RESPONDEAT

SUPERIOR
WHAT IS RESPONDEAT SUPERIOR?

• One type of vicarious liability is respondeat superior,

which means “let the master answer.” When
respondeat superior applies, an employer will be
liable for an employee’s negligent actions or
omissions that occur during the course and scope of
the employee’s employment.
• This means that the employee must be performing
duties for the employer at the time of the
negligence for the employer to be held liable under
respondeat superior.
PROFESSIONAL SERVICES INC. (PSI) V. NATIVIDAD AND
ENRIQUE AGANA
GR NO. 126297
J AN U ARY 2 1 , 2 0 0 7

• Natividad Agana was rushed to Medical City because of difficulty of bowel

movement and bloody anal discharge. Dr. Ampil diagnosed her to be suffering
from cancer of the sigmoid. Dr. Ampil performed an anterior resection surgery on
her, and finding that the malignancy spread on her left ovary, he obtained the consent
of her husband, Enrique, to permit Dr. Fuentes to perform hysterectomy on her. After
the hysterectomy, Dr. Fuentes showed his work to Dr. Ampil, who examined it and
found it in order, so he allowed Dr. Fuentes to leave the operating room. Dr. Ampil was
about to complete the procedure when the attending nurses made some remarks on
the Record of Operation: “sponge count lacking 2; announced to surgeon search
done but to no avail continue for closure” (two pieces of gauze were missing). A
“diligent search” was conducted but they could not be found. Dr. Ampil then directed
that the incision be closed.
• A couple of days after, she complained of pain in her anal region, but
the doctors told her that it was just a natural consequence of the
surgery. Dr. Ampil recommended that she consult an oncologist to
examine the cancerous nodes which were not removed during the
operation. After months of consultations and examinations in the US,
she was told that she was free of cancer. Weeks after coming back, her
daughter found a piece of gauze (1.5 in) protruding from her vagina, so
Dr. Ampil manually extracted this, assuring Natividad that the pains will
go away. However, the pain worsened, so she sought treatment at a
hospital, where another 1.5 in piece of gauze was found in her vagina.
She underwent another surgery.
ISSUE:

• Whether or not PSI may be held solidarily liable

with Dr. Ampil’s negligence.
RULING:

• Previously, employers cannot be held liable for the fault or

negligence of its professionals. However, this doctrine has
weakened since courts came to realize that modern hospitals
are taking a more active role in supplying and regulating
medical care to its patients, by employing staff of physicians,
among others. Hence, there is no reason to exempt hospitals
from the universal rule of respondeat superior.
CONTRIBUTORY NEGLIGENCE
NEGLIGENCE OF THE PLAINTIFF AS
PROXIMATE CAUSE OF THE INJURY
• Definition: 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 (Cayao-Lasam v. Ramolete)
WHAT DOES OUR LAW PROVIDES IN CASE
OF CONTRIBUTORY NEGLIGENCE?
• Article 2179 of the Civil Code provides that “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.”
PATIENT’S DUTY TO USE ORDINARY
CARE TO PROTECT HIMSELF
• Corresponding to the doctor's duty to use care and
skill in his practice of medicine is the patient's duty
to use ordinary care in protecting himself from
obvious or foreseeable injury.
COMMON EXAMPLES OF PATIENT
NEGLIGENCE ARE:
• Providing false health history information
• Not following a health care provider’s instructions
• Lying about the cause and nature of injuries, and
• Doing things hat aggravate the health problem or
injury.
CASE: FE CAYAO-LASAM VS SPOUSES CLARO AND
EDITHA RAMOLETE
G.R. NO. 159132 DECEMBER 18, 2008
FACTS:
On July 28, 1994, respondent, three months pregnant Editha
Ramolete was brought to the Lorma Medical Center (LMC) in San
Fernando, La Union due to vaginal bleeding.A pelvic sonogram was
then conducted on Editha revealing the fetus weak cardiac
pulsation.ed. Due to persistent and profuse vaginal bleeding,
petitioner performed the D&C procedure on July 30. Editha was
discharged from the hospital the following day.
Barely 2 months after the D&C was performed, Editha was once again
brought at the LMC, as she was suffering from vomiting and severe
abdominal pains. Edita was attended by different physicians and was
allegedly informed Editha that there was a dead fetus in the latters womb.
After, Editha underwent laparotomy, she was found to have a massive
intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to
undergo a procedure for hysterectomy[6] and as a result, she has no more
chance to bear a child.
The souses filed a Complaint for Gross Negligence and Malpractice
against petitioner before the Professional Regulations Commission (PRC).
Respondent alleged that Edithas hysterectomy was caused by petitioners
unmitigated negligence and professional incompetence in conducting the
D&C procedure and the petitioners failure to remove the fetus inside
Edithas womb.
petitioner denied the allegations, petitioner was very vocal in the operating
room about not being able to see an abortus; taking the words of Editha to
mean that she was passing out some meaty mass and clotted blood, she assumed
that the abortus must have been expelled in the process of bleeding; it was
Editha who insisted that she wanted to be discharged; petitioner agreed, but she
advised Editha to return for check-up on August 5, 1994, which the latter failed
to do. Petitioner contended that it was Edithas gross negligence and/or omission
in insisting to be discharged on July 31, 1994 against doctors advice and her
unjustified failure to return for check-up as directed by petitioner that
contributed to her life-threatening condition.
PRC rendered a Decision, exonerating petitioner from the charges filed against
her. However upon appeal PRC rendered a Decision reversing the findings of the
Board and revoking petitioners authority or license to practice her profession as
a physician.
ISSUE:
Whether or not respondent's omission contributed to her
own injury.
HELD:
Yes. The plaintiff failed to return for a follow-up evaluation. The
plaintiff 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 the
plaintiff’s own injury. The plaintiff’s omission was the proximate cause
of her own injury and not merely a contributory negligence on her
part.
The Court therefore concluded that the plaintiff in the said case was
not entitled to recovery.
ASSUMPTION OF RISK

 It’s a defense against medical malpractice cases

Denotes that a person who knows and comprehends the peril and
voluntarily exposes himself or herself to it, although not negligent in
doing so, is regarded as engaging in an assumption of the risk and is
precluded from a recovery for an injury ensuing therefrom.
WHEN DOES THE DEFENSE OF
ASSUMPTION OF RISK OCCURS?
1. When the plaintiff has expressly given his consent to relieve defendant from
a duty and has decided to take his chances of injury from a known risk;
2. when the plaintiff, with knowledge of the risk, voluntarily enters into some
relation with the defendant which will probably result in encountering the
known danger;
3. plaintiff becomes aware of a risk already created by the negligence of the
defendant and elects to continue in the face of the danger.
oThe difficulty in applying assumption of risk to cases of
medical malpractice is that plaintiff must be shown to have
had knowledge of the risk assumed and to have voluntarily
chosen to meet that risk. Proving these two elements is
difficult at best.
oThe Doctrine of Assumption of Risk rarely applies as a
defense because a physician is always bound to act in their
patient’s interest.
SCHNEIDER V. REVICI:
oPatient with breast cancer saw several doctors, all of whom
recommended surgery, but she refused to have the tumor removed
oShe instead went to a quack. When his bizarre concoctions failed,
her cancer spread. She then sued him for malpractice and won.
oThe doctor then appealed, claiming that she should have been
barred from even bringing the suit against him because she had
signed a consent form that said that she knew that the treatment
was unconventional and that there were no guarantees.
o The appellate court then held that it was appropriate to consider the
plaintiff’s “awareness of the risk of refusing conventional treatment” under the
assumption of the risk doctrine.
o This patient had voluntarily stepped outside of standard medical care despite knowing that that
was very risky to do, having been warned by the several physicians she had originally
consulted. She was actually the opposite of a patient who agrees to exactly what their doctor
suggests and is thereby harmed. She, unlike the usual patient seeking care, had become more
like the person who signs a release and climbs on the rollercoaster rather than staying safely
on the ground, thereby assuming the risk.
DOCTRINE OF FORESEEABILITY
• A physician cannot be held liable for the negligence if the injury
sustained by the patient is on account of unforeseen conditions;
failure to ascertain the condition of the patient
• Foreseeability is a legal construct that is used to
determine proximate cause—and thus a person’s liability—for an
act of negligence that resulted in injury. The foreseeability test
basically asks whether a person of ordinary intelligence should
have reasonably foreseen the general consequences that could
result because of his or her conduct.
• Foreseeability of risk is an essential element of a medical
malpractice claim because a medical professional is only at
fault when the injury-producing occurrence is one that
could have been anticipated. The idea is that no person can
be expected to guard against harm from events, which are
unlikely to occur, or events that are merely possible in the
grand scheme of things. In short, the concept of
foreseeability optimizes the process of determining
whether a medical professional was negligent or not.
• Basically, to prove negligence, your particular injury must have been
a foreseeable result of the actions of the other party. For example,
it is foreseeable that if a patient at a hospital is given too much
medication, that patient may be injured or die from an overdose. It
is a natural and probable consequence of the breach, and negligence
is made out.

However, what happens if a patient who is admitted to a psychiatric

hospital is injured because the patient is playing Frisbee, the Frisbee
lands on the roof of one of the hospital buildings, and the patient,
against hospital rules, climbs to the roof to retrieve the Frisbee and
then falls from the roof and ends up badly hurt?
LARCHE V ONTARIO , (1990) 75 (DLR)
4 TH 377 (ONTARIO COURT OF APPEAL).
In that case, the Court of Appeal upheld the trial judge’s finding that
the hospital was not responsible for the patient’s injury. It simply
wasn’t foreseeable to hospital staff that the plaintiff, considering his
mental condition at the time, would be at risk of harm by being
allowed ground privileges to play Frisbee. His treating physician and
hospital staff could not have foreseen that in doing so, he would
decide to climb onto the roof to retrieve his lost Frisbee, ultimately
falling and being seriously injured as a result.
However, whether or not an injury is foreseeable is always a question of fact. In
the above case, the facts were that the patient was in chemical remission for
schizophrenia and that is why he had been given ground privileges at the hospital.
The case may have been decided differently if the plaintiff was still suffering from
acute schizophrenia, or if it happened to be a chronic issue that patients were
climbing onto the roof and the hospital was aware of it. In those fact scenarios,
perhaps hospital staff could have foreseen that the particular patient would do
something dangerous if allowed outdoors, or that because many patients were
climbing onto the roof, a patient would one day fall from the roof and be
injured.

Foreseeability is a requirement for finding medical negligence, but whether or

not an injury is foreseeable always depends on the particular facts.
Foreseeability is a requirement for finding medical
negligence, but whether or not an injury is foreseeable
always depends on the particular facts.
RAMOS VS. COURT OF APPEALS
G.R. NO. 124354. DECEMBER 29, 1999
Facts
• Erlinda Ramos is married to Rommel Ramos.
• She has minor discomfort on her abdomen.
• She decided to undergo cholecystectomy under Dr Hosaka.
• Her operation was scheduled on June 17, 2018 in DLMC.
• She was administered anesthetics by Dr. Gutierrez around 7:30 am.
• Dean Cruz observed Dr Gutierrez is having a hard time intubating Erlinda
• Dr Hosaka arrived at the hospital at around 12:05pm
• Dean Cruz observed that Erlinda was placed in Trendelenburg position
• Erlinda was also diagnosed to be suffering from “diffuse cerebral parenchymal damage”
• Rommel Ramos filed a civil case for damages with the Regional Trial Court
of Quezon City against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
• Regional Trial Court rendered judgment in favor of petitioners but was later
reversed by the Court of Appeals.
• The plaintiff assailed the decision of the CA in the following grounds

• A. In putting much reliance on the testimonies of respondents Dra.

Gutierrez, Dra. Calderon and Dr. Jamora;

• B. In finding that the negligence of the respondents did not cause the
unfortunate comatose condition of petitioner Erlinda Ramos;

• C. In not applying the doctrine of res Ipsa loquitur.

 • ISSUE OF THE CASE

– Whether Dr Hosaka, Dr Guitierrez and the Delos Santos

Medical Center are liable for the injury suffered by Erlinda
because of their negligence?
• Supreme Court Ruling of the case:

• 1. Doctrine of res Ipsa Loquitur is applicable to the instant case.

 Where the thing which caused the injury complained of is shown to be
under the management of the defendant and the accident is such as in
ordinary course of things does not happen if due care is observed the
presumption is that the injury was caused by such negligence.

 The accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence;

 It is caused by an instrumentality within the exclusive control of the defendant

or defendants; and

 The possibility of contributing conduct which would make the plaintiff

responsible is eliminated.
• 2. In view of the evidence, the SC was inclined to believe petitioners’ stand that
it was the faulty intubation by Dr. Gutierrez was the proximate cause of
Erlinda’s comatose condition.

• 3. 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.

• 4. 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. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda’s condition.
• 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.

BATIQUIN VS. COURT OF APPEALS
September 21 ,1988
Dr. Batiquin with assistance of Dr. Sy, Nurse Arlene Diones and student nurses
• Performed simple caesarian section on Mrs.Villegas

• After 45 minutes
• Mrs.Villegas delivered Rachel Acogido at 11:45 AM

• Mrs.Villegas remained confined until Sept 27, 1988

• She was regularly visited by Dr. Batiquin
September 28, 1988
Mrs.Villegas checked out of the hospital and paid P 1,500.00 as
professional fee thru Dr. Batiquin’s secretary.

Soon after, Mrs. Villegas suffered abdominal pains and complained

of being feverish. She gradually loss her appetite.
Mrs.Villegas consulted to Dr. Batiquin about her discomfort. Dr.
Batiquin prescribed medication.
October 31, 1988
• Dr. Batiquin gave Mrs.Villegas a medical certificate on her return to
work on November 7, 1988.

• Persistence of abdominal pains and fever despite medications

prescribed by Dr. Batiquin

When the pains became unbearable, she rapidly lost weight and
consulted Dr. Kho on January 20, 1989.
Upon examination, abdominal mass was felt one finger below the umbilicus
which was suspected to be either a uterine tumor or ovarian cyst, either of
which could be cancerous.

Chest, Abdomen and Kidney X-rays were taken

Blood count revealed infection inside her abdominal cavity

All of the results impelled Dr. Kho to suggest Mrs.Villegas to undergo another
surgery
• During the surgery, a whitish yellow discharge was found inside the abdomen.

An ovarian cyst on each of the ovaries which gave out pus, dirt and pus behind
the uterus and a piece of rubber material (2 x ¾ inches) on the right uterus
embedded on the ovarian cyst
Dr. Kho described the rubber material as a foreign body which looked like a
“rubber glove”…. And which is also “rubber drain-like”…. It could have been a
torn section of the gloves or from other sources.
• This foreign body is the cause of infection of the ovaries and consequently all
the discomfort suffered by Mrs. Villegas after her delivery on September 21,
1988
• The Trial Court refused to give weight to Dr. Kho’s testimony regarding the
presence of piece of rubber since Dr. Kho “may not have first hand knowledge”
thereof
• I have heard somebody that says there is a foreign body that goes with the
tissues but unluckily, I don’t know where the rubber was.
• When the Dr. Batiquin asked Dr. Kho regarding the piece of rubber “Dr. Kho
answered that there is rubber indeed but she threw it away.”
TRIAL COURT DECISION IN FAVOR OF DR. BATIQUIN

• This was not denied nor disputed by Dr. Kho leading the trial court
to conclude that there are two versions on the whereabouts of the
rubber:
• 1. That it was sent to a pathologist in Cebu City
• 2. That Dr. Kho threw it away
Trial court held in favor of the petitioner, Dr. Batiquin
THE COURT OF APPEAL DECISION
• The Court of Appeals deemed Dr. Kho’s positive testimony to definitely establish that a piece
of rubber was found near Mrs.Villegas’ uterus.
• Thus, the Court of Appeals reversed the decision of trial court.
• The appellate court then ruled
• For the miseries endured for more than 3 months due to negligence of Dr. Batiquin, moral
damages in the amount of P 100,000.00; exemplary damages in the amount of P 20,000.00; and
attorney’s fees in the amount of P 25,000.00
• The fact that Mrs.Villegas that can no longer bear children was not taken into consideration
• Removal of said organs was shown to be a direct result of the rubber left
THE COURT OF APPEAL DECISION

• The appealed judgment, dismissing the complaint for damages is

REVERSED and SET ASIDE.
• Dr. Batiquin was ordered to pay Mrs.Villegas
• P 17,000.00 for actual damages
• P 100,000.00 for moral damages
• P 20,000.00 for exemplary damages
• P 25,000.00 for attorney’s fees plus cost of litigation
• Dr. Batiquin appealed, claiming that the appellate court
• Abuse of discretion
• Lack or excess of jurisdiction
There are exceptions to the rule that only questions of law may be raised in a
petition for review on certiorari.
The focal point of the instant appeal is the appreciation of Dr. Kho’s testimony.
The petitioner’s contend that the CA misappreciated a part of Dr. Kho’s
testimony.
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.
TRIAL COURT
• Dr. Batiquin’s testimony
• 1. No rubber drain was used in the operation
• Was corroborated by Dr. Sy
• 2. No tear on Dr. Batiquin’s gloves after the operation
• 3. No blood smears on her hands upon removing her gloves
• Denials or NEGATIVE TESTIMONIES
• Positive testimony is stronger than negative testimony.
– Positive testimony should come from a credible source.
DOCTRINE OF RES IPSA LOQUITUR
SUPREME COURT DECISION
• SC affirmed the challenged decision of the CA.
• Caesarian section was done under the exclusive control of Dr. Batiquin
• Mrs.Villegas did not undergo any operation which could not have caused the
offending piece of rubber to appear in her uterus.

• Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber
in Mrs.Villegas abdomen and for all the adverse effects thereof
• A physician is bound to serve the interest of his patients with the greatest
solicitude, giving them always his best talent and skill.
 LEAH ALESNA REYES
VS.
SISTERS OF MERCY HOSPITAL
G.R. NO. 130547. OCTOBER 3, 2000
MEDICAL MALPRACTICE DEFINED

• Failure of a physician 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.
ELEMENTS OF MEDICAL MALPRACTICE

• duty – the existence of a physician-patient relationship

• breach of duty
• injury caused
• causal connection between the breach of duty and the injury caused
FACTS:
• Jorge Reyes has been suffering from recurring fever with chills for around days.
• Home medication afforded him no relief so he went to Mercy Community Clinic. He was then
attended by Dr. Marlyn Rico.
• Since typhoid fever was common at that time, the Widal test was performed and he was found
positive for typhoid.
• Thereafter, Dr. Marlyn Rico indorse Jorge Reyes to Dr. Marvie Blanes.
• Suspecting that that Jorge had typhoid fever, Dr. Marvie Blanes ordered that Jorge be tested for
compatibility with chloromycetin, an antibiotic. Such test was conducted by Nurse Pagente.
• As there was no adverse reaction, Dr. Blanes administered 500 mg of the
antibiotic. Another dose was given 3 hours later.
• Subsequently, Jorge Reyes developed high fever and experienced vomiting and
convulsions. He then turned blue due to deficiency in oxygen – cyanosis – and
died. The cause of death was stated to be “ventricular arrhythmia secondary to
hyperpyrexia and typhoid fever.”
• The heirs of Reyes filed with the RTC a complaint for damages against Sisters
of Mercy, Sister Rose Palacio, Dr. Blanes, Dr. Rico and Mercy Community Clinic
contending that the death of Jorge was due to the wrongful administration of
chloromycetin. (NOTE: Petitioner’s action is for medical malpractice.)
• RTC ruled in favor of the respondents. The CA affirmed in toto the RTC
decision. Hence, this appeal.
• Petitioners contend that:
– 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.
– Dr. Marvie Blanes erred in ordering the administration of the second dose of 500
milligrams of chloromycetin barely 3 hours after the first was given.
• Testimony presented: That of Dr.Apolinar Vacalares, (Chief Pathologist of the
Northern Mindanao Training Hospital) who performed an autopsy on the body
– Dr.Vacalares testified that Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin
overdose
ISSUE:

• WHETHER OR NOT THERE WAS MEDICAL MALPRACTICE?

RULING:

• No, There was no medical malpractice in this case. Hence, Sisters of Mercy Hospital is not
liable for the death of Jorge Reyes.
• Dr. Rico was not negligent in administering the 2 doses of 500 g of chloromycetin.
• There is no showing that the attending physician in this case deviated from the usual course of
treatment with respect to typhoid fever.
• There is nothing unusual about the death of Jorge Reyes.
• The doctrine of res ipsa loquitor is not applicable in the case at bar