admiringly infront of the two (2)
juveniles, Ramirez and Johnson. Jessie Ramirez
then reported to Mr. Salonga that this foreigner
had a similarity with the American suspect, so the
two minors were instructed to follow the foreigner
and to strike a conversation. They did, and when
they returned, Jessie Ramirez told them that
indeed the said foreigner was the one who
brought him and Rosario Baluyot to the MGM
Hotel. Bobby Salonga told Ramirez that this
foreigner had no beard while the one previously
described by Ramirez had a beard. Jessie
Ramirez told them that maybe he have just
shaved it off. The said caucasian then entered a
bar, and after several minutes he came out, and
Jessie Ramirez upon his signal with his thumbs
up, as a signal to confirm that the said foreigner
is the suspect, arrested Ritter and brought him to
the Manila Western Police District. It could be
mentioned at this stage that in this operation they
were accompanied by two (2) policemen from the
Western Police District. The foreigner was hand
cuffed and was told that he was a suspect for
Rape with Homicide. After the arrest, they first
went to the pension house of the suspect in
Ermita, Manila to get his shoulder bag which
contained his personal belongings, and from
there they brought him to the Western Police
Department. At the said police headquarters, they
were allowed a permissive search by the
foreigner of his clutch bag and his small shoulder
bag and confiscated his passport, I.D., 3 inhalers,
money in the form of dollars and travellers checks
amounting about $1,500.00 and about P100.00,
all duly receipted for. From the passport they
learned that the suspect's name was Heinrich
Stefan Ritter, an Austrian national. During the
125
 questioning of Hitter, Salonga and his team
already left the headquarters and went to their
hotel, because at this time Jessie Ramirez was
already shaking with fear after he identified the
accused.
The following day, they brought the accused to
Olongapo and was detained at the Olongapo City
Jail. The case for Rape with Homicide was filed
against him at the City Fiscal of Olongapo. At the
preliminary investigation, accused was assisted
by his own counsel. The private complainant was
Maria Burgos Turla because it was she who had
custody of Rosario Baluyot after her mother Anita
Burgos died on January 12, 1982, and their father
Policarpio Baluyot had left them under her
custody. When this case was filed, the father's
whereabouts was unknown, and he only
appeared when the trial of this case before the
Court was already in progress. And upon his
(Policarpio Baluyot) own admission, he only
learned about the death of his daughter Rosario
Baluyot from the newspaper, long after Rosario
was already gone.
The defense tried to dislodge the case by
claiming that there could be no crime of Rape with
Homicide because the suspect was described as
an American while Ritter is an Austrian. Also
advanced by the defense is that, it is a case of
mistaken identity. That Rosario Baluyot was at
the time of the commission of the offense, already
more than 13 years old, she having been born on
December 26, 1973 as per baptismal certificate,
wherein it appears that Rosario Baluyot was
baptized on December 25, 1974 and was born on
December 26, 1973 as testified to by Fr. Roque
Villanueva of St. James Parish Church who
issued the Baptismal Certificate, having custody
and possession of the book of baptism for the
year 1975, but admitted that he had no personal
knowledge about the matters or entries entered
therein. Likewise, the defense's stand is that the
accused cannot be liable for Homicide because a
vibrator is not a weapon of death but it is a thing
for the purpose of giving sexual pleasure, and that
the death of Rosario Baluyot was due to the
incompetence of Dr. Rosete, the surgeon and
Director of the Olongapo City General Hospital,
who operated on her. (Rollo, pp. 109-116)
On March 29, 1989, the trial court rendered its decision.
The dispositive portion of the decision reads as follows:
WHEREFORE, IN VIEW OF ALL THE
FOREGOING, the Court holds, that the
prosecution has established the GUILT of the
accused beyond reasonable doubt for the crime
of Rape with Homicide as defined and penalized
in Art. 335 No. 3 of the Revised Penal Code, and
hereby sentences HEINRICH STEFAN RITTER
to a penalty of RECLUSION PERPETUA, to
indemnify the heirs of the deceased in the sum of
SIXTY THOUSAND PESOS (P60,000.00)
Philippine Currency, and TEN THOUSAND
PESOS (Pl0,000.00) by way of attorney's fees to
the private prosecutors and to pay the costs.
(Rollo, p. 126)
The accused now comes to this Court on the following
assigned errors allegedly committed by the court:
I
THE TRIAL COURT GRAVELY ERRED AND
ABUSED ITS DISCRETION IN FINDING THAT
THE ALLEGED OFFENSE WAS COMMITTED
ON OCTOBER 10, 1986 AND THAT IT WAS
ACCUSED-APPELLANT WHO COMMITTED IT.
II
THE TRIAL COURT GRAVELY ERRED AND
ABUSED ITS DISCRETION IN FINDING THAT
ROSARIO BALUYOT WAS LESS THAN
TWELVE (12) YEARS OLD WHEN THE
ALLEGED OFFENSE WAS COMMITTED AND
IN HOLDING THAT THERE WAS RAPE WITH
HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED AND
ABUSED ITS DISCRETION IN GIVING
CREDENCE TO AND NOT REJECTING THE
PROSECUTION'S EVIDENCE AND IN NOT
UPHOLDING THAT OF THE DEFENSE AND
ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm
a judgment of conviction only if the guilt of the accused
has been proved beyond reasonable doubt, it behooves
us to exert the most painstaking effort to examine the
records in the light of the arguments of both parties if only
to satisfy judicial conscience that the appellant indeed
committed the criminal act (See People v. Villapaña, 161
SCRA 73 [1988]).
The appellant was convicted by the trial court of the crime
of rape with homicide of a young girl who died after the
rape because of a foreign object, believed to be a sexual
vibrator, left inside her vagina.
As stated by the trial court one crucial issue in this case is
the age of the victim—whether or not Rosario Baluyot was
less than twelve (12) years old at the time the alleged
incident happened on October 10, 1986. The age is
important in determining whether or not there was
statutory rape, Article 335 of the Revised Penal Code
126
defines the third type of rape as having carnal knowledge
of a woman under 12 years of age, in which case force,
intimidation, deprivation of reason or unconscious state
do not have to be present.
The trial court found that Rosario was below 12 years old
when she was sexually abused by the accused and,
therefore, rape was committed inspite of the absence of
force or intimidation.
In resolving the issue, the trial court put great weight on
the testimonies of the victim's grandmother and father
who testified that she was born on December 22, 1975.
These oral declarations were admitted pursuant to then
Rule 130, Section 33 of the Rules of Court where, in the
absence of a birth certificate, the act or declaration about
pedigree may be received in evidence on any notable fact
in the life of a member of the family. Since birth is a matter
of pedigree within the rule which permits the admission of
hearsay evidence, oral declarations are therefore
admissible as proof of birth (Decision, p. 54).
The grandmother, Maria Burgos Turla, testified that she
remembered Rosario's birth date because her brother
died in Pampanga and her daughter, Anita (Rosario's
mother) was the only one who failed to attend the funeral
because the latter has just given birth allegedly to Rosario
(T.S.N. p. 8, Jan. 13, 1988).
The father likewise testified that as far as he could
remember, Rosario was born on December 22, 1975
(T.S.N., p. 4, Jan. 27, 1988) and he was certain that
Rosario was more than one (1) year old when she was
baptized (T.S.N., p. 45, Jan. 27, 1988).
The trial court further added that their testimony is
supported by the clinical record and the death certificate
indicating that she was 12 years old when she was
admitted at the Olongapo City General Hospital for
treatment. The age was supplied by Rosario's alleged
guardian, Gaspar Alcantara to the hospital's clinical
record clerk, Lorna Limos. Fe Israel, a social worker who
interviewed Rosario Baluyot also testified that she was
told by Rosario that she was 12 years old. The trial court
accepted this as adequate evidence of the truth.
Moreover, Jessie Ramirez, the principal witness in this
case declared that he was born on September 5, 1973
and that he was older than Rosario Baluyot. Therefore,
since he was 13 years old in 1986, Rosario must have
been less than 12 yeas old in 1986. (Decision, p. 55)
The trial court concluded that the oral declarations of the
grandmother and father supported by other independent
evidence such as the clinical record, death certificate and
the testimonies of Fe Israel and Jessie Ramirez, rendered
the baptismal certificate presented by the defense without
any probative or evidentiary value. (Decision, p. 55)
The findings of the trial court with respect to Rosario
Baluyot's age cannot stand the application of evidentiary
rules.
The trial court relied on Section 33, Rule 130 (now Section
40 of Rule 130 of the 1989 Revised Rules of Court).
For oral evidence to be admissible under this Rule, the
requisites are:
(1) That the declarant must be dead or outside of
the Philippines or unable to testify;
(2) That pedigree is in issue;
(3) That the person whose pedigree is in question
must be related to the declarant by birth or
marriage;
(4) That the declaration must be made before the
controversy occurred or ante litem motam; and
(5) That the relationship between the declarant
and the person whose pedigree is in question
must as a general rule be shown by evidence
other than such act or declaration.
These requirements were not satisfied by the evidence for
the prosecution nor do the declarations fall within the
purview of the rule.
The victim's grandmother and father whose declarations
regarding Rosario's age were admitted by the trial court
are both alive, in the Philippines and able to testify as they
both did testify in court. Their declarations were made at
the trial which is certainly not before the controversy
arose. The other witnesses who testified on Rosario's age
are not members of the victim's family. The testimonies of
Rosario's relatives must be weighed according to their
own personal knowledge of what happened and not as
hearsay evidence on matters of family history.
At this point, we find the evidence regarding Rosario's age
of doubtful value.
The trial court justified the admissibility of the
grandmother's testimony pursuant to the ruling laid down
in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court
accepted the testimony of the mother that her daughter
was 14 years old and 4 months old. The mother stated
that she knew the age because the child was born about
the time of the cholera epidemic of 1889. This was not
hearsay, but came from one who had direct knowledge of
the child's birth.
It is however, equally true that human memory on dates
or days is frail and unless the day is an extraordinary or
unusual one for the witness, there is no reasonable
127
assurance of its correctness. (People v. Dasig 93 Phil.
618, 632 [1953])
With respect to the grandmother's testimony, the date of
the brother's death or funeral was never established,
which indicates that the day was rather insignificant to be
remembered. The father's declaration is likewise not
entirely reliable. His testimony in court does not at all
show that he had direct knowledge of his daughter's birth.
He was certain though that she was more than one (1)
year old at the time she was baptized.
The other witnesses are not at all competent to testify on
the victim's age, nor was there any basis shown to
establish their competence for the purpose. The clinical
records were based on Gaspar Alcantara's incompetent
information given when he brought the victim to the
hospital. Alcantara came to know her only about a year
before her death. He had absolutely no knowledge about
the circumstances of Rosario's birth. The death certificate
relied upon by the trial court was merely based on the
clinical records. It is even less reliable as a record of birth.
All the evidence presented by the prosecution showing
that Rosario Baluyot was less than 12 years old at the
time of the alleged incident are not adequate to establish
the exact date of birth, much less offset a documentary
record showing a different date.
The defense presented Rosario Baluyot's baptismal
certificate which the trial court rejected as being hearsay
and of no value. As against the oral declarations made by
interested witnesses establishing Rosario's age to be less
than 12 years old, the evidence on record is more
convincing and worthy of belief. (See Filinvest Land, Inc.
v. Court of Appeals, 183 SCRA 664, 673 [1990]).
By virtue of a subpoena duces tecum and ad
testificandum, issued by the lower court to the St. James
Parish Church, Subic, Zambales, Fr. Roque Villanueva a
Roman Catholic priest testified and stated that he is the
head of said parish. He brought with him Baptismal
Register No. 9 entitled "Liber Baptisnorum", a latin term
for baptismal book or record. On page 151, No. 3 of the
said Registry Book, there appears the name of Rosario
Baluyot who was baptized on December 25, 1974, and
born on December 26, 1973. Parents are Policarpio
Baluyot and Anita Burgos, residents of Subic, Zambales.
Edita R. Milan appears as the only sponsor with Olongapo
City as her address.
In the case of Macadangdang v. Court of appeals (100
SCRA 73 [1980]), we held that:
xxx xxx xxx
In our jurisprudence, this Court has been more
definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while
baptismal and marriage certificates may be
considered public documents, they are evidence
only to prove the administration of the
sacraments on the dates therein specified—but
not the veracity of the status or declarations made
therein with respect to his kinsfolk and/or
citizenship (Paa v. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus v. Novero (L-
22378, 23 SCRA 1331 [1968]), this Court held
that a baptismal certificate is conclusive proof
only of the baptism administered, in conformity
with the rites of the Catholic Church by the priest
who baptized the child, but it does not prove the
veracity of the declarations and statements
contained in the certificate that concern the
relationship of the person baptized. Such
declarations and statements, in order that their
truth may be admitted, must indispensably be
shown by proof recognized by law. (At pp. 84-85)
In the same light, the entries made in the Registry Book
may be considered as entries made in the course of
business under Section 43 of Rule 130, which is an
exception to the hearsay rule. The baptisms administered
by the church are one of its transactions in the exercise of
ecclesiastical duties and recorded in a book of the church
during the course of its business. (U.S. v. de Vera, 28 Phil.
105 [1914] Hence, the certificate (Exhibit "22") presented
by the defense that Rosario Baluyot was baptized on
December 25, 1974 may be admitted in evidence as proof
of baptism. Policarpio Baluyot, the victim's father testified
that he had in his possession a baptismal certificate
different from the one presented in court. However, no
other baptismal record was ever presented to prove a
date different from that brought by the official custodian.
Since the baptismal certificate states that Rosario was
baptized on December 25, 1974, it is therefore highly
improbable that Rosario could have been born on
December 22, 1975. She could not have been baptized
before she was born. Exhibit "22" may be proof only of
baptism but it puts a lie to the declaration that Rosario was
born in 1975. With the father's assertion that Rosario was
more than one (1) year old when she was baptized, we
are then more inclined to agree that Rosario was born in
1973 as stated in the Baptismal Registry.
In the case of People v. Rebancos (172 SCRA 425
[1989]), the Court stated:
xxx xxx xxx
. . . Although no birth certificate was presented
because her birth had allegedly not been
registered, her baptismal certificate, coupled by
her mother's testimony, was sufficient to establish
that Mary Rose was below twelve years old when
she was violated by Rebancos. (At. p. 426)
Unfortunately, in the instant case, nobody could
corroborate the date on a more reliable document as to
128
Rosario's birth which could serve as sufficient proof that
she was born on December 26, 1973. Therefore, she was
more than 12 years old at the time of the alleged incident
on October 10, 1986.
Moreover, it is not incumbent upon the defense to prove
Rosario's age. The burden of proof lies on the prosecution
to prove that Rosario was less than 12 years old at the
time of the alleged incident in a charge of statutory rape.
The prosecution failed in this respect.
Since Rosario was not established to have been under 12
years of age at the time of the alleged sexual violation, it
was necessary to prove that the usual elements of rape
were present; i.e. that there was force of intimidation or
that she was deprived of reason or otherwise unconscious
in accordance with Article 335 of the Revised Penal Code.
We agree with the defense that there was no proof of such
facts. On the contrary, the evidence shows that Rosario
submitted herself to the sexual advances of the appellant.
In fact, she appears to have consented to the act as she
was paid P300.00 the next morning while her companion,
Jessie Ramirez was paid P200.00 (T.S.N. p. 50, January
6, 1988). The environmental circumstances coupled with
the testimonies and evidence presented in court clearly
give the impression that Rosario Baluyot, a poor street
child, was a prostitute inspite of her tender age.
Circumstances in life may have forced her to submit to
sex at such a young age but the circumstances do not
come under the purview of force or intimidation needed to
convict for rape.
In view of these clear facts which the prosecution failed to
refute, no rape was committed. But was Ritter guilty of
homicide?
The trial court justified its ruling by saying that the death
of the victim was a consequence of the insertion of the
foreign object into the victim's vagina by the appellant.
We now ask "Was the appellant responsible for the sexual
vibrator left inside Rosario's vagina which led to her
death?
The trial court convicted the accused based on
circumstantial evidence. Unfortunately, the
circumstances are capable of varying interpretations and
are not enough to justify conviction.
Jessie Ramirez, the principal witness did not actually see
the object inserted in Rosario's vagina. Neither could he
identify the object (Exhibit "C-2") taken from Rosario as
the same object which the appellant was holding at that
time of the alleged incident.
In his sworn statement given to the police investigator on
September 4, 1987, he answered that:
xxx xxx xxx
T Habang kayo ay nasa loob ng kuwarto ng otel,
mayroon ka bang napansin na inilabas ng kano
sa kanyang daladalahan kung mayroon man?
S Ang Amerikano ay may dala-dalang shoulder
bag na kulay itim, at napansin ko na may inilabas
siya sa kanyang bag na parang vicks inhaler, na
kanyang inamoy-amoy habang nasa otel kami at
pagkatapos niya ay inilapag niya sa lamiseta.
T Ilarawan mo nga sa akin ang bagay na nakita
mong inilabas ng Amerikano?
S Ito ay may habang tatlong pulgada at ang takip
nito ay may habang dalawang pulgada. Iyong
takip ay bilog na patulis at may tabang mga
kalahating pulgada. Hindi ko napansin ang hugis
ng dulo ng bagay na may takip dahil natatakpan
ng kamay at ilong ng Amerikano.
T Ipinakikita ko sa iyo ang isang larawan. Tignan
mong mabuti ang larawang ito at sabihin mo nga
sa akin kung makikilala mo ang mga bagay na
nasa larawang ito, na may kinalaman sa nakita
mong kinuha ng Amerikano sa kanyang bag?
S Napansin ko na ang kulay asul na bagay sa
larawan ay katulad na katulad noong takip ng
bagay na inilabas ng Amerikano sa kanyang
bag. Kaya lang ay bakit naging kulay asul gayong
ng makita ko ito ay kulay puti? (Exhibit "A", p. 2;
Emphasis Supplied)
Presumably, what Jessie Ramirez saw was merely the
Vicks inhaler which the appellant does not deny having
possessed at that time. He was certain that the object was
white. (T.S.N. p. 91, January 6, 1988)
Later, Ramirez retracted and corrected himself. He said
that it was grayish in color with color blue (Medyo kulay
abo na may kulay na parang blue). (T.S.N. p. 92, January
6, 1988) The inconsistency of the witness' testimony casts
doubt as to the veracity of the statements made especially
when he answered on additional cross-examination that
the reason why he concluded that Exhibit "C-2" was the
same object being held by Ritter was because it was the
only one shown to him by the prosecution (T.S.N. pp. 109-
110, January 6, 1988). Jessie Ramirez was not all certain
about the sexual vibrator because he did not actually see
it in the possession of the appellant.
What he merely remembers is the revelation made by
Rosario the next morning that the foreigner inserted
something inside her vagina. The trial court admitted such
statement as part of the res gestae. In a strained effort to
accept such statement as part of res gestae, the trial court
focused the test of admissibility on the lapse of time
129
between the event and the utterance. For the average 13
years old, the insertion of a mechanical device or anything
for that matter into the vagina of a young girl is
undoubtedly startling. For Rosario and Jessie, however,
there must be more evidence to show that the statement,
given after a night's sleep had intervened, was given
instinctively because the event was so startling Res
gestae does not apply. (Section 42, Rule 130, Rules of
Court)
Even if it were established that the appellant did insert
something inside Rosario's vagina, the evidence is still not
adequate to impute the death of Rosario to the appellant's
alleged act.
Jessie Ramirez testified that Rosario was able to remove
the object inserted in her vagina. We quote:
Q Now, you also stated on direct examination that
later on Rosario even categorically admitted to
you that she was already able to remove the
object allegedly inserted inside her vagina, is that
correct?
A Yes, sir.
xxx xxx xxx
ATTY. CARAAN:
Q Will you kindly tell to this Honorable Court the
exact words used by Rosario Baluyot later on
when you met her when you asked her and when
she told you that she was already able to remove
that object from her vagina?
A "Oy, Jessie, natanggal na, "she told me that. I
asked her, "Was it already removed?" And she
answered, "Yes, it was removed." But the same
night, she again complained of pain of her
stomach. She sent one of her friends to call for
me. And as a matter of fact, Tomboy was uttering
defamatory words against me as she was
groaning in pain. (TSN, Jan. 6,1988, pp. 72-73)
This encounter happened on the night of the day following
the day after both children were invited by the foreigner to
the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was
said to be groaning in pain so we can just imagine the
distress she was undergoing at this point in time. If the
device inserted by the appellant caused the pain, it is
highly inconceivable how she was able to endure the pain
and discomfort until May, 1987, seven (7) months after
the alleged incident. Evidence must not only proceed from
the mouth of a credible witness but it must be credible in
itself such as the common experience and observation of
mankind can approve as probable under the
circumstances. (People vs. Patog, 144 SCRA 429
[1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather
significant. Dr. Pedro Solis, a witness for the defense is
considered an expert witness. (A Doctor of Medicine and
a graduate of the State University in 1940, a degree of
Bachelor of Laws and member of the Bar 1949, and a
graduate of the Institute of Criminology University. He was
awarded Post Graduate Diploma in Criminology in 1963,
and also a graduate of United Nations Asia and Far East
Asia Institute on the Prevention of Crimes in Tokyo Japan
1965. He was appointed Medico Legal Officer of the
National Bureau of Investigation in 1940 until 1944. He
became Chief Medico Legal Officer in 1970 and became
the Deputy Director of the NBI up to 1984. He is at present
a Professorial Lecturer on Legal Medicine at the UP, FEU,
UE, and Fatima College of Medicine; a Medico Legal
Consultant of the PGH Medical Center, Makati Medical
Center, UERM Medical Center, MCU Medical Center. He
has been with the NBI for 43 years. He has attended no
less than 13 conferences abroad. He is the author of the
textbooks entitled "Legal Medicine" and "Medical
Jurisprudence".) With his impressive legal and medical
background, his testimony is too authoritative to ignore.
We quote the pertinent portions of his testimony:
Q Now Dr. Solis, would you kindly go over this
object marked as Exh. "C-2" which object was
described as a part of a sexual vibrator battery
operated. Now, given this kind of object, would
you kindly tell us what would be the probable
effect upon a 12 years old girl when it is inserted
into her vagina?
A Well, this vibrator must be considered a foreign
body placed into a human being and as such be
considered a foreign object. As a foreign object,
the tendency of the body may be: No. 1—expel
the foreign body—No. 2.—The tendency of the
body is to react to that foreign body. One of the
reactions that maybe manifested by the person
wherein such foreign body is concerned is to
cover the foreign body with human tissue, in a
way to avoid its further injury to the body.
Now, the second reaction is irritation thereby
producing certain manifest symptoms and
changes in the area where the foreign body is
located.
In severe cases, the symptoms manifestation
might not only be localized but may be felt all over
the body, we call it systemic reaction. Now,
considering the fact that this foreign body as
shown to me is already not complete, this shows
exposure of its different parts for the body to
react. If there is mechanism to cause the foreign
body to vibrate, there must be some sort of power
from within and that power must be a dry cell
battery. [The] composition of the battery are,
manganese dioxide ammonium, salts, water and
any substance that will cause current flow. All of
130
 these substances are irritants including areas of
the container and as such, the primary reaction of
the body is to cause irritation on the tissues,
thereby inflammatory changes develop and in all
likelihood, aside from those inflammatory
changes would be a supervening infection in a
way that the whole generative organ of the
woman will suffer from diseased process causing
her the systemic reaction like fever, swelling of
the area, and other systemic symptoms. . . . .
(TSN., pp. 13-15, October 19,1988)
xxx xxx xxx
Q Now, given this object, how long would it take,
Doctor before any reaction such as an infection
would set in, how many days after the insertion of
this object in the vagina of a 12 year old girl?
A In the example given to me, considering that
one of the ends is exposed, in a way that vaginal
secretion has more chance to get in, well,
liberation of this irritant chemicals would be
enhanced and therefore in a shorter period of
time, there being this vaginal reaction.
Q How many days or weeks would you say would
that follow after the insertion?
A As I said, with my experience at the
NBI, insertion of any foreign body in the vaginal
canal usually developed within, a period of two (2)
weeks . . .
xxx xxx xxx
Q . . . [T]he subject in this case was allegedly
raped, and a sexual vibrator was inserted in her
vagina on October 10, 1986 and she was
operated on, on May 19, 1987 the following year,
so it took more than 7 months before this was
extracted, would you say that it will take that long
before any adverse infection could set in inside
the vagina?
A Infection and inflamatory changes will develop
in a shorter time. (TSN., Oct. 19,1988, p. 18)
xxx xxx xxx
Q When you said shorter, how long would that be,
Doctor?
A As I said, in my personal experience, hair pins,
cottonballs and even this lipstick of women
usually, there are only about two (2) weeks time
that the patient suffer some abnormal symptoms.
Q Now, considering that this is a bigger object to
the object that you mentioned, this object has a
shorter time?
A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p.
20)
The trial court, however, ruled that "there is no hard and
fast rule as to the time frame wherein infection sets in
upon insertion of a foreign body in the vagina canal. For
Dr. Solis, the time frame is not more than 10 months, and
this case is still within the said time frame."
A more generous time interval may be allowed in non-
criminal cases. But where an accused is facing a penalty
of reclusion perpetua, the evidence against him cannot be
based on probabilities which are less likely than those
probabilities which favor him.
It should be clarified that the time frame depends upon the
kind of foreign body lodged inside the body. An
examination of the object gave the following results:
(1) Color: Blue
Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.
(2) The specimen can be electrically operated by
means of a battery as per certification dated 01
June 1988, signed by Mr. Rodolfo D. Mercuric,
Shipboard Electrical Systems Mechanics,
Foreman II, SRF Shop 51, Subic (see attached
certification).
(3) No comparative examination was made on
specimen #1 and vibrator depicted in the catalog
because no actual physical dimensions and/or
mechanical characteristics were shown in the
catalog. (Exhibit "LL")
The vibrator end was further subjected to a macro-
photographic examination on the open end portion which
revealed the following:
Result of Examination
Macro-photographic examination on the open
end portion of specimen #1 shows the following
inscription:
MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit
"MM")
From the above results, the subject object is certainly not
considered as inert and based on Dr. Solis' testimony, it
131
is more likely that infection should set in much earlier.
Considering also that the object was inserted inside the
vagina which is part of the generative organ of a woman,
an organ which is lined with a very thin layer of membrane
with plenty of blood supply, this part of the body is more
susceptible to infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under
the circumstances of the case. We see no reason why his
opinions qualified by training and experience should not
be controlling and binding upon the Court in the
determination of guilt beyond reasonable doubt. (People
v. Tolentino, 166 SCRA 469 [1988]).
Dr. Barcinal, another witness for the defense also testified
that he examined Rosario Baluyot on May 17, 1986 as a
referral patient from the Department of Surgery to give an
OB-GYN clearance to the patient prior to operation.
(T.S.N. p. 6, September 28, 1988)
Q And how many times did you examine this
patient Rosario Baluyot on that day?
A I examined her twice on that day.
Q The first time that you examined her, what is
the result of your findings, if any?
A My first examination, I examined the patient
inside the delivery room. The patient was brought
to the delivery room wheel-chaired then from the
wheel chair, the patient was ambigatory (sic). She
was able to walk from the door to the examining
table. On examination, the patient is conscious,
she was fairly nourished, fairly developed, she
had fever, she was uncooperative at that time and
examination deals more on the abdomen which
shows slightly distended abdomen with muscle
guarding with tenderness all over, with maximum
tenderness over the hypogastric area. (T.S.N. p.
5, September 28, 1988)
xxx xxx xxx
Q What about your second examination to the
patient, what was your findings, if any?
A In my second examination, I repeated the
internal examination wherein I placed my index
finger and middle finger inside the vagina of the
patient and was able to palpate a hard object.
After which, I made a speculum examination
wherein I was able to visualize the inner portion
of the vaginal canal, there I saw purulent foul
smelling, blood tints, discharge in the vaginal
canal and a foreign body invaded on the posterior
part of the vaginal canal.
xxx xxx xxx
A I referred back to Dr. Fernandez about my
findings and he asked me to try to remove the
said foreign object by the use of forceps which I
tried to do so also but I failed to extract the same.
Q All this time that you were examining the patient
Rosario Baluyot both in the first and second
instance, Rosario Baluyot was conscious and
were you able to talk to her when you were
examining her?
A Yes, sir.
Q And did you ask her why there is a foreign
object lodge inside her vagina?
A Yes, Sir I asked her.
Q And what did she tell you, if any?
A She said in her own words that "GINAMIT AKO
NG NEGRO AT SIYA ANG NAGLAGAY NITO."
Q Did she also tell you when, this Negro who
used her and who inserted and placed the foreign
object on her vagina?
A Yes, Sir I asked her and she said he used me
three (3) months ago from the time I examined
her.
Q Now, you said that you referred the patient to
the ward, what happened next with your patient?
A To my knowledge, the patient is already
scheduled on operation on that date.
Q Meaning, May 17, 1987?
A Yes, Sir I was presuming that the patient would
undergo surgery after that?
(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)
The trial court debunked Dr. Barcinals testimony
considering Rosario's condition at that time. It ruled that it
is inconceivable that she would be striking a normal
conversation with the doctors and would be sitting on the
examination table since Gaspar Alcantara stated that
when he brought Rosario Baluyot to the hospital, she was
unconscious and writhing in pain.
It was not improbable for Rosario Baluyot to still be
conscious and ambulant at that time because there were
several instances testified to by different witnesses that
she was still able to talk prior to her operation:
132
(1) Fe Israel, a witness for the prosecution and a member
of the Olongapo Catholic Charismatic Renewal
Movement testified that as a member of this group she
visits indigent children in the hospital every Saturday and
after office hours on working days.
On the Saturday prior to Rosario's death which was May
17, she was still able to talk to Rosario Baluyot. In fact,
one of her groupmates helped Rosario go to the comfort
room to urinate. (T.S.N., pp. 16-19, May 25, 1988)
(2) Angelita Amulong, a witness for the defense is another
para social worker who worked at Pope John 23rd
Community Center under Sister Eva Palencia. In one of
her hospital visits, she encountered Rosario Baluyot in the
month of May, 1987. She actually saw a child who
happened to be Rosario Baluyot seated on the cement
floor and when she asked why she was seated there, she
was told that it was too hot in the bed. She saw Rosario
Baluyot for about 2 or 3 days successively. (T.S.N. pp. 10-
13, September 7, 1988)
(3) Gaspar Alcantara, the person who brought Rosario to
the hospital actually testified that she was conscious
(T.S.N. p. 36, September 14, 1988) but writhing in pain.
He took pity on her so he brought her to the hospital
(T.S.N. p. 12, September 14, 1988)
From the above testimonies, it is clear that Rosario was
still conscious and could still answer questions asked of
her although she was complaining of stomach pains.
Unfortunately, the medical attention given to her failed to
halt the aggravation of her condition. The operation on
May 19 was too late.
Rosario died because of septicemia, which in layman's
language is blood poisoning, and peritonitis, which is
massive infection, in the abdominal cavity caused by the
foreign object or the cut sexual vibrator lodged in the
vagina of the victim. This led to the infection from the
uterus to the fallopian tubes and into the peritoneum and
the abdominal cavity.
The trial court convicted the accused citing the rationale
of Article 4 of the RPC
He who is the cause of the cause is the cause of
the evil caused.
But before the conviction is affirmed, we must first follow
the rule as stated in the case of Urbano vs. Intermediate
Appellate Court (157 SCRA 1 [1988]) to wit:
The rule is that the death of the victim must be
the direct, natural and logical consequence of the
wounds inflicted upon him by the accused. And
since we are dealing with a criminal conviction,
the proof that the accused caused the victim's
death must convince a rational mind beyond
reasonable doubt. (Emphasis supplied)
In People v. Tempongko, Jr., (144 SCRA 583, 592
[1986]), we explained that:
xxx xxx xxx
The basic principle in every criminal prosecution
is that accusation is not synonymous with guilt.
The accused is presumed innocent until the
contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the
defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full
panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner
of speaking, he goes to bat with all the bases
loaded. The odds are heavily against him. It is
important, therefore, to equalize the positions of
the prosecution and the defense by presuming
the innocence of the accused until the state is
able to refute the presumption by proof of guilt
beyond reasonable doubt. (At. p. 592)
The evidence for the accused maybe numerically less as
against the number of witnesses and preponderance of
evidence presented by the prosecution but there is no
direct and convincing proof that the accused was
responsible for the vibrator left inside the victim's vagina
which caused her death seven (7) months after its
insertion. What the prosecution managed to establish
were mere circumstances which were not sufficient to
overcome the constitutional presumption of innocence.
While circumstantial evidence may suffice to support a
conviction it is imperative, though, that the following
requisites should concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are
derived are proven; and
(c) The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. (Rule 133, Sec. 4 Revised
Rules of Court)
For the well-entrenched rule in evidence is that "before
conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken
chain which leads to one fair and reasonable conclusion
pointing to the defendant, to the exclusion of all others, as
the author of the crime (People v. Subano, 73 Phil. 692
[1942]; Emphasis supplied). It must fairly exclude every
reasonable hypothesis of innocence (Dorado v. Court of
Appeals, 153 SCRA 420, 433 [1987]). In this case the
circumstantial evidence presented by the prosecution
133
does not conclusively point to the liability of the appellant
for the crime charged. (People v. Tolentino, supra)
We are aware of the wide publicity given to the plight of
Rosario Baluyot and how her death exemplified starkly
the daily terrors that most street children encounter as
they sell their bodies in order to survive. At an age when
innocence and youthful joys should preponderate in their
lives, they experience life in its most heartless and
inhuman form. Instead of nothing more than gentle
disappointments occupying their young minds, they daily
cope with tragedies that even adults should never be
made to carry.
It is with distressing reluctance that we have to seemingly
set back the efforts of Government to dramatize the death
of Rosario Baluyot as a means of galvanizing the nation
to care for its street children. It would have meant a lot to
social workers and prosecutors alike if one pedophile-
killer could be brought to justice so that his example would
arouse public concern, sufficient for the formulation and
implementation of meaningful remedies. However, we
cannot convict on anything less than proof beyond
reasonable doubt. The protections of the Bill of Rights and
our criminal justice system are as much, if not more so,
for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.
The requirement of proof which produces in an
unprejudiced mind moral certainty or conviction that the
accused did commit the offense has not been satisfied.
By way of emphasis, we reiterate some of the factors
arousing reasonable doubt:
1. The evidence on Rosario Baluyot's baptism
creates reasonable doubt about her being less
than 12 years old when the carnal knowledge
took place. If the evidence for the prosecution is
to be believed, she was not yet born on the date
she was baptized.
2. Since the proof of Rosario's being under 12
years of age is not satisfactory, the prosecution
has to prove force, intimidation, or deprivation of
reason in order to convict for rape. There is no
such proof. In fact, the evidence shows a
willingness to submit to the sexual act for
monetary considerations.
3. The only witness to the fact of Ritter's placing
a vibrator inside the vagina of Rosario was Jessie
Ramirez. This witness did not see Ritter insert the
vibrator. The morning after the insertion, he was
only told by Rosario about it. Two days later, he
allegedly met Rosario who informed him that she
was able to remove the object. And yet, Ramirez
testified that on the night of that second
encounter, he saw Rosario groaning because of
pain in her stomach. She was even hurling
invectives. Ramirez' testimony is not only
hearsay, it is also contradictory.
4. It was improbable, according to expert medical
testimony, for a foreign object with active
properties to cause pain, discomfort, and serious
infection only after seven months inside a young
girl's vaginal canal. Infection would have set in
much earlier. Jessie Ramirez recalled that the
incident happened in December of 1986. (TSN.,
January 6, 1988, pp. 15-17) The evidence,
however shows that the appellant was not here in
the Philippines that December. As per the
Commission on Immigration Arrival and
Departure Report, Heinrich Ritter arrived in the
Philippines on October 7, 1986 and left on
October 12, 1986. He never returned until
September 23, 1987 (Exhibits "DD" and "EE")
The incident could have happened only in
October, but then it would have been highly
improbable for the sexual vibrator to stay inside
the vagina for seven (7) months with the kind of
serious complications it creates.
5. The gynecologist who attended to Rosario
during her hospital confinement testified that she
told him "Ginamit ako ng Negro at siya ang
naglagay nito." The accused is not a black.
Noteworthy is the fact that nothing was mentioned about
Rosario's activities after the hotel incident. Considering
Dr. Barcinal's testimony indicating that she was "used" by
a "Negro" three (3) months prior to admission in the
hospital and Rosario's unfortunate profession, there is
always the possibility that she could have allowed herself
to be violated by this perverse kind of sexual behavior
where a vibrator or vibrators were inserted into her vagina
between October, 1986 and May, 1987.
Moreover, the long delay of seven (7) months after the
incident in reporting the alleged crime renders the
evidence for the prosecution insufficient to establish
appellant's guilty connection with the requisite moral
certainty. (See People v. Mula Cruz, 129 SCRA 156
[1984]).
The established facts do not entirely rule out the
possibility that the appellant could have inserted a foreign
object inside Rosario's vagina. This object may have
caused her death. It is possible that the appellant could
be the guilty person. However, the Court cannot base an
affirmance of conviction upon mere possibilities.
Suspicions and possibilities are not evidence and
therefore should not be taken against the accused.
(People v. Tolentino, supra)
Well-established is the rule that every circumstance
favorable to the accused should be duly taken into
account. This rule applies even to hardened criminals or
134
those whose bizarre behaviour violates the mores of
civilized society. The evidence against the accused must
survive the test of reason. The strongest suspicion must
not be allowed to sway judgment. (See Sacay v.
Sandiganbayan, 142 SCRA 593 [1986]). As stated in the
case of People v. Ng (142 SCRA 615 [1986]):
. . . [F]rom the earliest years of this Court, it has
emphasized the rule that reasonable doubt in
criminal cases must be resolved in favor of the
accused. The requirement of proof beyond
reasonable doubt calls for moral certainty of guilt.
It has been defined as meaning such proof "to the
satisfaction of the court, keeping in mind the
presumption of innocence, as precludes every
reasonable hypothesis except that which it is
given to support. It is not sufficient for the proof to
establish a probability, even though strong, that
the fact charged is more likely to be true than the
contrary. It must establish the truth of the fact to
a reasonable and moral certainty—a certainty
that convinces and satisfies the reason and the
conscience of those who are to act upon it.
(Moreno, Philippine Law Dictionary, 1972 Edition,
p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . .
In the instant case, since there are circumstances which
prevent our being morally certain of the guilt of the
appellant, he is, therefore, entitled to an acquittal.
This notwithstanding, the Court can not ignore the acts of
the appellant on the children, Jessie Ramirez and Rosario
Baluyot in October, 1986 at the MGM Hotel. Inspite of his
flat denials, we are convinced that he comes to this
country not to look at historical sights, enrich his intellect
or indulge in legitimate pleasures but in order to satisfy
the urgings of a sick mind.
With the positive Identification and testimony by Jessie
Ramirez that it was the appellant who picked him and
Rosario from among the children and invited them to the
hotel; and that in the hotel he was shown pictures of
young boys like him and the two masturbated each other,
such actuations clearly show that the appellant is a
pedophile. When apprehended in Ermita, he was sizing
up young children. Dr. Solis defined pedophilia in his book
entitled Legal Medicine, 1987 edition, as follows:
Pedophilia—A form of sexual perversion wherein
a person has the compulsive desire to have
sexual intercourse with a child of either sex.
Children of various ages participate in sexual
activities, like fellatio, cunnilingus, fondling with
sex organs, or anal sexual intercourse. Usually
committed by a homosexual between a man and
a boy the latter being a passive partner.
Ritter was prosecuted for rape with homicide and not
pedophilia, assuming this is a crime by itself. Pedophilia
is clearly a behavior offensive to public morals and
violative of the declared policy of the state to promote and
protect the physical, moral, spiritual and social well-being
of our youth. (Article II, Section 13, 1987 Constitution)
(Harvey v. Defensor Santiago, 162 SCRA 840, 848
[1989]). Pedophiles, especially thrill seeking aliens have
no place in our country.
In this case, there is reasonable ground to believe that the
appellant committed acts injurious not only to Rosario
Baluyot but also to the public good and domestic
tranquility of the people. The state has expressly
committed itself to defend the right of children to
assistance and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development. (Art. XV, Section 3 [2] . .
. (Harvey v. Santiago, supra). The appellant has abused
Filipino children, enticing them with money. The appellant
should be expelled from the country.
Furthermore, it does not necessarily follow that the
appellant is also free from civil liability which is impliedly
instituted with the criminal action. (Rule III, Section 1) The
well-settled doctrine is that a person while not criminally
liable, may still be civilly liable. We reiterate what has
been stated in Urbano v. IAC, supra.
. . . While the guilt of the accused in a criminal
prosecution must be established beyond
reasonable doubt, only a preponderance of
evidence is required in a civil action for damages.
(Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only
when it includes a declaration that the facts from
which the civil liability might arise did not exist.
(Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of Article 29 of the
Civil Code, which provides that the acquittal of the
accused on the ground that his guilt has not been
proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the
same act or omission, has been explained by the
Code Commission as follows:
The old rule that the acquittal of the
accused in a criminal case also releases
him from civil liability is one of the most
serious flaws in the Philippine legal
system. It has given rise to numberless
instances of miscarriage of justice, where
the acquittal was due to a reasonable
doubt in the mind of the court as to the
guilt of the accused. The reasoning
followed is that inasmuch as the civil
responsibility is derived from the criminal
offense, when the latter is not proved,
civil liability cannot be demanded.
This is one of those causes where
confused thinking leads to unfortunate
135
 and deplorable consequences. Such
reasoning fails to draw a clear line of
demarcation between criminal liability
and civil responsibility, and to determine
the logical result of the distinction. The
two liabilities are separate and distinct
from each other. One affects the social
order and the other, private rights. One is
for the punishment or correction of the
offender while the other is for the
reparation of damages suffered by the
aggrieved party. The two responsibilities
are so different from each other that
article 1813 of the present (Spanish) Civil
Code reads thus: "There may be a
compromise upon the civil action arising
from a crime; but the public action for the
imposition of the legal penalty shall not
thereby be extinguished." It is just and
proper that, for the purposes of the
imprisonment of or fine upon the
accused, the offense should be proved
beyond reasonable doubt. But for the
purpose of indemnifying the complaining
party, why should the offense also be
proved beyond reasonable doubt? Is not
the invasion or violation of every private
right to be proved only by a
preponderance of evidence? Is the right
of the aggrieved person any less private
because the wrongful act is also
punishable by the criminal law?
For these reasons, the Commission
recommends the adoption of the reform
under discussion. It will correct a serious
defect in our law. It will close up an
inexhaustible source of injustice—a
cause for disillusionment on the part of
the innumerable persons injured or
wronged.
Rosario Baluyot is a street child who ran away from her
grandmother's house.1âwphi1 Circumstances forced her
to succumb and enter this unfortunate profession.
Nonetheless, she has left behind heirs who have certainly
suffered mental anguish, anxiety and moral shock by her
sudden and incredulous death as reflected in the records
of the case. Though we are acquitting the appellant for the
crime of rape with homicide, we emphasize that we are
not ruling that he is innocent or blameless. It is only the
constitutional presumption of innocence and the failure of
the prosecution to build an airtight case for conviction
which saved him, not that the facts of unlawful conduct do
not exist. As earlier stated, there is the likelihood that he
did insert the vibrator whose end was left inside Rosario's
vaginal canal and that the vibrator may have caused her
death. True, we cannot convict on probabilities or
possibilities but civil liability does not require proof beyond
reasonable doubt. The Court can order the payment of
indemnity on the facts found in the records of this case.
The appellant certainly committed acts contrary to morals,
good customs, public order or public policy (see Article 21
Civil Code). As earlier mentioned, the appellant has
abused Filipino children, enticing them with money. We
can not overstress the responsibility for proper behavior
of all adults in the Philippines, including the appellant
towards young children. The sexual exploitation
committed by the appellant should not and can not be
condoned. Thus, considering the circumstances of the
case, we are awarding damages to the heirs of Rosario
Baluyot in the amount of P30,000.00.
And finally, the Court deplores the lack of criminal laws
which will adequately protect street children from
exploitation by pedophiles, pimps, and, perhaps, their
own parents or guardians who profit from the sale of
young bodies. The provisions on statutory rape and other
related offenses were never intended for the relatively
recent influx of pedophiles taking advantage of rampant
poverty among the forgotten segments of our society.
Newspaper and magazine articles, media exposes,
college dissertations, and other studies deal at length with
this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign
publications catering to them will continue to advertise the
availability of Filipino street children unless the
Government acts and acts soon. We have to acquit the
appellant because the Bill of Rights commands us to do
so. We, however, express the Court's concern about the
problem of street children and the evils committed against
them. Something must be done about it.
WHEREFORE, the appealed judgment is REVERSED
and SET ASIDE. Appellant HEINRICH STEFAN RITTER
is ACQUITTED on grounds of reasonable doubt. The
appellant is ordered to pay the amount of P30,000.00 by
way of moral and exemplary damages to the heirs of
Rosario Baluyot. The Commissioner of Immigration and
Deportation is hereby directed to institute proper
deportation proceedings against the appellant and to
immediately expel him thereafter with prejudice to re-entry
into the country.
SO ORDERED.
G.R. No. 132875-76 February 3, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
136
The accused-appellant, Romeo F. Jaloslos is a full-
pledged member of Congress who is now confined at the
national penitentiary while his conviction for statutory rape
on two counts and acts of lasciviousness on six counts1 is
pending appeal. The accused-appellant filed this motion
asking that he be allowed to fully discharge the duties of
a Congressman, including attendance at legislative
sessions and committee meetings despite his having
been convicted in the first instance of a non-bailable
offense.
The issue raised is one of the first impression.
Does membership in Congress exempt an accused from
statutes and rules which apply to validly incarcerated
persons in general? In answering the query, we are called
upon to balance relevant and conflicting factors in the
judicial interpretation of legislative privilege in the context
of penal law.
The accused-appellant's "Motion To Be Allowed To
Discharge Mandate As Member of House of
Representatives" was filed on the grounds that —
1. Accused-appellant's reelection being an
expression of popular will cannot be rendered
inutile by any ruling, giving priority to any right or
interest — not even the police power of the State.
2. To deprive the electorate of their elected
representative amounts to taxation without
representation.
3. To bar accused-appellant from performing his
duties amounts to his suspension/removal and
mocks the renewed mandates entrusted to him
by the people.
4. The electorate of the First District of
Zamboanga del Norte wants their voice to be
heard.
5. A precedent-setting U.S. ruling allowed a
detained lawmaker to attend sessions of the U.S.
Congress.
6. The House treats accused-appellant as a bona
fide member thereof and urges a co-equal branch
of government to respect its mandate.
7. The concept of temporary detention does not
necessarily curtail the duty of accused-appellant
to discharge his mandate.
8. Accused-appellant has always complied with
the conditions/restrictions when allowed to leave
jail.
The primary argument of the movant is the "mandate of
sovereign will." He states that the sovereign electorate of
the First District of Zamboanga del Norte chose him as
their representative in Congress. Having been re-elected
by his constituents, he has the duty to perform the
functions of a Congressman. He calls this a covenant with
his constituents made possible by the intervention of the
State. He adds that it cannot be defeated by insuperable
procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of
the people. In the exercise of suffrage, a free people
expects to achieve the continuity of government and the
perpetuation of its benefits. However, inspite of its
importance, the privileges and rights arising from having
been elected may be enlarged or restricted by law. Our
first task is to ascertain the applicable law.
We start with the incontestable proposition that all top
officials of Government-executive, legislative, and judicial
are subject to the majesty of law. There is an unfortunate
misimpression in the public mind that election or
appointment to high government office, by itself, frees the
official from the common restraints of general law.
Privilege has to be granted by law, not inferred from the
duties of a position. In fact, the higher the rank, the greater
is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and
members of the House of Representatives, the latter
customarily addressed as Congressmen, arises from a
provision of the Constitution. The history of the provision
shows that privilege has always been granted in a
restrictive sense. The provision granting an exemption as
a special privilege cannot be extended beyond the
ordinary meaning of its terms. It may not be extended by
intendment, implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the
Legislative Department.
Sec 15. The Senators and Members of the House
of Representatives shall in all cases except
treason, felony, and breach of the peace be
privileged from arrest during their attendance at
the sessions of Congress, and in going to and
returning from the same, . . .
Because of the broad coverage of felony and breach of
the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under
Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the
same general laws governing all persons still to be tried
or whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of
immunity as follows:
137
 Art. VIII, Sec. 9. A Member of the Batasang
Pambansa shall, in all offenses punishable by not
more than six years imprisonment, be privileged
from arrest during his attendance at its sessions
and in going to and returning from the same.
For offenses punishable by more than six years
imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and intent to confine
it within carefully defined parameters is illustrated by the
concluding portion of the provision, to wit:
. . . but the Batasang Pambansa shall surrender
the member involved the custody of the law within
twenty four hours after its adjournment for a
recess or for its next session, otherwise such
privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive
rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The
requirement that he should be attending sessions or
committee meetings has also been removed. For
relatively minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of
Congress' function to attend sessions is underscored by
Section 16 (2), Article VI of the Constitution which states
that —
(2) A majority of each House shall constitute a
quorum to do business, but a smaller number
may adjourn from day to day and may compel the
attendance of absent Members in such manner,
and under such penalties, as such House may
provide.
However, the accused-appellant has not given any
reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of
Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one.
The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six months is
not merely authorized by law, it has constitutional
foundations.
Accused-appellant's reliance on the ruling in Aguinaldo v.
Santos2, which states, inter alia, that —
The Court should never remove a public officer
for acts done prior to his present term of office. To
do otherwise would be to deprive the people of
their right to elect their officers. When a people
have elected a man to office, it must be assumed
that they did this with the knowledge of his life and
character, and that they disregarded or forgave
his fault or misconduct, if he had been guilty of
any. It is not for the Court, by reason of such fault
or misconduct, to practically overrule the will of
the people.
will not extricate him from his predicament. It can be
readily seen in the above-quoted ruling that the Aguinaldo
case involves the administrative removal of a public
officer for acts done prior to his present term of office. It
does not apply to imprisonment arising from the
enforcement of criminal law. Moreover, in the same way
that preventive suspension is not removal, confinement
pending appeal is not removal. He remains a
congressman unless expelled by Congress or, otherwise,
disqualified.
One rationale behind confinement, whether pending
appeal or after final conviction, is public self-defense.
Society must protect itself. It also serves as an example
and warning to others.
A person charged with crime is taken into custody for
purposes of the administration of justice. As stated
in United States v. Gustilo,3 it is the injury to the public
which State action in criminal law seeks to redress. It is
not the injury to the complainant. After conviction in the
Regional Trial Court, the accused may be denied bail and
thus subjected to incarceration if there is risk of his
absconding.4
The accused-appellant states that the plea of the
electorate which voted him into office cannot be
supplanted by unfounded fears that he might escape
eventual punishment if permitted to perform
congressional duties outside his regular place of
confinement.
It will be recalled that when a warrant for accused-
appellant's arrest was issued, he fled and evaded capture
despite a call from his colleagues in the House of
Representatives for him to attend the sessions and to
surrender voluntarily to the authorities. Ironically, it is now
the same body whose call he initially spurned which
accused-appellant is invoking to justify his present
motion. This can not be countenanced because, to
reiterate, aside from its being contrary to well-defined
Constitutional restrains, it would be a mockery of the aims
of the State's penal system.
Accused-appellant argues that on several occasions the
Regional Trial Court of Makati granted several motions to
temporarily leave his cell at the Makati City Jail, for official
or medical reasons, to wit:
a) to attend hearings of the House Committee on
Ethics held at the Batasan Complex, Quezon
City, on the issue of whether to expel/suspend
him from the House of Representatives;
138
 b) to undergo dental examination and treatment
at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the
Makati Medical Center, Makati City;
d) to register as a voter at his hometown in
Dapitan City. In this case, accused-appellant
commuted by chartered plane and private
vehicle.
He also calls attention to various instances, after his
transfer at the New Bilibid Prison in Muntinlupa City, when
he was likewise allowed/permitted to leave the prison
premises, to wit.
a) to join "living-out" prisoners on "work-volunteer
program" for the purpose of 1) establishing a
mahogany seedling bank and 2) planting
mahogany trees, at the NBP reservation. For this
purpose, he was assigned one guard and allowed
to use his own vehicle and driver in going to and
from the project area and his place of
confinement.
b) to continue with his dental treatment at the
clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in
Makati City for his heart condition.
There is no showing that the above privileges are peculiar
to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are
allowed to all prisoners, at the discretion of the authorities
or upon court orders.
What the accused-appellant seeks is not of an emergency
nature. Allowing accused-appellant to attend
congressional sessions and committee meeting for five
(5) days or more in a week will virtually make him free man
with all the privilege appurtenant to his position. Such an
aberrant situation not only elevates accused-appellant's
status to that of a special class, it also would be a mockery
of the purposes of the correction system. Of particular
relevance in this regard are the following observations of
the Court in Martinez v. Morfe:5
The above conclusion reached by this Court is
bolstered and fortified by policy considerations.
There is, to be sure, a full recognition of the
necessity to have members of Congress, and
likewise delegates to the Constitutional
Convention, entitled to the utmost freedom to
enable them to discharge their vital
responsibilities, bowing to no other force except
the dictates of their conscience of their
conscience. Necessarily the utmost latitude in
free speech should be accorded them. When it
comes to freedom from arrest, however, it would
amount to the creation of a privileged class,
without justification in reason, if notwithstanding
their liability for a criminal offense, they would be
considered immune during their attendance in
Congress and in going to and returning from the
same. There is likely to be no dissent from the
proposition that a legislator or a delegate can
perform his functions efficiently and well, without
the need for any transgression of the criminal law.
Should such an unfortunate event come to pass,
he is to be treated like any other citizen
considering that there is a strong public interest in
seeing to it that crime should not go unpunished.
To the fear that may be expressed that the
prosecuting arm of the government might unjustly
go after legislators belonging to the minority, it
suffices to answer that precisely all the
safeguards thrown around an accused by the
Constitution, solicitous of the rights of an
individual, would constitute an obstacle to such
an attempt at abuse of power. The presumption
of course is that the judiciary would remain
independent. It is trite to say that in each and
every manifestation of judicial endeavor, such a
virtue is of the essence.
The accused-appellant avers that his constituents in the
First District of Zamboanga del Norte want their voices to
be heard and that since he is treated as bona
fide member of the House of Representatives, the latter
urges a co-equal branch of government to respect his
mandate. He also claims that the concept of temporary
detention does not necessarily curtail his duty to
discharge his mandate and that he has always complied
with the conditions/restrictions when he is allowed to
leave jail.
We remain unpersuaded.1âwphi1.nêt
No less than accused-appellant himself admits that like
any other member of the House of Representatives "[h]e
is provided with a congressional office situated at Room
N-214, North Wing Building, House of Representatives
Complex, Batasan Hills, Quezon City, manned by a full
complement of staff paid for by Congress. Through [an]
inter-department coordination, he is also provided with an
office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents."
Accused-appellant further admits that while under
detention, he has filed several bills and resolutions. It also
appears that he has been receiving his salaries and other
monetary benefits. Succinctly stated, accused-appellant
has been discharging his mandate as a member of the
House of Representative consistent with the restraints
upon one who is presently under detention. Being a
detainee, accused-appellant should not even have been
allowed by the prison authorities at the National
Penitentiary to perform these acts.
139
When the voters of his district elected the accused-
appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with
the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of
prison. To give a more drastic illustration, if voters elect a
person with full knowledge that he suffering from a
terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to
a question of constitutional equal protection.
The Constitution guarantees: ". . . nor shall any person be
denied the equal protection of laws."6 This simply means
that all persons similarly situated shall be treated alike
both in rights enjoyed and responsibilities imposed.7 The
organs of government may not show any undue favoritism
or hostility to any person. Neither partiality not prejudice
shall be displayed.
Does being an elective official result in a substantial
distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes
the accused-appellant as a prisoner from the same class
as all persons validly confined under law?
The performance of legitimate and even essential duties
by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the
"mandate of the people" are multifarious. The accused-
appellant asserts that the duty to legislative ranks highest
in the hierarchy of government. The accused-appellant is
only one of 250 members of the House of
Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of
Government that has to be addressed, the President or
the Supreme Court can also be deemed the highest for
that particular duty. The importance of a function depends
on the need to its exercise. The duty of a mother to nurse
her infant is most compelling under the law of nature. A
doctor with unique skills has the duty to save the lives of
those with a particular affliction. An elective governor has
to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a
particular duty lifted a prisoner into a different
classification from those others who are validly restrained
by law.
A strict scrutiny of classifications is essential lest wittingly
or otherwise, insidious discriminations are made in favor
of or against groups or types of individuals.8
The Court cannot validate badges of inequality. The
necessities imposed by public welfare may justify
exercise of government authority to regulate even if
thereby certain groups may plausibly assert that their
interests are disregarded.9
We, therefore, find that election to the position of
Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office
are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and
restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and
apply to all those belonging to the same class.10
Imprisonment is the restraint of a man's personal liberty;
coercion exercised upon a person to prevent the free
exercise of his power of
locomotion.11
More explicitly, "imprisonment" in its general sense, is the
restraint of one's liberty. As a punishment, it is restraint by
judgment of a court or lawful tribunal, and is personal to
the accused.12 The term refers to the restraint on the
personal liberty of another; any prevention of his
movements from place to place, or of his free action
according to his own pleasure and will.13 Imprisonment is
the detention of another against his will depriving him of
his power of locomotion14 and it "[is] something more than
mere loss of freedom. It includes the notion of restraint
within limits defined by wall or any exterior barrier."15
It can be seen from the foregoing that incarceration, by its
nature, changes an individual's status in society.16 Prison
officials have the difficult and often thankless job of
preserving the security in a potentially explosive setting,
as well as of attempting to provide rehabilitation that
prepares inmates for re-entry into the social mainstream.
Necessarily, both these demands require the curtailment
and elimination of certain rights.17
Premises considered, we are constrained to rule against
the accused-appellant's claim that re-election to public
office gives priority to any other right or interest, including
the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
Kapunan, Panganiban, Quisumbing, Purisima, Pardo
Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and also in separate opinion of Justice
Reyes.
Bellosillo, J., I concur in the main and separate opinion.
Melo, J., I join the majority as well as the separate opinion.
Puno, J., I concur with the main and separate opinion.
Vitug, J., I concur in both the ponencia and the separate
opinion.
Mendoza, J., I concur in this as well as in the separate
opinion of Justice Gonzaga-Reyes.
Gonzaga-Reyes, J., See separate concurring opinion.
Separate Opinions
140
GONZAGA-REYES, J., concurring opinion;
For resolution in this case is a motion filed by accused-
appellant Romeo G. Jalosjos, who has been convicted by
the trial court of two counts of statutory rape and six
counts of acts of lasciviousness, which judgment is
currently pending appeal before this Court. As a member
of the House of Representatives, accused-appellant
claims that his constituents are deprived of representation
by reason of his incarceration pending appeal of the
judgment of conviction and that he should therefore be
allowed to discharge his legislative functions, including
attendance of legislative sessions and committee
meetings.
I concur in the ponencia of my colleague Madame Justice
Consuelo Ynares-Santiago in holding that accused-
appellant's motion is bereft of any legal merit.
The Bill of Rights provides —
All persons, except those charged with offenses
punishable by reclusion perpetua when evidence
of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The
right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be
required.1 (emphasis supplied)
This constitutional provision denying the right to bail for
offenses punishable by reclusion perpetua when the
evidence of guilt is strong is reiterated in Rule 114 of the
Rules of Criminal Procedure, viz —
Sec. 7. Capital offense or an offense punishable
by reclusion perpetua or life imprisonment, not
bailable. — No person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence of
guilt is strong, shall be admitted to bail regardless
of the stage of the criminal prosecution.
The trial court found accused-appellant guilty of the crime
of statutory rape, which is punishable by reclusion
perpetua. In People v. Divina2 we held that the trial court's
judgment of conviction imports that the evidence of guilt
of the crime charged is strong. Unquestionably, the
continued incarceration of accused-appellant is a valid
and constitutionally mandated curtailment of his rights to
provisional liberty pending appeal of his conviction.
Neither may the constitutional provision granting immunity
from arrest to legislators provide legal justification for
accused-appellant's motion. The Constitution states that
— privilege from arrest is still circumscribed by the nature or
A Senator of Member of the House of
Representatives shall, in all offenses punishable
by not more than six years imprisonment, be
privileged from arrest while the Congress is in
session. No Member shall be questioned nor be
held liable in any other place for any speech or
debate in the Congress or in any committee
thereof.3
I agree with the ponencia that to allow accused-appellant
to attend legislative sessions would constitute an
unjustified broadening of the privilege from the arrest
bestowed by the Constitution upon members of
Congress. Neither the legislative history of this provision
nor the general principles of official immunity support an
expanded interpretation of such privilege.
Unlike the present Constitution, the 1935
Constitution4 limited the privilege from arrests to "all
cases except treason, felony, and breach of the peace."
This provision was taken from the Philippine Autonomy
Act of 1916, which was in turn based upon the American
Constitution. In accordance with American precedents,
the word "treason, felony and breach of the peace" have
been construed to include all indictable offenses.5 Thus,
under the 1935 Constitution the freedom from arrest only
encompassed civil arrest.
Under the 19736 and the 1987 Constitution, the privilege
was broadened to include arrests for crimes punishable
by imprisonment of six years or less. Despite the
expansion of the privilege, the rationale for granting
members of Congress immunity from arrest remained the
same — to ensure that they are not prevented from
performing their legislative duties.7 In fact, the 1986
Constitutional Commission rejected the proposal of one of
its members to expand the scope of the parliamentary
immunity to include searches because, unlike arrest, it
was not demonstrated that the conduct of searches would
prevent members of Congress from discharging their
legislative functions.8
It is a well-established principle that official immunity is a
necessary adjunct to the vigorous and effective
performance of official functions. Members of Congress in
particular, who are called upon to exercise their discretion
and judgment in enacting laws responsive to the needs of
the people, would certainly be impeded in the exercise of
their legislative functions if every dissatisfied person could
compel them to vindicate the wisdom of their enactments
in an action for damages or question their official acts
before the courts.9
It was never the intention of the framers of the 1973 and
1987 Constitutions to shield a member of Congress from
the consequences of his wrongdoing. Thus, despite the
widening of its scope to include criminal offenses, the
the gravity of the offenses of which the accused is
charged. Hence, the commission of serious crimes, i.e.,
141
crimes punishable by afflictive penalties or with capital
punishment, does not fall within the scope of the
constitutional privilege. A member of Congress could only
invoke the immunity from arrest for relatively minor
offenses, punishable at most by correctional penalties. As
enunciated in Martinez v. Morfe,10 "when it comes to
freedom from arrest, it would amount to the creation of a
privileged class, without justification in reason, if
notwithstanding their liability for a criminal offense, they
would be considered immune during their attendance in
Congress and in going to and returning from the same"
The accused-appellant, having been convicted of
statutory rape which is punishable by reclusion perpetua,
an afflictive penalty, is obviously not entitled to the
privilege of parliamentary immunity and, proceeding from
the above stated rationale for legislative immunity, a
liberal construction of the constitutional privilege is not in
order.
It should also be mentioned that, under the factual
circumstances of this case, the applicability of this
privilege from arrest to accused-appellant is already moot
and academic. The constitutional provision contemplates
that stage of the criminal process at which personal
jurisdiction is sought to be acquired over the accused by
means of his arrest. Accused-appellant is no longer at the
point of merely being arrested. As a matter of fact, he has
already been arrested, tried and convicted by the trial
court.
Accused-appellant's contention that his re-election
constitutes a renewal of his mandate and that such an
expression of the popular will should not be rendered
inutile by even the police power of the State is hollow.
In Aguinaldo v. Comelec,11 Aguinaldo v. Santos12 and
in Salalima v. Guingona13 we laid down the doctrine that
a public official cannot be removed for administrative
misconduct committed during a prior term, since his re-
election to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to
remove therefor. This doctrine of forgiveness or
condonation cannot apply to criminal acts which the re-
elected official may have committed during his previous
term.14 The administrative liability of a public officer is
separate and distinct from his penal liability.1âwphi1.nêt
Penal laws are obligatory upon all who live or sojourn in
Philippine territory. Since the Constitution itself provides
for the immunities from the general application of our
criminal laws which a Senator or Member of the House of
Representatives may enjoy, it follows that any expansion
of such immunities must similarly be based upon an
express constitutional grant.
I vote to deny the motion.
G.R. No. 193768, March 05, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff–
Appellee, v. JERRY CARANTO Y PROPETA, Accused–
Appellant.
DECISION
PEREZ, J.:
On appeal is the 28 July 2010 Decision1 of the Court of
Appeals (CA) in CA–G.R. C.R.–H.C. No. 01680. The CA
affirmed the 7 October 2005 Decision of the Regional Trial
Court (RTC), Branch 267, Pasig City, that found Jerry
Caranto y Propeta (Jerry) guilty beyond reasonable doubt
of violation of Section 5, Article II of Republic Act (R.A.)
No. 9165 (The Comprehensive Dangerous Drugs Act of
2002) and imposed upon him the penalty of life
imprisonment.
Jerry was charged under the criminal information,2 which
reads:chanRoblesvirtualLawlibrary
That, on or about the 24th day of July 2002, in the
Municipality of Taguig, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above–
named accused, without having been authorized by law,
did, then and there willfully, unlawfully and knowingly sell,
deliver and give away to another one (1) heat sealed
transparent sachet containing 0.39 gram of white
crystalline substance, which was found positive to the test
of Methylamphetamine (sic) Hydrochloride also known as
“shabu”, a dangerous drug, in consideration of the amount
of PhP 500.00, in violation of [Section 5, Article II,
Republic Act No. 9165 (The Comprehensive Dangerous
Drugs Act of 2002].
The Facts
The antecedent facts were culled from the records of the
case, particularly the Appellee’s Brief3 for the version of
the prosecution and the Appellant’s Brief4 for the version
of the defense.
Version of the Prosecution
On 24 July 2002, PO2 Danilo Arago (PO2 Arago) was
inside the office of the Drug Enforcement Unit (DEU) of
the Philippine National Police (PNP) in Taguig City when
his informant approached him and reported that there was
widespread selling of methamphetamine hydrochloride
(shabu) by a certain Jojo at the latter’s residence at No.
13 Santos Street, Barangay Calzada, Tipas, Taguig City.
PO2 Arago immediately reported the information to his
superior, P/Supt. Ramon Ramirez (P/Supt. Ramirez), who
in turn organized a “buy–bust” operation to apprehend
Jerry.
Inside P/Supt. Ramirez’ office, PO2 Arago, along with the
informant, PO3 Angelito Galang, SPO3 Arnuldo Vicuna,
PO3 Santiago Cordova, PO2 Archie Baltijero and PO1
142
Alexander Saez, discussed the conduct of the “buy–bust”
operation.
The team agreed that the informant would accompany the
team to Jerry’s residence where PO2 Arago would act as
the poseur buyer while the rest of the team would serve
as his back up. P/Supt. Ramirez thereafter provided the
“buy–bust” money of five hundred pesos (P500.00), which
PO2 Arago marked with his initials, “DBA.”
At around 12:00 in the afternoon of the same day, the
team proceeded to Jerry’s residence. Upon nearing the
area, the informant and PO2 Arago separated from the
rest of the team. They walked ahead of their companions
and proceeded towards Jerry’s residence while the rest of
the team hid in a corner some six to seven meters away
from the two.
When they were about 10 to 20 meters when they got
near him, from the house, the informant pointed PO2
Arago to Jerry and the informant introduced PO2 Arago to
Jerry as a balikbayan who was looking for some shabu.
Jerry then asked them how much worth of shabu they
planned to buy, to which informant answered Five
Hundred Pesos (P500.00) worth. PO2 Arago then handed
Jerry the marked money.
Upon receiving the money, Jerry went inside his house
and after around thirty (30) seconds to one (1) minute, he
returned and handed PO2 Arago a plastic sachet, which
PO2 Arago suspected to be shabu.
After the completion of the transaction, Jerry noticed the
informant and PO2 Arago’s companions moving in from
behind the two. Jerry immediately tried to flee but was
stopped by PO2 Arago.
Seeing the scuffle between PO2 Arago and Jerry, the rest
of the “buy–bust” team rushed towards them. After Jerry
was subdued, PO2 Arago recovered the marked money
inside Jerry’s right pocket. Thereafter, the team
introduced themselves as police officers, informed Jerry
of his constitutional rights in Filipino and then returned to
their station in Taguig City where Jerry was duly
investigated.
Version of the Defense
Recalling what transpired on 24 July 2002, Jerry said that
he went through his route as a tricycle driver from 6:00
a.m. until he went home around 12:00 in the afternoon to
have lunch. He was at the rooftop of their house feeding
the dog when policemen arrived looking for his father
Cesar Caranto. The policemen kicked the door and forced
it open. They held Jerry and told him that they would have
to bring him in unless they get his father. Jerry told the
policemen that he was not aware of his father’s
whereabouts because his father did not live with them
anymore. The policemen frisked him and took his wallet.
He was brought to the DEU and was thereafter hit by
P/Supt. Ramirez on the chest. He denied that he sold any
shabu.
The mother of Jerry, Teresita Propeta Caranto (Teresita),
testified that on that date, she was at the Baclaran church
attending mass when her daughter called and told her that
her son Jerry was taken from their house and invited by
policemen. She hurriedly went to the police station and
cried when her son told her that the policemen mauled
him. The policemen also asked money from her, but she
did not give them anything as her son is innocent. Upon
learning that her son’s case was non–bailable, she went
back to the police station and uttered invectives against
the policemen who arrested her son.
More than a month after the incident or on 28 August
2002, Teresita, together with her son Christopher
Caranto, her daughter Cynthia Caranto, and a
housemaid, were arrested in Baclaran. A drug related
case was also filed against them. They were incarcerated
for about two years but they were eventually acquitted.
Teresita filed a case against the policemen who arrested
them and is also planning to file a case against the law
officers who arrested her son Jerry.
At the pre–trial, the parties stipulated:5 1) that a request
has been made by the arresting officers for examination
of the specimens confiscated; 2) that the forensic chemist
P/Insp. Lourdeliza Gural (P/Insp. Gural) examined the
specimens submitted and thereafter issued her initial and
final laboratory report; 3) that P/Insp. Gural has no
personal knowledge from whom the alleged specimens
were taken and that the test conducted on the alleged
specimen yielded positive to metamphetamine
hydrochloride. After stipulations were made, the public
prosecutor dispensed with the testimony of P/Insp. Gural.
Thereafter, trial on the merits ensued.
The RTC Decision
On 7 October 2005, the RTC found Jerry guilty of the
offense charged and imposed upon him the penalty of life
imprisonment. The dispositive portion of the RTC decision
is as follows:chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing considerations,
the prosecution having proven the guilt of the accused
beyond reasonable doubt, this Court acting as a Special
Drug Court in the above–captioned case hereby finds
JERRY CARANTO y PROPETA a.k.a. ‘Jojo’, accused in
Criminal Case No. 11539–D, GUILTY as charged and is
hereby sentenced to suffer LIFE IMPRISONMENT and to
pay a fine of FIVE HUNDRED THOUSAND PESOS
(PhP 500,000.00).
x x x x
Moreover, the shabu contained in one (1) heat sealed
transparent plastic sachet containing 0.39 gram of shabu
which is the subject matter of the above–captioned case
is ordered to be immediately transmitted and/or submitted
143
to the custody of the Philippine Drug Enforcement Agency
(PDEA) for its proper disposition.6
The CA Decision
The CA, in its assailed decision, affirmed the judgement
of conviction by the RTC. The appellate court ruled that
Jerry’s guilt was proven beyond reasonable doubt. The
dispositive portion of the decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant appeal
is hereby DISMISSED. The assailed Decision of the
Regional Trial Court of Pasig City, Branch 267, subject of
the appeal is AFFIRMED in toto.7
In a Resolution8 dated 22 November 2010, we required
the parties to file their respective supplemental briefs. The
prosecution manifested that it was no longer filing any
supplemental brief.9 The issues raised in appellant’s
supplemental brief10 were similar to those previously
raised to the appellate court. The appellant raises the
following assignment of
errors:chanRoblesvirtualLawlibrary
I.
THE TRIAL COURT GRAVELY ERRED IN NOT
FINDING THE ACCUSED–APPELLANT’S SEARCH
AND ARREST AS ILLEGAL.
II.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
THE ACCUSED–APPELLANT OF THE CRIME
CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.11
Ruling of this Court
It should be noted that the significant issues, as discussed
below, were initially raised by Jerry in his
Memorandum12 filed with the RTC. Unfortunately, the
RTC failed to discuss the issues raised when it rendered
its 7 October 2005 decision. On the other hand, the Brief
for Jerry filed with the CA was wanting of said pertinent
issues. In effect, the CA, likewise, failed to include in its
discussion said issues. Upon appeal, the Supplemental
Brief for Jerry filed with this Court once again raised and
expounded on said issues. Given the foregoing
circumstances and in the interest of justice, this Court
gives due consideration to the issues raised in Jerry’s
Supplemental Brief. The Court refuses to turn a blind eye
on the importance of the rights of the accused. For this
reason, we consider the required procedure for the timely
raising of issues, substantially complied with.
Jerry was arrested during a buy–bust operation
conducted on 24 July 2002 by the members of the DEU
of the Taguig PNP. A buy–bust operation is a form of
entrapment employed by peace officers to apprehend
prohibited drug law violators in the act of committing a
drug–related offense.13 We agree with the appellate court
when it opined that:chanRoblesvirtualLawlibrary
x x x [T]here is no rigid or textbook method of conducting
buy–bust operations. The choice of effective ways to
apprehend drug dealers is within the ambit of police
authority. Police officers have the expertise to determine
which specific approaches are necessary to enforce their
entrapment operations.14
The built–in danger for abuse that a buy–bust operation
carries cannot be denied. It is essential therefore, that
these operations be governed by specific procedures on
the seizure and custody of drugs. We had occasion to
express this concern in People v. Tan,15 when we
recognized that “by the very nature of anti–narcotic
operations, the need for entrapment procedures, the use
of shady characters as informants, the ease with which
illegal drugs can be planted in the pockets or hands of
unsuspecting provincial hicks, and the secrecy that
inevitably shrouds all drug deals, the possibility of abuse
is great. Thus, the courts have been exhorted to be extra
vigilant in trying drug cases lest an innocent person is
made to suffer the unusually severe penalties for drug
offenses.”16
Moreover, we have time and again recognized that a buy–
bust operation resulting from the tip of an anonymous
confidential informant, although an effective means of
eliminating illegal drug related activities, is “susceptible to
police abuse.” Worse, it is usually used as a means for
extortion.17 It is for this reason, that the Court must ensure
that the enactment of R.A. No. 9165 providing specific
procedures to counter these abuses is not put to naught.18
Non–compliance with the requirements of Section 21,
par. 1 of Article II of R.A. No. 9165
The required procedure on the seizure and custody of
drugs is embodied in Section 21, paragraph 1, Article II of
R.A. No. 9165, which states:chanRoblesvirtualLawlibrary
1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s
from whom such items were confiscated and/or
seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given
a copy thereof. (Emphasis supplied)
This is implemented by Section 21(a), Article II of
the Implementing Rules and Regulations of R.A. No.
9165, which reads:chanRoblesvirtualLawlibrary
144
(a) The apprehending officer/team having initial custody
and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: x x
x Provided, further, that non–compliance with these
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures of and
custody over said items. (Emphasis supplied)
This Court recognizes that the strict compliance with the
requirements of Section 21 of R.A. No. 9165 may not
always be possible under field conditions, many of them
far from ideal. For this reason, the Implementing Rules
provide that non–compliance with the strict directive of
Section 21 is not necessarily fatal to the prosecution’s
case because courts recognize the possible occurrence
of procedural lapses. However, we emphasize that these
lapses must be recognized and explained in terms of their
justifiable grounds and the integrity and evidentiary value
of the evidence seized must be shown to have been
preserved.19 In the present case, the prosecution did not
bother to present any explanation to justify the non–
observance of the prescribed procedures. Therefore, the
non–observance by the police of the required procedure
cannot be excused. It likewise failed to prove that the
integrity and evidentiary value of the items adduced were
not tainted.
Chain of Custody
To secure a conviction for the illegal sale of shabu, the
following elements must be present: (a) the identities of
the buyer and seller, the object of the sale, and the
consideration; and (b) the delivery of the thing sold and
the payment for the thing. It is material to establish that
the transaction actually took place, and to bring to the
court the corpus delicti as evidence.20 In the prosecution
of a drug case, the primary consideration is to ensure that
the identity and integrity of the seized drugs and other
related articles have been preserved from the time they
were confiscated from the accused until their presentation
as evidence in court.21
The chain of custody requirement ensures that doubts
concerning the identity of the evidence are removed. In a
long line of cases, we have considered it fatal for the
prosecution when they fail to prove that the specimen
submitted for laboratory examination was the same one
allegedly seized from the accused. The case of Malillin v.
People22 is particularly instructive on how we expect the
chain of custody to be maintained. As a method of
authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in
question is what the proponent claims to be. It would
include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered
into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it
was received, where it was and what happened to it while
in the witness’ possession, the condition in which it was
received and the condition in which it was delivered to the
next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had
been no change in the condition of the item and no
opportunity for someone not in the chain to have
possession of the same.23 An unbroken chain of custody
becomes indispensable and essential when the item of
real evidence is susceptible to alteration, tampering,
contamination and even substitution and exchange.24
The “chain of custody” rule requires that the “marking” of
the seized items – to truly ensure that they are the same
items that enter the chain and are eventually the ones
offered in evidence – should be done (1) in the presence
of the apprehended violator (2) immediately upon
confiscation. This step initiates the process of protecting
innocent persons from dubious and concocted
searches.25 “Marking” means the placing by the
apprehending officer or the poseur–buyer of his/her
initials and signature on the item/s seized.
This Court previously held26 that the following links must
be established in the chain of custody in a buy–bust
operation: first, the seizure and marking, if practicable, of
the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal
drug seized by the apprehending officer to the
investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized
from the forensic chemist to the court.
A perusal of the records will show that the procedure of
preserving the chain of custody as laid down by
jurisprudence27 was not observed. This is evident from
the testimonies of the witnesses for the prosecution.
Prosecution witness PO3 Angelito Galang testified on
how the seized item was handled, to
wit:chanRoblesvirtualLawlibrary
PROSEC. At the time you proceeded to the area, what
BAUTISTA: did you observe?
A: I saw the buy–bust money recovered by
PO3 Arago and the plastic sachet he bought
was placed in his wallet, sir.<SUP
STYLE="COLOR: RGB(255, 0, 0);”
>[28]</SUP>
PO3 Santiago Cordova, on the other hand, testified in this
wise:chanRoblesvirtualLawlibrary
145
PROSEC. So you assisted Arago in prosecution even failed to present an accomplished
BAUTISTA: arresting this accused? Certificate of Inventory.30
A: Yes sir.
Another gap in the chain of custody is apparent from the
PROSEC. What did Arago did with the stuff, lack of evidence presented by the prosecution to prove
BAUTISTA: which was taken? that the sachet of shabu, which was entrusted by PO2
A: He kept it and brought to the Arago to the investigator, is the same sachet that was
office. delivered to the forensic chemist. The records are wanting
PROSEC. Before keeping, did Arago do of testimonies showing the manner of handling of the
BAUTISTA: something with the stuff? evidence, precautions taken and other significant
circumstances surrounding this essential transfer of
A: I saw him holding the specimen
custody. The prosecution did not take the testimony of the
and he put the specimen inside
investigator, nor did they adduce evidence on what the
his pocket.
investigator did with the seized shabu, how these got to
PROSEC. He did not do anything with the the forensic chemist, and how they were kept before being
BAUTISTA: stuff? adduced in evidence at trial. In fact, the identity of such
A: I did not notice other things he did investigator was not even mentioned nor was there any
with the specimen. mention of a marking made on the seized item.
PROSEC.BAUTISTA: You did not see what happened
afterwards? Upon further examination, we find that another gap in the
chain of custody is apparent. There was no information on
A: I did not notice because I am busy
what happened to the drugs after P/Insp. Gural examined
holding alias Jojo, because he is
it. This Court recognizes that the chemist’s testimony was
resisting.
stipulated upon.31 However, the stipulations did not cover
PROSEC. And what did Arago do with the the manner on how the specimens were handled after her
BAUTISTA: stuff? examination. Without this testimony, there is no way for
ATTY. HERRERA: Your Honor, the question has this Court to be assured that the substances produced in
been repeatedly asked, your court are the same specimens the forensic chemist found
Honor. positive for shabu.32 Furthermore, most glaring is the fact
PROSEC. You saw the stuff? that the prosecution even stipulated that the forensic
BAUTISTA: chemist had no knowledge from whom the alleged
specimens were taken.33
A: Yes sir.
PROSEC. And that’s all what you saw? Ultimately, when the prosecution evidence is wanting,
BAUTISTA: deficient to the point of doubt that the dangerous drug
A: Yes sir.<SUP STYLE="COLOR: recovered from the accused is the same drug presented
RGB(255, 0, 0);” >[29]</SUP> to the forensic chemist for review and examination, or the
same drug presented to the court, an essential element in
It is clear from the aforecited testimonies that the evidence cases of illegal sale and illegal possession of dangerous
was not “marked” in front of the accused or his drugs, the corpus delicti, is absent.
representative. Evidently, there was an irregularity in the
first link of the chain of custody. Negation of Presumption of Regularity

Even assuming that the physical inventory contemplated
in R.A. No. 9165 subsumes the marking of the items itself,
the belated marking of the seized items at the police
station sans the required presence of the accused and the
witnesses enumerated under Section 21(a) of the
Implementing Rules and Regulations of R.A. No. 9165,
and absent a justifiable ground to stand on, cannot be
considered a minor deviation from the procedures
prescribed by the law. We note that other than the
allegation that a marking was done at the police station,
there was no proof that such marking was actually
undertaken at all. From the time it was placed inside the
pocket or wallet of PO2 Arago, it surfaced again only at
the marking of exhibits. In fact, there was no statement
from any of the witnesses that markings were made on
the seized item in the presence of any of the persons
mentioned in Section 21 (a) of the Implementing Rules
and Regulations of R.A. No. 9165. Moreover, the
The lower courts erred in giving weight to the presumption
of regularity in the performance that a police officer enjoys
in the absence of any taint of irregularity and of ill motive
that would induce him to falsify his testimony. The
regularity of the performance of the police officers’ duties
leaves much to be desired in this case given the lapses in
their handling of the allegedly confiscated shabu. The
totality of all the aforementioned procedural lapses
effectively produced serious doubts on the integrity and
identity of the corpus delicti, especially in the face of
allegations of frame–up.34 We have previously held35 that
these lapses negate the presumption that official duties
have been regularly performed by the police officers. Any
taint of irregularity affects the whole performance and
should make the presumption unavailable.
In People v. Santos, Jr.,36 we held that the presumption of
regularity in the performance of official duty cannot by
146
itself overcome the presumption of innocence nor
constitute proof beyond reasonable doubt.37 It should be
noted that the presumption is precisely just that – a
presumption. Once challenged by evidence, as in this
case, it cannot be regarded as binding truth.38
We recognize that the evidence proffered by the defense
is far from strong; the appellant merely denied the
occurrence of a buy–bust operation and failed to present
impartial witnesses who were not interested in the case.
In our jurisdiction, the defense of denial or frame–up, like
alibi, has been viewed with disfavor for it can easily be
concocted and is a common defense ploy in most
prosecutions for violation of the Dangerous Drugs Act.39 It
should be emphasized, however, that these weaknesses
do not add any strength to the prosecution’s cause. Thus,
however weak the defense evidence might be, the
prosecution’s whole case still falls. As the well–
entrenched dictum goes, the evidence for the prosecution
must stand or fall on its own weight and cannot be allowed
to draw strength from the weakness of the defense.40
We therefore resolve to acquit the accused for failure of
the prosecution – due to the gap–induced weakness of
the case – to prove the appellant’s guilt beyond
reasonable doubt.
WHEREFORE, in light of all the foregoing, the 28 July
2010 Decision of the Court of Appeals in CA–G.R. CR.–
H.C. No. 01680 affirming the judgement of conviction of
the Regional Trial Court, Branch 267, Pasig City is
hereby REVERSED and SET ASIDE. Appellant Jerry
Caranto y Propeta is ACQUITTED on reasonable doubt
and is ordered immediately RELEASED from detention,
unless he is confined for any other lawful cause.
The Director of the Bureau of Corrections
is DIRECTED to IMPLEMENT this Decision and to report
to this Court the action taken hereon within five (5) days
from receipt.
SO ORDERED.
G.R. No. 167366 September 26, 2012
DR. PEDRO DENNIS CERENO, and DR. SANTOS
ZAFE, Petitioners, vs.
COURT OF APPEALS, SPOUSES DIOGENES S.
OLAVERE and FE R. SERRANO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on
Certiorari 1 under Rule 45 of the Rules of Court seeking
the annulment and setting aside of the 21 February 2005
decision2 of the Court of Appeals (CA) in CA-G.R. CV No.
65800. In the assailed decision, the CA affirmed
in toto the decision of the Regional Trial Court (R TC),
Branch 22, Nag a City finding herein petitioners Dr. Pedro
Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr.
Zafe) liable for damages.
Culled from the records are the following antecedent
facts:
At about 9:15 in the evening of 16 September 1995,
Raymond S. Olavere (Raymond), a victim of a stabbing
incident, was rushed to the emergency room of the Bicol
Regional Medical Center (BRMC). There, Raymond was
attended to by Nurse Arlene Balares (Nurse Balares) and
Dr. Ruel Levy Realuyo (Dr. Realuyo) — the emergency
room resident physician.
Subsequently, the parents of Raymond—the spouses
Deogenes Olavere (Deogenes) and Fe R. Serrano—
arrived at the BRMC. They were accompanied by one
Andrew Olavere, the uncle of Raymond.
After extending initial medical treatment to Raymond, Dr.
Realuyo recommended that the patient undergo
"emergency exploratory laparotomy." Dr. Realuyo then
requested the parents of Raymond to procure 500 cc of
type "O" blood needed for the operation. Complying with
the request, Deogenes and Andrew Olavere went to the
Philippine National Red Cross to secure the required
blood.
At 10:30 P.M., Raymond was wheeled inside the
operating room. During that time, the hospital surgeons,
Drs. Zafe and Cereno, were busy operating on gunshot
victim Charles Maluluy-on. Assisting them in the said
operation was Dr. Rosalina Tatad (Dr. Tatad), who was
the only senior anesthesiologist on duty at BRMC that
night. Dr. Tatad also happened to be the head of
Anesthesiology Department of the BRMC.
Just before the operation on Maluluy-on was finished,
another emergency case involving Lilia Aguila, a woman
who was giving birth to triplets, was brought to the
operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was
finished. By that time, however, Dr. Tatad was already
working with the obstetricians who will perform surgery on
Lilia Aguila. There being no other available
anesthesiologist to assist them, Drs. Zafe and Cereno
decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to
examine Raymond and they found that the latter’s blood
pressure was normal and "nothing in him was
significant."3 Dr. Cereno reported that based on the xray
result he interpreted, the fluid inside the thoracic cavity of
Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned
to the BRMC with a bag containing the requested 500 cc
147
type "O" blood. They handed over the bag of blood to Dr.
Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila
operation, petitioners immediately started their operation
on Raymond at around 12:15 A.M. of 17 September 1995.
Upon opening of Raymond’s thoracic cavity, they found
that 3,200 cc of blood was stocked therein. The blood was
evacuated and petitioners found a puncture at the inferior
pole of the left lung.
In his testimony, Dr. Cereno stated that considering the
loss of blood suffered by Raymond, he did not
immediately transfuse blood because he had to control
the bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At
1:45 A.M., while the operation was on-going, Raymond
suffered a cardiac arrest. The operation ended at 1:50
A.M. and Raymond was pronounced dead at 2:30 A.M.
Raymond’s death certificate5 indicated that the immediate
cause of death was "hypovolemic shock" or the cessation
of the functions of the organs of the body due to loss of
blood.6
Claiming that there was negligence on the part of those
who attended to their son, the parents of Raymond, on 25
October 1995, filed before the RTC, Branch 22, Naga City
a complaint for damages7 against Nurse Balares, Dr.
Realuyo and attending surgeons Dr. Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own
behalf. They also presented the testimonies of Andrew
Olavere and one Loira Oira, the aunt of Raymond. On the
other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and
Security Guard Diego Reposo testified for the defense.
On rebuttal, the parents of Raymond presented Dr. Tatad,
among others.
On 15 October 1999, the trial court rendered a
decision8 the dispositive portion of which reads:
WHEREFORE, premises considered, this Court hereby
renders judgment:
1. Dismissing the case against Dr. Ruel Levy
Realuyo and Arlene Balares for lack of merit;
2. Ordering defendants Dr. Santos Zafe and Dr.
Dennis Cereno to pay the heirs of Raymond
Olavere, jointly and severally the following
amounts:
1. ₱ 50,000.00 for the death of the victim;
2. ₱ 150,000.00 as moral damages;
3. ₱ 100,000.00 as exemplary damages;
4. ₱ 30,000.00 for attorney’s fees; and
5. Cost of suit.9
x x x x.
The trial court found petitioners negligent in not
immediately conducting surgery on Raymond. It noted
that petitioners have already finished operating on
Charles Maluluy-on as early as 10:30 in the evening, and
yet they only started the operation on Raymond at around
12:15 early morning of the following day. The trial court
held that had the surgery been performed promptly,
Raymond would not have lost so much blood and,
therefore, could have been saved.10
The trial court also held that the non-availability of Dr.
Tatad after the operation on Maluluy-on was not a
sufficient excuse for the petitioners to not immediately
operate on Raymond. It called attention to the testimony
of Dr. Tatad herself, which disclosed the possibility of
calling a standby anesthesiologist in that situation. The
trial court opined that the petitioners could have just
requested for the standby anesthesiologist from Dr.
Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in the
transfusion of blood on Raymond.
On appeal, the CA in a decision dated 21 February 2005
affirmed in toto the judgment rendered by the RTC finding
herein petitioners guilty of gross negligence in the
performance of their duties and awarding damages to
private respondents.
Hence, this petition for review on certiorari under Rule 45
of the Rules of Court assailing the CA decision on the
following grounds:
1. THAT THE CA ERRED IN RULING THAT
PETITIONERS WERE GROSSLY NEGLIGENT
IN THE PERFORMANCE OF THEIR DUTIES;
2. THAT THE CA ERRED IN NOT
CONSIDERING THE BICOL REGIONAL
MEDICAL CENTER AS AN INDISPENSABLE
PARTY AND SUBSIDIARILY LIABLE SHOULD
PETITIONERS BE FOUND LIABLE FOR
DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE
AWARD OF MORAL AND EXEMPLARY
DAMAGES AS WELL AS ATTORNEY’S FEES
EXORBITANT OR EXCESSIVE.
We grant the petition
148
It is well-settled that under Rule 45 of the Rules of Court, Dr. Tatad. The trial court relied on the testimony of Dr.
only questions of law may be raised. The reason behind Tatad about a "BRMC protocol" that introduces the
this is that this Court is not a trier of facts and will not re- possibility that a standby anesthesiologist could have
examine and re-evaluate the evidence on been called upon. The pertinent portions of the testimony
record.11 Factual findings of the CA, affirming that of the of Dr. Tatad provides:
trial court, are therefore generally final and conclusive on
this Court. This rule is subject to the following exceptions: Q: Aside from you and Dr. Rebancos, who was the
(1) the conclusion is grounded on speculations, surmises standby anesthesiologist?
or conjectures; (2) the inference is manifestly mistaken,
absurd or impossible; (3) there is grave abuse of A: We have a protocol at the Bicol Medical Center to have
discretion; (4) the judgment is based on a a consultant who is on call.
misapprehension of facts; (5) the findings of fact are
conflicting; (6) there is no citation of specific evidence on
which the factual findings are based; (7) the findings of Q: How many of them?
absence of fact are contradicted by the presence of
evidence on record; (8) the findings of the CA are contrary A: One.
to those of the trial court; (9) the CA manifestly overlooked
certain relevant and undisputed facts that, if properly Q: Who is she?
considered, would justify a different conclusion; (10) the
findings of the CA are beyond the issues of the case; and A: Dra. Flores.
(11) such findings are contrary to the admissions of both
parties.12 In this case, We find exceptions (1) and (4) to be
Q: What is the first name?
applicable.
A: Rosalina Flores.
The type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is
that type of claim which a victim has available to him or Q: Is she residing in Naga City?
her to redress a wrong committed by a medical
professional which has caused bodily harm. In order to A: In Camaligan.
successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a Q: She is on call anytime when there is an emergency
physician, either failed to do something which a case to be attended to in the Bicol Medical Center?
reasonably prudent health care provider would have
done, or that he or she did something that a A: Yes sir.15
reasonably prudent provider would not have done;
and that the failure or action caused injury to the
patient.13 Stated otherwise, the complainant must prove: Dr. Tatad further testified:
(1) that the health care provider, either by his act or
omission, had been negligent, and (2) that such act or Q: Alright (sic), considering that you said you could not
omission proximately caused the injury complained of. attend to Raymond Olavere because another patient was
coming in the person of Lilia Aguila, did you not suggest
The best way to prove these is through the opinions of to Dr. Cereno to call the standby anesthesiologist?
expert witnesses belonging in the same neighborhood
and in the same general line of practice as defendant A: They are not ones to do that. They have no right to call
physician or surgeon. The deference of courts to the for the standby anesthesiologist.
expert opinion of qualified physicians stems from the
former’s realization that the latter possess unusual Q: Then, who should call for the standby
technical skills which laymen in most instances are anesthesiologist?
incapable of intelligently evaluating, hence, the
indispensability of expert testimonies.14 A: It is me if the surgeon requested.

Guided by the foregoing standards, We dissect the issues Q: But in this case, the surgeon did not request you?
at hand.
A: No. It is their prerogative.
Petitioners Not Negligent
Q: I just want to know that in this case the surgeon did not
The trial court first imputed negligence on the part of the request you to call for the standby anesthesiologist?
petitioners by their failure to perform the operation on
Raymond immediately after finishing the Maluluy-on
A: No sir.16
operation. It rejected as an excuse the nonavailability of
149
From there, the trial court concluded that it was the duty
of the petitioners to request Dr. Tatad to call on Dr.
Rosalina Flores, the standby anesthesiologist. Since
petitioners failed to do so, their inability to promptly
perform the operation on Raymond becomes negligence
on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in
any evidence on the record for that matter, which shows
that the petitioners were aware of the "BRMC protocol"
that the hospital keeps a standby anesthesiologist
available on call. Indeed, other than the testimony of Dr.
Tatad, there is no evidence that proves that any such
"BRMC protocol" is being practiced by the hospital’s
surgeons at all.
Evidence to the effect that petitioners knew of the "BRMC
protocol" is essential, especially in view of the contrary
assertion of the petitioners that the matter of assigning
anesthesiologists rests within the full discretion of the
BRMC Anesthesiology Department. Without any prior
knowledge of the "BRMC protocol," We find that it is quite
reasonable for the petitioners to assume that matters
regarding the administration of anesthesia and the
assignment of anesthesiologists are concerns of the
Anesthesiology Department, while matters pertaining to
the surgery itself fall under the concern of the surgeons.
Certainly, We cannot hold petitioners accountable for not
complying with something that they, in the first place, do
not know.
Second. Even assuming ex gratia argumenti that there is
such "BRMC protocol" and that petitioners knew about it,
We find that their failure to request for the assistance of
the standby anesthesiologist to be reasonable when
taken in the proper context. There is simply no competent
evidence to the contrary.
From the testimony of Dr. Tatad herself, it is clear that the
matter of requesting for a standby anaesthesiologist is not
within the full discretion of petitioners. The "BRMC
protocol" described in the testimony requires the
petitioners to course such request to Dr. Tatad who, as
head of the Department of Anesthesiology, has the final
say of calling the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on
operation, Dr. Tatad was already assisting in the Lilia
Aguila operation. Drs. Zafe and Cereno then proceeded
to examine Raymond and they found that the latter’s
blood pressure was normal and "nothing in him was
significant."17 Dr. Cereno even concluded that based on
the x-ray result he interpreted, the fluid inside the thoracic
cavity of Raymond was minimal at around 200-300 cc.
Such findings of Drs. Cereno and Zafe were never
challenged and were unrebutted.
Given that Dr. Tatad was already engaged in another
urgent operation and that Raymond was not showing any
symptom of suffering from major blood loss requiring an
immediate operation, We find it reasonable that
petitioners decided to wait for Dr. Tatad to finish her
surgery and not to call the standby anesthesiologist
anymore. There is, after all, no evidence that shows that
a prudent surgeon faced with similar circumstances would
decide otherwise.
Here, there were no expert witnesses presented to testify
that the course of action taken by petitioners were not in
accord with those adopted by other reasonable surgeons
in similar situations. Neither was there any testimony
given, except that of Dr. Tatad’s, on which it may be
inferred that petitioners failed to exercise the standard of
care, diligence, learning and skill expected from
practitioners of their profession. Dr. Tatad, however, is an
expert neither in the field of surgery nor of surgical
practices and diagnoses. Her expertise is in the
administration of anesthesia and not in the determination
of whether surgery ought or not ought to be performed.
Another ground relied upon by the trial court in holding
petitioners negligent was their failure to immediately
transfuse blood on Raymond. Such failure allegedly led to
the eventual death of Raymond through "hypovolemic
shock." The trial court relied on the following testimony of
Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused
to him while he was inside the operating room?
A: The blood arrived at 1:40 a.m. and that was the time
when this blood was hooked to the patient.
xxxx
Q: Prior to the arrival of the blood, you did not request for
blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
xxxx
A: 9:30.
xxxx
Q: Had this blood been given to you before the operation
you could have transfused the blood to the patient?
150
A: Of course, yes.
Q: And the blood was transfused only after the operation?
A: Because that was the time when the blood was given
to us.
xxxx
Q: Have you monitored the condition of Raymond
Olavere?
A: I monitored the condition during the time when I would
administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that
time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have
been in critical condition?
A: At the time when the blood pressure was 60/40 I again
told Dr. Cereno that blood was already needed.
Q: With that condition, Doctor, that the patient had 60/40
blood pressure you did not decide on transfusing blood to
him?
A: I was asking for blood but there was no blood available.
Q: From whom did you ask?
A: From the surgeon. According to Dr. Zafe there was only
500 cc but still for cross-matching.18
From the aforesaid testimony, the trial court ruled that
there was negligence on the part of petitioners for their
failure to have the blood ready for transfusion. It was
alleged that at 11:15 P.M., the 500 cc of blood was given
to Dr. Realuyo by Raymond’s parents. At 11:45 P.M.,
when Dr. Tatad was asking for the blood, 30 minutes had
passed. Yet, the blood was not ready for transfusion as it
was still being cross-matched.19 It took another two hours
before blood was finally transfused to Raymond at 1:40
A.M. of 17 September 1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood,
if there was any, cannot be attributed as the fault of the
petitioners. The petitioners were never shown to be
responsible for such delay. It is highly unreasonable and
the height of injustice if petitioners were to be sanctioned
for lapses in procedure that does not fall within their duties
and beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly
explained the apparent delay in the transfusion of blood
on Raymond before and during the operation.
Before the operation, Dr. Cereno explained that the
reason why no blood transfusion was made on Raymond
was because they did not then see the need to administer
such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the
operation you were informed that there was 500 cc of
blood available and was still to be cross-matched. What
time was that when you were informed that 500 cc of
blood was due for crossmatching?
A: I am not sure of the time.
Q: But certainly, you learned of that fact that there was
500 cc of blood, which was due for crossmatching
immediately prior to the operation?
A: Yes, sir.
Q: And the operation was done at 12:15 of September 17?
A: Yes, sir.
Q: And that was the reason why you could not use the
blood because it was being crossmatched?
A: No, sir. That was done only for a few minutes. We did
not transfuse at that time because there was no
need. There is a necessity to transfuse blood when we
saw there is gross bleeding inside the
body. 20 (Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was
already able to discover that 3,200 cc of blood was
stocked in the thoracic cavity of Raymond due to the
puncture in the latter’s left lung. Even then, however,
immediate blood transfusion was not feasible because:
Q: Now considering the loss of blood suffered by
Raymund Olavere, why did you not immediately transfuse
blood to the patient and you waited for 45 minutes to
elapse before transfusing the blood?
A: I did not transfuse blood because I had to control
the bleeders. If you will transfuse blood just the same
the blood that you transfuse will be lost. After
evacuation of blood and there is no more bleeding…
Q: It took you 45 minutes to evacuate the blood?
151
A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only
transfuse blood after 45 minutes?
A: We have to look for some other lesions. It does not
mean that when you slice the chest you will see the
lesions already.21
(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went
unchallenged or unrebutted. The parents of Raymond
were not able to present any expert witness to dispute the
course of action taken by the petitioners.
Causation Not Proven
In medical negligence cases, it is settled that the
complainant has the burden of establishing breach of duty
on the part of the doctors or surgeons. It must be proven
that such breach of duty has a causal connection to the
resulting death of the patient.22 A verdict in malpractice
action cannot be based on speculation or conjecture.
Causation must be proven within a reasonable medical
probability based upon competent expert testimony.
The parents of Raymond failed in this respect. Aside from
their failure to prove negligence on the part of the
petitioners, they also failed to prove that it was petitioners’
fault that caused the injury. Their cause stands on the
mere assumption that Raymond’s life would have been
saved had petitioner surgeons immediately operated on
him; had the blood been cross-matched immediately and
had the blood been transfused immediately. There was,
however, no proof presented that Raymond’s life would
have been saved had those things been done. Those are
mere assumptions and cannot guarantee their desired
result. Such cannot be made basis of a decision in this
case, especially considering that the name, reputation
and career of petitioners are at stake.
The Court understands the parents’ grief over their son’s
death.1âwphi1 That notwithstanding, it cannot hold
petitioners liable. It was noted that Raymond, who was a
victim of a stabbing incident, had multiple wounds when
brought to the hospital. Upon opening of his thoracic
cavity, it was discovered that there was gross bleeding
inside the body. Thus, the need for petitioners to control
first what was causing the bleeding. Despite the situation
that evening i.e. numerous patients being brought to the
hospital for emergency treatment considering that it was
the height of the Peñafrancia Fiesta, it was evident that
petitioners exerted earnest efforts to save the life of
Raymond. It was just unfortunate that the loss of his life
was not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors
are protected by a special law. They are not guarantors of
care. They do not even warrant a good result. They are
not insurers against mishaps or unusual consequences.
Furthermore, they are not liable for honest mistake of
judgment…"23
This Court affirms the ruling of the CA that the BRMC is
not an indispensible party. The core issue as agreed upon
by the parties and stated in the pre-trial order is whether
petitioners were negligent in the performance of their
duties. It pertains to acts/omissions of petitioners for
which they could be held liable. The cause of action
against petitioners may be prosecuted fully and the
determination of their liability may be arrived at without
impleading the hospital where they are employed. As
such, the BRMC cannot be considered an indispensible
party without whom no final determination can be had of
an action.24
IN THE LIGHT OF THE FOREGOING, the instant Petition
for Review on Certiorari is hereby GRANTED. The Court
of Appeals decision dated 21 February 2005 in CA-G.R.
CV No. 65800 is hereby REVERSED and SET
ASIDE. No costs.
SO ORDERED.
G.R. No. 159132 December 18, 2008
FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA
RAMOLETE, respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court filed by
Dr. Fe Cayao-Lasam (petitioner) seeking to annul the
Decision1 dated July 4, 2003 of the Court of Appeals (CA)
in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant
Editha Ramolete (Editha) was brought to the Lorma
Medical Center (LMC) in San Fernando, La Union due to
vaginal bleeding. Upon advice of petitioner
relayed via telephone, Editha was admitted to the LMC on
the same day. A pelvic sonogram2 was then conducted on
Editha revealing the fetus’ weak cardiac pulsation.3 The
following day, Editha’s repeat pelvic sonogram4 showed
that aside from the fetus’ weak cardiac pulsation, no fetal
movement was also appreciated. Due to persistent and
profuse vaginal bleeding, petitioner advised Editha to
undergo a Dilatation and Curettage Procedure (D&C) or
"raspa."
152
On July 30, 1994, petitioner performed the D&C
procedure. Editha was discharged from the hospital the
following day.
On September 16, 1994, Editha was once again brought
at the LMC, as she was suffering from vomiting and
severe abdominal pains. Editha was attended by Dr.
Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V.
Komiya. Dr. Mayo allegedly informed Editha that there
was a dead fetus in the latter’s womb. After, Editha
underwent laparotomy,5 she was found to have a massive
intra-abdominal hemorrhage and a ruptured uterus. Thus,
Editha had to undergo a procedure for hysterectomy6 and
as a result, she has no more chance to bear a child.
On November 7, 1994, Editha and her husband Claro
Ramolete (respondents) filed a Complaint7 for Gross
Negligence and Malpractice against petitioner before the
Professional Regulations Commission (PRC).
Respondents alleged that Editha’s hysterectomy was
caused by petitioner’s unmitigated negligence and
professional incompetence in conducting the D&C
procedure and the petitioner’s failure to remove the fetus
inside Editha’s womb.8 Among the alleged acts of
negligence were: first, petitioner’s failure to check up, visit
or administer medication on Editha during her first day of
confinement at the LMC;9 second, petitioner
recommended that a D&C procedure be performed on
Editha without conducting any internal examination prior
to the procedure;10 third, petitioner immediately
suggested a D&C procedure instead of closely monitoring
the state of pregnancy of Editha.11
In her Answer,12 petitioner denied the allegations of
negligence and incompetence with the following
explanations: upon Editha’s confirmation that she would
seek admission at the LMC, petitioner immediately called
the hospital to anticipate the arrival of Editha and ordered
through the telephone the medicines Editha needed to
take, which the nurses carried out; petitioner visited
Editha on the morning of July 28, 1994 during her rounds;
on July 29, 1994, she performed an internal examination
on Editha and she discovered that the latter’s cervix was
already open, thus, petitioner discussed the possible D&C
procedure, should the bleeding become more profuse; on
July 30 1994, she conducted another internal examination
on Editha, which revealed that the latter’s cervix was still
open; Editha persistently complained of her vaginal
bleeding and her passing out of some meaty mass in the
process of urination and bowel movement; thus, petitioner
advised Editha to undergo D&C procedure which the
respondents consented to; petitioner was very vocal in the
operating room about not being able to see an
abortus;13 taking the words of Editha to mean that she
was passing out some meaty mass and clotted blood, she
assumed that the abortus must have been expelled in the
process of bleeding; it was Editha who insisted that she
wanted to be discharged; petitioner agreed, but she
advised Editha to return for check-up on August 5, 1994,
which the latter failed to do.
Petitioner contended that it was Editha’s gross negligence
and/or omission in insisting to be discharged on July 31,
1994 against doctor’s advice and her unjustified failure to
return for check-up as directed by petitioner that
contributed to her life-threatening condition on September
16, 1994; that Editha’s hysterectomy was brought about
by her very abnormal pregnancy known as placenta
increta, which was an extremely rare and very unusual
case of abdominal placental implantation. Petitioner
argued that whether or not a D&C procedure was done by
her or any other doctor, there would be no difference at all
because at any stage of gestation before term, the uterus
would rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of
the PRC rendered a Decision,14 exonerating petitioner
from the charges filed against her. The Board held:
Based on the findings of the doctors who
conducted the laparotomy on Editha, hers is a
case of Ectopic Pregnancy Interstitial. This type
of ectopic pregnancy is one that is being
protected by the uterine muscles and
manifestations may take later than four (4)
months and only attributes to two percent (2%) of
ectopic pregnancy cases.
When complainant Editha was admitted at Lorma
Medical Center on July 28, 1994 due to vaginal
bleeding, an ultra-sound was performed upon her
and the result of the Sonogram Test reveals a
morbid fetus but did not specify where the fetus
was located. Obstetricians will assume that the
pregnancy is within the uterus unless so specified
by the Sonologist who conducted the ultra-sound.
Respondent (Dr. Lasam) cannot be faulted if she
was not able to determine that complainant
Editha is having an ectopic pregnancy interstitial.
The D&C conducted on Editha is necessary
considering that her cervix is already open and so
as to stop the profuse bleeding. Simple curettage
cannot remove a fetus if the patient is having an
ectopic pregnancy, since ectopic pregnancy is
pregnancy conceived outside the uterus and
curettage is done only within the uterus.
Therefore, a more extensive operation needed in
this case of pregnancy in order to remove the
fetus.15
Feeling aggrieved, respondents went to the PRC on
appeal. On November 22, 2000, the PRC rendered a
Decision16 reversing the findings of the Board and
revoking petitioner’s authority or license to practice her
profession as a physician.17
Petitioner brought the matter to the CA in a Petition for
Review under Rule 43 of the Rules of Court. Petitioner
153
also dubbed her petition as one for certiorari18 under Rule
65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the
Petition for Review under Rule 43 of the Rules of Court
was an improper remedy, as the enumeration of
the quasi-judicial agencies in Rule 43 is exclusive.19 PRC
is not among the quasi-judicial bodies whose judgment or
final orders are subject of a petition for review to the CA,
thus, the petition for review of the PRC Decision, filed at
the CA, was improper. The CA further held that should the
petition be treated as a petition for certiorari under Rule
65, the same would still be dismissed for being improper
and premature. Citing Section 2620 of Republic Act (R.A.)
No. 2382 or the Medical Act of 1959, the CA held that the
plain, speedy and adequate remedy under the ordinary
course of law which petitioner should have availed herself
of was to appeal to the Office of the President.21
Hence, herein petition, assailing the decision of the CA on
the following grounds:
1. THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN HOLDING THAT THE
PROFESSIONAL REGULATION[S]
COMMISSION (PRC) WAS EXCLUDED
AMONG THE QUASI-JUDICIAL AGENCIES
CONTEMPLATED UNDER RULE 43 OF THE
RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC
WAS EXCLUDED FROM THE PURVIEW OF
RULE 43 OF THE RULES OF CIVIL
PROCEDURE, THE PETITIONER WAS NOT
PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS
ALSO ISSUED IN EXCESS OF OR WITHOUT
JURISDICTION, OR WHERE THE DECISION
WAS A PATENT NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE
NOT ALLOWED BY LAW TO APPEAL FROM
THE DECISION OF THE BOARD OF MEDICINE
TO THE PROFESSIONAL REGULATION[S]
COMMISSION;
4. THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION IN DENYING
FOR IMPROPER FORUM THE PETITION FOR
REVIEW/PETITION FOR CERTIORARI
WITHOUT GOING OVER THE MERITS OF THE
GROUNDS RELIED UPON BY THE
PETITIONER;
5. PRC’S GRAVE OMISSION TO AFFORD
HEREIN PETITONER A CHANCE TO BE
HEARD ON APPEAL IS A CLEAR VIOLATION
OF HER CONSTITUTIONAL RIGHT TO DUE
PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND
VOID;
6. COROLLARY TO THE FOURTH ASSIGNED
ERROR, PRC COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, IN ACCEPTING AND
CONSIDERING THE MEMORANDUM ON
APPEAL WITHOUT PROOF OF SERVICE TO
HEREIN PETITIONER, AND IN VIOLATION OF
ART. IV, SEC. 35 OF THE RULES AND
REGULATIONS GOVERNING THE
REGULATION AND PRACTICE OF
PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONER’S
LICENSE TO PRACTICE MEDICINE WITHOUT
AN EXPERT TESTIMONY TO SUPPORT ITS
CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETE’S
INJURY;
8. PRC COMMITTED AN EVEN GRAVER
ABUSE OF DISCRETION IN TOTALLY
DISREGARDING THE FINDING OF THE
BOARD OF MEDICINE, WHICH HAD THE
NECESSARY COMPETENCE AND EXPERTISE
TO ESTABLISH THE CAUSE OF
RESPONDENT EDITHA’S INJURY, AS WELL
AS THE TESTIMONY OF THE EXPERT
WITNESS AUGUSTO MANALO, M.D. ;[and]
9. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN MAKING CONCLUSIONS OF
FACTS THAT WERE NOT ONLY
UNSUPPORTED BY EVIDENCE BUT WERE
ACTUALLY CONTRARY TO EVIDENCE ON
RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants
to appeal to the PRC from the decision of the Board. She
invokes Article IV, Section 35 of the Rules and
Regulations Governing the Regulation and Practice of
Professionals, which provides:
Sec. 35. The respondent may appeal the decision
of the Board within thirty days from receipt thereof
to the Commission whose decision shall be
final. Complainant, when allowed by law, may
interpose an appeal from the Decision of the
Board within the same period. (Emphasis
supplied)
Petitioner asserts that a careful reading of the above law
indicates that while the respondent, as a matter of right,
may appeal the Decision of the Board to the Commission,
154
the complainant may interpose an appeal from the
decision of the Board only when so allowed by
law.23 Petitioner cited Section 26 of Republic Act No. 2382
or "The Medical Act of 1959," to wit:
Section 26. Appeal from judgment. The decision
of the Board of Medical Examiners (now Medical
Board) shall automatically become final thirty
days after the date of its promulgation unless the
respondent, during the same period, has
appealed to the Commissioner of Civil Service
(now Professional Regulations Commission) and
later to the Office of the President of the
Philippines. If the final decision is not satisfactory,
the respondent may ask for a review of the case,
or may file in court a petition for certiorari.
Petitioner posits that the reason why the Medical Act of
1959 allows only the respondent in an administrative case
to file an appeal with the Commission while the
complainant is not allowed to do so is double jeopardy.
Petitioner is of the belief that the revocation of license to
practice a profession is penal in nature.24
The Court does not agree.
For one, the principle of double jeopardy finds no
application in administrative cases. Double jeopardy
attaches only: (1) upon a valid indictment; (2) before a
competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was
acquitted or convicted, or the case was dismissed or
otherwise terminated without the express consent of the
accused.25 These elements were not present in the
proceedings before the Board of Medicine, as the
proceedings involved in the instant case were
administrative and not criminal in nature. The Court has
already held that double jeopardy does not lie in
administrative cases.26
Moreover, Section 35 of the Rules and Regulations
Governing the Regulation and Practice of Professionals
cited by petitioner was subsequently amended to read:
Sec. 35. The complainant/respondent may
appeal the order, the resolution or the decision of
the Board within thirty (30) days from receipt
thereof to the Commission whose decision shall
be final and executory. Interlocutory order shall
not be appealable to the Commission. (Amended
by Res. 174, Series of 1990).27 (Emphasis
supplied)
Whatever doubt was created by the previous provision
was settled with said amendment. It is axiomatic that the
right to appeal is not a natural right or a part of due
process, but a mere statutory privilege that may be
exercised only in the manner prescribed by law.28 In this
case, the clear intent of the amendment is to render the
right to appeal from a decision of the Board available to
both complainants and respondents.
Such conclusion is bolstered by the fact that in 2006, the
PRC issued Resolution No. 06-342(A), or the New Rules
of Procedure in Administrative Investigations in the
Professional Regulations Commission and the
Professional Regulatory Boards, which provides for the
method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The
decision, order or resolution of the Board shall be
final and executory after the lapse of fifteen (15)
days from receipt of the decision, order or
resolution without an appeal being perfected or
taken by either the respondent or the
complainant. A party aggrieved by the
decision, order or resolution may file a notice
of appeal from the decision, order or
resolution of the Board to the Commission
within fifteen (15) days from receipt
thereof, and serving upon the adverse party a
notice of appeal together with the appellant’s brief
or memorandum on appeal, and paying the
appeal and legal research fees. x x x29
The above-stated provision does not qualify whether only
the complainant or respondent may file an appeal; rather,
the new rules provide that "a party aggrieved" may file a
notice of appeal. Thus, either the complainant or the
respondent who has been aggrieved by the decision,
order or resolution of the Board may appeal to the
Commission. It is an elementary rule that when the law
speaks in clear and categorical language, there is no
need, in the absence of legislative intent to the contrary,
for any interpretation.30 Words and phrases used in the
statute should be given their plain, ordinary, and common
usage or meaning.31
Petitioner also submits that appeals from the decisions of
the PRC should be with the CA, as Rule 4332 of the Rules
of Court was precisely formulated and adopted to provide
for a uniform rule of appellate procedure for quasi-judicial
agencies.33 Petitioner further contends that a quasi-
judicial body is not excluded from the purview of Rule 43
just because it is not mentioned therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to
appeals from judgments or final orders of the
Court of Tax Appeals, and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities
155
 and Exchange Commission, Office of the
President, Land Registration Authority, Social
Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration,
Energy Regulatory Board, National
Telecommunications Commission, Department
of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System,
Employees Compensation Commission,
Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary
arbitrators authorized by law. (Emphasis
supplied)
Indeed, the PRC is not expressly mentioned as one of the
agencies which are expressly enumerated under Section
1, Rule 43 of the Rules of Court. However, its absence
from the enumeration does not, by this fact alone, imply
its exclusion from the coverage of said Rule.35 The Rule
expressly provides that it should be applied to appeals
from awards, judgments final orders or resolutions of
any quasi-judicial agency in the exercise of its quasi-
judicial functions. The phrase "among these agencies"
confirms that the enumeration made in the Rule is not
exclusive to the agencies therein listed.36
Specifically, the Court, in Yang v. Court of
Appeals,37 ruled
that Batas Pambansa (B.P.) Blg. 12938 conferred upon
the CA exclusive appellate jurisdiction over appeals from
decisions of the PRC. The Court held:
The law has since been changed, however, at
least in the matter of the particular court to which
appeals from the Commission should be taken.
On August 14, 1981, Batas Pambansa Bilang 129
became effective and in its Section 29, conferred
on the Court of Appeals "exclusive appellate
jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial
Courts and quasi-judicial agencies,
instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of the
Supreme Court. x x x." In virtue of BP 129,
appeals from the Professional Regulations
Commission are now exclusively cognizable
by the Court of Appeals.39 (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of
the present Rules of Civil Procedure,40 lodged with the CA
such jurisdiction over the appeals of decisions made by
the PRC.
Anent the substantive merits of the case, petitioner
questions the PRC decision for being without an expert
testimony to support its conclusion and to establish the
cause of Editha’s injury. Petitioner avers that in cases of
medical malpractice, expert testimony is necessary to
support the conclusion as to the cause of the injury.41
Medical malpractice is a particular form of negligence
which consists in the failure of a physician or surgeon to
apply to his practice of medicine that degree of care and
skill which is ordinarily employed by the profession
generally, under similar conditions, and in like
surrounding circumstances.42 In order to successfully
pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something which
a reasonably prudent physician or surgeon would not
have done, and that the failure or action caused injury to
the patient.43
There are four elements involved in medical negligence
cases: duty, breach, injury and proximate causation.44
A physician-patient relationship was created when Editha
employed the services of the petitioner. As Editha’s
physician, petitioner was duty-bound to use at least the
same level of care that any reasonably competent doctor
would use to treat a condition under the same
circumstances.45 The breach of these professional duties
of skill and care, or their improper performance by a
physician surgeon, whereby the patient is injured in body
or in health, constitutes actionable malpractice.46 As to
this aspect of medical malpractice, the determination of
the reasonable level of care and the breach thereof,
expert testimony is essential.47 Further, inasmuch as the
causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.48
In the present case, respondents did not present any
expert testimony to support their claim that petitioner
failed to do something which a reasonably prudent
physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony of
Dr. Augusto M. Manalo, who was clearly an expert on the
subject.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of
recognized authorities on the subject or by practical
experience.49
Dr. Manalo specializes in gynecology and obstetrics,
authored and co-authored various publications on the
subject, and is a professor at the University of the
Philippines.50 According to him, his diagnosis of Editha’s
case was "Ectopic Pregnancy Interstitial (also referred to
as Cornual), Ruptured."51 In stating that the D&C
procedure was not the proximate cause of the rupture of
Editha’s uterus resulting in her hysterectomy, Dr. Manalo
testified as follows:
156
 Atty. Hidalgo:
Q: Doctor, we want to be clarified on this
matter. The complainant had testified here that
the D&C was the proximate cause of the rupture
of the uterus. The condition which she found
herself in on the second admission. Will you
please tell us whether that is true or not?
A: Yah, I do not think so for two
reasons. One, as I have said earlier, the
instrument cannot reach the site of the
pregnancy, for it to further push the pregnancy
outside the uterus. And, No. 2, I was thinking a
while ago about another reason- well, why I don’t
think so, because it is the triggering factor for the
rupture, it could have–the rupture could have
occurred much earlier, right after the D&C or a
few days after the D&C.
Q: In this particular case, doctor, the rupture
occurred to have happened minutes prior to the
hysterectomy or right upon admission on
September 15, 1994 which is about 1 ½ months
after the patient was discharged, after the D&C
was conducted. Would you tell us whether there
is any relation at all of the D&C and the rupture in
this particular instance?
A: I don’t think so for the two reasons that I
have just mentioned- that it would not be
possible for the instrument to reach the site of
pregnancy. And, No. 2, if it is because of the
D&C that rupture could have occurred
earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and the
reasons given by him, it is evident that the D&C procedure
was not the proximate cause of the rupture of Editha’s
uterus.
During his cross-examination, Dr. Manalo testified on how
he would have addressed Editha’s condition should he be
placed in a similar circumstance as the petitioner. He
stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do
you consider that you have done a good, correct
and ideal dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient
gets well. Because even after the procedure,
even after the procedure you may feel that you
have scraped everything, the patient stops
bleeding, she feels well, I think you should still
have some reservations, and wait a little more
time.
Q: If you were the OB-Gyne who performed the
procedure on patient Editha Ramolete, would it
be your standard practice to check the fetal parts
or fetal tissues that were allegedly removed?
A: From what I have removed, yes. But in this
particular case, I think it was assumed that it was
part of the meaty mass which was expelled at the
time she was urinating and flushed in the toilet.
So there’s no way.
Q: There was [sic] some portions of the fetal
parts that were removed?
A: No, it was described as scanty scraping if I
remember it right–scanty.
Q: And you would not mind checking those
scant or those little parts that were removed?
A: Well, the fact that it was described
means, I assume that it was checked, ‘no. It
was described as scanty and the color also, I
think was described. Because it would be very
unusual, even improbable that it would not be
examined, because when you scrape, the
specimens are right there before your eyes.
It’s in front of you. You can touch it. In fact,
some of them will stick to the instrument and
therefore to peel it off from the instrument,
you have to touch them. So, automatically
they are examined closely.
Q: As a matter of fact, doctor, you also give
telephone orders to your patients through
telephone?
A: Yes, yes, we do that, especially here in
Manila because you know, sometimes a doctor
can also be tied-up somewhere and if you have
to wait until he arrive at a certain place before you
give the order, then it would be a lot of time
wasted. Because if you know your patient, if you
have handled your patient, some of the
symptoms you can interpret that comes with
practice. And, I see no reason for not allowing
telephone orders unless it is the first time that
you will be encountering the patient. That you
have no idea what the problem is.
Q: But, doctor, do you discharge patients
without seeing them?
A: Sometimes yes, depending on how familiar
I am with the patient. We are on the question of
telephone orders. I am not saying that that is the
idle [sic] thing to do, but I think the reality of
present day practice somehow justifies
telephone orders. I have patients whom I have
157
 justified and then all of a sudden, late in the
afternoon or late in the evening, would suddenly
call they have decided that they will go home
inasmuch as they anticipated that I will discharge
them the following day. So, I just call and ask our
resident on duty or the nurse to allow them to go
because I have seen that patient and I think I
have full grasp of her problems. So, that’s when I
make this telephone orders. And, of course
before giving that order I ask about how she
feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the D&C
procedure was conducted in accordance with the
standard practice, with the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances, and that there
was nothing irregular in the way the petitioner dealt with
Editha.
Medical malpractice, in our jurisdiction, is often brought as
a civil action for damages under Article 217654 of the Civil
Code. The defenses in an action for damages, provided
for under Article 2179 of the Civil Code are:
Art. 2179. When the plaintiff’s own negligence
was the immediate and proximate cause of his
injury, he cannot recover damages. But if his
negligence was only contributory, the immediate
and proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may
recover damages, but the courts shall mitigate
the damages to be awarded.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred.55 An injury or
damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case that
the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that
the injury or damage was either a direct result or a
reasonably probable consequence of the act or
omission.56
In the present case, the Court notes the findings of the
Board of Medicine:
When complainant was discharged on July 31,
1994, herein respondent advised her to return
on August 4, 1994 or four (4) days after the
D&C. This advise was clear in complainant’s
Discharge Sheet. However, complainant failed
to do so. This being the case, the chain of
continuity as required in order that the doctrine of
proximate cause can be validly invoked was
interrupted. Had she returned, the respondent
could have examined her thoroughly.57 x x x
(Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that
assuming that there was in fact a misdiagnosis, the same
would have been rectified if Editha followed the
petitioner’s order to return for a check-up on August 4,
1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist
has been misled (justifiably) up to thus point
that there would have been ample opportunity
to rectify the misdiagnosis, had the patient
returned, as instructed for her follow-up
evaluation. It was one and a half months later
that the patient sought consultation with
another doctor. The continued growth of an
ectopic pregnancy, until its eventual rupture, is a
dynamic process. Much change in physical
findings could be expected in 1 ½ months,
including the emergence of suggestive ones.58
It is undisputed that Editha did not return for a follow-up
evaluation, in defiance of the petitioner’s advise. Editha
omitted the diligence required by the circumstances which
could have avoided the injury. The omission in not
returning for a follow-up evaluation played a substantial
part in bringing about Editha’s own injury. Had Editha
returned, petitioner could have conducted the proper
medical tests and procedure necessary to determine
Editha’s health condition and applied the corresponding
treatment which could have prevented the rupture of
Editha’s uterus. The D&C procedure having been
conducted in accordance with the standard medical
practice, it is clear that Editha’s omission was the
proximate cause of her own injury and not merely a
contributory negligence on her part.
Contributory negligence is the act or omission amounting
to want of ordinary care on the part of the person injured,
which, concurring with the defendant’s negligence, is the
proximate cause of the injury.59 Difficulty seems to be
apprehended in deciding which acts of the injured party
shall be considered immediate causes of the
accident.60 Where the immediate cause of an accident
resulting in an injury is the plaintiff’s own act, which
contributed to the principal occurrence as one of its
determining factors, he cannot recover damages for the
injury.61 Again, based on the evidence presented in
the present case under review, in which no
negligence can be attributed to the petitioner, the
immediate cause of the accident resulting in Editha’s
injury was her own omission when she did not return
for a follow-up check up, in defiance of petitioner’s
orders. The immediate cause of Editha’s injury was
her own act; thus, she cannot recover damages from
the injury.
Lastly, petitioner asserts that her right to due process was
violated because she was never informed by either
respondents or by the PRC that an appeal was pending
before the PRC.62 Petitioner claims that a verification with
the records section of the PRC revealed that on April 15,
158
1999, respondents filed a Memorandum on Appeal before
the PRC, which did not attach the actual registry receipt
but was merely indicated therein.63
Respondents, on the other hand avers that if the original
registry receipt was not attached to the Memorandum on
Appeal, PRC would not have entertained the appeal or
accepted such pleading for lack of notice or proof of
service on the other party.64 Also, the registry receipt
could not be appended to the copy furnished to
petitioner’s former counsel, because the registry receipt
was already appended to the original copy of the
Memorandum of Appeal filed with PRC.65
It is a well-settled rule that when service of notice is an
issue, the rule is that the person alleging that the notice
was served must prove the fact of service. The burden of
proving notice rests upon the party asserting its
existence.66 In the present case, respondents did not
present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not
able to satisfy the burden of proving that they had in fact
informed the petitioner of the appeal proceedings before
the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor
Relations Commission,67 in which the National Labor
Relations Commission failed to order the private
respondent to furnish the petitioner a copy of the Appeal
Memorandum, the Court held that said failure deprived
the petitioner of procedural due process guaranteed by
the Constitution, which could have served as basis for the
nullification of the proceedings in the appeal. The same
holds true in the case at bar. The Court finds that the
failure of the respondents to furnish the petitioner a copy
of the Memorandum of Appeal submitted to the PRC
constitutes a violation of due process. Thus, the
proceedings before the PRC were null and void.
All told, doctors are protected by a special rule of law.
They are not guarantors of care. They are not insurers
against mishaps or unusual consequences68 specially so
if the patient herself did not exercise the proper diligence
required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed
Decision of the Court of Appeals dated July 4, 2003 in CA-
GR SP No. 62206 is hereby REVERSED and SET
ASIDE. The Decision of the Board of Medicine dated
March 4, 1999 exonerating petitioner is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 158996 November 14, 2008
SPOUSES FREDELICTO FLORES (deceased) and
FELICISIMA FLORES, petitioners,
vs.
SPOUSES DOMINADOR PINEDA and VIRGINIA
SACLOLO, and FLORENCIO, CANDIDA, MARTA,
GODOFREDO, BALTAZAR and LUCENA, all
surnamed PINEDA, as heirs of the deceased
TERESITA S. PINEDA, and UNITED DOCTORS
MEDICAL CENTER, INC., respondents.
DECISION
BRION, J.:
This petition involves a medical negligence case that was
elevated to this Court through an appeal
by certiorari under Rule 45 of the Rules of Court. The
petition assails the Decision1 of the Court of Appeals (CA)
in CA G.R. CV No. 63234, which affirmed with
modification the Decision2 of the Regional Trial Court
(RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-
1233. The dispositive portion of the assailed CA decision
states:
WHEREFORE, premises considered, the
assailed Decision of the Regional Trial Court of
Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is
hereby AFFIRMED but with modifications as
follows:
1) Ordering defendant-appellants Dr. and
Dra. Fredelicto A. Flores and the United
Doctors Medical Center, Inc. to jointly
and severally pay the plaintiff-appellees -
heirs of Teresita Pineda, namely,
Spouses Dominador Pineda and Virginia
Saclolo and Florencio, Candida, Marta,
Godofredo, Baltazar and Lucena, all
surnamed Pineda, the sum
of P400,000.00 by way of moral
damages;
2) Ordering the above-named defendant-
appellants to jointly and severally pay the
above-named plaintiff-appellees the sum
of P100,000.00 by way of exemplary
damages;
3) Ordering the above-named defendant-
appellants to jointly and severally pay the
above-named plaintiff-appellees the sum
of P36,000.00 by way of actual and
compensatory damages; and
4) Deleting the award of attorney's fees
and costs of suit.
SO ORDERED.
While this case essentially involves questions of facts, we
opted for the requested review in light of questions we
have on the findings of negligence below, on the awarded
159
damages and costs, and on the importance of this type of
ruling on medical practice.3
BACKGROUND FACTS
Teresita Pineda (Teresita) was a 51-year old unmarried
woman living in Sto. Domingo, Nueva Ecija. She
consulted on April 17, 1987 her townmate, Dr. Fredelicto
Flores, regarding her medical condition. She complained
of general body weakness, loss of appetite, frequent
urination and thirst, and on-and-off vaginal bleeding. Dr.
Fredelicto initially interviewed the patient and asked for
the history of her monthly period to analyze the probable
cause of the vaginal bleeding. He advised her to return
the following week or to go to the United Doctors Medical
Center (UDMC) in Quezon City for a general check-up. As
for her other symptoms, he suspected that Teresita might
be suffering from diabetes and told her to continue her
medications.4
Teresita did not return the next week as advised.
However, when her condition persisted, she went to
further consult Dr. Flores at his UDMC clinic on April 28,
1987, travelling for at least two hours from Nueva Ecija to
Quezon City with her sister, Lucena Pineda. They arrived
at UDMC at around 11:15 a.m.. Lucena later testified that
her sister was then so weak that she had to lie down on
the couch of the clinic while they waited for the doctor.
When Dr. Fredelicto arrived, he did a routine check-up
and ordered Teresita's admission to the hospital. In the
admission slip, he directed the hospital staff to prepare
the patient for an "on call" D&C5 operation to be
performed by his wife, Dr. Felicisima Flores (Dr.
Felicisima). Teresita was brought to her hospital room at
around 12 noon; the hospital staff forthwith took her blood
and urine samples for the laboratory tests6 which Dr.
Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken to the
operating room. It was only then that she met Dr.
Felicisima, an obstetrician and gynecologist. The two
doctors - Dr. Felicisima and Dr. Fredelicto, conferred on
the patient's medical condition, while the resident
physician and the medical intern gave Dr. Felicisima their
own briefings. She also interviewed and conducted an
internal vaginal examination of the patient which lasted for
about 15 minutes. Dr. Felicisima thereafter called up the
laboratory for the results of the tests. At that time, only the
results for the blood sugar (BS), uric acid determination,
cholesterol determination, and complete blood count
(CBC) were available. Teresita's BS count was
10.67mmol/l7 and her CBC was 109g/l.8
Based on these preparations, Dr. Felicisima proceeded
with the D&C operation with Dr. Fredelicto administering
the general anesthesia. The D&C operation lasted for
about 10 to 15 minutes. By 3:40 p.m., Teresita was
wheeled back to her room.
A day after the operation (or on April 29, 1987), Teresita
was subjected to an ultrasound examination as a
confirmatory procedure. The results showed that she had
an enlarged uterus and myoma uteri.9 Dr. Felicisima,
however, advised Teresita that she could spend her
recovery period at home. Still feeling weak, Teresita opted
for hospital confinement.
Teresita's complete laboratory examination results came
only on that day (April 29, 1987). Teresita's urinalysis
showed a three plus sign (+++) indicating that the sugar
in her urine was very high. She was then placed under the
care of Dr. Amado Jorge, an internist.
By April 30, 1987, Teresita's condition had worsened. She
experienced difficulty in breathing and was rushed to the
intensive care unit. Further tests confirmed that she was
suffering from Diabetes Mellitus Type II.10 Insulin was
administered on the patient, but the medication might
have arrived too late. Due to complications induced by
diabetes, Teresita died in the morning of May 6, 1987.11
Believing that Teresita's death resulted from the negligent
handling of her medical needs, her family (respondents)
instituted an action for damages against Dr. Fredelicto
Flores and Dr. Felicisima Flores (collectively referred to
as the petitioner spouses) before the RTC of Nueva Ecija.
The RTC ruled in favor of Teresita's family and awarded
actual, moral, and exemplary damages, plus attorney's
fees and costs.12 The CA affirmed the judgment, but
modified the amount of damages awarded and deleted
the award for attorney's fees and costs of suit.13
Through this petition for review on certiorari, the petitioner
spouses -Dr. Fredelicto (now deceased) and Dr.
Felicisima Flores - allege that the RTC and CA committed
a reversible error in finding them liable through negligence
for the death of Teresita Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due
care and prudence in the performance of their duties as
medical professionals. They had attended to the patient
to the best of their abilities and undertook the
management of her case based on her complaint of an
on-and-off vaginal bleeding. In addition, they claim that
nothing on record shows that the death of Teresita could
have been averted had they employed means other than
what they had adopted in the ministration of the patient.
THE COURT'S RULING
We do not find the petition meritorious.
The respondents' claim for damages is predicated on their
allegation that the decision of the petitioner spouses to
proceed with the D&C operation, notwithstanding
160
Teresita's condition and the laboratory test results,
amounted to negligence. On the other hand, the petitioner
spouses contend that a D&C operation is the proper and
accepted procedure to address vaginal bleeding - the
medical problem presented to them. Given that the patient
died after the D&C, the core issue is whether the decision
to proceed with the D&C operation was an honest mistake
of judgment or one amounting to negligence.
Elements of a Medical Negligence Case
A medical negligence case is a type of claim to redress
a wrong committed by a medical professional, that has
caused bodily harm to or the death of a patient. There are
four elements involved in a medical negligence case,
namely: duty, breach, injury, and proximate causation.14
Duty refers to the standard of behavior which imposes
restrictions on one's conduct.15 The standard in turn refers
to the amount of competence associated with the proper
discharge of the profession. A physician is expected to
use at least the same level of care that any other
reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician
fails to comply with these professional standards. If injury
results to the patient as a result of this breach, the
physician is answerable for negligence.16
As in any civil action, the burden to prove the existence of
the necessary elements rests with the plaintiff.17 To
successfully pursue a claim, the plaintiff must prove by
preponderance of evidence that, one, the physician either
failed to do something which a reasonably prudent health
care provider would have done, or that he did something
that a reasonably prudent provider would not have done;
and two, the failure or action caused injury to the
patient.18 Expert testimony is therefore essential since the
factual issue of whether a physician or surgeon has
exercised the requisite degree of skill and care in the
treatment of his patient is generally a matter of expert
opinion.19
Standard of Care and Breach of Duty
D&C is the classic gynecologic procedure for the
evaluation and possible therapeutic treatment for
abnormal vaginal bleeding.20 That this is the recognized
procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto)
and Joselito Mercado (Dr. Mercado), the expert witnesses
presented by the respondents:
DR. NIETO: [W]hat I know among obstetricians,
if there is bleeding, they perform what we call
D&C for diagnostic purposes.
xxx xxx xxx
Q: So are you trying to tell the Court that D&C can
be a diagnostic treatment?
A: Yes, sir. Any doctor knows this.21
Dr. Mercado, however, objected with respect to the time
the D&C operation should have been conducted in
Teresita's case. He opined that given the blood sugar
level of Teresita, her diabetic condition should have been
addressed first:
Q: Why do you consider the time of performance
of the D&C not appropriate?
A: Because I have read the record and I have
seen the urinalysis, [there is] spillage in the urine,
and blood sugar was 10.67
Q: What is the significance of the spillage in the
urine?
A: It is a sign that the blood sugar is very high.
Q: Does it indicate sickness?
A: 80 to 95% it means diabetes mellitus. The
blood sugar was 10.67.
xxx xxx xxx
COURT: In other words, the operation conducted
on the patient, your opinion, that it is
inappropriate?
A: The timing of [when] the D&C [was] done,
based on the record, in my personal opinion, that
D&C should be postponed a day or two.22
The petitioner spouses countered that, at the time of the
operation, there was nothing to indicate that Teresita was
afflicted with diabetes: a blood sugar level of 10.67mmol/l
did not necessarily mean that she was a diabetic
considering that this was random blood sugar;23 there
were other factors that might have caused Teresita's
blood sugar to rise such as the taking of blood samples
during lunchtime and while patient was being given intra-
venous dextrose.24 Furthermore, they claim that their
principal concern was to determine the cause of and to
stop the vaginal bleeding.
The petitioner spouses' contentions, in our view, miss
several points. First, as early as April 17, 1987, Teresita
was already suspected to be suffering from
diabetes.25 This suspicion again arose right before the
D&C operation on April 28, 1987 when the laboratory
result revealed Teresita's increased blood sugar
level.26 Unfortunately, the petitioner spouses did not wait
for the full medical laboratory results before proceeding
with the D&C, a fact that was never considered in the
courts below. Second, the petitioner spouses were duly
advised that the patient was experiencing general body
161
weakness, loss of appetite, frequent urination, and thirst -
all of which are classic symptoms of diabetes.27 When a
patient exhibits symptoms typical of a particular disease,
these symptoms should, at the very least, alert the
physician of the possibility that the patient may be afflicted
with the suspected disease:
Expert testimony for the plaintiff showed that] tests should have been
ordered immediately on admission to the hospital in view of the symptoms
presented, and that failure to recognize the existence of diabetes constitutes
negligence.28
Third, the petitioner spouses cannot claim that their
principal concern was the vaginal bleeding and should not
therefore be held accountable for complications coming
from other sources. This is a very narrow and self-serving
view that even reflects on their competence.
Taken together, we find that reasonable prudence would
have shown that diabetes and its complications were
foreseeable harm that should have been taken into
consideration by the petitioner spouses. If a patient
suffers from some disability that increases the
magnitude of risk to him, that disability must be taken
into account so long as it is or should have been
known to the physician.29 And when the patient is
exposed to an increased risk, it is incumbent upon the
physician to take commensurate and adequate
precautions.
Taking into account Teresita's high blood sugar,30 Dr.
Mendoza opined that the attending physician should have
postponed the D&C operation in order to conduct a
confirmatory test to make a conclusive diagnosis of
diabetes and to refer the case to an internist or
diabetologist. This was corroborated by Dr. Delfin Tan
(Dr. Tan), an obstetrician and gynecologist, who stated
that the patient's diabetes should have been managed by
an internist prior to, during, and after the operation.31
Apart from bleeding as a complication of pregnancy,
vaginal bleeding is only rarely so heavy and life-
threatening that urgent first-aid measures are
required.32 Indeed, the expert witnesses declared that a
D&C operation on a hyperglycemic patient may be
justified only when it is an emergency case - when there
is profuse vaginal bleeding. In this case, we choose not to
rely on the assertions of the petitioner spouses that there
was profuse bleeding, not only because the statements
were self-serving, but also because the petitioner
spouses were inconsistent in their testimonies. Dr.
Fredelicto testified earlier that on April 28, he personally
saw the bleeding,33 but later on said that he did not see it
and relied only on Teresita's statement that she was
bleeding.34 He went on to state that he scheduled the
D&C operation without conducting any physical
examination on the patient.
The likely story is that although Teresita experienced
vaginal bleeding on April 28, it was not sufficiently profuse
to necessitate an immediate emergency D&C operation.
Dr. Tan35 and Dr. Mendoza36 both testified that the
medical records of Teresita failed to indicate that there
was profuse vaginal bleeding. The claim that there was
profuse vaginal bleeding although this was not reflected
in the medical records strikes us as odd since the main
complaint is vaginal bleeding. A medical record is the only
document that maintains a long-term transcription of
patient care and as such, its maintenance is considered a
priority in hospital practice. Optimal record-keeping
includes all patient inter-actions. The records should
always be clear, objective, and up-to-date.37 Thus, a
medical record that does not indicate profuse medical
bleeding speaks loudly and clearly of what it does not
contain.
That the D&C operation was conducted principally to
diagnose the cause of the vaginal bleeding further leads
us to conclude that it was merely an elective procedure,
not an emergency case. In an elective procedure, the
physician must conduct a thorough pre-operative
evaluation of the patient in order to adequately prepare
her for the operation and minimize possible risks and
complications. The internist is responsible for generating
a comprehensive evaluation of all medical problems
during the pre-operative evaluation.38
The aim of pre-operative evaluation is not to
screen broadly for undiagnosed disease, but
rather to identify and quantify comorbidity that
may impact on the operative outcome. This
evaluation is driven by findings on history and
physical examination suggestive of organ system
dysfunction…The goal is to uncover problem
areas that may require further investigation or
be amenable to preoperative optimization.
If the preoperative evaluation uncovers significant
comorbidity or evidence of poor control of an
underlying disease process, consultation with an
internist or medical specialist may be required to
facilitate the work-up and direct management. In
this process, communication between the
surgeons and the consultants is essential to
define realistic goals for this optimization process
and to expedite surgical
management.39 [Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-
operative evaluation was less than complete as the
laboratory results were fully reported only on the day
following the D&C operation. Dr. Felicisima only secured
a telephone report of the preliminary laboratory result
prior to the D&C. This preliminary report did not include
the 3+ status of sugar in the patient's urine40 - a result
highly confirmatory of diabetes.
Because the D&C was merely an elective procedure, the
patient's uncontrolled hyperglycemia presented a far
greater risk than her on-and-off vaginal bleeding. The
162
presence of hyperglycemia in a surgical patient is
associated with poor clinical outcomes, and aggressive
glycemic control positively impacts on morbidity and
mortality.41 Elective surgery in people with uncontrolled
diabetes should preferably be scheduled after acceptable
glycemic control has been achieved.42 According to Dr.
Mercado, this is done by administering insulin on the
patient.43
The management approach in this kind of
patients always includes insulin therapy in
combination with dextrose and potassium
infusion. Insulin xxx promotes glucose uptake by
the muscle and fat cells while decreasing glucose
production by the liver xxx. The net effect is to
lower blood glucose levels.44
The prudent move is to address the patient's
hyperglycemic state immediately and promptly before any
other procedure is undertaken. In this case, there was no
evidence that insulin was administered on Teresita prior
to or during the D&C operation. Insulin was only
administered two days after the operation.
As Dr. Tan testified, the patient's hyperglycemic condition
should have been managed not only before and
during the operation, but also immediately after. Despite
the possibility that Teresita was afflicted with diabetes, the
possibility was casually ignored even in the post-operative
evaluation of the patient; the concern, as the petitioner
spouses expressly admitted, was limited to the complaint
of vaginal bleeding. Interestingly, while the ultrasound test
confirmed that Teresita had a myoma in her uterus, she
was advised that she could be discharged a day after the
operation and that her recovery could take place at home.
This advice implied that a day after the operation and
even after the complete laboratory results were
submitted, the petitioner spouses still did not recognize
any post-operative concern that would require the
monitoring of Teresita's condition in the hospital.
The above facts, point only to one conclusion - that the
petitioner spouses failed, as medical professionals, to
comply with their duty to observe the standard of care to
be given to hyperglycemic/diabetic patients undergoing
surgery. Whether this breach of duty was the proximate
cause of Teresita's death is a matter we shall next
determine.
Injury and Causation
As previously mentioned, the critical and clinching factor
in a medical negligence case is proof of the causal
connection between the negligence which the evidence
established and the plaintiff's injuries;45 the plaintiff must
plead and prove not only that he had been injured and
defendant has been at fault, but also that the defendant's
fault caused the injury. A verdict in a malpractice action
cannot be based on speculation or conjecture. Causation
must be proven within a reasonable medical probability
based upon competent expert testimony.46
The respondents contend that unnecessarily subjecting
Teresita to a D&C operation without adequately preparing
her, aggravated her hyperglycemic state and caused her
untimely demise. The death certificate of Teresita lists
down the following causes of death:
Immediate Cardiorespiratory arrest
cause:
Antecedent Septicemic
cause: shock, ketoacidocis
Underlying Diabetes Mellitus II
cause:
Other significant conditions
contributing to Renal Failure - Acute47
death:
Stress, whether physical or emotional, is a factor that can
aggravate diabetes; a D&C operation is a form of physical
stress. Dr. Mendoza explained how surgical stress can
aggravate the patient's hyperglycemia: when stress
occurs, the diabetic's body, especially the autonomic
system, reacts by secreting hormones which are counter-
regulatory; she can have prolonged hyperglycemia which,
if unchecked, could lead to death.48 Medical literature
further explains that if the blood sugar has become very
high, the patient becomes comatose (diabetic coma).
When this happens over several days, the body uses its
own fat to produce energy, and the result is high levels of
waste products (called ketones) in the blood and urine
(called diabetic ketoacidiosis, a medical emergency
with a significant mortality).49 This was apparently what
happened in Teresita's case; in fact, after she had been
referred to the internist Dr. Jorge, laboratory test showed
that her blood sugar level shot up to 14.0mmol/l, way
above the normal blood sugar range. Thus, between the
D&C and death was the diabetic complication that could
have been prevented with the observance of standard
medical precautions. The D&C operation and Teresita's
death due to aggravated diabetic condition is therefore
sufficiently established.
The trial court and the appellate court pinned the liability
for Teresita's death on both the petitioner spouses and
this Court finds no reason to rule otherwise. However, we
clarify that Dr. Fredelicto's negligence is not solely the act
of ordering an "on call" D&C operation when he was
mainly an anaesthesiologist who had made a very
cursory examination of the patient's vaginal bleeding
complaint. Rather, it was his failure from the very start to
identify and confirm, despite the patient's complaints and
his own suspicions, that diabetes was a risk factor that
163
should be guarded against, and his participation in the
imprudent decision to proceed with the D&C operation
despite his early suspicion and the confirmatory early
laboratory results. The latter point comes out clearly from
the following exchange during the trial:
Q: On what aspect did you and your wife consult
[with] each other?
A: We discussed on the finding of the laboratory
[results] because the hemoglobin was below
normal, the blood sugar was elevated, so that we
have to evaluate these laboratory results - what it
means.
Q: So it was you and your wife who made the
evaluation when it was phoned in?
A: Yes, sir.
Q: Did your wife, before performing D&C ask your
opinion whether or not she can proceed?
A: Yes, anyway, she asked me whether we can
do D&C based on my experience.
Q: And your answer was in the positive
notwithstanding the elevation of blood sugar?
A: Yes, sir, it was both our disposition to do
the D&C. [Emphasis supplied.]50
If Dr. Fredelicto believed himself to be incompetent to
treat the diabetes, not being an internist or a diabetologist
(for which reason he referred Teresita to Dr. Jorge),51 he
should have likewise refrained from making a decision to
proceed with the D&C operation since he was niether an
obstetrician nor a gynecologist.
These findings lead us to the conclusion that the decision
to proceed with the D&C operation, notwithstanding
Teresita's hyperglycemia and without adequately
preparing her for the procedure, was contrary to the
standards observed by the medical profession. Deviation
from this standard amounted to a breach of duty which
resulted in the patient's death. Due to this negligent
conduct, liability must attach to the petitioner spouses.
Liability of the Hospital
In the proceedings below, UDMC was the spouses Flores'
co-defendant. The RTC found the hospital jointly and
severally liable with the petitioner spouses, which
decision the CA affirmed. In a Resolution dated August
28, 2006, this Court however denied UDMC's petition for
review on certiorari. Since UDMC's appeal has been
denied and they are not parties to this case, we find it
unnecessary to delve on the matter. Consequently, the
RTC's decision, as affirmed by the CA, stands.
Award of Damages
Both the trial and the appellate court awarded actual
damages as compensation for the pecuniary loss the
respondents suffered. The loss was presented in terms of
the hospital bills and expenses the respondents incurred
on account of Teresita's confinement and death. The
settled rule is that a plaintiff is entitled to be compensated
for proven pecuniary loss.52 This proof the respondents
successfully presented. Thus, we affirm the award
of actual damages of P36,000.00 representing the
hospital expenses the patient incurred.
In addition to the award for actual damages, the
respondent heirs of Teresita are likewise entitled
to P50,000.00 as death indemnity pursuant to Article
2206 of the Civil Code, which states that "the amount of
damages for death caused by a xxx quasi-delict shall be
at least three thousand pesos,53 even though there may
have been mitigating circumstances xxx." This is a
question of law that the CA missed in its decision and
which we now decide in the respondents' favor.
The same article allows the recovery of moral damages in
case of death caused by a quasi-delict and enumerates
the spouse, legitimate or illegitimate ascendants or
descendants as the persons entitled thereto. Moral
damages are designed to compensate the claimant for
the injury suffered, that is, for the mental anguish, serious
anxiety, wounded feelings which the respondents herein
must have surely felt with the unexpected loss of their
daughter. We affirm the appellate court's award
of P400,000.00 by way of moral damages to the
respondents.
We similarly affirm the grant of exemplary damages.
Exemplary damages are imposed by way of example or
correction for the public good.54 Because of the petitioner
spouses' negligence in subjecting Teresita to an operation
without first recognizing and addressing her diabetic
condition, the appellate court awarded exemplary
damages to the respondents in the amount
of P100,000.00. Public policy requires such imposition to
suppress the wanton acts of an offender.55 We therefore
affirm the CA's award as an example to the medical
profession and to stress that the public good requires
stricter measures to avoid the repetition of the type of
medical malpractice that happened in this case.
With the award of exemplary damages, the grant of
attorney's fees is legally in order.56 We therefore reverse
the CA decision deleting these awards, and grant the
respondents the amount of P100,000.00 as attorney's
fees taking into consideration the legal route this case
has taken.
164
WHEREFORE, we AFFIRM the Decision of the CA dated
June 20, 2003 in CA G.R. CV No. 63234 finding petitioner
spouses liable for negligent medical practice. We
likewise AFFIRM the awards of actual and compensatory
damages of P36,000.00; moral damages of P400,000.00;
and exemplary damages of P100,000.00.
We MODIFY the CA Decision by additionally granting an
award of P50,000.00 as death indemnity and by reversing
the deletion of the award of attorney's fees and costs and
restoring the award of P100,000.00 as attorney's fees.
Costs of litigation are adjudged against petitioner
spouses.
To summarize, the following awards shall be paid to the
family of the late Teresita Pineda:
1. The sum of P36,000.00 by way of actual and
compensatory damages;
2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary
damages;
5. The sum of P100,000.00 by way of attorney's fees; and
6. Costs.
SO ORDERED.
Cagandahan Case (GR No.166676)
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of
Court raising purely questions of law and seeking a
reversal of the Decision[1] dated January 12, 2005 of the
Regional Trial Court (RTC), Branch 33 of Siniloan,
Laguna, which granted the Petition for Correction of
Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries
in Cagandahan's birth certificate: (1) the name "Jennifer
Cagandahan" changed to "Jeff Cagandahan" and (2)
gender from "female" to "male."
The facts are as follows.
On December 11, 2003, respondent Jennifer
Cagandahan filed a Petition for Correction of Entries in
Birth Certificate[2] before the RTC, Branch 33 of Siniloan,
Laguna.
In her petition, she alleged that she was born on January
13, 1981 and was registered as a female in the Certificate
of Live Birth but while growing up, she developed
secondary male characteristics and was diagnosed to
have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male
and female characteristics. She further alleged that she
was diagnosed to have clitoral hyperthropy in her early
years and at age six, underwent an ultrasound where it
was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no
breast or menstrual development. She then alleged that
for all interests and appearances as well as in mind and
emotion, she has become a male person. Thus, she
prayed that her birth certificate be corrected such that her
gender be changed from female to male and her first
name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general
circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the court.
The Solicitor General entered his appearance and
authorized the Assistant Provincial Prosecutor to appear
in his behalf.
To prove her claim, respondent testified and presented
the testimony of Dr. Michael Sionzon of the Department
of Psychiatry, University of the Philippines-Philippine
General Hospital. Dr. Sionzon issued a medical certificate
stating that respondent's condition is known as CAH. He
explained that genetically respondent is female but
because her body secretes male hormones, her female
organs did not develop normally and she has two sex
organs - female and male. He testified that this condition
is very rare, that respondent's uterus is not fully developed
because of lack of female hormones, and that she has no
monthly period. He further testified that respondent's
condition is permanent and recommended the change of
gender because respondent has made up her mind,
adjusted to her chosen role as male, and the gender
change would be advantageous to her.
The RTC granted respondent's petition in a Decision
dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily
shown that he is entitled to the reliefs prayed [for].
Petitioner has adequately presented to the Court very
clear and convincing proofs for the granting of his petition.
It was medically proven that petitioner's body produces
male hormones, and first his body as well as his action
and feelings are that of a male. He has chosen to be male.
He is a normal person and wants to be acknowledged and
identified as a male.
WHEREFORE, premises considered, the Civil Register of
Pakil, Laguna is hereby ordered to make the following
corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to
JEFF CAGANDAHAN; and
165

b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records,
voter's registry, baptismal certificate, and other pertinent
records are hereby amended to conform with the
foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General
(OSG) seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE
PETITION CONSIDERING THAT:
I. THE REQUIREMENTS OF RULES 103 AND 108 OF
THE RULES OF COURT HAVE NOT BEEN COMPLIED
WITH; AND,
II. CORRECTION OF ENTRY UNDER RULE 108 DOES
NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE
BIRTH CERTIFICATE, WHILE RESPONDENT'S
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."[4]
Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as
CAH, and her name from "Jennifer" to "Jeff," under Rules
103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally
defective for non-compliance with Rules 103 and 108 of
the Rules of Court because while the local civil registrar is
an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the
Rules of Court, respondent's petition before the court a
quo did not implead the local civil registrar.[5] The OSG
further contends respondent's petition is fatally defective
since it failed to state that respondent is a bona fide
resident of the province where the petition was filed for at
least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of
Court.[6] The OSG argues that Rule 108 does not allow
change of sex or gender in the birth certificate and
respondent's claimed medical condition known as CAH
does not make her a male.[7]
On the other hand, respondent counters that although the
Local Civil Registrar of Pakil, Laguna was not formally
named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or
processes in the course of the proceedings,[8]
respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true
sex/gender,[9] change of sex or gender is allowed under
Rule 108,[10] and respondent substantially complied with
the requirements of Rules 103 and 108 of the Rules of
Court.[11]
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
Section 1. Venue. - A person desiring to change his name
shall present the petition to the Regional Trial Court of the
province in which he resides, [or, in the City of Manila, to
the Juvenile and Domestic Relations Court].
Sec. 2. Contents of petition. - A petition for change of
name shall be signed and verified by the person desiring
his name changed, or some other person on his behalf,
and shall set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3)
years prior to the date of such filing;
(b) The cause for which the change of the petitioner's
name is sought;
(c) The name asked for.
Sec. 3. Order for hearing. - If the petition filed is sufficient
in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order
be published before the hearing at least once a week for
three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall
deem best. The date set for the hearing shall not be within
thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
Sec. 4. Hearing. - Any interested person may appear at
the hearing and oppose the petition. The Solicitor General
or the proper provincial or city fiscal shall appear on behalf
of the Government of the Republic.
Sec. 5. Judgment. - Upon satisfactory proof in open court
on the date fixed in the order that such order has been
published as directed and that the allegations of the
petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with
the prayer of the petition.
Sec. 6. Service of judgment. - Judgments or orders
rendered in connection with this rule shall be furnished the
civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
166
CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
Section 1. Who may file petition. - Any person interested
in any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil
registry is located.
Sec. 2. Entries subject to cancellation or correction. -
Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a
minor; and (o) changes of name.
Sec. 3. Parties. - When cancellation or correction of an
entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would
be affected thereby shall be made parties to the
proceeding.
Sec. 4. Notice and publication. - Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition.
The court shall also cause the order to be published once
a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
Sec. 5. Opposition. - The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
Sec. 6. Expediting proceedings. - The court in which the
proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.
Sec. 7. Order. - After hearing, the court may either dismiss
the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar
concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective
for non-compliance with Rules 103 and 108 of the Rules
of Court because respondent's petition did not implead
the local civil registrar. Section 3, Rule 108 provides that
the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made
parties to the proceedings. Likewise, the local civil
registrar is required to be made a party in a proceeding
for the correction of name in the civil registry. He is an
indispensable party without whom no final determination
of the case can be had.[12] Unless all possible
indispensable parties were duly notified of the
proceedings, the same shall be considered as falling
much too short of the requirements of the rules.[13] The
corresponding petition should also implead as
respondents the civil registrar and all other persons who
may have or may claim to have any interest that would be
affected thereby.[14] Respondent, however, invokes
Section 6,[15] Rule 1 of the Rules of Court which states
that courts shall construe the Rules liberally to promote
their objectives of securing to the parties a just, speedy
and inexpensive disposition of the matters brought before
it. We agree that there is substantial compliance with Rule
108 when respondent furnished a copy of the petition to
the local civil registrar.
The determination of a person's sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this
provision was amended by Republic Act No. 9048[17] in
so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the need
for a judicial order. In effect, Rep. Act No. 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to
substantial changes and corrections in entries in the civil
register.[18]
Under Rep. Act No. 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of
Court.[19]
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are
those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship;
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(13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes
of name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur
after birth.[20]
Respondent undisputedly has CAH. This condition
causes the early or "inappropriate" appearance of male
characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone.
A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening
at the base, an ambiguous genitalia often appearing more
male than female; (2) normal internal structures of the
female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features
start to appear male, such as deepening of the voice,
facial hair, and failure to menstruate at puberty. About 1
in 10,000 to 18,000 children are born with CAH.
CAH is one of many conditions[21] that involve intersex
anatomy. During the twentieth century, medicine adopted
the term "intersexuality" to apply to human beings who
cannot be classified as either male or female.[22] The
term is now of widespread use. According to Wikipedia,
intersexuality "is the state of a living thing of a
gonochoristic species whose sex chromosomes,
genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An
organism with intersex may have biological
characteristics of both male and female sexes."
Intersex individuals are treated in different ways by
different cultures. In most societies, intersex individuals
have been expected to conform to either a male or female
gender role.[23] Since the rise of modern medical science
in Western societies, some intersex people with
ambiguous external genitalia have had their genitalia
surgically modified to resemble either male or female
genitals.[24] More commonly, an intersex individual is
considered as suffering from a "disorder" which is almost
always recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold the
individual as neatly as possible into the category of either
male or female.
In deciding this case, we consider the compassionate
calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial.
"It has been suggested that there is some middle ground
between the sexes, a 'no-man's land' for those individuals
who are neither truly 'male' nor truly 'female'."[25] The
current state of Philippine statutes apparently compels
that a person be classified either as a male or as a female,
but this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid
classification.
In the instant case, if we determine respondent to be a
female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on
medical testimony and scientific development showing
the respondent to be other than female, then a change in
the subject's birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed
(neither consistently and categorically female nor
consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However,
respondent's body system naturally produces high levels
of male hormones (androgen). As a result, respondent
has ambiguous genitalia and the phenotypic features of a
male.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in
his gender classification would be what the individual, like
respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body produces
high levels of male hormones (androgen) there is
preponderant biological support for considering him as
being male. Sexual development in cases of intersex
persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.
Respondent here has simply let nature take its course and
has not taken unnatural steps to arrest or interfere with
what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have
undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold
of a female but he did not. He chose not to do so. Nature
has instead taken its due course in respondent's
development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not
dictate on respondent concerning a matter so innately
private as one's sexuality and lifestyle preferences, much
less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of
a female, as society commonly currently knows this
gender of the human species. Respondent is the one who
has to live with his intersex anatomy. To him belongs the
human right to the pursuit of happiness and of health.
Thus, to him should belong the primordial choice of what
courses of action to take along the path of his sexual
development and maturation. In the absence of evidence
that respondent is an "incompetent"[27] and in the
absence of evidence to show that classifying respondent
as a male will harm other members of society who are
equally entitled to protection under the law, the Court
affirms as valid and justified the respondent's position and
his personal judgment of being a male.
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In so ruling we do no more than give respect to (1) the
diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect
respondent's congenital condition and his mature
decision to be a male. Life is already difficult for the
ordinary person. We cannot but respect how respondent
deals with his unordinary state and thus help make his life
easier, considering the unique circumstances in this
case.

As for respondent's change of name under Rule 103, this

Court has held that a change of name is not a matter of
right but of judicial discretion, to be exercised in the light
of the reasons adduced and the consequences that will
follow.[28] The trial court's grant of respondent's change
of name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering the
consequence that respondent's change of name merely
recognizes his preferred gender, we find merit in
respondent's change of name. Such a change will
conform with the change of the entry in his birth certificate
from female to male.

WHEREFORE, the Republic's petition is DENIED. The

Decision dated January 12, 2005 of the Regional Trial
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

169