PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation

G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

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 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 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 plaintiffpatient. 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

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
12
Comment, private respondents contend that the petition should not be given due course since
the motion for reconsideration of the petitioners on the decision of the Court of Appeals was
validly dismissed by the appellate court for having been filed beyond the reglementary period.
We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent
to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision
of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June
1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the 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
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 nonexpert 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 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 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, 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 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 shortacting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have
been capable of properly enlightening the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness
in the anesthetic 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 bronchospasticmediated 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 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 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:
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, 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 preoperative assessment protocol which would have influenced the intubation in a salutary way
was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5)
the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 In the United States alone, a great number of people die every year as a result of
medical mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article
on medical negligence entitled "Doctors' Deadly Mistakes" which is quoted in part: "It is
hardly news that medical professionals make mistakes even dumb, deadly mistakes.
What is shocking is how often it happens. Depending on which statistics you believe, the
number of American killed by medical screw-ups is somewhere between 44,000 and
98,000 every year the eighth leading cause of death even by the more conservative
figure, ahead of car crashes, breast cancer and AIDS. More astonishing than the huge
numbers themselves, though, is the fact that public health officials had known about the
problem for years and hadn't made a concerted effort to do something about it."
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.

5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
10 Id. at 195.
11 Rollo, p. 19.
12 Id. at 91-98.
13 57B Am Jur 2d, 493 (1989).
14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.
20 Id. at 503.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182
Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas
Power & Light Co., 173 Kan. 443, 249 P.2d 647.
22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. (Garcia-Rueda vs.
Pascasio, 278 SCRA 769, 788 [1997]).
25 Voss vs. Bridwell, supra note 21.
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).

27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan.
573, 274 P.237.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P.
422, 423.
30 SOLIS, supra note 27, at 239.
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So.2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
44 Id. at 971.
45 It is the method of intubating a patient through the oral cavity. Under this procedure,
after the patient has been preoxygenated and paralyzed and is no longer breathing on
his own, the anesthetist inserts an instrument called a laryngoscope into the patient's
oral pharynx. The patient's neck is hyperextended, that is, bent back as far as possible
so that the anesthetist can see or "visualize" the patient's epiglottis and vocal cords. The
anesthetist will then thread the endotracheal tube between the patient's vocal cords into
the trachea, and then hook the tube to the breathing bag and anesthetic machine.
46 TSN, January 13, 1988, pp. 16-20.
47 CA Rollo, pp. 134-135.

48 Stockham vs. Hall, supra note 29.

49 61 Am Jur 2d, 513 (1989).
50 TSN, January 13, 1988, p. 3.
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54 Ibid.
55 Id. at 105 (Emphasis supplied).
56 id. at 106.
57 Id.
58 TSN, November 15, 1990, p. 6.
59 Constriction of the air passages of the lung by spasmodic contraction of the bronchial
muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate oxygenation.
61 TSN, February 28, 1991, pp. 10-11.
62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.
64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
66 It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen
or abnormal hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.

71 Id. The book provides a thorough discussion on the management of difficult

intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who must not only be
responsible for the safety of the crew but also of the passengers of the vessel. The head
surgeon is made responsible for everything that goes wrong within the four corners of
the operating room. It enunciates the liability of the surgeon not only for the wrongful
acts of those who are under his physical control but also those wherein he has extension
of control.
74 The term "consultant" is loosely used by hospitals to distinguish their attending and
visiting physicians from the residents, who are also physicians. In most hospitals abroad,
the term visiting or attending physician, not consultant, is used.
75 These requirements are in fact found in the standard application forms for visiting and
attending physicians of respondent hospital.
76 The hospital's control over respondent physicians is all the more significant when one
considers the fact that it controls everything which occurs in an operating room, through
its nursing supervisors and charge nurses. No operations can be undertaken without the
hospital's direct or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides:
79 Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for another ten years, the amount
awarded in the form of temperate damages would in fact, be inadequate.
82 253 SCRA 303 (1996).
83 Id. at 327-328.
84 Id. at 328.
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