Applicability of Respondeat Superior
Doctrine
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
1 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
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
2 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
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,
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December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a
civil case 6 for damages with the Regional
Trial Court of Quezon City against herein
private respondents alleging negligence in
the management and care of Erlinda Ramos.
During the trial, both parties presented
evidence as to the possible cause of Erlinda's
injury. Plaintiff presented the testimonies of
Dean Herminda Cruz and Dr. Mariano Gavino
to prove that the sustained by Erlinda was
due to lack of oxygen in her brain caused by
the faulty management of her airway by
private respondents during the anesthesia
phase. On the other hand, private
respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of
brain damage was Erlinda's allergic reaction
to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both
sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as
shown in the finding of facts set forth
earlier, and applying the aforecited
provisions of law and jurisprudence to
the case at bar, this Court finds and so
holds that defendants are liable to
plaintiffs for damages. The defendants
were guilty of, at the very least,
negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez,
this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of
atropine (TSN, August 20, 1991, pp. 5-
10), without due regard to the fact that
the patient was inside the operating
room for almost three (3) hours. For
after she committed a mistake in
intubating [the] patient, the patient's
nailbed became bluish and the patient,
thereafter, was placed in
trendelenburg position, because of the
decrease of blood supply to the
patient's brain. The evidence further
shows that the hapless patient
suffered brain damage because of the
absence of oxygen in her (patient's)
brain for approximately four to five
 minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on
the patient as part of his obligation to
provide the patient a good
anesthesiologist', and for arriving for
the scheduled operation almost three
(3) hours late.
On the part of DLSMC (the hospital),
this Court finds that it is liable for the
acts of negligence of the doctors in
their "practice of medicine" in the
operating room. Moreover, the hospital
is liable for failing through its
responsible officials, to cancel the
scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects
the defense raised by defendants that
they have acted with due care and
prudence in rendering medical
services to plaintiff-patient. For if the
patient was properly intubated as
claimed by them, the patient would
not have become comatose. And, the
fact that another anesthesiologist was
called to try to intubate the patient
after her (the patient's) nailbed turned
bluish, belie their claim. Furthermore,
the defendants should have
rescheduled the operation to a later
date. This, they should have done, if
defendants acted with due care and
prudence as the patient's case was an
elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the
foregoing, judgment is rendered in
favor of the plaintiffs and against the
defendants. Accordingly, the latter are
ordered to pay, jointly and severally,
the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff
Erlinda Ramos reckoned from
November 15, 1985 or in the total sum
of P632,000.00 as of April 15, 1992,
subject to its being updated;
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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. 9Meanwhile,
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 cannot
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
5 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES
IPSA LOQUITUR. 11
Before we discuss the merits of the case, we
shall first dispose of the procedural issue on
the timeliness of the petition in relation to
the motion for reconsideration filed by
petitioners with the Court of Appeals. In
their
Comment, 12 private respondents contend
that the petition should not be given due
course since the motion for reconsideration
of the petitioners on the decision of the
Court of Appeals was validly dismissed by
the appellate court for having been filed
beyond the reglementary period. We do not
agree.
A careful review of the records reveals that
the reason behind the delay in filing the
motion for reconsideration is attributable to
the fact that the decision of the Court of
Appeals was not sent to then counsel on
record of petitioners, the Coronel Law Office.
In fact, a copy of the decision of the
appellate court was instead sent to and
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
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
faciecase, and present a question of fact for
defendant to meet with an
explanation. Where the thing which caused
13
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. It is grounded in the superior
15
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
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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. 22Such 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. The reason is that the general
27
rule on the necessity of expert testimony
applies only to such matters clearly within
the domain of medical science, and not to
matters that are within the common
knowledge of mankind which may be
testified to by anyone familiar with the
facts. 28 Ordinarily, only physicians and
surgeons of skill and experience are
competent to testify as to whether a patient
has been treated or operated upon with a
reasonable degree of skill and care.
However, testimony as to the statements
and acts of physicians and surgeons,
external appearances, and manifest
conditions which are observable by any one
may be given by non-expert
witnesses. Hence, in cases where theres
29
ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon
proper proof of injury to the patient, without
the aid of expert testimony, where the court
from its fund of common knowledge can
determine the proper standard of
care. Where common knowledge and
30
experience teach that a resulting injury
would not have occurred to the patient if due
care had been exercised, an inference of
negligence may be drawn giving rise to an
application of the doctrine of res ipsa
loquitur without medical evidence, which is
ordinarily required to show not only what
occurred but how and why it
occurred. When the doctrine is appropriate,
31
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
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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. If there was such extraneous
41
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 theres 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
8 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
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
9 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
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
10 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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. 50Reviewing 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. Where the need arises, as when
57
initial assessment indicates possible
problems (such as the alleged short neck
11 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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 mediated by her allergic
59
response to the drug, Thiopental Sodium,
introduced into her system. Towards this end,
they presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and
Diplomate of the Philippine Specialty Board
of Internal Medicine, who advanced private
respondents' theory that the oxygen
deprivation which led to anoxic
encephalopathy, 60 was due to an
unpredictable drug reaction to the short-
acting barbiturate. We find the theory of
private respondents unacceptable.
First of all, Dr. Jamora cannot be considered
an authority in the field of anesthesiology
simply because he is not an anesthesiologist.
Since Dr. Jamora is a pulmonologist, he could
not have been capable of properly
enlightening the court about anesthesia
12 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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 bronchospastic-mediated pulmonary
diseases are within the expertise of
pulmonary medicine, Dr. Jamora's field, the
anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology
and pharmacology. On the basis of the
foregoing transcript, in which the
pulmonologist himself admitted that he
could not testify about the drug with medical
authority, it is clear that the appellate court
erred in giving weight to Dr. Jamora's
testimony as an expert in the administration
of Thiopental Sodium.
The provision in the rules of
evidence regarding
62
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.
13 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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.
14 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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. Such responsibility ceases when
77
the persons or entity concerned prove that
they have observed the diligence of a good
father of the family to prevent damage. 78In
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.
15 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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
16 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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.
17 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
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. 84The husband and the children, all
petitioners in this case, will have to live with
the day to day uncertainty of the patient's
illness, knowing any hope of recovery is
close to nil. They have fashioned their daily
lives around the nursing care of petitioner,
altering their long term goals to take into
account their life with a comatose patient.
They, not the respondents, are charged with
the moral responsibility of the care of the
victim. The family's moral injury and
suffering in this case is clearly a real one. For
the foregoing reasons, an award of
P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary
damages in the amount of P100,000.00 are
hereby awarded. Considering the length and
nature of the instant suit we are of the
opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in
adjudicating medical negligence cases
because physicians are not insurers of life
and, they rarely set out to intentionally
cause injury or death to their patients.
However, intent is immaterial in negligence
cases because where negligence exists and
is proven, the same automatically gives the
injured a right to reparation for the damage
caused.
Established medical procedures and
practices, though in constant flux are
devised for the purpose of preventing
complications. A physician's experience with
his patients would sometimes tempt him to
deviate from established community
practices, and he may end a distinguished
career using unorthodox methods without
incident. However, when failure to follow
established procedure results in the evil
precisely sought to be averted by
observance of the procedure and a nexus is
made between the deviation and the injury
or damage, the physician would necessarily
be called to account for it. In the case at bar,
the failure to observe pre-operative
assessment protocol which would have
influenced the intubation in a salutary way
was fatal to private respondents' case.
WHEREFORE, the decision and resolution of
the appellate court appealed from are
hereby modified so as to award in favor of
petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00
as actual damages computed as of the date
of promulgation of this decision plus a
monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as
exemplary damages and attorney's fees;
and, 5) the costs of the suit.
SO ORDERED.
enjoy life and practice the art, respected by
all men at all times but should I trespass and
violate this oath, may the reverse be my lot."
At present, the primary objective of the
medical profession if the preservation of life
and maintenance of the health of the
people. 4
Needless to say then, when a physician
strays from his sacred duty and endangers
instead the life of his patient, he must be
made to answer therefor. Although society
today cannot and will not tolerate the
punishment meted out by the ancients,
neither will it and this Court, as this case
would show, let the act go uncondemned.
The petitioners appeal from the decision 5 of
the Court of Appeals of 11 May 1994 in CA-
G.R. CV No. 30851, which reversed the
decision 6 of 21 December 1990 of Branch 30
of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as
follows:

Applicability of Res Ipsa Loquitor Dr. Batiquin was a Resident Physician

Doctrine at the Negros Oriental Provincial
Hospital, Dumaguete City from January
G.R. No. 118231 July 5, 1996 9, 1978 to September 1989. Between
1987 and September, 1989 she was
DR. VICTORIA L. BATIQUIN and ALLAN also the Actg. Head of the Department
BATIQUIN, petitioners, of Obstetrics and Gynecology at the
vs. said Hospital.
COURT OF APPEALS, SPOUSES QUEDO
D. ACOGIDO and FLOTILDE G. Mrs. Villegas is a married woman who
VILLEGAS, respondents. submitted to Dr. Batiquin for prenatal
care as the latter's private patient
DAVIDE, JR., J.:p sometime before September 21, 1988.

Throughout history, patients have consigned In the morning of September 21, 1988
their fates and lives to the skill of their Dr. Batiquin, with the assistance of Dr.
doctors. For a breach of this trust, men have Doris Teresita Sy who was also a
been quick to demand retribution. Some Resident Physician at the same
4,000 years ago, the Code of Hospital, C.I. and O.R. Nurse Arlene
Hammurabi 1 then already provided: "If a Diones and some student nurses
physician make a deep incision upon a man performed a simple caesarean section
with his bronze lancet and cause the man's on Mrs. Villegas at the Negros Oriental
death, or operate on the eye socket of a man Provincial Hospital and after 45
with his bronze lancet and destroy the man's minutes Mrs. Villegas delivered her
eyes, they shall cut off his first child, Rachel Acogido, at about
hand." Subsequently,
2
Hippocrates wrote
3
11:45 that morning. Thereafter,
what was to become part of the healer's Plaintiff remained confined at the
oath: "I will follow that method of treatment Hospital until September 27, 1988
which according to my ability and judgment, during which period of confinement
I consider for the benefit of my patients, and she was regularly visited by Dr.
abstain from whatever is deleterious and Batiquin. On September 28, 1988 Mrs.
mischievous. . . . While I continue to keep Villegas checked out of the Hospital. . .
this oath unviolated may it be granted me to and on that same day she paid Dr.

18 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
 Batiquin, thru the latter's secretary,
the amount of P1,500.00 as
"professional fee". . . .
Soon after leaving the Hospital Mrs.
Villegas began to suffer abdominal
pains and complained of being
feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin
at the latter's polyclinic who
prescribed for her certain
medicines. . . which she had been
taking up to December, 1988.
In the meantime, Mrs. Villegas was
given a Medical Certificate by Dr.
Batiquin on October 31, 1988. . .
certifying to her physical fitness to
return to her work on November 7,
1988. So, on the second week of
November, 1988 Mrs. Villegas returned
to her work at the Rural Bank of
Ayungon, Negros Oriental.
The abdominal pains and fever kept on
recurring and bothered Mrs. Villegas
no end despite the medications
administered by Dr. Batiquin. When
the pains became unbearable and she
was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the
Holy Child's Hospital in Dumaguete
City on January 20, 1989.
The evidence of Plaintiffs show that
when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on
January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was
breathing fast. Upon examination she
felt an abdominal mass one finger
below the umbilicus which she
suspected to be either a tumor of the
uterus or an ovarian cyst, either of
which could be cancerous. She had an
x-ray taken of Mrs. Villegas' chest,
abdomen and kidney. She also took
blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an]
infection inside her abdominal cavity.
The results of all those examinations
impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to
which the latter agreed.
When Dr. Kho opened the abdomen of
Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on
each of the left and right ovaries which
gave out pus, dirt and pus behind the
19 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
uterus, and a piece of rubber material
on the right side of the uterus
embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of
rubber material which Dr. Kho
described as a "foreign body" looked
like a piece of a "rubber glove". . . and
which is [sic] also "rubber-drain
like". . . . It could have been a torn
section of a surgeon's gloves or could
have come from other sources. And
this foreign body was the cause of the
infection of the ovaries and
consequently of all the discomfort
suffered by Mrs. Villegas after her
delivery on September 21, 1988. 7
The piece of rubber allegedly found near
private respondent Flotilde Villegas's uterus
was not presented in court, and although Dr.
Ma. Salud Kho Testified that she sent it to a
pathologist in Cebu City for examination, 8 it
was not mentioned in the pathologist's
Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence
which mentioned the piece of rubber are a
Medical Certificate, 10 a Progress Record, 11 an
Anesthesia Record, 12 a Nurse's
Record, and
13
a Physician's Discharge
Summary. 14 The trial court, however,
regarded these documentary evidence as
mere hearsay, "there being no showing that
the person or persons who prepared them
are deceased or unable to testify on the facts
therein stated. . . . Except for the Medical
Certificate (Exhibit "F"), all the above
documents were allegedly prepared by
persons other than Dr. Kho, and she merely
affixed her signature on some of them to
express her agreement thereto. . . ." 15 The
trial court also refused to give weight to Dr.
Kho's testimony regarding the subject piece
of rubber as Dr. Kho "may not have had first-
hand knowledge" thereof, 16 as could be
gleaned from her statement, thus:
A . . . I have heard somebody that [sic]
says [sic] there is [sic] a foreign body
that goes with the tissues but unluckily
I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria
Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was
rubber indeed but that she threw it
away." 18 This statement, the trial court
noted, was never denied nor disputed by Dr.
Kho, leading it to conclude:
 There are now two different versions
on the whereabouts of that offending
"rubber" (1) that it was sent to the
Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to
Defendant. The failure of the Plaintiffs
to reconcile these two different
versions serve only to weaken their
claim against Defendant Batiquin. 19
All told, the trial court held in favor of the
petitioners herein.
The Court of Appeals reviewed the entirety of
Dr. Kho's testimony and, even without
admitting the private respondents'
documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that
a piece of rubber was found near private
respondent Villegas's uterus. Thus, the Court
of Appeals reversed the decision of the trial
court, holding:
4. The fault or negligence of appellee
Dr. Batiquin is established by
preponderance of evidence. The trial
court itself had narrated what
happened to appellant Flotilde after
the caesarean operation made by
appellee doctor. . . . After the second
operation, appellant Flotilde became
well and healthy. Appellant Flotilde's
troubles were caused by the infection
due to the "rubber" that was left inside
her abdomen. Both appellant; testified
that after the operation made by
appellee doctor, they did not go to any
other doctor until they finally decided
to see another doctor in January, 1989
when she was not getting any better
under the care of appellee Dr.
Batiquin. . . . Appellee Dr. Batiquin
admitted on the witness stand that she
alone decided when to close the
operating area; that she examined the
portion she operated on before closing
the same. . . Had she exercised due
diligence, appellee Dr. Batiquin would
have found the rubber and removed it
before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they
paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital
and medical expenses together with
doctor's fees in the total amount
20 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured
for more than three (3) months, due to
the negligence of appellee Dr. Batiquin
they are entitled to moral damages in
the amount of P100,000.00; exemplary
damages in the amount of P20,000.00
and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no
longer bear children because her
uterus and ovaries were removed by
Dr. Kho is not taken into consideration
as it is not shown that the removal of
said organs were the direct result of
the rubber left by appellee Dr. Batiquin
near the uterus. What is established is
that the rubber left by appellee caused
infection, placed the life of appellant
Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment,
dismissing the complaint for damages
is REVERSED and SET ASIDE. Another
judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-
appellants the amounts of P17,000.00
as and for actual damages;
P100,000.00 as and for moral
damages; P20,000.00 as and for
exemplary damages; and P25,000.00
as and for attorney's fees plus the
costs of litigation. SO ORDERED. 21
From the above judgment, the petitioners
appealed to this Court claiming that the
appellate court: (1) committed grave abuse
of discretion by resorting to findings of fact
not supported by the evidence on record,
and (2) exceeded its discretion, amounting
to lack or excess of jurisdiction, when it gave
credence to testimonies punctured with
contradictions and falsities.
The private respondents commented that
the petition raised only questions of fact,
which were not proper for review by this
Court.
While the rule is that only questions of law
may be raised in a petition for review
on certiorari, there are exceptions, among
which are when the factual findings of the
trial court and the appellate court conflict,
when the appealed decision is clearly
contradicted by the evidence on record, or
when the appellate court misapprehended
the facts.22
After deciphering the cryptic petition, we find
that the focal point of the instant appeal is
the appreciation of Dr. Kho's testimony. The
petitioners contend that the Court of Appeals
misappreciated the following portion of Dr.
Kho's testimony:
Q What is the purpose of the
examination?
A Just in case, I was just thinking at the
back of my mind, just in case this
would turn out to be a medico-legal
case, I have heard somebody that [sic]
says [sic] there is [sic] a
foreign body that goes with the tissues
but unluckily I don't know where the ru
bber was. It was not in the Lab, it was
not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's
interpretation of the above
testimony, i.e., that Dr. Kho's
knowledge of the piece of rubber was
based on hearsay. The Court of
Appeals, on the other hand, concluded
that the underscored phrase was taken
out of context by the trial court.
According to the Court of Appeals, the
trial court should have likewise
considered the other portions of Dr.
Kho's testimony, especially the
following:
Q So you did actually conduct the
operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was
whitish-yellow discharge inside the
abdomen, there was an ovarian cyst
on the left and side and there was also
an ovarian cyst on the right which, on
opening up or freeing it up from the
uterus, turned out to be pus. Both
ovaries turned out. . . to have pus. And
then, cleaning up the uterus, at the
back of the uterus it was very dirty, it
was full of pus. And there was a [piece
of] rubber, we found a [piece of]
rubber on the right
side. 24
We agree with the Court of Appeals. The
phrase relied upon by the trial court does not
negate the fact that Dr. Kho saw a piece of
rubber in private respondent Villegas's
abdomen, and that she sent it to a
laboratory and then to Cebu City for
21 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
examination by a pathologist. 25 Not even the
Pathologist's Report, although devoid of any
mention of a piece of rubber, could alter
what Dr. Kho saw. Furthermore, Dr. Kho's
knowledge of the piece of rubber could not
be based on other than first-hand knowledge
for, as she asserted before the trial court:
Q But you are sure you have seen [the
piece of rubber]?
A Oh yes. I was not the only one who
saw it. 26
The petitioners emphasize that the private
respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the
witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body,
the latter said that there was a piece of
rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is
admissible 27 but it carries no probative
value. 28 Nevertheless, assuming otherwise,
Dr. Batiquin's statement cannot belie the fact
that Dr. Kho found a piece of rubber near
private respondent Villegas's uterus. And
even if we were to doubt Dr. Kho as to what
she did to the piece of rubber, i.e., whether
she threw it away or sent it to Cebu City, we
are not justified in distrusting her as to her
recovery of a piece of rubber from private
respondent Villegas's abdomen. On this
score, it is perfectly reasonable to believe
the testimony of a witness with respect to
some facts and disbelieve his testimony with
respect to other facts. And it has been aptly
said that even when a witness is found to
have deliberately falsified in some material
particulars, it is not required that the whole
of his uncorroborated testimony be rejected,
but such portions thereof deemed worthy of
belief may be credited. 29
It is here worth noting that the trial court
paid heed to the following portions of Dr.
Batiquin's testimony: that no rubber drain
was used in the operation, 30 and that there
was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her
hands upon removing her
gloves. Moreover, the trial court pointed
31
out that the absence of a rubber drain was
corroborated by Dr. Doris Sy, Dr. Batiquin's
assistant during the operation on private
respondent Villegas.32 But the trial court
failed to recognize that the assertions of Drs.
Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that
positive testimony is stronger than negative Res ipsa loquitur. The thing
testimony. 33 Of course, as the petitioners speaks for itself. Rebuctable
advocate, such positive testimony must presumption or inference that
come from a credible source, which leads us defendant was negligent, which
to the second assigned error. arises upon proof that [the]
instrumentality causing injury
While the petitioners claim that was in defendant's exclusive
contradictions and falsities punctured Dr. control, and that the accident
Kho's testimony, a regarding of the said was one which ordinary does not
testimony reveals no such infirmity and happen in absence of
establishes Dr. Kho as a credible witness. Dr. negligence. Res ipsa loquitur is
Kho was frank throughout her turn on the [a] rule of evidence whereby
witness stand. Furthermore, no motive to negligence of [the] alleged
state any untruth was ever imputed against wrongdoer may be inferred from
Dr. Kho, leaving her trustworthiness [the] mere fact that [the]
unimpaired. The trial court's following
34
accident happened provided
declaration shows that while it was critical of [the] character of [the] accident
the lack of care with which Dr. Kho handled and circumstances attending it
the piece of rubber, it was not prepared to lead reasonably to belief that in
doubt Dr. Kho's credibility, thus only [the] absence of negligence it
supporting our appraisal of Dr. Kho's would not have occurred and
trustworthiness: that thing which caused injury is
shown to have been under [the]
This is not to say that she was less management and control of
than honest when she testified about [the] alleged wrongdoer. . . .
her findings, but it can also be said Under [this] doctrine
that she did not take the most . . . the happening of an injury
appropriate precaution to preserve permits an inference of
that "piece of rubber" as an eloquent negligence where plaintiff
evidence of what she would reveal produces substantial evidence
should there be a "legal problem" that [the] injury was caused by
which she claim[s] to have an agency or instrumentality
anticipated. 35 under [the] exclusive control
and management of defendant,
Considering that we have assessed Dr. Kho and that the occurrence [sic]
to be a credible witness, her positive was such that in the ordinary
testimony [that a piece of rubber was indeed course of things would not
found in private respondent Villega's happen if reasonable care had
abdomen] prevails over the negative been used.
testimony in favor of the petitioners.
xxx xxx xxx
As such, the rule of res ipsa loquitur comes
to fore. This Court has had occasion to delve The doctrine of [r]es ipsa
into the nature and operation of this loquitur as a rule of evidence is
doctrine: peculiar to the law of negligence
which recognizes that prima
This doctrine [res ipsa loquitur] is facie negligence may be
stated thus: "Where the thing which established without direct proof
causes injury is shown to be under the and furnishes a substitute for
management of the defendant, and specific proof of negligence. The
the accident is such as in the ordinary doctrine is not a rule of
course of things does not happen in substantive law, but merely a
those who have the management use mode of proof or a mere
proper care, it affords reasonable procedural convenience. The
evidence, in the absence of an rule, when applicable to the
explanation by the defendant, that the facts and circumstances of a
accident arose from want of care." Or particular case, is not intended
as Black's Law Dictionary puts it: to and does not dispense with
the requirement of proof of
culpable negligence on the party

22 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
 charged. It merely determines
and regulates what shall
be prima facie evidence thereof
and facilitates the burden of
plaintiff of proving a breach of
the duty of due care. The
doctrine can be invoked when
and only when, under the
circumstances involved, direct
evidence is absent and not
readily available. 36
In the instant case, all the requisites for
recourse to the doctrine are present. First,
the entire proceedings of the caesarean
section were under the exclusive control of
Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence
as to the actual culprit or the exact cause of
the foreign object finding its way into private
respondent Villegas's body, which, needless
to say, does not occur unless through the
intersection of negligence. Second, since
aside from the caesarean section, private
respondent Villegas underwent no other
operation which could have caused the
offending piece of rubber to appear in her
uterus, it stands to reason that such could
only have been a by-product of the
caesarean section performed by Dr. Batiquin.
The petitioners, in this regard, failed to
overcome the presumption of negligence
arising from resort to the doctrine of res ipsa
loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber
in private respondent Villegas's abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its
recognition of the vital role the medical
profession plays in the lives of the
people, 37 and the State's compelling
interest to enact measures to protect the
public from "the potentially deadly effects of
incompetence and ignorance in those who
would undertake to treat our bodies and
minds for disease or trauma." 38 Indeed, a
physician is bound to serve the interest of
his patients "with the greatest of solicitude,
giving them always his best talent and
skill." 39 Through her tortious conduct, the
petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal
standards set forth for professionals, in
general, 40 and members of the medical
profession, 41 in particular.
23 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
WHEREFORE, the challenged decision of 11
May 1994 of the Court of Appeals in CA-G.R.
CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners. SO ORDERED.
G.R. No. 130547 October 3,
2000
LEAH ALESNA REYES, ROSE NAHDJA,
JOHNNY, and minors LLOYD and
KRISTINE, all surnamed REYES,
represented by their mother, LEAH
ALESNA REYES, petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER
ROSE PALACIO, DR. MARVIE BLANES,
and DR. MARLYN RICO,respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the
decision1 of the Court of Appeals in CA-G.R.
CV No. 36551 affirming the decision of the
Regional Trial Court, Branch IX, Cebu City
which dismissed a complaint for damages
filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of
the late Jorge Reyes. The other petitioners,
namely, Rose Nahdja, Johnny, Lloyd, and
Kristine, all surnamed Reyes, were their
children. Five days before his death on
January 8, 1987, Jorge had been suffering
from a recurring fever with chills. After he
failed to get relief from some home
medication he was taking, which consisted of
analgesic, antipyretic, and antibiotics, he
decided to see the doctor.
On January 8, 1987, he was taken to the
Mercy Community Clinic by his wife. He was
attended to by respondent Dr. Marlyn Rico,
resident physician and admitting physician
on duty, who gave Jorge a physical
examination and took his medical history.
She noted that at the time of his admission,
Jorge was conscious, ambulatory, oriented,
coherent, and with respiratory
distress. Typhoid fever was then prevalent in
2
the locality, as the clinic had been getting
from 15 to 20 cases of typhoid per
month.3 Suspecting that Jorge could be
suffering from this disease, Dr. Rico ordered
a Widal Test, a standard test for typhoid
fever, to be performed on Jorge. Blood count,
routine urinalysis, stool examination, and
malarial smear were also made.4 After about
an hour, the medical technician submitted
the results of the test from which Dr. Rico
concluded that Jorge was positive for typhoid
fever. As her shift was only up to 5:00 p.m.,
Dr. Rico indorsed Jorge to respondent Dr.
Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at
around six in the evening. She also took
Jorges history and gave him a physical
examination. Like Dr. Rico, her impression
was that Jorge had typhoid fever. Antibiotics
being the accepted treatment for typhoid
fever, she ordered that a compatibility test
with the antibiotic chloromycetin be done on
Jorge. Said test was administered by nurse
Josephine Pagente who also gave the patient
a dose of triglobe. As she did not observe
any adverse reaction by the patient to
chloromycetin, Dr. Blanes ordered the first
five hundred milligrams of said antibiotic to
be administered on Jorge at around 9:00
p.m. A second dose was administered on
Jorge about three hours later just before
midnight.
At around 1:00 a.m. of January 9, 1987, Dr.
Blanes was called as Jorges temperature
rose to 41C. The patient also experienced
chills and exhibited respiratory distress,
nausea, vomiting, and convulsions. Dr.
Blanes put him under oxygen, used a suction
machine, and administered hydrocortisone,
temporarily easing the patients convulsions.
When he regained consciousness, the patient
was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from
chest pains in the past. Jorge replied he did
not.5 After about 15 minutes, however, Jorge
again started to vomit, showed restlessness,
and his convulsions returned. Dr. Blanes re-
applied the emergency measures taken
before and, in addition, valium was
administered. Jorge, however, did not
respond to the treatment and slipped into
cyanosis, a bluish or purplish discoloration of
the skin or mucous membrane due to
deficient oxygenation of the blood. At around
2:00 a.m., Jorge died. He was forty years old.
The cause of his death was "Ventricular
Arrythemia Secondary to Hyperpyrexia and
typhoid fever."
On June 3, 1987, petitioners filed before the
Regional Trial Court of Cebu City a
complaint6 for damages against respondents
Sisters of Mercy, Sister Rose Palacio, Dr.
Marvie Blanes, Dr. Marlyn Rico, and nurse
24 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Josephine Pagente. On September 24, 1987,
petitioners amended their complaint to
implead respondent Mercy Community Clinic
as additional defendant and to drop the
name of Josephine Pagente as defendant
since she was no longer connected with
respondent hospital. Their principal
contention was that Jorge did not die of
typhoid fever.7Instead, his death was due to
the wrongful administration of
chloromycetin. They contended that had
respondent doctors exercised due care and
diligence, they would not have
recommended and rushed the performance
of the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and
administered chloromycetin without first
conducting sufficient tests on the patients
compatibility with said drug. They charged
respondent clinic and its directress, Sister
Rose Palacio, with negligence in failing to
provide adequate facilities and in hiring
negligent doctors and nurses.8
Respondents denied the charges. During the
pre-trial conference, the parties agreed to
limit the issues on the following: (1) whether
the death of Jorge Reyes was due to or
caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on
the part of defendants; (2) whether
respondent Mercy Community Clinic was
negligent in the hiring of its employees; and
(3) whether either party was entitled to
damages. The case was then heard by the
trial court during which, in addition to the
testimonies of the parties, the testimonies of
doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr.
Apolinar Vacalares, Chief Pathologist at the
Northern Mindanao Training Hospital,
Cagayan de Oro City. On January 9, 1987, Dr.
Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death.
However, he did not open the skull to
examine the brain. His findings9 showed that
the gastro-intestinal tract was normal and
without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did
not die of typhoid fever. He also stated that
he had not seen a patient die of typhoid
fever within five days from the onset of the
disease.
For their part, respondents offered the
testimonies of Dr. Peter Gotiong and Dr.
Ibarra Panopio. Dr. Gotiong is a diplomate in
internal medicine whose expertise is
microbiology and infectious diseases. He is
also a consultant at the Cebu City Medical
Center and an associate professor of
medicine at the South Western University
College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid
patients. According to Dr. Gotiong, the
patients history and positive Widal Test
results ratio of 1:320 would make him
suspect that the patient had typhoid fever.
As to Dr. Vacalares observation regarding
the absence of ulceration in Jorges gastro-
intestinal tract, Dr. Gotiong said that such
hyperplasia in the intestines of a typhoid
victim may be microscopic. He noted that
since the toxic effect of typhoid fever may
lead to meningitis, Dr. Vacalares autopsy
should have included an examination of the
brain.10
The other doctor presented was Dr. Ibarra
Panopio, a member of the American Board of
Pathology, examiner of the Philippine Board
of Pathology from 1978 to 1991, fellow of the
Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine,
and chief pathologist of the Andres Soriano
Jr. Memorial Hospital in Toledo City. Dr.
Panopio stated that although he was partial
to the use of the culture test for its greater
reliability in the diagnosis of typhoid fever,
the Widal Test may also be used. Like Dr.
Gotiong, he agreed that the 1:320 ratio in
Jorges case was already the maximum by
which a conclusion of typhoid fever may be
made. No additional information may be
deduced from a higher dilution. 11 He said
that Dr. Vacalares autopsy on Jorge was
incomplete and thus inconclusive.
On September 12, 1991, the trial court
rendered its decision absolving respondents
from the charges of negligence and
dismissing petitioners action for damages.
The trial court likewise dismissed
respondents counterclaim, holding that, in
seeking damages from respondents,
petitioners were impelled by the honest
belief that Jorges death was due to the
latters negligence.
Petitioners brought the matter to the Court
of Appeals. On July 31, 1997, the Court of
Appeals affirmed the decision of the trial
court.
Hence this petition.
Petitioners raise the following assignment of
errors:
25 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
I. THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR WHEN IT
RULED THAT THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE IN THE
INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR WHEN IT
MADE AN UNFOUNDED ASSUMPTION THAT
THE LEVEL OF MEDICAL PRACTICE IS LOWER
IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT RULED FOR A
LESSER STANDARD OF CARE AND DEGREE
OF DILIGENCE FOR MEDICAL PRACTICE IN
ILIGAN CITY WHEN IT APPRECIATE[D] NO
DOCTORS NEGLIGENCE IN THE TREATMENT
OF JORGE REYES.
Petitioners action is for medical malpractice.
This is a particular form of negligence which
consists in the failure of a physician or
surgeon to apply to his practice of medicine
that degree of care and skill which is
ordinarily employed by the profession
generally, under similar conditions, and in
like surrounding circumstances.12 In order to
successfully pursue such a claim, a patient
must prove that the physician or surgeon
either failed to do something which a
reasonably prudent physician or surgeon
would have done, or that he or she did
something that a reasonably prudent
physician or surgeon would not have done,
and that the failure or action caused injury to
the patient.13 There are thus four elements
involved in medical negligence cases,
namely: duty, breach, injury, and proximate
causation.
In the present case, there is no doubt that a
physician-patient relationship existed
between respondent doctors and Jorge
Reyes. Respondents were thus duty-bound to
use at least the same level of care that any
reasonably competent doctor would use to
treat a condition under the same
circumstances. It is breach of this duty which
constitutes actionable malpractice.14 As to
this aspect of medical malpractice, the
determination of the reasonable level of care
and the breach thereof, expert testimony is
essential. Inasmuch as the causes of the
injuries involved in malpractice actions are
determinable only in the light of scientific
knowledge, it has been recognized that
expert testimony is usually necessary to
support the conclusion as to causation.15
Res Ipsa Loquitur
There is a case when expert testimony may
be dispensed with, and that is under the
doctrine of res ipsa loquitur. As held
in Ramos v. Court of Appeals:16
Although generally, expert medical
testimony is relied upon in malpractice suits
to prove that a physician has done a
negligent act or that he has deviated from
the standard medical procedure, when the
doctrine of res ipsa loquitor is availed by the
plaintiff, the need for expert medical
testimony is dispensed with because the
injury itself provides the proof of
negligence. The reason is that the general
rule on the necessity of expert testimony
applies only to such matters clearly within
the domain of medical science, and not to
matters that are within the common
knowledge of mankind which may be
testified to by anyone familiar with the
facts. Ordinarily, only physicians and
surgeons of skill and experience are
competent to testify as to whether a patient
has been treated or operated upon with a
reasonable degree of skill and care.
However, testimony as to the statements
and acts of physicians and surgeons,
external appearances, and manifest
conditions which are observable by any one
may be given by non-expert
witnesses. Hence, in cases where the res
ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon
proper proof of injury to the patient, without
the aid of expert testimony, where the court
from its fund of common knowledge can
determine the proper standard of care.
Where common knowledge and experience
teach that a resulting injury would not have
occurred to the patient if due care had been
exercised, an inference of negligence may be
drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to
show not only what occurred but how and
why it occurred. When the doctrine is
appropriate, all that the patient must do is
prove a nexus between the particular act or
omission complained of and the injury
sustained while under the custody and
management of the defendant without need
to produce expert medical testimony to
establish the standard of care. Resort to res
ipsa loquitor is allowed because there is no
other way, under usual and ordinary
conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have
applied the doctrine in the following
situations: leaving of a foreign object in the
26 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
body of the patient after an operation,
injuries sustained on a healthy part of the
body which was not under, or in the area, of
treatment, removal of the wrong part of the
body when another part was intended,
knocking out a tooth while a patients jaw
was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient
was under the influence of anesthetic, during
or following an operation for appendicitis,
among others.17
Petitioners asserted in the Court of Appeals
that the doctrine of res ipsa loquitur applies
to the present case because Jorge Reyes was
merely experiencing fever and chills for five
days and was fully conscious, coherent, and
ambulant when he went to the hospital. Yet,
he died after only ten hours from the time of
his admission.
This contention was rejected by the
appellate court.
Petitioners now contend that all requisites for
the application of res ipsa loquitur were
present, namely: (1) the accident was of a
kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality
or agency which caused the injury was under
the exclusive control of the person in charge;
and (3) the injury suffered must not have
been due to any voluntary action or
contribution of the person injured.18
The contention is without merit. We agree
with the ruling of the Court of Appeals. In
the Ramos case, the question was whether a
surgeon, an anesthesiologist, and a hospital
should be made liable for the comatose
condition of a patient scheduled for
cholecystectomy.19 In that case, the patient
was given anesthesia prior to her operation.
Noting that the patient was neurologically
sound at the time of her operation, the Court
applied the doctrine of res ipsa loquitur as
mental brain damage does not normally
occur in a gallblader operation in the
absence of negligence of the
anesthesiologist. Taking judicial notice that
anesthesia procedures had become so
common that even an ordinary person could
tell if it was administered properly, we
allowed the testimony of a witness who was
not an expert. In this case, while it is true
that the patient died just a few hours after
professional medical assistance was
rendered, there is really nothing unusual or
extraordinary about his death. Prior to his
admission, the patient already had recurring
fevers and chills for five days unrelieved by
the analgesic, antipyretic, and antibiotics
given him by his wife. This shows that he
had been suffering from a serious illness and
professional medical help came too late for
him.
Respondents alleged failure to observe due
care was not immediately apparent to a
layman so as to justify application of res ipsa
loquitur. The question required expert
opinion on the alleged breach by
respondents of the standard of care required
by the circumstances. Furthermore, on the
issue of the correctness of her diagnosis, no
presumption of negligence can be applied to
Dr. Marlyn Rico.As held in Ramos:
. . . . Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used
but a rule to be cautiously applied,
depending upon the circumstances of each
case. It is generally restricted to situations in
malpractice cases where a layman is able to
say, as a matter of common knowledge and
observation, that the consequences of
professional care were not as such as would
ordinarily have followed if due care had been
exercised. A distinction must be made
between the failure to secure results, and
the occurrence of something more unusual
and not ordinarily found if the service or
treatment rendered followed the usual
procedure of those skilled in that particular
practice. It must be conceded that the
doctrine of res ipsa loquitur can have no
application in a suit against a physician or a
surgeon which involves the merits of a
diagnosis or of a scientific treatment. The
physician or surgeon is not required at his
peril to explain why any particular diagnosis
was not correct, or why any particular
scientific treatment did not produce the
desired result.20
Specific Acts of Negligence
We turn to the question whether petitioners
have established specific acts of negligence
allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico
hastily and erroneously relied upon the Widal
test, diagnosed Jorges illness as typhoid
fever, and immediately prescribed the
administration of the antibiotic
chloromycetin; and (2) Dr. Marvie Blanes
21
erred in ordering the administration of the
second dose of 500 milligrams of
chloromycetin barely three hours after the
27 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
first was given.22 Petitioners presented the
testimony of Dr. Apolinar Vacalares, Chief
Pathologist of the Northern Mindanao
Training Hospital, Cagayan de Oro City, who
performed an autopsy on the body of Jorge
Reyes. Dr. Vacalares testified that, based on
his findings during the autopsy, Jorge Reyes
did not die of typhoid fever but of shock
undetermined, which could be due to allergic
reaction or chloromycetin overdose. We are
not persuaded.
First. While petitioners presented Dr.
Apolinar Vacalares as an expert witness, we
do not find him to be so as he is not a
specialist on infectious diseases like typhoid
fever. Furthermore, although he may have
had extensive experience in performing
autopsies, he admitted that he had yet to do
one on the body of a typhoid victim at the
time he conducted the postmortem on Jorge
Reyes. It is also plain from his testimony that
he has treated only about three cases of
typhoid fever. Thus, he testified that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that
you have never seen a patient who died of
typhoid fever?
A In autopsy. But, that was when I was a
resident physician yet.
Q But you have not performed an autopsy of
a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen
a patient who died of typhoid fever within
five days?
A I have not seen one.
Q How many typhoid fever cases had you
seen while you were in the general practice
of medicine?
A In our case we had no widal test that time
so we cannot consider that the typhoid fever
is like this and like that. And the widal test
does not specify the time of the typhoid
fever.
Q The question is: how many typhoid fever
cases had you seen in your general practice
regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr.
Marlyn Rico erred in her diagnosis. Both
lower courts were therefore correct in
discarding his testimony, which is really
inadmissible.
In Ramos, the defendants presented the
testimony of a pulmonologist to prove that
brain injury was due to oxygen deprivation
after the patient had
bronchospasms24 triggered by her allergic
response to a drug,25 and not due to faulty
intubation by the anesthesiologist. As the
issue was whether the intubation was
properly performed by an anesthesiologist,
we rejected the opinion of the pulmonologist
on the ground that he was not: (1) an
anesthesiologist who could enlighten the
court about anesthesia practice, procedure,
and their complications; nor (2) an
allergologist who could properly advance
expert opinion on allergic mediated
processes; nor (3) a pharmacologist who
could explain the pharmacologic and toxic
effects of the drug allegedly responsible for
the bronchospasms.
Second. On the other hand, the two doctors
presented by respondents clearly were
experts on the subject. They vouched for the
correctness of Dr. Marlyn Ricos diagnosis.
Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and
microbiology and an associate professor at
the Southwestern University College of
Medicine and the Gullas College of Medicine,
testified that he has already treated over a
thousand cases of typhoid fever. 26 According
to him, when a case of typhoid fever is
suspected, the Widal test is normally
used,27and if the 1:320 results of the Widal
test on Jorge Reyes had been presented to
him along with the patients history, his
impression would also be that the patient
was suffering from typhoid fever.28 As to the
treatment of the disease, he stated that
chloromycetin was the drug of choice.29 He
also explained that despite the measures
taken by respondent doctors and the
intravenous administration of two doses of
chloromycetin, complications of the disease
could not be discounted. His testimony is as
follows:30
ATTY. PASCUAL:
Q If with that count with the test of positive
for 1 is to 320, what treatment if any would
be given?
A If those are the findings that would be
presented to me, the first thing I would
consider would be typhoid fever.
Q And presently what are the treatments
commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after
you have administered chloramphenical
about 3 1/2 hours later, the patient
associated with chills, temperature - 41oC,
what could possibly come to your mind?
28 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
A Well, when it is change in the clinical
finding, you have to think of complication.
Q And what will you consider on the
complication of typhoid?
A One must first understand that typhoid
fever is toximia. The problem is
complications are caused by toxins produced
by the bacteria . . . whether you have
suffered complications to think of -- heart
toxic myocardities; then you can consider a
toxic meningitis and other complications and
perforations and bleeding in the ilium.
Q Even that 40-year old married patient who
received medication of chloromycetin of 500
milligrams intravenous, after the skin test,
and received a second dose of chloromycetin
of 500 miligrams, 3 hours later, the patient
developed chills . . . rise in temperature to
41oC, and then about 40 minutes later the
temperature rose to 100oF, cardiac rate of
150 per minute who appeared to be
coherent, restless, nauseating, with seizures:
what significance could you attach to these
clinical changes?
A I would then think of toxemia, which was
toxic meningitis and probably a toxic
meningitis because of the high cardiac rate.
Q Even if the same patient who, after having
given intramuscular valium, became
conscious and coherent about 20 minutes
later, have seizure and cyanosis and rolling
of eyeballs and vomitting . . . and death:
what significance would you attach to this
development?
A We are probably dealing with typhoid to
meningitis.
Q In such case, Doctor, what finding if any
could you expect on the post-mortem
examination?
A No, the finding would be more on the
meninges or covering of the brain.
Q And in order to see those changes would it
require opening the skull?
A Yes.
As regards Dr. Vacalares finding during the
autopsy that the deceaseds gastro-intestinal
tract was normal, Dr. Rico explained that,
while hyperplasia31 in the payers patches or
layers of the small intestines is present in
typhoid fever, the same may not always be
grossly visible and a microscope was needed
to see the texture of the cells.32
Respondents also presented the testimony of
Dr. Ibarra T. Panopio who is a member of the
Philippine and American Board of Pathology,
an examiner of the Philippine Board of
Pathology, and chief pathologist at the
MetroCebu Community Hospital, Perpetual
Succor Hospital, and the Andres Soriano Jr.
Memorial Medical Center. He stated that, as
a clinical pathologist, he recognized that the
Widal test is used for typhoid patients,
although he did not encourage its use
because a single test would only give a
presumption necessitating that the test be
repeated, becoming more conclusive at the
second and third weeks of the disease. 33 He
corroborated Dr. Gotiongs testimony that
the danger with typhoid fever is really the
possible complications which could develop
like perforation, hemorrhage, as well as liver
and cerebral complications.34 As regards the
1:320 results of the Widal test on Jorge
Reyes, Dr. Panopio stated that no additional
information could be obtained from a higher
ratio.35 He also agreed with Dr. Gotiong that
hyperplasia in the payers patches may be
microscopic.36
Indeed, the standard contemplated is not
what is actually the average merit among all
known practitioners from the best to the
worst and from the most to the least
experienced, but the reasonable average
merit among the ordinarily good
physicians.37 Here, Dr. Marlyn Rico did not
depart from the reasonable standard
recommended by the experts as she in fact
observed the due care required under the
circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic
test for typhoid fever and, in the present
case, greater accuracy through repeated
testing was rendered unobtainable by the
early death of the patient. The results of the
Widal test and the patients history of fever
with chills for five days, taken with the fact
that typhoid fever was then prevalent as
indicated by the fact that the clinic had been
getting about 15 to 20 typhoid cases a
month, were sufficient to give upon any
doctor of reasonable skill the impression that
Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending
the administration of the drug chloromycetin,
the drug of choice for typhoid fever. The
burden of proving that Jorge Reyes was
suffering from any other illness rested with
the petitioners. As they failed to present
expert opinion on this, preponderant
evidence to support their contention is
clearly absent.
Third. Petitioners contend that respondent
Dr. Marvie Blanes, who took over from Dr.
Rico, was negligent in ordering the
intravenous administration of two doses of
500 milligrams of chloromycetin at an
interval of less than three hours. Petitioners
claim that Jorge Reyes died of anaphylactic
shock38 or possibly from overdose as the
29 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
second dose should have been administered
five to six hours after the first, per
instruction of Dr. Marlyn Rico. As held by the
Court of Appeals, however:
That chloromycetin was likewise a proper
prescription is best established by medical
authority. Wilson, et. al., inHarrisons
Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of
chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet
proven better in promoting a favorable
clinical response. "Chlorampenicol
(Chloromycetin) is specifically indicated for
bacterial meningitis, typhoid fever, rickettsial
infections, bacteriodes infections, etc." (PIMS
Annual, 1994, p. 211) The dosage likewise
including the first administration of five
hundred milligrams (500 mg.) at around nine
oclock in the evening and the second dose
at around 11:30 the same night was still
within medically acceptable limits, since the
recommended dose of chloromycetin is one
(1) gram every six (6) hours. (cf. Pediatric
Drug Handbook, 1st Ed., Philippine Pediatric
Society, Committee on Therapeutics and
Toxicology, 1996). The intravenous route is
likewise correct. (Mansser, ONick,
Pharmacology and Therapeutics) Even if the
test was not administered by the physician-
on-duty, the evidence introduced that it was
Dra. Blanes who interpreted the results
remain uncontroverted. (Decision, pp. 16-17)
Once more, this Court rejects any claim of
professional negligence in this regard.
....
As regards anaphylactic shock, the usual
way of guarding against it prior to the
administration of a drug, is the skin test of
which, however, it has been observed: "Skin
testing with haptenic drugs is generally not
reliable. Certain drugs cause nonspecific
histamine release, producing a weal-and-
flare reaction in normal individuals.
Immunologic activation of mast cells requires
a polyvalent allergen, so a negative skin test
to a univalent haptenic drug does not rule
out anaphylactic sensitivity to that drug."
(Terr, "Anaphylaxis and Urticaria" in Basic
and Clinical Immunology, p. 349) What all
this means legally is that even if the
deceased suffered from an anaphylactic
shock, this, of itself, would not yet establish
the negligence of the appellee-physicians for
all that the law requires of them is that they
perform the standard tests and perform
standard procedures. The law cannot require
them to predict every possible reaction to all simply the reasonable average merit among
drugs administered. The onus probandi was ordinarily good physicians. That is
on the appellants to establish, before the reasonable diligence for doctors or, as the
trial court, that the appellee-physicians Court of Appeals called it, the reasonable
ignored standard medical procedure, "skill and competence . . . that a physician in
prescribed and administered medication with the same or similar locality . . . should apply."
recklessness and exhibited an absence of the
competence and skills expected of general WHEREFORE, the instant petition is DENIED
practitioners similarly situated.39 and the decision of the Court of Appeals is
AFFIRMED. SO ORDERED.
Fourth. Petitioners correctly observe that
the medical profession is one which, like the G.R. No. 126297 January 31,
business of a common carrier, is affected 2007
with public interest. Moreover, they assert
that since the law imposes upon common PROFESSIONAL SERVICES,
carriers the duty of observing extraordinary INC., Petitioner,
diligence in the vigilance over the goods and vs.
for the safety of the passengers, 40physicians NATIVIDAD and ENRIQUE
AGANA, Respondents.
and surgeons should have the same duty
toward their patients.41 They also contend
x-----------------------x
that the Court of Appeals erred when it
allegedly assumed that the level of medical
G.R. No. 126467 January 31,
practice is lower in Iligan City, thereby 2007
reducing the standard of care and degree of
diligence required from physicians and NATIVIDAD (Substituted by her children
surgeons in Iligan City. MARCELINO AGANA III, ENRIQUE
AGANA, JR., EMMA AGANA ANDAYA,
The standard of extraordinary diligence is JESUS AGANA, and RAYMUND AGANA)
peculiar to common carriers. The Civil Code and ENRIQUE AGANA, Petitioners,
provides: vs.
JUAN FUENTES, Respondent.
Art. 1733. Common carriers, from the nature
of their business and for reasons of public x- - - - - - - - - - - - - - - - - - - -- - - - x
policy, are bound to observe extraordinary
diligence in the vigilance over the goods and G.R. No. 127590 January 31,
for the safety of the passengers transported 2007
by them, according to the circumstances of
each case. . . . MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE
The practice of medicine is a profession
AGANA, Respondents.
engaged in only by qualified
individuals.1wphi1 It is a right earned DECISION
through years of education, training, and by
first obtaining a license from the state SANDOVAL-GUTIERREZ, J.:
through professional board examinations.
Such license may, at any time and for cause, Hospitals, having undertaken one of
be revoked by the government. In addition to mankinds most important and delicate
state regulation, the conduct of doctors is endeavors, must assume the grave
also strictly governed by the Hippocratic responsibility of pursuing it with appropriate
Oath, an ancient code of discipline and care. The care and service dispensed
ethical rules which doctors have imposed through this high trust, however technical,
upon themselves in recognition and complex and esoteric its character may be,
acceptance of their great responsibility to must meet standards of responsibility
society. Given these safeguards, there is no commensurate with the undertaking to
need to expressly require of doctors the preserve and protect the health, and indeed,
the very lives of those placed in the
observance of "extraordinary" diligence. As it
hospitals keeping.1
is now, the practice of medicine is already
conditioned upon the highest degree of
Assailed in these three consolidated petitions
diligence. And, as we have already noted, for review on certiorari is the Court of
the standard contemplated for doctors is Appeals Decision2 dated September 6, 1996

30 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
in CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198 affirming with modification the
Decision3dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and
nullifying its Order dated September 21,
1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was
rushed to the Medical City General Hospital
(Medical City Hospital) because of difficulty
of bowel movement and bloody anal
discharge. After a series of medical
examinations, Dr. Miguel Ampil, petitioner in
G.R. No. 127590, diagnosed her to be
suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the
medical staff4 of the Medical City Hospital,
performed an anterior resection surgery on
Natividad. He found that the malignancy in
her sigmoid area had spread on her left
ovary, necessitating the removal of certain
portions of it. Thus, Dr. Ampil obtained the
consent of Natividads husband, Enrique
Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the
hysterectomy, Dr. Ampil took over,
completed the operation and closed the
incision.
However, the operation appeared to be
flawed. In the corresponding Record of
Operation dated April 11, 1984, the
attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done
but to no avail continue for closure."
On April 24, 1984, Natividad was released
from the hospital. Her hospital and medical
bills, including the doctors fees, amounted
to P60,000.00.
After a couple of days, Natividad complained
of excruciating pain in her anal region. She
consulted both Dr. Ampil and Dr. Fuentes
about it. They told her that the pain was the
natural consequence of the surgery. Dr.
Ampil then recommended that she consult
an oncologist to examine the cancerous
nodes which were not removed during the
operation.
On May 9, 1984, Natividad, accompanied by
her husband, went to the United States to
seek further treatment. After four months of
31 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
consultations and laboratory examinations,
Natividad was told she was free of cancer.
Hence, she was advised to return to the
Philippines.
On August 31, 1984, Natividad flew back to
the Philippines, still suffering from pains. Two
weeks thereafter, her daughter found a piece
of gauze protruding from her vagina. Upon
being informed about it, Dr. Ampil proceeded
to her house where he managed to extract
by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the
pains would soon vanish.
Dr. Ampils assurance did not come true.
Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr.
Ramon Gutierrez detected the presence of
another foreign object in her vagina -- a foul-
smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault.
A recto-vaginal fistula had formed in her
reproductive organs which forced stool to
excrete through the vagina. Another surgical
operation was needed to remedy the
damage. Thus, in October 1984, Natividad
underwent another surgery.
On November 12, 1984, Natividad and her
husband filed with the RTC, Branch 96,
Quezon City a complaint for damages
against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil,
and Dr. Fuentes, docketed as Civil Case No.
Q-43322. They alleged that the latter are
liable for negligence for leaving two pieces of
gauze inside Natividads body and
malpractice for concealing their acts of
negligence.
Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross
negligence and malpractice against Dr. Ampil
and Dr. Fuentes, docketed as Administrative
Case No. 1690. The PRC Board of Medicine
heard the case only with respect to Dr.
Fuentes because it failed to acquire
jurisdiction over Dr. Ampil who was then in
the United States.
On February 16, 1986, pending the outcome
of the above cases, Natividad died and was
duly substituted by her above-named
children (the Aganas).
On March 17, 1993, the RTC rendered its
Decision in favor of the Aganas, finding PSI,
Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal
part of which reads:
WHEREFORE, judgment is hereby rendered
for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL
AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in
respect of the award for exemplary damages
and the interest thereon which are the
liabilities of defendants Dr. Ampil and Dr.
Fuentes only, as follows:
1. As actual damages, the following
amounts:
a. The equivalent in Philippine
Currency of the total of US$19,900.00
at the rate of P21.60-US$1.00, as
reimbursement of actual expenses
incurred in the United States of
America;
b. The sum of P4,800.00 as travel
taxes of plaintiffs and their physician
daughter;
c. The total sum of P45,802.50,
representing the cost of hospitalization
at Polymedic Hospital, medical fees,
and cost of the saline solution;
2. As moral damages, the sum of
P2,000,000.00;
3. As exemplary damages, the sum of
P300,000.00;
4. As attorneys fees, the sum of
P250,000.00;
5. Legal interest on items 1 (a), (b),
and (c); 2; and 3 hereinabove, from
date of filing of the complaint until full
payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil
interposed an appeal to the Court of
Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas
filed with the RTC a motion for a partial
execution of its Decision, which was granted
in an Order dated May 11, 1993. Thereafter,
the sheriff levied upon certain properties of
Dr. Ampil and sold them for P451,275.00 and
delivered the amount to the Aganas.
Following their receipt of the money, the
Aganas entered into an agreement with PSI
and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision.
32 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
However, not long thereafter, the Aganas
again filed a motion for an alias writ of
execution against the properties of PSI and
Dr. Fuentes. On September 21, 1993, the RTC
granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to
file with the Court of Appeals a petition for
certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R.
SP No. 32198. During its pendency, the Court
of Appeals issued a Resolution5 dated
October 29, 1993 granting Dr. Fuentes
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198
was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC
Board of Medicine rendered its Decision 6 in
Administrative Case No. 1690 dismissing the
case against Dr. Fuentes. The Board held
that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces
of gauze inside Natividads body; and that he
concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals
rendered its Decision jointly disposing of CA-
G.R. CV No. 42062 and CA-G.R. SP No.
32198, thus:
WHEREFORE, except for the modification
that the case against defendant-appellant Dr.
Juan Fuentes is hereby DISMISSED, and with
the pronouncement that defendant-appellant
Dr. Miguel Ampil is liable to reimburse
defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or
had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED
and the instant appeal DISMISSED.
Concomitant with the above, the petition for
certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-
G.R. SP No. 32198 is hereby GRANTED and
the challenged order of the respondent judge
dated September 21, 1993, as well as the
alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET
ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary
injunction issued by this Court on November
29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr.
Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for
reconsideration, but it was denied in a
Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition
that the Court of Appeals erred in holding
that: (1) it is estopped from raising the
defense that Dr. Ampil is not its employee;
(2) it is solidarily liable with Dr. Ampil; and
(3) it is not entitled to its counterclaim
against the Aganas. PSI contends that Dr.
Ampil is not its employee, but a mere
consultant or independent contractor. As
such, he alone should answer for his
negligence.
In G.R. No. 126467, the Aganas maintain that
the Court of Appeals erred in finding that Dr.
Fuentes is not guilty of negligence or medical
malpractice, invoking the doctrine of res ipsa
loquitur. They contend that the pieces of
gauze are prima facie proofs that the
operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts
that the Court of Appeals erred in finding him
liable for negligence and malpractice sans
evidence that he left the two pieces of gauze
in Natividads vagina. He pointed to other
probable causes, such as: (1) it was Dr.
Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses
failure to properly count the gauzes used
during surgery; and (3) the medical
intervention of the American doctors who
examined Natividad in the United States of
America.
For our resolution are these three vital
issues: first, whether the Court of Appeals
erred in holding Dr. Ampil liable for
negligence and malpractice; second,
whether the Court of Appeals erred in
absolving Dr. Fuentes of any liability; and
third, whether PSI may be held solidarily
liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in
Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself,
gears the Courts attention to other possible
causes of Natividads detriment. He argues
that the Court should not discount either of
the following possibilities: first, Dr. Fuentes
left the gauzes in Natividads body after
performing hysterectomy; second, the
attending nurses erred in counting the
gauzes; and third, the American doctors
were the ones who placed the gauzes in
Natividads body.
33 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Dr. Ampils arguments are purely conjectural
and without basis. Records show that he did
not present any evidence to prove that the
American doctors were the ones who put or
left the gauzes in Natividads body. Neither
did he submit evidence to rebut the
correctness of the record of operation,
particularly the number of gauzes used. As
to the alleged negligence of Dr. Fuentes, we
are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major
circumstances, taken together, as specified
by the Court of Appeals, directly point to Dr.
Ampil as the negligent party, thus:
First, it is not disputed that the
surgeons used gauzes as sponges to
control the bleeding of the patient
during the surgical operation.
Second, immediately after the
operation, the nurses who assisted in
the surgery noted in their report that
the sponge count (was) lacking 2;
that such anomaly was announced to
surgeon and that a search was done
but to no avail prompting Dr. Ampil to
continue for closure x x x.
Third, after the operation, two (2)
gauzes were extracted from the same
spot of the body of Mrs. Agana where
the surgery was performed.
An operation requiring the placing of
sponges in the incision is not complete until
the sponges are properly removed, and it is
settled that the leaving of sponges or other
foreign substances in the wound after the
incision has been closed is at least prima
facie negligence by the operating
surgeon.8 To put it simply, such act is
considered so inconsistent with due care as
to raise an inference of negligence. There are
even legions of authorities to the effect that
such act is negligence per se.9
Of course, the Court is not blind to the reality
that there are times when danger to a
patients life precludes a surgeon from
further searching missing sponges or foreign
objects left in the body. But this does not
leave him free from any obligation. Even if it
has been shown that a surgeon was required
by the urgent necessities of the case to
leave a sponge in his patients abdomen,
because of the dangers attendant upon
delay, still, it is his legal duty to so inform his
patient within a reasonable time thereafter
by advising her of what he had been
compelled to do. This is in order that she
might seek relief from the effects of the
foreign object left in her body as her
condition might permit. The ruling in Smith v.
Zeagler10 is explicit, thus:
The removal of all sponges used is part of a
surgical operation, and when a physician or
surgeon fails to remove a sponge he has
placed in his patients body that should be
removed as part of the operation, he thereby
leaves his operation uncompleted and
creates a new condition which imposes upon
him the legal duty of calling the new
condition to his patients attention, and
endeavoring with the means he has at hand
to minimize and avoid untoward results likely
to ensue therefrom.
Here, Dr. Ampil did not inform Natividad
about the missing two pieces of gauze.
Worse, he even misled her that the pain she
was experiencing was the ordinary
consequence of her operation. Had he been
more candid, Natividad could have taken the
immediate and appropriate medical remedy
to remove the gauzes from her body. To our
mind, what was initially an act of negligence
by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.
This is a clear case of medical malpractice or
more appropriately, medical negligence. To
successfully pursue this kind of case, a
patient must only prove that a health care
provider either failed to do something which
a reasonably prudent health care provider
would have done, or that he did something
that a reasonably prudent provider would not
have done; and that failure or action caused
injury to the patient.11 Simply put, the
elements are duty, breach, injury and
proximate causation. Dr, Ampil, as the lead
surgeon, had the duty to remove all foreign
objects, such as gauzes, from Natividads
body before closure of the incision. When he
failed to do so, it was his duty to inform
Natividad about it. Dr. Ampil breached both
duties. Such breach caused injury to
Natividad, necessitating her further
examination by American doctors and
another surgery. That Dr. Ampils negligence
is the proximate cause12 of Natividads injury
could be traced from his act of closing the
incision despite the information given by the
attending nurses that two pieces of gauze
were still missing. That they were later on
extracted from Natividads vagina
established the causal link between Dr.
Ampils negligence and the injury. And what
further aggravated such injury was his
deliberate concealment of the missing
gauzes from the knowledge of Natividad and
her family.
II - G.R. No. 126467
34 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Whether the Court of Appeals Erred in
Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the
trial court of the case against Dr. Fuentes on
the ground that it is contrary to the doctrine
of res ipsa loquitur. According to them, the
fact that the two pieces of gauze were left
inside Natividads body is a prima facie
evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing
speaks for itself." It is 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 plaintiffs prima
facie case, and present a question of fact for
defendant to meet with an
explanation. Stated differently, where the
13
thing which caused the injury, without the
fault of the injured, is under the exclusive
control of the defendant and the injury is
such that it should not have occurred if he,
having such control used proper care, it
affords reasonable evidence, in the absence
of explanation that the injury arose from the
defendants want of care, and the burden of
proof is shifted to him to establish that he
has observed due care and diligence.14
From the foregoing statements of the rule,
the requisites for the applicability of the
doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which
caused the injury was under the control and
management of the defendant; (3) the
occurrence was such that in the ordinary
course of things, would not have happened if
those who had control or management used
proper care; and (4) the absence of
explanation by the defendant. Of the
foregoing requisites, the most instrumental
is the "control and management of the thing
which caused the injury."15
We find the element of "control and
management of the thing which caused the
injury" to be wanting. Hence, the doctrine of
res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was
the lead surgeon during the operation of
Natividad. He requested the assistance of Dr.
Fuentes only to perform hysterectomy when
he (Dr. Ampil) found that the malignancy in
her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and
thereafter reported and showed his work to
Dr. Ampil. The latter examined it and finding
everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr.
Ampil then resumed operating on Natividad.
He was about to finish the procedure when
the attending nurses informed him that two
pieces of gauze were missing. A "diligent
search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then
directed that the incision be closed. During
this entire period, Dr. Fuentes was no longer
in the operating room and had, in fact, left
the hospital.
Under the "Captain of the Ship" rule, the
operating surgeon is the person in complete
charge of the surgery room and all personnel
connected with the operation. Their duty is
to obey his orders.16 As stated before, Dr.
Ampil was the lead surgeon. In other words,
he was the "Captain of the Ship." That he
discharged such role is evident from his
following conduct: (1) calling Dr. Fuentes to
perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order;
(3) granting Dr. Fuentes permission to leave;
and (4) ordering the closure of the incision.
To our mind, it was this act of ordering the
closure of the incision notwithstanding that
two pieces of gauze remained unaccounted
for, that caused injury to Natividads body.
Clearly, the control and management of the
thing which caused the injury was in the
hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a
rule of substantive law, hence, does not per
se create or constitute an independent or
separate ground of liability, being a mere
evidentiary rule.17 In other words, mere
invocation and application of the doctrine
does not dispense with the requirement of
proof of negligence. Here, the negligence
was proven to have been committed by Dr.
Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of
Dr. Ampil
The third issue necessitates a glimpse at the
historical development of hospitals and the
resulting theories concerning their liability
for the negligence of physicians.
Until the mid-nineteenth century, hospitals
were generally charitable institutions,
providing medical services to the lowest
classes of society, without regard for a
patients ability to pay. 18 Those who could
afford medical treatment were usually
treated at home by their doctors. 19 However,
the days of house calls and philanthropic
health care are over. The modern health care
35 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
industry continues to distance itself from its
charitable past and has experienced a
significant conversion from a not-for-profit
health care to for-profit hospital businesses.
Consequently, significant changes in health
law have accompanied the business-related
changes in the hospital industry. One
important legal change is an increase in
hospital liability for medical malpractice.
Many courts now allow claims for hospital
vicarious liability under the theories of
respondeat superior, apparent authority,
ostensible authority, or agency by
estoppel. 20
In this jurisdiction, the statute governing
liability for negligent acts is Article 2176 of
the Civil Code, which reads:
Art. 2176. Whoever by act or omission
causes damage to another, there being fault
or negligence, is obliged to pay for the
damage done. Such fault or negligence, if
there is no pre-existing contractual relation
between the parties, is called a quasi-delict
and is governed by the provisions of this
Chapter.
A derivative of this provision is Article 2180,
the rule governing vicarious liability under
the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article
2176 is demandable not only for ones own
acts or omissions, but also for those of
persons for whom one is responsible.
x x x
x x x
The owners and managers of an
establishment or enterprise are likewise
responsible for damages caused by their
employees in the service of the branches in
which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their
assigned tasks even though the former are
not engaged in any business or industry.
x x x
x x x
The responsibility treated of in this article
shall cease when the persons herein
mentioned prove that they observed all the
diligence of a good father of a family to
prevent damage.
A prominent civilist commented that
professionals engaged by an employer, such
as physicians, dentists, and pharmacists, are
not "employees" under this article because
the manner in which they perform their work
is not within the control of the latter
(employer). In other words, professionals are
considered personally liable for the fault or
negligence they commit in the discharge of
their duties, and their employer cannot be
held liable for such fault or negligence. In the
context of the present case, "a hospital
cannot be held liable for the fault or
negligence of a physician or surgeon in the
treatment or operation of patients."21
The foregoing view is grounded on the
traditional notion that the professional status
and the very nature of the physicians calling
preclude him from being classed as an agent
or employee of a hospital, whenever he acts
in a professional capacity.22 It has been said
that medical practice strictly involves highly
developed and specialized knowledge, 23 such
that physicians are generally free to exercise
their own skill and judgment in rendering
medical services sans interference.24 Hence,
when a doctor practices medicine in a
hospital setting, the hospital and its
employees are deemed to subserve him in
his ministrations to the patient and his
actions are of his own responsibility.25
The case of Schloendorff v. Society of New
York Hospital26 was then considered an
authority for this view. The "Schloendorff
doctrine" regards a physician, even if
employed by a hospital, as an independent
contractor because of the skill he exercises
and the lack of control exerted over his work.
Under this doctrine, hospitals are exempt
from the application of the respondeat
superior principle for fault or negligence
committed by physicians in the discharge of
their profession.
However, the efficacy of the foregoing
doctrine has weakened with the significant
developments in medical care. Courts came
to realize that modern hospitals are
increasingly taking active role in supplying
and regulating medical care to patients. No
longer were a hospitals functions limited to
furnishing room, food, facilities for treatment
and operation, and attendants for its
patients. Thus, in Bing v. Thunig, 27 the New
York Court of Appeals deviated from the
Schloendorff doctrine, noting that modern
hospitals actually do far more than provide
facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative
and manual workers. They charge patients
for medical care and treatment, even
collecting for such services through legal
action, if necessary. The court then
36 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
concluded that there is no reason to exempt
hospitals from the universal rule of
respondeat superior.
In our shores, the nature of the relationship
between the hospital and the physicians is
rendered inconsequential in view of our
categorical pronouncement in Ramos v.
Court of Appeals28 that for purposes of
apportioning responsibility in medical
negligence cases, an employer-employee
relationship in effect exists between
hospitals and their attending and visiting
physicians. This Court held:
"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," who are allegedly not
hospital employees, presents problems in
apportioning responsibility for negligence in
medical malpractice cases. However, the
difficulty is 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. x x x.
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 physicians
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,
x x x, 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. "
But the Ramos pronouncement is not our
only basis in sustaining PSIs liability. Its
liability is also anchored upon the agency
principle of apparent authority or agency by
estoppel and the doctrine of corporate
negligence which have gained acceptance in
the determination of a hospitals liability for
negligent acts of health professionals. The
present case serves as a perfect platform to
test the applicability of these doctrines, thus,
enriching our jurisprudence.
Apparent authority, or what is sometimes
referred to as the "holding out" theory, or
doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of
agency. It imposes liability, not as the result
of the reality of a contractual relationship,
but rather because of the actions of a
principal or an employer in somehow
misleading the public into believing that the
relationship or the authority exists. 30 The
concept is essentially one of estoppel and
has been explained in this manner:
"The principal is bound by the acts of his
agent with the apparent authority which he
knowingly permits the agent to assume, or
which he holds the agent out to the public as
possessing. The question in every case is
whether the principal has by his voluntary
act placed the agent in such a situation that
a person of ordinary prudence, conversant
with business usages and the nature of the
particular business, is justified in presuming
that such agent has authority to perform the
particular act in question.31
The applicability of apparent authority in the
field of hospital liability was upheld long time
ago in Irving v. Doctor Hospital of Lake
Worth, Inc.32 There, it was explicitly stated
that "there does not appear to be any
rational basis for excluding the concept of
apparent authority from the field of hospital
liability." Thus, in cases where it can be
37 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
shown that a hospital, by its actions, has
held out a particular physician as its agent
and/or employee and that a patient has
accepted treatment from that physician in
the reasonable belief that it is being
rendered in behalf of the hospital, then the
hospital will be liable for the physicians
negligence.
Our jurisdiction recognizes the concept of an
agency by implication or estoppel. Article
1869 of the Civil Code reads:
ART. 1869. Agency may be express, or
implied from the acts of the principal, from
his silence or lack of action, or his failure to
repudiate the agency, knowing that another
person is acting on his behalf without
authority.
In this case, PSI publicly displays in the lobby
of the Medical City Hospital the names and
specializations of the physicians associated
or accredited by it, including those of Dr.
Ampil and Dr. Fuentes. We concur with the
Court of Appeals conclusion that it "is now
estopped from passing all the blame to the
physicians whose names it proudly paraded
in the public directory leading the public to
believe that it vouched for their skill and
competence." Indeed, PSIs act is
tantamount to holding out to the public that
Medical City Hospital, through its accredited
physicians, offers quality health care
services. By accrediting Dr. Ampil and Dr.
Fuentes and publicly advertising their
qualifications, the hospital created the
impression that they were its agents,
authorized to perform medical or surgical
services for its patients. As expected, these
patients, Natividad being one of them,
accepted the services on the reasonable
belief that such were being rendered by the
hospital or its employees, agents, or
servants. The trial court correctly pointed
out:
x x x regardless of the education and status
in life of the patient, he ought not be
burdened with the defense of absence of
employer-employee relationship between the
hospital and the independent physician
whose name and competence are certainly
certified to the general public by the
hospitals act of listing him and his specialty
in its lobby directory, as in the case herein.
The high costs of todays medical and health
care should at least exact on the hospital
greater, if not broader, legal responsibility for
the conduct of treatment and surgery within
its facility by its accredited physician or
surgeon, regardless of whether he is
independent or employed."33
The wisdom of the foregoing ratiocination is
easy to discern. Corporate entities, like PSI,
are capable of acting only through other
individuals, such as physicians. If these
accredited physicians do their job well, the
hospital succeeds in its mission of offering
quality medical services and thus profits
financially. Logically, where negligence mars
the quality of its services, the hospital should
not be allowed to escape liability for the acts
of its ostensible agents.
We now proceed to the doctrine of corporate
negligence or corporate responsibility.
One allegation in the complaint in Civil Case
No. Q-43332 for negligence and malpractice
is that PSI as owner, operator and manager
of Medical City Hospital, "did not perform the
necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and
Fuentes and its nursing staff, resident
doctors, and medical interns who assisted
Drs. Ampil and Fuentes in the performance of
their duties as surgeons."34 Premised on the
doctrine of corporate negligence, the trial
court held that PSI is directly liable for such
breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of
corporate negligence as the judicial answer
to the problem of allocating hospitals
liability for the negligent acts of health
practitioners, absent facts to support the
application of respondeat superior or
apparent authority. Its formulation proceeds
from the judiciarys acknowledgment that in
these modern times, the duty of providing
quality medical service is no longer the sole
prerogative and responsibility of the
physician. The modern hospitals have
changed structure. Hospitals now tend to
organize a highly professional medical staff
whose competence and performance need to
be monitored by the hospitals
commensurate with their inherent
responsibility to provide quality medical
care.35
The doctrine has its genesis in Darling v.
Charleston Community Hospital.36 There, the
Supreme Court of Illinois held that "the jury
could have found a hospital negligent, inter
alia, in failing to have a sufficient number of
trained nurses attending the patient; failing
to require a consultation with or examination
by members of the hospital staff; and failing
to review the treatment rendered to the
patient." On the basis of Darling, other
jurisdictions held that a hospitals corporate
negligence extends to permitting a physician
known to be incompetent to practice at the
38 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
hospital.37 With the passage of time, more
duties were expected from hospitals, among
them: (1) the use of reasonable care in the
maintenance of safe and adequate facilities
and equipment; (2) the selection and
retention of competent physicians; (3) the
overseeing or supervision of all persons who
practice medicine within its walls; and (4)
the formulation, adoption and enforcement
of adequate rules and policies that ensure
quality care for its patients. 38 Thus, in Tucson
Medical Center, Inc. v. Misevich,39 it was held
that a hospital, following the doctrine of
corporate responsibility, has the duty to see
that it meets the standards of responsibilities
for the care of patients. Such duty includes
the proper supervision of the members of its
medical staff. And in Bost v. Riley, 40 the court
concluded that a patient who enters a
hospital does so with the reasonable
expectation that it will attempt to cure him.
The hospital accordingly has the duty to
make a reasonable effort to monitor and
oversee the treatment prescribed and
administered by the physicians practicing in
its premises.
In the present case, it was duly established
that PSI operates the Medical City Hospital
for the purpose and under the concept of
providing comprehensive medical services to
the public. Accordingly, it has the duty to
exercise reasonable care to protect from
harm all patients admitted into its facility for
medical treatment. Unfortunately, PSI failed
to perform such duty. The findings of the trial
court are convincing, thus:
x x x PSIs liability is traceable to its failure to
conduct an investigation of the matter
reported in the nota bene of the count nurse.
Such failure established PSIs part in the dark
conspiracy of silence and concealment about
the gauzes. Ethical considerations, if not also
legal, dictated the holding of an immediate
inquiry into the events, if not for the benefit
of the patient to whom the duty is primarily
owed, then in the interest of arriving at the
truth. The Court cannot accept that the
medical and the healing professions, through
their members like defendant surgeons, and
their institutions like PSIs hospital facility,
can callously turn their backs on and
disregard even a mere probability of mistake
or negligence by refusing or failing to
investigate a report of such seriousness as
the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr.
Fuentes operated on Natividad with the
assistance of the Medical City Hospitals
staff, composed of resident doctors, nurses,
and interns. As such, it is reasonable to
conclude that PSI, as the operator of the
hospital, has actual or constructive
knowledge of the procedures carried out,
particularly the report of the attending
nurses that the two pieces of gauze were
missing. In Fridena v. Evans,41 it was held
that a corporation is bound by the
knowledge acquired by or notice given to its
agents or officers within the scope of their
authority and in reference to a matter to
which their authority extends. This means
that the knowledge of any of the staff of
Medical City Hospital constitutes knowledge
of PSI. Now, the failure of PSI, despite the
attending nurses report, to investigate and
inform Natividad regarding the missing
gauzes amounts to callous negligence. Not
only did PSI breach its duties to oversee or
supervise all persons who practice medicine
within its walls, it also failed to take an active
step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of
the Civil Code, but also directly liable for its
own negligence under Article 2176. In
Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of
care owed to the patient by the hospital has
expanded. The emerging trend is to hold the
hospital responsible where the hospital has
failed to monitor and review medical services
being provided within its walls. See Kahn
Hospital Malpractice Prevention, 27 De Paul .
Rev. 23 (1977).
Among the cases indicative of the emerging
trend is Purcell v. Zimbelman, 18 Ariz. App.
75,500 P. 2d 335 (1972). In Purcell, the
hospital argued that it could not be held
liable for the malpractice of a medical
practitioner because he was an independent
contractor within the hospital. The Court of
Appeals pointed out that the hospital had
created a professional staff whose
competence and performance was to be
monitored and reviewed by the governing
body of the hospital, and the court held that
a hospital would be negligent where it had
knowledge or reason to believe that a doctor
using the facilities was employing a method
of treatment or care which fell below the
recognized standard of care.
Subsequent to the Purcell decision, the
Arizona Court of Appeals held that a hospital
has certain inherent responsibilities
regarding the quality of medical care
furnished to patients within its walls and it
must meet the standards of responsibility
39 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
commensurate with this undertaking. Beeck
v. Tucson General Hospital, 18 Ariz. App. 165,
500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals
that a hospital has the duty of supervising
the competence of the doctors on its staff. x
x x.
x x x x
x x
In the amended complaint, the plaintiffs did
plead that the operation was performed at
the hospital with its knowledge, aid, and
assistance, and that the negligence of the
defendants was the proximate cause of the
patients injuries. We find that such general
allegations of negligence, along with the
evidence produced at the trial of this case,
are sufficient to support the hospitals
liability based on the theory of negligent
supervision."
Anent the corollary issue of whether PSI is
solidarily liable with Dr. Ampil for damages,
let it be emphasized that PSI, apart from a
general denial of its responsibility, failed to
adduce evidence showing that it exercised
the diligence of a good father of a family in
the accreditation and supervision of the
latter. In neglecting to offer such proof, PSI
failed to discharge its burden under the last
paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable
with Dr. Ampil. Moreover, as we have
discussed, PSI is also directly liable to the
Aganas.
One final word. Once a physician undertakes
the treatment and care of a patient, the law
imposes on him certain obligations. In order
to escape liability, he must possess that
reasonable degree of learning, skill and
experience required by his profession. At the
same time, he must apply reasonable care
and diligence in the exercise of his skill and
the application of his knowledge, and exert
his best judgment.
WHEREFORE, we DENY all the petitions and
AFFIRM the challenged Decision of the Court
of Appeals in CA-G.R. CV No. 42062 and CA-
G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel
Ampil. SO ORDERED.