[G.R. No. 124354.
April 11, 2002] She was released from the hospital only four months later or on
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, DE LOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DR.
PERFECTA GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr. Orlino
Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of
the Decision, dated December 29, 1999, of this Court holding them
civilly liable for petitioner Erlinda Ramos comatose condition after
she delivered herself to them for their professional care and
management.
For better understanding of the issues raised in private respondents
respective motions, we will briefly restate the facts of the case as
follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking
professional medical help, was advised to undergo an operation for
the removal of a stone in her gall bladder (cholecystectomy). She
was referred to Dr. Hosaka, a surgeon, who agreed to perform the
operation on her. The operation was scheduled for June 17, 1985 at
9:00 in the morning at private respondent De Los Santos Medical
Center (DLSMC). Since neither petitioner Erlinda nor her husband,
petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the
scheduled operation. By 7:30 in the morning of the following day,
petitioner Erlinda was already being prepared for operation. Upon
the request of petitioner Erlinda, her sister-in-law, Herminda Cruz,
who was then Dean of the College of Nursing at the Capitol
Medical Center, was allowed to accompany her inside the
operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so
Dr. Gutierrez tried to get in touch with him by phone. Thereafter,
Dr. Gutierrez informed Cruz that the operation might be delayed
due to the late arrival of Dr. Hosaka. In the meantime, the patient,
petitioner Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha
mo ako ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around,
petitioner Rogelio already wanted to pull out his wife from the
operating room. He met Dr. Garcia, who remarked that he was also
tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the
hospital at around 12:10 in the afternoon, or more than three (3)
hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr.
Hosakas arrival. While she held the hand of Erlinda, Cruz saw Dr.
Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez
utter: ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan. Cruz noticed a bluish discoloration of Erlindas
nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka
instruct someone to call Dr. Calderon, another anesthesiologist.
When he arrived, Dr. Calderon attempted to intubate the patient.
The nailbeds of the patient remained bluish, thus, she was placed
in a trendelenburg position a position where the head of the patient
is placed in a position lower than her feet. At this point, Cruz went
out of the operating room to express her concern to petitioner
Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that the
patient was still in trendelenburg position. At almost 3:00 in the
afternoon, she saw Erlinda being wheeled to the Intensive Care
Unit (ICU). The doctors explained to petitioner Rogelio that his
wife had bronchospasm. Erlinda stayed in the ICU for a month.
November 15, 1985. Since the ill-fated operation, Erlinda
remained in comatose condition until she died on August 3,
1999.i[1]
Petitioners filed with the Regional Trial Court of Quezon City a
civil case for damages against private respondents. After due trial,
the court a quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private respondents were
negligent in the performance of their duties to Erlinda. On appeal
by private respondents, the Court of Appeals reversed the trial
courts decision and directed petitioners to pay their unpaid medical
bills to private respondents.
Petitioners filed with this Court a petition for review on certiorari.
The private respondents were then required to submit their
respective comments thereon. On December 29, 1999, this Court
promulgated the decision which private respondents now seek to
be reconsidered. The dispositive portion of said Decision states:
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
exemplary damages and attorneys fees; and 5) the costs of the
suit.ii[2]
In his Motion for Reconsideration, private respondent Dr. Hosaka
submits the following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR
WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF
THE CAPTAIN-OF-THE-SHIP DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT
DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN
BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS
LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING
DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL
BASIS.iii[3]
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED THE FACT THAT THE COURT OF APPEALS DECISION
DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY
AS OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT
OF JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES
WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO
NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS
WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT
CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF
HER COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN
HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF
HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO
MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS WITNESS
HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL
CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED
THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT
THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT
DOCTOR.iv[4]
Private respondent De Los Santos Medical Center likewise moves for
reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE
INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT OF
APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN
EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO
HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT
RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE
AWARD OF DAMAGES IN FAVOR OF PETITIONERS.v[5]
In the Resolution of February 21, 2000, this Court denied the
motions for reconsideration of private respondents Drs. Hosaka
and Gutierrez. They then filed their respective second motions for
reconsideration. The Philippine College of Surgeons filed its
Petition-in-Intervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the intervenor, said
doctrine had long been abandoned in the United States in
recognition of the developments in modern medical and hospital
practice.vi[6] The Court noted these pleadings in the Resolution of
July 17, 2000.vii[7]
On March 19, 2001, the Court heard the oral arguments of the
parties, including the intervenor. Also present during the hearing
were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
Philippine Charity Sweepstakes, former Director of the Philippine
General Hospital and former Secretary of Health; Dr. Iluminada T.
Camagay, President of the Philippine Society of Anesthesiologists,
Inc. and Professor and Vice-Chair for Research, Department of
Anesthesiology, College of Medicine-Philippine General Hospital,
University of the Philippines; and Dr. Lydia M. Egay, Professor
and Vice-Chair for Academics, Department of Anesthesiology,
College of Medicine-Philippine General Hospital, University of the
Philippines.
The Court enumerated the issues to be resolved in this case as
follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA
(SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS
SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.viii[8]
We shall first resolve the issue pertaining to private respondent Dr.
Gutierrez. She maintains that the Court erred in finding her
negligent and in holding that it was the faulty intubation which was
the proximate cause of Erlindas comatose condition. The following
objective facts allegedly negate a finding of negligence on her part:
1) That the outcome of the procedure was a comatose patient and
not a dead one; 2) That the patient had a cardiac arrest; and 3) That
the patient was revived from that cardiac arrest.ix[9] In effect, Dr.
Gutierrez insists that, contrary to the finding of this Court, the
intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her
part is belied by the records of the case. It has been sufficiently
established that she failed to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Egay enlightened the
Court on what these standards are:
x x x What are the standards of care that an anesthesiologist should
do before we administer anesthesia? The initial step is the
preparation of the patient for surgery and this is a pre-operative
evaluation because the anesthesiologist is responsible for
determining the medical status of the patient, developing the
anesthesia plan and acquainting the patient or the responsible adult
particularly if we are referring with the patient or to adult patient
who may not have, who may have some mental handicaps of the
proposed plans. We do pre-operative evaluation because this
provides for an opportunity for us to establish identification and
personal acquaintance with the patient. It also makes us have an
opportunity to alleviate anxiety, explain techniques and risks to the
patient, given the patient the choice and establishing consent to
proceed with the plan. And lastly, once this has been agreed upon
by all parties concerned the ordering of pre-operative medications.
And following this line at the end of the evaluation we usually
come up on writing, documentation is very important as far as
when we train an anesthesiologist we always emphasize this
because we need records for our protection, well, records. And it
entails having brief summary of patient history and physical
findings pertinent to anesthesia, plan, organize as a problem list,
the plan anesthesia technique, the plan post operative, pain
management if appropriate, special issues for this particular
patient. There are needs for special care after surgery and if it so it
must be written down there and a request must be made known to
proper authorities that such and such care is necessary. And the
request for medical evaluation if there is an indication. When we
ask for a cardio-pulmonary clearance it is not in fact to tell them if
this patient is going to be fit for anesthesia, the decision to give
anesthesia rests on the anesthesiologist. What we ask them is
actually to give us the functional capacity of certain systems which
maybe affected by the anesthetic agent or the technique that we are
going to use. But the burden of responsibility in terms of selection
of agent and how to administer it rest on the anesthesiologist.x[10]
The conduct of a preanesthetic/preoperative evaluation prior to an
operation, whether elective or emergency, cannot be dispensed
with.xi[11] Such evaluation is necessary for the formulation of a
plan of anesthesia care suited to the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical
history, reviewing his current drug therapy, conducting physical
examination, interpreting laboratory data, and determining the
appropriate prescription of preoperative medications as necessary
to the conduct of anesthesia.xii[12]
Physical examination of the patient entails not only evaluating the
patients central nervous system, cardiovascular system and lungs
but also the upper airway. Examination of the upper airway would
in turn include an analysis of the patients cervical spine mobility,
temporomandibular mobility, prominent central incisors, deceased
or artificial teeth, ability to visualize uvula and the thyromental
distance.xiii[13]
Nonetheless, Dr. Gutierrez omitted to perform a thorough
preoperative evaluation on Erlinda. As she herself admitted, she
saw Erlinda for the first time on the day of the operation itself, one
hour before the scheduled operation. She auscultatedxiv[14] the
patients heart and lungs and checked the latters blood pressure to
determine if Erlinda was indeed fit for operation.xv[15] However,
she did not proceed to examine the patients airway. Had she been
able to check petitioner Erlindas airway prior to the operation, Dr.
Gutierrez would most probably not have experienced difficulty in
intubating the former, and thus the resultant injury could have been
avoided. As we have stated in our Decision:
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 physicians centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.xvi[16]
Further, there is no cogent reason for the Court to reverse its
finding that it was the faulty intubation on Erlinda that caused her
comatose condition. There is no question that Erlinda became
comatose after Dr. Gutierrez performed a medical procedure on
her. Even the counsel of Dr. Gutierrez admitted to this fact during
the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done
by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional
acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by
D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.xvii[17]
What is left to be determined therefore is whether Erlindas hapless
condition was due to any fault or negligence on the part of Dr.
Gutierrez while she (Erlinda) was under the latters care. Dr.
Gutierrez maintains that the bronchospasm and cardiac arrest
resulting in the patients comatose condition was brought about by
the anaphylactic reaction of the patient to Thiopental Sodium
(pentothal).xviii[18] In the Decision, we explained why we found
Dr. Gutierrez theory unacceptable. In the first place, Dr. Eduardo
Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be
considered an authority on anesthesia practice and procedure and
their complications.xix[19]
Secondly, there was no evidence on record to support the theory
that Erlinda developed an allergic reaction to pentothal. Dr.
Camagay enlightened the Court as to the manifestations of an
allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology
an allergic reaction is something which is not usual response and it
is further qualified by the release of a hormone called histamine and
histamine has an effect on all the organs of the body generally
release because the substance that entered the body reacts with the
particular cell, the mass cell, and the mass cell secretes this
histamine. In a way it is some form of response to take away that
which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see
you will have redness, if you have an allergy you will have tearing
of the eyes, you will have swelling, very crucial swelling sometimes
of the larynges which is your voice box main airway, that swelling
may be enough to obstruct the entry of air to the trachea and you
could also have contraction, constriction of the smaller airways
beyond the trachea, you see you have the trachea this way, we
brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and
then eventually into the mass of the lungs you have the bronchus.
The difference is that these tubes have also in their walls muscles
and this particular kind of muscles is smooth muscle so, when
histamine is released they close up like this and that phenomenon is
known as bronco spasm. However, the effects of histamine also on
blood vessels are different. They dilate blood vessel open up and the
patient or whoever has this histamine release has hypertension or
low blood pressure to a point that the patient may have decrease
blood supply to the brain and may collapse so, you may have people
who have this.xx[20]
These symptoms of an allergic reaction were not shown to have
been extant in Erlindas case. As we held in our Decision, 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.xxi[21]
Dr. Gutierrez, however, insists that she successfully intubated
Erlinda as evidenced by the fact that she was revived after
suffering from cardiac arrest. Dr. Gutierrez faults the Court for
giving credence to the testimony of Cruz on the matter of the
administration of anesthesia when she (Cruz), being a nurse, was
allegedly not qualified to testify thereon. Rather, Dr. Gutierrez
invites the Courts attention to her synopsis on what transpired
during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal
2.5% (250 mg) given by slow IV. 02 was
started by mask. After pentothal injection this
was followed by IV injection of Norcuron 4mg.
After 2 minutes 02 was given by positive
pressure for about one minute. Intubation with
endotracheal tube 7.5 m in diameter was done
with slight difficulty (short neck & slightly
prominent upper teeth) chest was examined for
breath sounds & checked if equal on both sides.
The tube was then anchored to the mouth by
plaster & cuff inflated. Ethrane 2% with 02 4
liters was given. Blood pressure was checked
120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane
was discontinued & 02 given alone. Cyanosis
disappeared. Blood pressure and heart beats
stable.
12:30 p.m. Cyanosis again reappeared this time with
sibilant and sonorous rales all over the chest.
D_5%_H20 & 1 ampule of aminophyline by
fast drip was started. Still the cyanosis was
persistent. Patient was connected to a cardiac
monitor. Another ampule of of [sic]
aminophyline was given and solu cortef was
given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage
and intercardiac injection of adrenalin was
given & heart beat reappeared in less than one
minute. Sodium bicarbonate & another dose of
solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted
 positive pressure. Laboratory exams done (see
results in chart).
Patient was transferred to ICU for further management.xxii[22]
From the foregoing, it can be allegedly seen that there was no
withdrawal (extubation) of the tube. And the fact that the cyanosis
allegedly disappeared after pure oxygen was supplied through the
tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the
entries purportedly contained in Dr. Gutierrez synopsis. It is
significant to note that the said record prepared by Dr. Gutierrez
was made only after Erlinda was taken out of the operating room.
The standard practice in anesthesia is that every single act that the
anesthesiologist performs must be recorded. In Dr. Gutierrez case,
she could not account for at least ten (10) minutes of what
happened during the administration of anesthesia on Erlinda. The
following exchange between Dr. Estrella, one of the amicii curiae,
and Dr. Gutierrez is instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or
was the laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-
direct, a certain lawyer, you were asked that you did a first attempt and the question
was did you withdraw the tube? And you said you never withdrew the tube, is that
right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was
no insertion of the tube during that first attempt. Now, the other thing that we have
to settle here is when cyanosis occurred, is it recorded in the anesthesia record when
the cyanosis, in your recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that
period or from the time of induction to the time that you probably get the patient out
of the operating room that every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time anymore because
I did that after the, when the patient was about to leave the operating room. When
there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one
to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal
very slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after
(interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a
relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any
manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19,
is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which
you push it downwards and when I saw that the patient was relax because that
monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope if
it is not keeping him relax. So, my first attempt when I put the laryngoscope on I
saw the trachea was deeply interiorly. So, what I did ask mahirap ata ito ah. So, I
removed the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt
as you claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now
possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea
right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to
three seconds.
Q At what point, for purposes of discussion without accepting it, at what
point did you make the comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making
is based on the documents that were forwarded to me by the Supreme Court. That is
why for purposes of discussion I am trying to clarify this for the sake of
enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first
time.
Q So, when you claim that at the first attempt you inserted the
laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the
transcript of records that when the lawyer of the other party try to inquire from you
during the first attempt that was the time when mayroon ba kayong hinugot sa tube,
I do not remember the page now, but it seems to me it is there. So, that it was on the
second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia
records from 12:20 to 12:30 there was no recording of the vital signs. And can we
presume that at this stage there was already some problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on
anybody I am here just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over your narration, it seems to me that
the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to
enlighten, I am just going over the record ano, kung mali ito kuwan
eh di ano. So, ganoon po ano, that it seems to me that there is no
recording from 12:20 to 12:30, so, I am just wondering why there
were no recordings during the period and then of course the second
cyanosis, after the first cyanosis. I think that was the time Dr.
Hosaka came in?
A No, the first cyanosis (interrupted).xxiii[23]
We cannot thus give full credence to Dr. Gutierrez synopsis in
light of her admission that it does not fully reflect the events that
transpired during the administration of anesthesia on Erlinda. As
pointed out by Dr. Estrella, there was a ten-minute gap in Dr.
Gutierrez synopsis, i.e., the vital signs of Erlinda were not recorded
during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence
of oxygen supply for four (4) to five (5) minutes that caused
Erlindas comatose condition.
On the other hand, the Court has no reason to disbelieve the
testimony of Cruz. As we stated in the Decision, she is competent
to testify on matters 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.xxiv[24] Cruz, Erlindas sister-in-law, was with her inside the
operating room. Moreover, being a nurse and Dean of the Capitol
Medical Center School of Nursing at that, she is not entirely
ignorant of anesthetic procedure. Cruz narrated that she heard Dr.
Gutierrez remark, Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. She observed that the
nailbeds of Erlinda became bluish and thereafter Erlinda was
placed in trendelenburg position.xxv[25] Cruz further averred that
she noticed that the abdomen of Erlinda became
distended.xxvi[26]
The cyanosis (bluish discoloration of the skin or mucous
membranes caused by lack of oxygen or abnormal hemoglobin in
the blood) and enlargement of the stomach of Erlinda indicate that
the endotracheal tube was improperly inserted into the esophagus
instead of the trachea. Consequently, oxygen was delivered not to
the lungs but to the gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed in trendelenburg
position. This indicates that there was a decrease of blood supply
to the patients brain. The brain was thus temporarily deprived of
oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen
absent any negligence in the administration of anesthesia and in the
use of an endotracheal tube. As was noted in our Decision, the
instruments used in the administration of anesthesia, including the
endotracheal tube, were all under the exclusive control of private
respondents Dr. Gutierrez and Dr. Hosaka.xxvii[27] In Voss vs.
Bridwell,xxviii[28] which involved a patient who suffered brain
damage due to the wrongful administration of anesthesia, and even
before the scheduled mastoid operation could be performed, the
Kansas Supreme Court applied the doctrine of res ipsa loquitur,
reasoning that the injury to the patient therein was one which does
not ordinarily take place in the absence of negligence in the
administration of an anesthetic, and in the use and employment of
an endotracheal tube. The court went on to say that [o]rdinarily 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.xxix[29] Considering the application of the doctrine
of res ipsa loquitur, the testimony of Cruz was properly given
credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in
finding him negligent as a surgeon by applying the Captain-of-the-
Ship doctrine.xxx[30] Dr. Hosaka argues that the trend in United
States jurisprudence has been to reject said doctrine in light of the
developments in medical practice. He points out that
anesthesiology and surgery are two distinct and specialized fields
in medicine and as a surgeon, he is not deemed to have control
over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is
a specialist in her field and has acquired skills and knowledge in
the course of her training which Dr. Hosaka, as a surgeon, does not
possess.xxxi[31] He states further that current American
jurisprudence on the matter recognizes that the trend towards
specialization in medicine has created situations where surgeons do
not always have the right to control all personnel within the
operating room,xxxii[32] especially a fellow specialist.xxxiii[33]
Dr. Hosaka cites the case of Thomas v. Raleigh General
Hospital,xxxiv[34] which involved a suit filed by a patient who
lost his voice due to the wrongful insertion of the endotracheal
tube preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued both
the anesthesiologist and the surgeon for the injury suffered by him.
The Supreme Court of Appeals of West Virginia held that the
surgeon could not be held liable for the loss of the patients voice,
considering that the surgeon did not have a hand in the intubation
of the patient. The court rejected the application of the Captain-of-
the-Ship Doctrine, citing the fact that the field of medicine has
become specialized such that surgeons can no longer be deemed as
having control over the other personnel in the operating room. It
held that [a]n assignment of liability based on actual control more
realistically reflects the actual relationship which exists in a
modern operating room.xxxv[35] Hence, only the anesthesiologist
who inserted the endotracheal tube into the patients throat was held
liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with
the Captain-of-the-Ship doctrine does not mean that this Court will
ipso facto follow said trend. Due regard for the peculiar factual
circumstances obtaining in this case justify the application of the
Captain-of-the-Ship doctrine. From the facts on record it can be
logically inferred that Dr. Hosaka exercised a certain degree of, at
the very least, supervision over the procedure then being
performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the
services of Dr. Gutierrez. In effect, he represented to petitioners
that Dr. Gutierrez possessed the necessary competence and skills.
Drs. Hosaka and Gutierrez had worked together since 1977.
Whenever Dr. Hosaka performed a surgery, he would always
engage the services of Dr. Gutierrez to administer the anesthesia
on his patient.xxxvi[36]
Second, Dr. Hosaka himself admitted that he was the attending
physician of Erlinda. Thus, when Erlinda showed signs of
cyanosis, it was Dr. Hosaka who gave instructions to call for
another anesthesiologist and cardiologist to help resuscitate
Erlinda.xxxvii[37]
Third, it is conceded that in performing their responsibilities to the
patient, Drs. Hosaka and Gutierrez worked as a team. Their work
cannot be placed in separate watertight compartments because their
duties intersect with each other.xxxviii[38]
While the professional services of Dr. Hosaka and Dr. Gutierrez
were secured primarily for their performance of acts within their
respective fields of expertise for the treatment of petitioner Erlinda,
and that one does not exercise control over the other, they were
certainly not completely independent of each other so as to absolve
one from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact
that Dr. Hosaka was keeping an eye on the intubation of the patient
by Dr. Gutierrez, and while doing so, he observed that the patients
nails had become dusky and had to call Dr. Gutierrezs attention
thereto. The Court also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist would also have to
observe the surgeons acts during the surgical process and calls the
attention of the surgeon whenever necessaryxxxix[39] in the
course of the treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are therefore not as
clear-cut as respondents claim them to be. On the contrary, it is
quite apparent that they have a common responsibility to treat the
patient, which responsibility necessitates that they call each others
attention to the condition of the patient while the other physician is
performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in
his duty of attending to petitioner Erlinda promptly, for he arrived
more than three (3) hours late for the scheduled operation. The
cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he
arrived at DLSMC only at around 12:10 p.m. In reckless disregard
for his patients well being, Dr. Hosaka scheduled two procedures
on the same day, just thirty minutes apart from each other, at
different hospitals. Thus, when the first procedure (protoscopy) at
the Sta. Teresita Hospital did not proceed on time, Erlinda was
kept in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled operation
subjected her to continued starvation and consequently, to the risk
of acidosis,xl[40] or the condition of decreased alkalinity of the
blood and tissues, marked by sickly sweet breath, headache, nausea
and vomiting, and visual disturbances.xli[41] The long period that
Dr. Hosaka made Erlinda wait for him certainly aggravated the
anxiety that she must have been feeling at the time. It could be
safely said that her anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay, the patients
anxiety usually causes the outpouring of adrenaline which in turn
results in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One
is to alleviate anxiety. Second is to dry up the secretions and Third
is to relieve pain. Now, it is very important to alleviate anxiety
because anxiety is associated with the outpouring of certain
substances formed in the body called adrenalin. When a patient is
anxious there is an outpouring of adrenalin which would have
adverse effect on the patient. One of it is high blood pressure, the
other is that he opens himself to disturbances in the heart rhythm,
which would have adverse implications. So, we would like to
alleviate patients anxiety mainly because he will not be in control of
his body there could be adverse results to surgery and he will be
opened up; a knife is going to open up his body. x x xxlii[42]
Dr. Hosaka cannot now claim that he was entirely blameless of
what happened to Erlinda. His conduct clearly constituted a breach
of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about
anxiety, would you consider a patient's stay on the operating table
for three hours sufficient enough to aggravate or magnify his or her
anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three
hours waiting and the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the
anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a
source of anxiety and most operating tables are very narrow and
that patients are usually at risk of falling on the floor so there are
restraints that are placed on them and they are never, never left
alone in the operating room by themselves specially if they are
already pre-medicated because they may not be aware of some of
their movement that they make which would contribute to their
injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.xliii[43]
Dr. Hosaka's irresponsible conduct of arriving very late for the
scheduled operation of petitioner Erlinda is violative, not only of
his duty as a physician to serve the interest of his patients with the
greatest solicitude, giving them always his best talent and
skill,xliv[44] but also of Article 19 of the Civil Code which
requires a person, in the performance of his duties, to act with
justice and give everyone his due.
Anent private respondent DLSMCs liability for the resulting injury
to petitioner Erlinda, we held that respondent hospital is solidarily
liable with respondent doctors therefor under Article 2180 of the
Civil Codexlv[45] since there exists an employer-employee
relationship between private respondent DLSMC and Drs.
Gutierrez and Hosaka:
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. x x
xxlvi[46]
DLSMC however contends that applying the four-fold test in
determining whether such a relationship exists between it and the
respondent doctors, the inescapable conclusion is that DLSMC
cannot be considered an employer of the respondent doctors.
It has been consistently held that in determining whether an
employer-employee relationship exists between the parties, the
following elements must be present: (1) selection and engagement
of services; (2) payment of wages; (3) the power to hire and fire;
and (4) the power to control not only the end to be achieved, but
the means to be used in reaching such an end.xlvii[47]
DLSMC maintains that first, a hospital does not hire or engage the
services of a consultant, but rather, accredits the latter and grants
him or her the privilege of maintaining a clinic and/or admitting
patients in the hospital upon a showing by the consultant that he or
she possesses the necessary qualifications, such as accreditation by
the appropriate board (diplomate), evidence of fellowship and
references.xlviii[48] Second, it is not the hospital but the patient
who pays the consultants fee for services rendered by the
latter.xlix[49] Third, a hospital does not dismiss a consultant;
instead, the latter may lose his or her accreditation or privileges
granted by the hospital.l[50] Lastly, DLSMC argues that when a
doctor refers a patient for admission in a hospital, it is the doctor
who prescribes the treatment to be given to said patient. The
hospitals obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and
medications prescribed by the doctor, the equipment and facilities
necessary for the treatment of the patient, as well as the services of
the hospital staff who perform the ministerial tasks of ensuring that
the doctors orders are carried out strictly.li[51]
After a careful consideration of the arguments raised by DLSMC,
the Court finds that respondent hospitals position on this issue is
meritorious. There is no employer-employee relationship between
DLSMC and Drs. Gutierrez and Hosaka which would hold
DLSMC solidarily liable for the injury suffered by petitioner
Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a
physician to membership in DLSMCs medical staff as active or
visiting consultant is first decided upon by the Credentials
Committee thereof, which is composed of the heads of the various
specialty departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department head of the
particular specialty applied for as chairman. The Credentials
Committee then recommends to DLSMC's Medical Director or
Hospital Administrator the acceptance or rejection of the applicant
physician, and said director or administrator validates the
committee's recommendation.lii[52] Similarly, in cases where a
disciplinary action is lodged against a consultant, the same is
initiated by the department to whom the consultant concerned
belongs and filed with the Ethics Committee consisting of the
department specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which pays any of
its consultants for medical services rendered by the latter to their
respective patients. Moreover, the contract between the consultant
in respondent hospital and his patient is separate and distinct from
the contract between respondent hospital and said patient. The first
has for its object the rendition of medical services by the
consultant to the patient, while the second concerns the provision
by the hospital of facilities and services by its staff such as nurses
and laboratory personnel necessary for the proper treatment of the
patient.
Further, no evidence was adduced to show that the injury suffered
by petitioner Erlinda was due to a failure on the part of respondent
DLSMC to provide for hospital facilities and staff necessary for
her treatment.
For these reasons, we reverse the finding of liability on the part of
DLSMC for the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of
damages to petitioners in view of the supervening event of
petitioner Erlindas death. In the assailed Decision, the Court
awarded actual damages of One Million Three Hundred Fifty Two
Thousand Pesos (P1,352,000.00) to cover the expenses for
petitioner Erlindas treatment and care from the date of
promulgation of the Decision up to the time the patient expires or
survives.liii[53] In addition thereto, the Court awarded temperate
damages of One Million Five Hundred Thousand Pesos
(P1,500,000.00) in view of the chronic and continuing nature of
petitioner Erlindas injury and the certainty of further pecuniary
loss by petitioners as a result of said injury, the amount of which,
however, could not be made with certainty at the time of the
promulgation of the decision. The Court justified such award in
this manner:
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. In other words,
temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitableand certainly not in the best interests
of the administration of justicefor the victim in such cases to
constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously
awardedtemperate 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.liv[54]
However, subsequent to the promulgation of the Decision, the
Court was informed by petitioner Rogelio that petitioner Erlinda
died on August 3, 1999.lv[55] In view of this supervening event,
the award of temperate damages in addition to the actual or
compensatory damages would no longer be justified since the
actual damages awarded in the Decision are sufficient to cover the
medical expenses incurred by petitioners for the patient. Hence,
only the amounts representing actual, moral and exemplary
damages, attorneys fees and costs of suit should be awarded to
petitioners.
WHEREFORE, the assailed Decision is hereby modified as
follows:
(1) Private respondent De Los Santos Medical Center is hereby
absolved from liability arising from the injury suffered by
petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez are hereby declared to be solidarily liable for the injury
suffered by petitioner Erlinda on June 17, 1985 and are ordered to
pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
Res Ipsa Loquitur; Medical Negligence Cases
Once again, the SC in Dr. Milagros Cantre v. Sps. Go, G.R. No.
160889, April 27, 2007, had the occasion to say that the
Hippocratic Oath mandates physicians to give primordial
consideration to the well-being of their patients. If a doctor fails to
live up to this precept, he is accountable for his acts. This
notwithstanding, courts face a unique restraint in adjudicating
medical negligence cases because physicians are not guarantors of
case and, they never set out to intentionally cause injury to their
patients. However, intent is immaterial in negligence cases because
where negligence exists and is proven, it automatically gives the
injured a right to reparation for the damage caused. (Ramos v. CA,
G.R. No. 124354, December 29, 1999, 321 SCRA 584).
In cases involving medical negligence, the doctrine of res ipsa
loquitur allows the mere existence of an injury to justify a
presumption of negligence on the part of the person who controls
the instrument causing the injury, provided that the following
requisites concur:
1. The accident is of a kind which ordinarily does not occur in the
absence of someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of
the defendant or defendants; and
3. the possibility of contributing conduct would make the plaintiff
responsible is eliminated.
In this case, a woman gave birth. Due to the operation, there was
profuse bleeding inside her womb, hence, the doctors performed
various medical procedures. Her blood pressure was monitored
with the use of a sphygmomamometer. It was observed later on
that there was a fresh gaping wound in the inner portion of her left
arm. The NBI-Medico Legal found out that it appeared to be a
burn resulting in the placing of a droplight near her skin. Despite
surgical operation, there was an unsightly mark in her left arm and
the pain remained and her movements were restricted. A complaint
was filed praying for damages where the RTC rendered judgment
holding the doctor liable. The CA affirmed, but modified the
judgment. On appeal to the SC it was contended that the wound
was not caused by the droplight but by the constant taking of her
blood pressure.
The SC said that, that is immaterial. The medical practice is to
deflate the blood pressure cuff immediately after each use.
Otherwise, the inflated band can cause injury to the patient similar
to what could have happened in this case. Thus, if the wound was
caused by the blood pressure cuff, then the taking of the blood
pressure must have been done so negligently as to have inflicted a
gaping wound on her arm, for which the defendant cannot escape
liability under the “captain of the ship” doctrine.
The argument that the failed plastic surgery was not intended as a
cosmetic procedure, but rather as a measure to prevent
complication does not help her case. It does not negate negligence
on her part.
Based on the foregoing, the presumption that defendant was
negligent in the exercise of her profession stands unrebutted. In
this connection, the Civil Code provides:
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done…
ART. 2217. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
the defendant’s wrongful act or omission.
Clearly, under the law, the defendant is obliged to pay plaintiff for
moral damages suffered by the latter as a proximate result of her
negligence.
On the presumption of negligence under the principle of res ipsa
loquitur, the SC in applying the requirements of the rule said:
As to the first requirement, the gaping wound the plaintiff’s
certainly not an ordinary occurrence in the act of delivering a baby,
far removed as the arm is from the organs involved in the process
of giving birth. Such injury could not have happened unless
negligence had set in somewhere.
Second, whether the injury was caused by the droplight or by the
blood pressure cuff is of no moment. Both instruments are deemed
within the exclusive control of the physician in charge under the
“captain of the ship” doctrine. This doctrine holds the surgeon in
charge of an operation liable for the negligence of his assistants
during the time when those assistants are under the surgeon’s
control. (Black Law Dictionary, 192 (5th ed., 1979). In this
particular case, it can be logically inferred that defendant, the
senior consultant in charge during the delivery of the baby,
exercised control over the assistants assigned to both the use of the
droplight and the taking of the plaintiff’s blood pressure. Hence,
the use of the droplight and the blood pressure cuff is also within
her exclusive control.
Third, the gaping wound on the plaintiff’s left arm, by its very
nature and considering her condition, could only be caused by
something external to her and outside her control as she was
unconscious while in hypovolemic shock. Hence, plaintiff could
not, by any stretch of the imagination, have contributed to her own
injury.
The defense that the wound was caused not by the droplight but by
the constant taking of her blood pressure, even if the latter was
necessary given her condition, does not absolve her from liability.
[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 decisionlvi[1] 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.lvii[2]
Typhoid fever was then prevalent in the locality, as the clinic had
been getting from 15 to 20 cases of typhoid per month.lviii[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.lix[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.lx[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 complaintlxi[6]for damages against respondents
Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr.
Marlyn Rico, and nurse Josephine Pagente. On September 24,
1987, petitioners amended their complaint to implead respondent
Mercy Community Clinic as additional defendant and to drop the
name of Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal contention was
that Jorge did not die of typhoid fever.lxii[7] Instead, his death was
due to the wrongful administration of chloromycetin. They
contended that had respondent doctors exercised due care and
diligence, they would not have recommended and rushed the
performance of the Widal Test, hastily concluded that Jorge was
suffering from typhoid fever, and administered chloromycetin
without first conducting sufficient tests on the 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.lxiii[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
findingslxiv[9] 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.lxv[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.lxvi[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:
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.lxvii[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.lxviii[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.lxix[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.lxx[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:lxxi[16]
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act
or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitor is availed by the plaintiff, the need
for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies only to
such matters clearly within the domain of medical science, and not
to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce
expert medical testimony to establish the standard of care. Resort
to res ipsa loquitor is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the
patient after an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of
the wrong 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.lxxii[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.lxxiii[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.lxxiv[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.lxxv[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;lxxvi[21] and (2) Dr. Marvie Blanes
erred in ordering the administration of the second dose of 500
milligrams of chloromycetin barely three hours after the first was
given.lxxvii[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:lxxviii[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 bronchospasmslxxix[24] triggered
by her allergic response to a drug,lxxx[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.lxxxi[26] According to him, when a case of
typhoid fever is suspected, the Widal test is normally
used,lxxxii[27] and 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.lxxxiii[28] As to the treatment of the disease, he
stated that chloromycetin was the drug of choice.lxxxiv[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:lxxxv[30]
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment
if any would be given?
A If those are the findings that would be presented to me, the first thing I
would consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered
chloramphenical about 3 1/2 hours later, the patient associated with chills,
temperature - 41oC, what could possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of
complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is
complications are caused by toxins produced by the bacteria . . . whether you have
suffered complications to think of -- heart toxic myocardities; then you can consider
a toxic meningitis and other complications and perforations and bleeding in the
ilium.
Q Even that 40-year old married patient who received medication of
chloromycetin of 500 milligrams intravenous, after the skin test, and received a
second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed
chills . . . rise in temperature to 41oC, and then about 40 minutes later the
temperature rose to 100oF, cardiac rate of 150 per minute who appeared to be
coherent, restless, nauseating, with seizures: what significance could you attach to
these clinical changes?
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 hyperplasialxxxvi[31] 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.lxxxvii[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.lxxxviii[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.lxxxix[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.xc[35]
He also agreed with Dr. Gotiong that hyperplasia in the payers
patches may be microscopic.xci[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.xcii[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 shockxciii[38] or possibly from
overdose as the second dose should have been administered five to
six hours after the first, per instruction of Dr. Marlyn Rico. As held
by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is best
established by medical authority. Wilson, et. al., in Harrisons
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 drugs administered. The onus
probandi was on the appellants to establish, before the trial court,
that the appellee-physicians ignored standard medical procedure,
prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of
general practitioners similarly situated.xciv[39]
Fourth. Petitioners correctly observe that the medical profession is
one which, like the business of a common carrier, is affected with
public interest. Moreover, they assert that since the law imposes
upon common carriers the duty of observing extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers,xcv[40] physicians and surgeons should have the same
duty toward their patients.xcvi[41] They also contend that the
Court of Appeals erred when it allegedly assumed that the level of
medical practice is lower in Iligan City, thereby reducing the
standard of care and degree of diligence required from physicians
and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common
carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to the circumstances of
each case. . . .
The practice of medicine is a profession engaged in only by
qualified individuals. It is a right earned through years of
education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any
time and for cause, be revoked by the government. In addition to
state regulation, the conduct of doctors is also strictly governed by
the Hippocratic Oath, an ancient code of discipline and ethical
rules which doctors have imposed upon themselves in recognition
and acceptance of their great responsibility to society. Given these
safeguards, there is no need to expressly require of doctors the
observance of extraordinary diligence. As it is now, the practice of
medicine is already conditioned upon the highest degree of
diligence. And, as we have already noted, the standard
contemplated for doctors is simply the reasonable average merit
among ordinarily good physicians. That is reasonable diligence for
doctors or, as the Court of Appeals called it, the reasonable skill
and competence . . . that a physician in the same or similar locality
. . . should apply.
WHEREFORE, the instant petition is DENIED and the decision
of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 192123 March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been
pronounced guilty of reckless imprudence resulting in serious
physical injuries by the Regional Trial Court (RTC) and the Court
of Appeals (CA). He had been part of the team of anesthesiologists
during the surgical pull-through operation conducted on a three-
year old patient born with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an
imperforate anus. Two days after his birth, Gerald underwent
colostomy, a surgical procedure to bring one end of the large
intestine out through the abdominal wall,3 enabling him to excrete
through a colostomy bag attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the
Ospital ng Maynila for a pull-through operation.5 Dr. Leandro
Resurreccion headed the surgical team, and was assisted by Dr.
Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon
and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the
operation, Gerald experienced bradycardia,7 and went into a
coma.8 His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see, hear
or move.11
Agitated by her son’s helpless and unexpected condition, Ma. Luz
Gercayo (Luz) lodged a complaint for reckless imprudence
resulting in serious physical injuries with the City Prosecutor’s
Office of Manila against the attending physicians.12
Upon a finding of probable cause, the City Prosecutor’s Office
filed an information solely against Dr. Solidum,13 alleging: –
That on or about May 17, 1995, in the City of Manila, Philippines,
the said accused, being then an anesthesiologist at the Ospital ng
Maynila, Malate, this City, and as such was tasked to administer
the anesthesia on three-year old baby boy GERALD ALBERT
GERCAYO, represented by his mother, MA. LUZ GERCAYO,
the former having been born with an imperforate anus [no anal
opening] and was to undergo an operation for anal opening [pull
through operation], did then and there willfully, unlawfully and
feloniously fail and neglect to use the care and diligence as the best
of his judgment would dictate under said circumstance, by failing
to monitor and regulate properly the levels of anesthesia
administered to said GERALD ALBERT GERCAYO and using
100% halothane and other anesthetic medications, causing as a
consequence of his said carelessness and negligence, said
GERALD ALBERT GERCAYO suffered a cardiac arrest and
consequently a defect called hypoxic encephalopathy meaning
insufficient oxygen supply in the brain, thereby rendering said
GERALD ALBERT GERCAYO incapable of moving his body,
seeing, speaking or hearing, to his damage and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of
Manila, but was transferred to the RTC pursuant to Section 5 of
Republic Act No. 8369 (The Family Courts Act of 1997),15 where
it was docketed as Criminal Case No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr.
Solidum guilty beyond reasonable doubt of reckless imprudence
resulting to serious physical injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR.
FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY
of arresto mayor as minimum to ONE (1) YEAR, ONE (1)
MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital
ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of ₱500,000.00 as moral
damages and ₱100,000.00 as exemplary damages and to pay the
costs.
Accordingly, the bond posted by the accused for his provisional
liberty is hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider
their solidary liability,18 the RTC excluded them from solidary
liability as to the damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr.
Fernando Solidum, guilty beyond reasonable doubt as principal of
the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto
mayor as minimum to one (1) year, one (1) month and ten (10)
days of prision correccional as maximum and to indemnify jointly
and severally with Ospital ng Maynila, private complainant Luz
Gercayo the amount of ₱500,000.00 as moral damages and
₱100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional
liberty is hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr.
Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit
to undergo a major operation. As noted by the OSG, the accused
himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other
procedures failed to reveal that he was suffering from any known
ailment or disability that could turn into a significant risk. There
was not a hint that the nature of the operation itself was a causative
factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable
hypothesis except to attribute the accident to a failure in the proper
administration of anesthesia, the gravamen of the charge in this
case. The High Court elucidates in Ramos vs. Court of Appeals
321 SCRA 584 –
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 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.
The lower court has found that such a nexus exists between the act
complained of and the injury sustained, and in line with the
hornbook rules on evidence, we will afford the factual findings of a
trial court the respect they deserve in the absence of a showing of
arbitrariness or disregard of material facts that might affect the
disposition of the case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal
cases. Although it creates a presumption of negligence, it need not
offend due process, as long as the accused is afforded the
opportunity to go forward with his own evidence and prove that he
has no criminal intent. It is in this light not inconsistent with the
constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the
lower court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied
his motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONER’S
CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL
COURT’S OPINION, AND NOT ON THE BASIS OF THE FACTS
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT
TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE
COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER
COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE
INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE
BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE
PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS
ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF
THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE
ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND
THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA
MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE
LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS
NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE,
AND NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a)
whether or not the doctrine of res ipsa loquitur was applicable
herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the
transaction speaks for itself." The doctrine res ipsa loquitur means
that "where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose
from want of care."24 It is simply "a recognition of the postulate
that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human experience and
on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine
of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a
rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The doctrine, when applicable to the facts
and circumstances of a given case, is not meant to and does not
dispense with the requirement of proof of culpable negligence
against the party charged. It merely determines and regulates what
shall be prima facie evidence thereof, and helps the plaintiff in
proving a breach of the duty. The doctrine can be invoked when
and only when, under the circumstances involved, direct evidence
is absent and not readily available.27
The applicability of the doctrine of res ipsa loquitur in medical
negligence cases was significantly and exhaustively explained in
Ramos v. Court of Appeals,28 where the Court said –
Medical malpractice cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act
or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed 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 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, 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 patient’s jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following
an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has
been measurably enlarged, it does not automatically apply to all
cases of medical negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to
be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as would
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 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. 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.
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 intervention, 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.
In order to allow resort to the doctrine, therefore, the following
essential requisites must first be satisfied, to wit: (1) the accident
was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury
was under the exclusive control of the person charged; and (3) the
injury suffered must not have been due to any voluntary action or
contribution of the person injured.29
The Court considers the application here of the doctrine of res ipsa
loquitur inappropriate. Although it should be conceded without
difficulty that the second and third elements were present,
considering that the anesthetic agent and the instruments were
exclusively within the control of Dr. Solidum, and that the patient,
being then unconscious during the operation, could not have been
guilty of contributory negligence, the first element was undeniably
wanting. Luz delivered Gerald to the care, custody and control of
his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the
time of his submission to the physicians. Yet, he experienced
bradycardia during the operation, causing loss of his senses and
rendering him immobile. Hypoxia, or the insufficiency of oxygen
supply to the brain that caused the slowing of the heart rate,
scientifically termed as bradycardia, would not ordinarily occur in
the process of a pull-through operation, or during the
administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians,
including the anesthesiologists, had caused the injury. In fact, the
anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the
vago-vagal reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly reached in
Swanson v. Brigham,31 relevant portions of the decision therein
being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall
Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen
throat and some breathing difficulty. Early in the morning of
January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham
examined the patient. His inspection of the patient's air passage
revealed that it was in satisfactory condition. At 4:15 a.m. Dr.
Brigham received a telephone call from the hospital, advising him
that the patient was having respiratory difficulty. The doctor
ordered that oxygen be administered and he prepared to leave for
the hospital. Ten minutes later, 4:25 a.m., the hospital called a
second time to advise the doctor that the patient was not
responding. The doctor ordered that a medicine be administered,
and he departed for the hospital. When he arrived, the physician
who had been on call at the hospital had begun attempts to revive
the patient. Dr. Brigham joined him in the effort, but the patient
died.
The doctor who performed the autopsy concluded that the patient
died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a
sudden, acute closing of the air passage. He also found that the air
passage had been adequate to maintain life up to 2 or 3 minutes
prior to death. He did not know what caused the air passage to
suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the
treatment of infectious mononucleosis dies of asphyxiation. But
that is not sufficient to invoke res ipsa loquitur. The fact that the
injury rarely occurs does not in itself prove that the injury was
probably caused by someone's negligence. Mason v. Ellsworth, 3
Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v.
Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser,
The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The
evidence presented is insufficient to establish the first element
necessary for application of res ipsa loquitur doctrine. The acute
closing of the patient’s air passage and his resultant asphyxiation
took place over a very short period of time. Under these
circumstances it would not be reasonable to infer that the physician
was negligent. There was no palpably negligent act. The common
experience of mankind does not suggest that death would not be
expected without negligence. And there is no expert medical
testimony to create an inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur,
the Court next determines whether the CA correctly affirmed the
conviction of Dr. Solidum for criminal negligence.
Negligence is defined as the failure to observe for the protection of
the interests of another person that degree of care, precaution, and
vigilance that the circumstances justly demand, whereby such
other person suffers injury.32 Reckless imprudence, on the other
hand, consists of voluntarily doing or failing to do, without malice,
an act from which material damage results by reason of an
inexcusable lack of precaution on the part of the person performing
or failing to perform such act.33
Dr. Solidum’s conviction by the RTC was primarily based on his
failure to monitor and properly regulate the level of anesthetic
agent administered on Gerald by overdosing at 100% halothane. In
affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround.
He affirmed the findings and conclusions in his report except for
an observation which, to all intents and purposes, has become the
storm center of this dispute. He wanted to correct one piece of
information regarding the dosage of the anesthetic agent
administered to the child. He declared that he made a mistake in
reporting a 100% halothane and said that based on the records it
should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record – A portion of the chart in the
record was marked as Exhibit 1-A and 1-B to indicate the
administration at intervals of the anesthetic agent.
(b) the clinical abstract – A portion of this record that
reads as follows was marked Exhibit 3A. 3B –
Approximately 1 hour and 45 minutes through the
operation, patient was noted to have bradycardia (CR =
70) and ATSO4 0.2 mg was immediately administered.
However, the bradycardia persisted, the inhalational agent
was shut off, and the patient was ventilated with 100%
oxygen and another dose of ATSO4 0.2 mg was given.
However, the patient did not respond until no cardiac rate
can be auscultated and the surgeons were immediately
told to stop the operation. The patient was put on a supine
position and CPR was initiated. Patient was given 1 amp
of epinephrine initially while continuously doing cardiac
massage – still with no cardiac rate appreciated; another
ampule of epinephrine was given and after 45 secs,
patient’s vital signs returned to normal. The entire
resuscitation lasted approximately 3-5 mins. The surgeons
were then told to proceed to the closure and the child’s
vital signs throughout and until the end of surgery were:
BP = 110/70; CR = 116/min and RR = 20-22 cycles/min
(on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that
the patient was ventilated with 100% oxygen and another dose of
ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the
anesthesia record on the percentage of the dosage indicated, but he
could only sheepishly note I can’t understand the number. There
are no clues in the clinical abstract on the quantity of the anesthetic
agent used. It only contains the information that the anesthetic plan
was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent
and that 1 hour and 45 minutes after the operation began,
bradycardia occurred after which the inhalational agent was shut
off and the patient administered with 100% oxygen. It would be
apparent that the 100% oxygen that Dr. Vertido said should be read
in lieu of 100% halothane was the pure oxygen introduced after
something went amiss in the operation and the halothane itself was
reduced or shut off.
The key question remains – what was the quantity of halothane
used before bradycardia set in?
The implication of Dr. Vertido’s admission is that there was no
overdose of the anesthetic agent, and the accused Dr. Solidum
stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never
leaving the operating room except for a few minutes to answer the
call of nature but leaving behind the other members of his team
Drs. Abella and Razon to monitor the operation. He insisted that he
administered only a point 1% not 100% halothane, receiving
corroboration from Dr. Abella whose initial MA in the record
should be enough to show that she assisted in the operation and
was therefore conversant of the things that happened. She revealed
that they were using a machine that closely monitored the
concentration of the agent during the operation.
But most compelling is Dr. Solidum’s interpretation of the
anesthesia record itself, as he takes the bull by the horns, so to
speak. In his affidavit, he says, reading from the record, that the
quantity of halothane used in the operation is one percent (1%)
delivered at time intervals of 15 minutes. He studiedly mentions –
the concentration of halothane as reflected in the anesthesia record
(Annex D of the complaint-affidavit) is only one percent (1%) –
The numbers indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the patient
Gerard Gercayo for his entire operation; The amount of halothane
delivered in this case which is only one percent cannot be
summated because halothane is constantly being rapidly eliminated
by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC
argued that the volte-face of Dr. Vertido on the question of the
dosage of the anesthetic used on the child would not really validate
the non-guilt of the anesthesiologist. Led to agree that the
halothane used was not 100% as initially believed, he was
nonetheless unaware of the implications of the change in his
testimony. The court observed that Dr. Vertido had described the
condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the
symptoms attributed to a failing central nervous system such as
stupor, loss of consciousness, decrease in heart rate, loss of usual
acuity and abnormal motor function, are manifestations of this
condition or syndrome. But why would there be deprivation of
oxygen if 100% oxygen to 1% halothane was used? Ultimately, to
the court, whether oxygen or halothane was the object of mistake,
the detrimental effects of the operation are incontestable, and they
can only be led to one conclusion – if the application of anesthesia
was really closely monitored, the event could not have
happened.34
The Prosecution did not prove the elements of reckless imprudence
beyond reasonable doubt because the circumstances cited by the
CA were insufficient to establish that Dr. Solidum had been guilty
of inexcusable lack of precaution in monitoring the administration
of the anesthetic agent to Gerald. The Court aptly explained in
Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined
according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of treatment
or the present state of medical science. In the recent case of
Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court
stated that in accepting a case, a doctor in effect represents that,
having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training,
care and skill in the treatment of his patients. He therefore has a
duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. Further, inasmuch as
the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support
the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the
burden of establishing appellant's negligence and for a reasonable
conclusion of negligence, there must be proof of breach of duty on
the part of the surgeon as well as a causal connection of such
breach and the resulting death of his patient. In Chan Lugay v. St
Luke's Hospital, Inc., where the attending physician was absolved
of liability for the death of the complainant’s wife and newborn
baby, this Court held that:
"In order that there may be a recovery for an injury, however, it
must be shown that the ‘injury for which recovery is sought must
be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes.’ In
other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of.’ And ‘the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which
the result would not have occurred.’"
An action upon medical negligence – whether criminal, civil or
administrative – calls for the plaintiff to prove by competent
evidence each of the following four elements, namely: (a) the duty
owed by the physician to the patient, as created by the physician-
patient relationship, to act in accordance with the specific norms or
standards established by his profession; (b) the breach of the duty
by the physician’s failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a reasonably
close and causal connection between the negligent act or omission
and the resulting injury; and (4) the damages suffered by the
patient.36
In the medical profession, specific norms or standards to protect
the patient against unreasonable risk, commonly referred to as
standards of care, set the duty of the physician to act in respect of
the patient. Unfortunately, no clear definition of the duty of a
particular physician in a particular case exists. Because most
medical malpractice cases are highly technical, witnesses with
special medical qualifications must provide guidance by giving the
knowledge necessary to render a fair and just verdict. As a result,
the standard of medical care of a prudent physician must be
determined from expert testimony in most cases; and in the case of
a specialist (like an anesthesiologist), the standard of care by which
the specialist is judged is the care and skill commonly possessed
and exercised by similar specialists under similar circumstances.
The specialty standard of care may be higher than that required of
the general practitioner.37
The standard of care is an objective standard by which the conduct
of a physician sued for negligence or malpractice may be
measured, and it does not depend, therefore, on any individual
physician’s own knowledge either. In attempting to fix a standard
by which a court may determine whether the physician has
properly performed the requisite duty toward the patient, expert
medical testimony from both plaintiff and defense experts is
required. The judge, as the trier of fact, ultimately determines the
standard of care, after listening to the testimony of all medical
experts.38
Here, the Prosecution presented no witnesses with special medical
qualifications in anesthesia to provide guidance to the trial court on
what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first
three elements of a negligence and malpractice action were
attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had
conducted the investigation.39 Even then, the report of his
Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old
male who underwent a pull-thru operation and was administered
general anesthesia by a team of anesthesia residents. The patient, at
the time when the surgeons was manipulating the recto-sigmoid
and pulling it down in preparation for the anastomosis, had
bradycardia. The anesthesiologists, sensing that the cause thereof
was the triggering of the vago-vagal reflex, administered atropine
to block it but despite the administration of the drug in two doses,
cardiac arrest ensued. As the records show, prompt resuscitative
measures were administered and spontaneous cardiac function re-
established in less than five (5) minutes and that oxygen was
continuously being administered throughout, unfortunately, as later
become manifest, patient suffered permanent irreversible brain
damage.
In view of the actuations of the anaesthesiologists and the
administration of anaesthesia, the committee find that the same
were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on
the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the
National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the results
of the physical examination he had conducted on Gerald, as borne
out by the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General
Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the
conduction of Anesthesia and in this case, halothane was used as a
sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you
mentioned that after one hour and 45 minutes after the operation,
the patient experienced a bradycardia or slowing of heart rate, now
as a doctor, would you be able to tell this Honorable Court as to
what cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why
there was a bradycardia of time because is some reason one way or
another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility,
we’re talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the
slowing of heart rate, now what is the immediate cause of the slowing of the heart
rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the heart
rate is when you do a vagal reflex in the neck wherein the vagal receptors are
located at the lateral part of the neck, when you press that, you produce the slowing
of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency in
the supply of oxygen by the patient, would that also cause the slowing of the heart
rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a
hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is
to pump or to do not a bradycardia but a … to counter act the Hypoxia that is being
experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using
100% halothane and other anesthetic medications probably were contributory to the
production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his
interpretation of the anesthesia record and the factors that could have caused Gerald
to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly
read to this Honorable court your last paragraph and if you will affirm that as if it is
correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be
contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will
you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0,
will you kindly look at this Doctor, this Xerox copy if you can show to this
Honorable Court and even to this representation the word "one hundred" or 1-0-0
and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if
there is, you just call me and even the attention of the Presiding Judge of this Court.
Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA I’m asking you, just answer my question, did you see there 100%
and 100 figures, tell me, yes or no?
WITNESS I’m trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the fiscal, that the
percentage here that the Halothane administered by Dr. Solidum to the patient is 1%
only so may we request that this portion, temporarily your Honor, we are marking
this anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed
and the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are
so many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that contributed to
what you call hypoxia and according to you, when this Gerald suffered hypoxia,
there are other factors that might lead to this Hypoxia at the time of this operation is
that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might
be due to operations being conducted by the doctor at the time when the operation is
being done might also contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there is a
possibility that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido
maintained that Gerald’s operation for his imperforate anus,
considered a major operation, had exposed him to the risk of
suffering the same condition.43 He then corrected his earlier
finding that 100% halothane had been administered on Gerald by
saying that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and
regulate properly the levels of anesthesia administered to said
Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."45 However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt that Dr.
Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not
preclude the probability that other factors related to Gerald’s major
operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had
then led Gerald to experience bradycardia. Dr. Vertido revealingly
concluded in his report, instead, that "although the anesthesiologist
followed the normal routine and precautionary procedures, still
hypoxia and its corresponding side effects did occur."46
The existence of the probability about other factors causing the
hypoxia has engendered in the mind of the Court a reasonable
doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the
crime of reckless imprudence resulting to serious physical injuries.
"A reasonable doubt of guilt," according to United States v.
Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of
it. It is not a captious doubt; not a doubt engendered merely by
sympathy for the unfortunate position of the defendant, or a dislike
to accept the responsibility of convicting a fellow man. If, having
weighed the evidence on both sides, you reach the conclusion that
the defendant is guilty, to that degree of certainty as would lead
you to act on the faith of it in the most important and crucial affairs
of your life, you may properly convict him. Proof beyond
reasonable doubt is not proof to a mathematical demonstration. It
is not proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not
immediately exempt him from civil liability.1âwphi1 But we
cannot now find and declare him civilly liable because the
circumstances that have been established here do not present the
factual and legal bases for validly doing so. His acquittal did not
derive only from reasonable doubt. There was really no firm and
competent showing how the injury to Gerard had been caused.
That meant that the manner of administration of the anesthesia by
Dr. Solidum was not necessarily the cause of the hypoxia that
caused the bradycardia experienced by Gerard. Consequently, to
adjudge Dr. Solidum civilly liable would be to speculate on the
cause of the hypoxia. We are not allowed to do so, for civil
liability must not rest on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil
liability, we have to address the unusual decree of the RTC, as
affirmed by the CA, of expressly holding Ospital ng Maynila
civilly liable jointly and severally with Dr. Solidum. The decree
was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil
liability that is deemed instituted with the criminal action refers
only to that arising from the offense charged.48 It is puzzling,
therefore, how the RTC and the CA could have adjudged Ospital
ng Maynila jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng Maynila, being an
artificial entity, had not been charged along with Dr. Solidum. The
lower courts thereby acted capriciously and whimsically, which
rendered their judgment against Ospital ng Maynila void as the
product of grave abuse of discretion amounting to lack of
jurisdiction.
Not surprisingly, the flawed decree raises other material concerns
that the RTC and the CA overlooked. We deem it important, then,
to express the following observations for the instruction of the
Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The R TC and the CA should have been
alert to this fundamental defect. Verily, no person can be
prejudiced by a ruling rendered in an action or proceeding in which
he was not made a party. Such a rule would enforce the
constitutional guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only
when subsidiary liability would be properly enforceable pursuant
to Article 103 of the Revised Penal Code. But the subsidiary
liability seems far-fetched here. The conditions for subsidiary
liability to attach to Ospital ng Maynila should first be complied
with. Firstly, pursuant to Article 103 of the Revised Penal Code,
Ospital ng Maynila must be shown to be a corporation "engaged in
any kind of industry." The term industry means any department or
branch of art, occupation or business, especially one that employs
labor and capital, and is engaged in industry.49 However, Ospital
ng Maynila, being a public hospital, was not engaged in industry
conducted for profit but purely in charitable and humanitarian
work.50 Secondly, assuming that Ospital ng Maynila was engaged
in industry for profit, Dr. Solidum must be shown to be an
employee of Ospital ng Maynila acting in the discharge of his
duties during the operation on Gerald. Yet, he definitely was not
such employee but a consultant of the hospital. And, thirdly,
assuming that civil liability was adjudged against Dr. Solidum as
an employee (which did not happen here), the execution against
him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on
certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
Solidum of the crime of reckless imprudence resulting to serious
physical injuries; and MAKES no pronouncement on costs of suit.
SO ORDERED.
[ GR No. 210445, Dec 07, 2015 ]
NILO B. ROSIT v. DAVAO DOCTORS HOSPITAL +
DECISION
VELASCO JR., J.:
The Case
This is a petition filed under Rule 45 of the Rules of Court
assailing the Decision and Resolution dated January 22, 2013[1]
and November 7, 2013,[2] respectively, of the Court of Appeals,
Cagayan De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The
CA Decision reversed the Decision dated September 14, 2004 [3] of
the Regional Trial Court, Branch 33 in Davao City-(RTC) in Civil
Case No. 27,354-99, a suit for damages thereat which Nilo B.
Rosit (Rosit) commenced against Dr. Rolando Gestuvo (Dr.
Gestuvo).
Factual Antecedents
On January 15, 1999, Rosit figured in a motorcycle accident. The
X-ray soon taken the next day at the Davao Doctors Hospital
(DDH) showed that he fractured his jaw. Rosit was then referred to
Dr. Gestuvo, a specialist in mandibular injuries,[4] who, on January
19, 1999, operated on Rosit.
During the operation, Dr. Gestuvo used a metal plate fastened to
the jaw with metal screws to immobilize the mandible. As the
operation required the smallest screws available, Dr. Gestuvo cut
the screws on hand to make them smaller. Dr. Gestuvo knew that
there were smaller titanium screws available in Manila, but did not
so inform Rosit supposing that the latter would not be able to
afford the same.[5]
Following the procedure, Rosit could not properly open and close
his mouth and was in pain. X-rays done on Rosit two (2) days after
the operation showed that the fracture in his jaw was aligned but
the screws used on him touched his molar. Given the X-ray results,
Dr. Gestuvo referred Rosit to a dentist. The dentist who checked
Rosit, Dr. Pangan, opined that another operation is necessary and
that it is to be performed in Cebu.[6]
Alleging that the dentist told him that the operation conducted on
his mandible was improperly done, Rosit went back to Dr. Gestuvo
to demand a loan to defray the cost of the additional operation as
well as the expenses of the trip to Cebu. Dr. Gestuvo gave Rosit
P4,500.
Rosit went to Cebu on February 19, 1999, still suffering from pain
and could hardly open his mouth.
In Cebu, Dr. Pangan removed the plate and screws thus installed
by Dr. Gestuvo and replaced them with smaller titanium plate and
screws. Dr. Pangan also extracted Rosit's molar that was hit with a
screw and some bone fragments. Three days after the operation,
Rosit was able to eat and speak well and could open and close his
mouth normally.[7]
On his return to Davao, Rosit demanded that Dr. Gestuvo
reimburse him for the cost of the operation and the expenses he
incurred in Cebu amounting to P140,000, as well as for the
P50,000 that Rosit would have to spend for the removal of the
plate and screws that Dr. Pangan installed. Dr. Gestuvo refused to
pay.[8]
Thus, Rosit filed a civil case for damages and attorney's fees with
the RTC against Dr. Gestuvo and DDH, the suit docketed as Civil
Case No. 27,354-99.
The Ruling of the Regional Trial Court
The RTC freed DDH from liability on the ground that it exercised
the proper diligence in the selection and supervision of Dr.
Gestuvo, but adjudged Dr. Gestuvo negligent and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit
to have preponderantly established his cause of action in the
complaint against defendant Dr. Rolando G. Gestuvo only,
judgment is hereby rendered for the plaintiff and against said
defendant, ordering the defendant DR. ROLANDO G. GESTUVO
to pay unto plaintiff NILO B. ROSIT the following:
the sum of ONE HUNDRED FORTY THOUSAND ONE
HUNDRED NINETY NINE PESOS and 13/100 (P140,199.13)
a)
representing reimbursement of actual expenses incurred by
plaintiff in the operation and re-operation of his mandible;
the sum of TWENTY NINE THOUSAND AND SIXTY
b) EIGHT PESOS (P29,068.00) representing reimbursement of
the filing fees and appearance fees;
the sum of ONE HUNDRED FIFTY THOUSAND PESOS
c)
(P150,000.00) as and for attorney's fees;
the amount of FIFTY THOUSAND PESOS (P50,000.00) as
d)
moral damages;
 the amount of TEN THOUSAND PESOS (P10,000.00) as
e)
exemplary damages; and
f) the costs of the suit.
For lack of merit, the complaint against defendant DAVAO
DOCTORS HOSPITAL and the defendants' counterclaims are
hereby ordered DISMISSED.
Cost against Dr. Rolando G. Gestuvo.
SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle
holding that "the need for expert, medical testimony may be
dispensed with because the injury itself provides the proof of
negligence."
Therefrom, both parties appealed to the CA.
The Ruling of the Court of Appeals
In its January 22, 2013 Decision, the CA modified the appealed
judgment by deleting the awards made by the trial court, disposing
as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The
Decision dated September 14, 2004 of the Regional Trial Court,
Branch 33, Davao City, rendered in Civil Case No. 27,354-99 is
hereby MODIFIED. The monetary awards adjudged in favor of
Nilo B. Rosit are hereby DELETED for lack of basis.
SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is
not applicable and that the testimony of an expert witness is
necessary for a finding of negligence. The appellate court also
gave credence to Dr. Pangan's letter stating the opinion that Dr.
Gestuvo did not commit gross negligence in his emergency
management of Rosit's fractured mandible.
Rosit's motion for reconsideration was denied in the CA's
November 7, 2013 Resolution.
Hence, the instant appeal.
The Issue
The ultimate issue for our resolution is whether the appellate court
correctly absolved Dr. Gestuvo from liability.
The Court's Ruling
The petition is impressed with merit.
In Flores v. Pineda,[9] the Court explained the concept of a medical
negligence case and the elements required for its prosecution, viz:
A medical negligence case is a type of claim to redress a wrong
committed by a medical professional, that has caused bodily harm
to or the death of a patient. There are four elements involved in a
medical negligence case, namely: duty, breach, injury, and
proximate causation.
Duty refers to the standard of behavior which imposes restrictions
on one's conduct. The standard in turn refers to the amount of
competence associated with the proper discharge of the profession.
A physician is expected to use at least the same level of care that
any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to
comply with these professional standards. If injury results to the
patient as a result of this breach, the physician is answerable for
negligence. (emphasis supplied)
An expert witness is not necessary as the res ipsa loquitur
doctrine is applicable
To establish medical negligence, this Court has held that an expert
testimony is generally required to define the standard of behavior
by which the court may determine whether the physician has
properly performed the requisite duty toward the patient. This is so
considering that the requisite degree of skill and care in the
treatment of a patient is usually a matter of expert opinion.[10]
Solidum v. People of the Philippines[11] provides an exception.
There, the Court explained that where the application of the
principle of res ipsa loquitur is warranted, an expert testimony
may be dispensed with in medical negligence cases:
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is dispensed
with because the injury itself provides the proof of negligence.
The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone
familiar with the facts. x x x
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the
patient after an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was intended,
knocking out a tooth while a patient's jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following
an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur
as an exception to the requirement of an expert testimony in
medical negligence cases may be availed of if the following
essential requisites are satisfied: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency that caused the injury was under the
exclusive control of the person charged; and (3) the injury suffered
must not have been due to any voluntary action or contribution of
the person injured.[12]
In its assailed Decision, the CA refused to acknowledge the
application of the res ipsa loquitur doctrine on the ground that the
foregoing elements are absent. In particular, the appellate court is
of the position that post-operative pain is not unusual after surgery
and that there is no proof that the molar Dr. Pangan removed is the
same molar that was hit by the screw installed by Dr. Gestuvo in
Rosit's mandible. Further, a second operation was conducted
within the 5-week usual healing period of the mandibular fracture
so that the second element cannot be considered present. Lastly,
the CA pointed out that the X-ray examination conducted on Rosit
prior to his first surgery suggests that he had "chronic
inflammatory lung disease compatible," implying that the injury
may have been due to Rosit's peculiar condition, thus effectively
negating the presence of the third element.[13]
After careful consideration, this Court cannot accede to the CA's
findings as it is at once apparent from the records that the essential
requisites for the application of the doctrine of res ipsa loquitur are
present.
The first element was sufficiently established when Rosit proved
that one of the screws installed by Dr. Gestuvo struck his molar. It
was for this issue that Dr. Gestuvo himself referred Rosit to Dr.
Pangan. In fact, the affidavit of Dr. Pangan presented by Dr.
Gestuvo himself before the trial court narrated that the same molar
struck with the screw installed by Dr. Gestuvo was examined and
eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go
back and say that Dr. Pangan treated a molar different from that
which was affected by the first operation.
Clearly, had Dr. Gestuvo used the proper size and length of screws
and placed the same in the proper locations, these would not have
struck Rosit's teeth causing him pain and requiring him to undergo
a corrective surgery.
Dr. Gestuvo knew that the screws he used on Rosit were too large
as, in fact, he cut the same with a saw.[14] He also stated during trial
that common sense dictated that the smallest screws available
should be used. More importantly, he also knew that these screws
were available locally at the time of the operation.[15] Yet, he did
not avail of such items and went ahead with the larger screws and
merely sawed them off. Even assuming that the screws were
already at the proper length after Dr. Gestuvo cut the same, it is
apparent that he negligently placed one of the screws in the wrong
area thereby striking one of Rosit's teeth.
In any event, whether the screw hit Rosit's molar because it was
too long or improperly placed, both facts are the product of Dr.
Gestuvo's negligence. An average man of common intelligence
would know that striking a tooth with any foreign object much less
a screw would cause severe pain. Thus, the first essential requisite
is present in this case.
Anent the second element for the res ipsa loquitur doctrine
application, it is sufficient that the operation which resulted in the
screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo.
No other doctor caused such fact.
The CA finds that Rosit is guilty of contributory negligence in
having Dr. Pangan operate on him during the healing period of his
fractured mandible. What the CA overlooked is that it was Dr.
Gestuvo himself who referred Rosit to Dr. Pangan. Nevertheless,
Dr. Pangan's participation could not have contributed to the reality
that the screw that Dr. Gestuvo installed hit Rosit's molar.
Lastly, the third element that the injury suffered must not have
been due to any voluntary action or contribution of the person
injured was satisfied in this case. It was not shown that Rosit's lung
disease could have contributed to the pain. What is clear is that he
suffered because one of the screws that Dr. Gestuvo installed hit
Rosit's molar.
Clearly then, the res ipsa loquitur doctrine finds application in
the instant case and no expert testimony is required to
establish the negligence of defendant Dr. Gestuvo.
Petitioner was deprived of the opportunity to make an
"informed consent"
What is more damning for Dr. Gestuvo is his failure to inform
Rosit that such smaller screws were available in Manila, albeit at a
higher price.[16] As testified to by Dr. Gestuvo himself:
This titanium materials according to you were already
Court
available in the Philippines since the time of Rosit's
Alright.
accident?
Witness Yes, your Honor.
xxxx
Court
Did you inform Rosit about the existence of titanium screws and plates
which according to you is the screws and plates of choice?
Witness No, your Honor.
xxxx
The reason I did not inform him anymore Judge because what I thought
he was already hard up with the down payment. And if I will further
Witness
introduce him this screws, the more he will not be able to afford the
operation.
xxxx
This titanium screws and plates were available then it is up to Rosit to
Court decide whether to use it or not because after all the material you are using
is paid by the patient himscll, is it not?
Witness Yes, that is true.
Li v. Soliman[17] made the following disquisition on the relevant Doctrine of
Informed Consent in relation to medical negligence cases, to wit:
The doctrine of informed consent within the context of
physician-patient relationships goes far back into English common
law. x x x From a purely ethical norm, informed consent
evolved into a general principle of law that a physician has a
duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would
disclose to his patient as to whatever grave risks of injury
might be incurred from a proposed course of treatment, so that
a patient, exercising ordinary care for his own welfare, and
faced with a choice of undergoing the proposed treatment, or
alternative treatment, or none at all, may intelligently exercise
his judgment by reasonably balancing the probable risks
against the probable benefits.
xxxx
There are four essential elements a plaintiff must prove in a
malpractice action based upon the doctrine of informed
consent: "(1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise
would not have consented to; and (4) plaintiff was injured by
the proposed treatment." The gravamen in an informed consent
case requires the plaintiff to "point to significant undisclosed
information relating to the treatment which would have altered her
decision to undergo it." (emphasis supplied)
The four adverted essential elements above are present here.
First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the
risks of using the larger screws for the operation. This was his
obligation as the physician undertaking the operation.
Second, Dr. Gestuvo failed to disclose these risks to Rosit,
deciding by himself that Rosit could not afford to get the more
expensive titanium screws.
Third, had Rosit been informed that there was a risk that the larger
screws are not appropriate for the operation and that an additional
operation replacing the screws might be required to replace the
same, as what happened in this case, Rosit would not have agreed
to the operation. It bears pointing out that Rosit was, in fact, able to
afford the use of the smaller titanium screws that were later used
by Dr. Pangan to replace the screws that were used by Dr.
Gestuvo.
Fourth, as a result of using the larger screws, Rosit experienced
pain and could not heal properly because one of the screws hit his
molar. This was evident from the fact that just three (3) days after
Dr. Pangan repeated the operation conducted by Dr. Gestuvo, Rosit
was pain-free and could already speak. This is compared to the one
(1) month that Rosit suffered pain and could not use his mouth
after the operation conducted by Dr. Gestuvo until the operation of
Dr. Pangan.
Without a doubt, Dr. Gestuvo is guilty of withholding material
information which would have been vital in the decision of Rosit
in going through with the operation with the materials at hand.
Thus, Dr. Gestuvo is also guilty of negligence on this ground.
Dr. Pangan's Affidavit is not admissible
The appellate court's Decision absolving Dr. Gestuvo of
negligence was also anchored on a letter signed by Dr. Pangan who
stated the opinion that Dr. Gestuvo did not commit gross
negligence in his emergency management of Mr. Rosit's fractured
mandible.[18] Clearly, the appellate court overlooked the
elementary principle against hearsay evidence.
In Dantis v. Maghinang, Jr.,[19] the Court reiterated the oft-
repeated rule that "an affidavit is merely hearsay evidence where
its affiant/maker did not take the witness stand." Here, Dr. Pangan
never took the witness stand to affirm the contents of his affidavit.
Thus, the affidavit is inadmissible and cannot be given any weight.
The CA, therefore, erred when it considered the affidavit of Dr.
Pangan, mpreso for considering the same as expert testimony.
Moreover, even if such affidavit is considered as admissible and
the testimony of an expert witness, the Court is not bound by such
testimony. As ruled in Ilao-Quianay v. Mapile:[20]
Indeed, courts are not bound by expert testimonies. They may
place whatever weight they choose upon such testimonies in
accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of
the trial court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and process
of the reasoning by which he has supported his opinion, his
possible bias in favor of the side for whom he testifies, and any
other matters which serve to illuminate his statements. The opinion
of an expert should be considered by the court in view of all the
facts and circumstances of the case. The problem of the evaluation
of expert testimony is left to the discretion of the trial court whose
ruling thereupon is not revicwable in the absence of an abuse of
that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of
negligence or not will not bind the Court. The Court must weigh
and examine such testimony and decide for itself the merits
thereof.
As discussed above, Dr. Gestuvo's negligence is clearly
demonstrable by the doctrines of res ipsa loquitur and informed
consent.
Damages
For the foregoing, the trial court properly awarded Rosit actual
damages after he was able to prove the actual expenses that he
incurred due to the negligence of Dr. Gestuvo. In Mendoza v.
Spouses Gomez,[21] the Court explained that a claimant is entitled
to actual damages when the damage he sustained is the natural and
probable consequences of the negligent act and he adequately
proved the amount of such damage.
Rosit is also entitled to moral damages as provided under Article
2217 of the Civil Code,[22] given the unnecessary physical
suffering he endured as a consequence of defendant's negligence.
To recall, from the time he was negligently operated upon by Dr.
Gestuvo until three (3) days from the corrective surgery performed
by Dr. Pangan, or for a period of one (1) month, Rosit suffered
pain and could not properly use his jaw to speak or eat.
The trial court also properly awarded attorney's fees and costs of
suit under Article 2208 of the Civil Code,[23] since Rosit was
compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's
damages.
As to the award of exemplary damages, the same too has to be
affirmed. In Mendoza,[24] the Court enumerated the requisites for
the award of exemplary damages:
Our jurisprudence sets certain conditions when exemplary
damages may be awarded: First, they may be imposed by way of
example or correction only in addition, among others, to
compensatory damages, and cannot be recovered as a matter of
right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant.
Second, the claimant must first establish his right to moral,
temperate, liquidated or compensatory damages. Third, the
wrongful act must be accompanied by bad faith, and the award
would be allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly
negligent. Likewise, Dr. Gestuvo acted in bad faith or in a wanton,
fraudulent, reckless, oppressive manner when he was in breach of
the doctrine of informed consent. Dr. Gestuvo had the duty to fully
explain to Rosit the risks of using large screws for the operation.
More importantly, he concealed the correct medical procedure of
using the smaller titanium screws mainly because of his erroneous
belief that Rosit cannot afford to buy the expensive titanium
screws. Such concealment is clearly a valid basis for an award of
exemplary damages.
WHEREFORE, the instant petition is GRANTED. The CA
Decision dated January 22, 2013 and Resolution dated November
7, 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED
and SET ASIDE. Further, the Decision dated September 14, 2004
of the Regional Trial Court, Branch 33 in Davao City in Civil Case
No. 27,345-99 is hereby REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the
minors, ROGER ANTHONY, ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, all surnamed NOGALES,
petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL
ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2 and
21 March 2000 Resolution3 of the Court of Appeals in CA-G.R.
CV No. 45641. The Court of Appeals affirmed in toto the 22
November 1993 Decision4 of the Regional Trial Court of Manila,
Branch 33, finding Dr. Oscar Estrada solely liable for damages for
the death of his patient, Corazon Nogales, while absolving the
remaining respondents of any liability. The Court of Appeals
denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who
was then 37 years old, was under the exclusive prenatal care of Dr.
Oscar Estrada ("Dr. Estrada") beginning on her fourth month of
pregnancy or as early as December 1975. While Corazon was on
her last trimester of pregnancy, Dr. Estrada noted an increase in
her blood pressure and development of leg edema5 indicating
preeclampsia,6 which is a dangerous complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to experience
mild labor pains prompting Corazon and Rogelio Nogales
("Spouses Nogales") to see Dr. Estrada at his home. After
examining Corazon, Dr. Estrada advised her immediate admission
to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC
after the staff nurse noted the written admission request8 of Dr.
Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales
("Rogelio") executed and signed the "Consent on Admission and
Agreement"9 and "Admission Agreement."10 Corazon was then
brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of
CMC, conducted an internal examination of Corazon. Dr. Uy then
called up Dr. Estrada to notify him of her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada
ordered for 10 mg. of valium to be administered immediately by
intramuscular injection. Dr. Estrada later ordered the start of
intravenous administration of syntocinon admixed with dextrose,
5%, in lactated Ringers' solution, at the rate of eight to ten micro-
drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel Enriquez
("Dr. Enriquez"), an anesthesiologist at CMC, was notified at 4:15
a.m. of Corazon's admission. Subsequently, when asked if he
needed the services of an anesthesiologist, Dr. Estrada refused.
Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe
Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of
the CMC. At 6:10 a.m., Corazon's bag of water ruptured
spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At
6:13 a.m., Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of
magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"),
who was assisting Dr. Estrada, administered only 2.5 grams of
magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low
forceps to extract Corazon's baby. In the process, a 1.0 x 2.5 cm.
piece of cervical tissue was allegedly torn. The baby came out in
an apnic, cyanotic, weak and injured condition. Consequently, the
baby had to be intubated and resuscitated by Dr. Enriquez and Dr.
Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal
bleeding which rapidly became profuse. Corazon's blood pressure
dropped from 130/80 to 60/40 within five minutes. There was
continuous profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle as a side drip to
the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching
with bottled blood. It took approximately 30 minutes for the CMC
laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to
comply with Dr. Estrada's order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the
Obstetrics-Gynecology Department of the CMC, was apprised of
Corazon's condition by telephone. Upon being informed that
Corazon was bleeding profusely, Dr. Espinola ordered immediate
hysterectomy. Rogelio was made to sign a "Consent to
Operation."13
Due to the inclement weather then, Dr. Espinola, who was fetched
from his residence by an ambulance, arrived at the CMC about an
hour later or at 9:00 a.m. He examined the patient and ordered
some resuscitative measures to be administered. Despite Dr.
Espinola's efforts, Corazon died at 9:15 a.m. The cause of death
was "hemorrhage, post partum." 14
On 14 May 1980, petitioners filed a complaint for damages15 with
the Regional Trial Court16 of Manila against CMC, Dr. Estrada,
Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and
a certain Nurse J. Dumlao for the death of Corazon. Petitioners
mainly contended that defendant physicians and CMC personnel
were negligent in the treatment and management of Corazon's
condition. Petitioners charged CMC with negligence in the
selection and supervision of defendant physicians and hospital
staff.
For failing to file their answer to the complaint despite service of
summons, the trial court declared Dr. Estrada, Dr. Enriquez, and
Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr.
Espinola, and Dr. Lacson filed their respective answers denying
and opposing the allegations in the complaint. Subsequently, trial
ensued.
After more than 11 years of trial, the trial court rendered judgment
on 22 November 1993 finding Dr. Estrada solely liable for
damages. The trial court ruled as follows:
The victim was under his pre-natal care, apparently, his
fault began from his incorrect and inadequate
management and lack of treatment of the pre-eclamptic
condition of his patient. It is not disputed that he
misapplied the forceps in causing the delivery because it
resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the
application of inadequate injection of magnesium sulfate
by his assistant Dra. Ely Villaflor. Dr. Estrada even failed
to notice the erroneous administration by nurse Dumlao of
hemacel by way of side drip, instead of direct intravenous
injection, and his failure to consult a senior obstetrician at
an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy,
Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J.
Dumlao and CMC, the Court finds no legal justification to
find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking
orders from Dr. Estrada, the principal physician of
Corazon Nogales. She can only make suggestions in the
manner the patient maybe treated but she cannot impose
her will as to do so would be to substitute her good
judgment to that of Dr. Estrada. If she failed to correctly
diagnose the true cause of the bleeding which in this case
appears to be a cervical laceration, it cannot be safely
concluded by the Court that Dra. Villaflor had the correct
diagnosis and she failed to inform Dr. Estrada. No
evidence was introduced to show that indeed Dra.
Villaflor had discovered that there was laceration at the
cervical area of the patient's internal organ.
On the part of nurse Dumlao, there is no showing that
when she administered the hemacel as a side drip, she did
it on her own. If the correct procedure was directly thru
the veins, it could only be because this was what was
probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe
Espinola, who was the Chief of the Department of
Obstetrics and Gynecology who attended to the patient
Mrs. Nogales, it was only at 9:00 a.m. That he was able to
reach the hospital because of typhoon Didang (Exhibit 2).
While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was
based on the information given to him by phone and he
acted on the basis of facts as presented to him, believing
in good faith that such is the correct remedy. He was not
with Dr. Estrada when the patient was brought to the
hospital at 2:30 o'clock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00 o'clock a.m.
are certainly the errors of Dr. Estrada and cannot be the
mistake of Dr. Noe Espinola. His failure to come to the
hospital on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in
the delivery room, it is not incumbent upon him to call the
attention of Dr. Estrada, Dra. Villaflor and also of Nurse
Dumlao on the alleged errors committed by them.
Besides, as anesthesiologist, he has no authority to control
the actuations of Dr. Estrada and Dra. Villaflor. For the
Court to assume that there were errors being committed in
the presence of Dr. Enriquez would be to dwell on
conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a
hematologist and in-charge of the blood bank of the
CMC. The Court cannot accept the theory of the plaintiffs
that there was delay in delivering the blood needed by the
patient. It was testified, that in order that this blood will
be made available, a laboratory test has to be conducted to
determine the type of blood, cross matching and other
matters consistent with medical science so, the lapse of 30
minutes maybe considered a reasonable time to do all of
these things, and not a delay as the plaintiffs would want
the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the
Capitol Medical Center. She was sued because of her
alleged failure to notice the incompetence and negligence
of Dr. Estrada. However, there is no evidence to support
such theory. No evidence was adduced to show that Dra.
Rosa Uy as a resident physician of Capitol Medical
Center, had knowledge of the mismanagement of the
patient Corazon Nogales, and that notwithstanding such
knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that
defendant CMC did not have any hand or participation in
 the selection or hiring of Dr. Estrada or his assistant Dra.
Ely Villaflor as attending physician[s] of the deceased. In
other words, the two (2) doctors were not employees of
the hospital and therefore the hospital did not have control
over their professional conduct. When Mrs. Nogales was
brought to the hospital, it was an emergency case and
defendant CMC had no choice but to admit her. Such
being the case, there is therefore no legal ground to apply
the provisions of Article 2176 and 2180 of the New Civil
Code referring to the vicarious liability of an employer for
the negligence of its employees. If ever in this case there
is fault or negligence in the treatment of the deceased on
the part of the attending physicians who were employed
by the family of the deceased, such civil liability should
be borne by the attending physicians under the principle
of "respondeat superior".
WHEREFORE, premises considered, judgment is hereby
rendered finding defendant Dr. Estrada of Number 13
Pitimini St. San Francisco del Monte, Quezon City civilly
liable to pay plaintiffs: 1) By way of actual damages in
the amount of P105,000.00; 2) By way of moral damages
in the amount of P700,000.00; 3) Attorney's fees in the
amount of P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support
its [sic] allegations against the other defendants, the
complaint is hereby ordered dismissed. While the Court
looks with disfavor the filing of the present complaint
against the other defendants by the herein plaintiffs, as in
a way it has caused them personal inconvenience and
slight damage on their name and reputation, the Court
cannot accepts [sic] however, the theory of the remaining
defendants that plaintiffs were motivated in bad faith in
the filing of this complaint. For this reason defendants'
counterclaims are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed
that aside from Dr. Estrada, the remaining respondents should be
held equally liable for negligence. Petitioners pointed out the
extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of
the trial court.19 Petitioners filed a motion for reconsideration
which the Court of Appeals denied in its Resolution of 21 March
2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 200221
stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor,
and Nurse Dumlao "need no longer be notified of the petition
because they are absolutely not involved in the issue raised before
the [Court], regarding the liability of [CMC]." 22 Petitioners
stressed that the subject matter of this petition is the liability of
CMC for the negligence of Dr. Estrada.23
The Court issued a Resolution dated 9 September 2002 24
dispensing with the requirement to submit the correct and present
addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor,
and Nurse Dumlao. The Court stated that with the filing of
petitioners' Manifestation, it should be understood that they are
claiming only against respondents CMC, Dr. Espinola, Dr. Lacson,
and Dr. Uy who have filed their respective comments. Petitioners
are foregoing further claims against respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the
Court of Appeals affirming the decision of the Regional Trial
Court. Accordingly, the decision of the Court of Appeals,
affirming the trial court's judgment, is already final as against Dr.
Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9
September 2002 Resolution claiming that Dr. Enriquez, Dr.
Villaflor and Nurse Dumlao were notified of the petition at their
counsels' last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court denied
petitioners' Motion for Reconsideration in its 18 February 2004
Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld
the trial court's ruling. The Court of Appeals rejected petitioners'
view that the doctrine in Darling v. Charleston Community
Memorial Hospital27 applies to this case. According to the Court of
Appeals, the present case differs from the Darling case since Dr.
Estrada is an independent contractor-physician whereas the
Darling case involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals further held that
the mere fact that a hospital permitted a physician to practice
medicine and use its facilities is not sufficient to render the
hospital liable for the physician's negligence.28 A hospital is not
responsible for the negligence of a physician who is an
independent contractor.29
The Court of Appeals found the cases of Davidson v. Conole30 and
Campbell v. Emma Laing Stevens Hospital31 applicable to this
case. Quoting Campbell, the Court of Appeals stated that where
there is no proof that defendant physician was an employee of
defendant hospital or that defendant hospital had reason to know
that any acts of malpractice would take place, defendant hospital
could not be held liable for its failure to intervene in the
relationship of physician-patient between defendant physician and
plaintiff.
On the liability of the other respondents, the Court of Appeals
applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely exercising
hospital privileges. This doctrine provides that once the surgeon
enters the operating room and takes charge of the proceedings, the
acts or omissions of operating room personnel, and any negligence
associated with such acts or omissions, are imputable to the
surgeon.32 While the assisting physicians and nurses may be
employed by the hospital, or engaged by the patient, they normally
become the temporary servants or agents of the surgeon in charge
while the operation is in progress, and liability may be imposed
upon the surgeon for their negligent acts under the doctrine of
respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr.
Estrada as the attending physician of his wife, any liability for
malpractice must be Dr. Estrada's sole responsibility.
While it found the amount of damages fair and reasonable, the
Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously
liable for the negligence of Dr. Estrada. The resolution of this issue
rests, on the other hand, on the ascertainment of the relationship
between Dr. Estrada and CMC. The Court also believes that a
determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present
controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately resulted in
Corazon's death is no longer in issue. Dr. Estrada did not appeal
the decision of the Court of Appeals which affirmed the ruling of
the trial court finding Dr. Estrada solely liable for damages.
Accordingly, the finding of the trial court on Dr. Estrada's
negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr.
Estrada's negligence based on Article 2180 in relation to Article
2176 of the Civil Code. These provisions pertinently state:
Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.
xxxx
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.
xxxx
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.
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.
Similarly, in the United States, a hospital which is the employer,
master, or principal of a physician employee, servant, or agent,
may be held liable for the physician's negligence under the
doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr.
Estrada to practice and admit patients at CMC, should be liable for
Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada
as an accredited physician of CMC, though he discovered later that
Dr. Estrada was not a salaried employee of the CMC. 35 Rogelio
further claims that he was dealing with CMC, whose primary
concern was the treatment and management of his wife's condition.
Dr. Estrada just happened to be the specific person he talked to
representing CMC.36 Moreover, the fact that CMC made Rogelio
sign a Consent on Admission and Admission Agreement 37 and a
Consent to Operation printed on the letterhead of CMC indicates
that CMC considered Dr. Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr.
Estrada was a mere visiting physician and that it admitted Corazon
because her physical condition then was classified an emergency
obstetrics case.38
CMC alleges that Dr. Estrada is an independent contractor "for
whose actuations CMC would be a total stranger." CMC maintains
that it had no control or supervision over Dr. Estrada in the
exercise of his medical profession.
The Court had the occasion to determine the relationship between a
hospital and a consultant or visiting physician and the liability of
such hospital for that physician's negligence in Ramos v. Court of
Appeals,39 to wit:
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. 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.
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. x x x40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such
test essentially determines whether an employment relationship
exists between a physician and a hospital based on the exercise of
control over the physician as to details. Specifically, the employer
(or the hospital) must have the right to control both the means and
the details of the process by which the employee (or the physician)
is to accomplish his task.41
After a thorough examination of the voluminous records of this
case, the Court finds no single evidence pointing to CMC's
exercise of control over Dr. Estrada's treatment and management
of Corazon's condition. It is undisputed that throughout Corazon's
pregnancy, she was under the exclusive prenatal care of Dr.
Estrada. At the time of Corazon's admission at CMC and during
her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who
attended to Corazon. There was no showing that CMC had a part
in diagnosing Corazon's condition. While Dr. Estrada enjoyed staff
privileges at CMC, such fact alone did not make him an employee
of CMC.42 CMC merely allowed Dr. Estrada to use its facilities43
when Corazon was about to give birth, which CMC considered an
emergency. Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from
liability considering that Dr. Estrada is an independent contractor-
physician.
In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an exception
to this principle. The hospital may be liable if the physician is the
"ostensible" agent of the hospital.44 This exception is also known
as the "doctrine of apparent authority." 45 In Gilbert v. Sycamore
Municipal Hospital,46 the Illinois Supreme Court explained the
doctrine of apparent authority in this wise:
[U]nder the doctrine of apparent authority a hospital can
be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of
whether the physician is an independent contractor, unless
the patient knows, or should have known, that the
physician is an independent contractor. The elements of
the action have been set out as follows:
"For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or
its agent, acted in a manner that would lead a reasonable
person to conclude that the individual who was alleged to
be negligent was an employee or agent of the hospital; (2)
where the acts of the agent create the appearance of
authority, the plaintiff must also prove that the hospital
had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital
or its agent, consistent with ordinary care and prudence."
The element of "holding out" on the part of the hospital
does not require an express representation by the hospital
that the person alleged to be negligent is an employee.
Rather, the element is satisfied if the hospital holds itself
out as a provider of emergency room care without
informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of the
plaintiff is satisfied if the plaintiff relies upon the hospital
to provide complete emergency room care, rather than
upon a specific physician.
The doctrine of apparent authority essentially involves two factors
to determine the liability of an independent-contractor physician.
The first factor focuses on the hospital's manifestations and is
sometimes described as an inquiry whether the hospital acted in a
manner which would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or
agent of the hospital.47 In this regard, the hospital need not
make express representations to the patient that the treating
physician is an employee of the hospital; rather a
representation may be general and implied.48
The doctrine of apparent authority is a species of the doctrine of
estoppel. Article 1431 of the Civil Code provides that "[t]hrough
estoppel, an admission or representation is rendered conclusive
upon the person making it, and cannot be denied or disproved as
against the person relying thereon." Estoppel rests on this rule:
"Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular
thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a
member of its medical staff. Through CMC's acts, CMC clothed
Dr. Estrada with apparent authority thereby leading the Spouses
Nogales to believe that Dr. Estrada was an employee or agent of
CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended
its medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's
request for Corazon's admission, CMC, through its personnel,
readily accommodated Corazon and updated Dr. Estrada of her
condition.
Second, CMC made Rogelio sign consent forms printed on CMC
letterhead. Prior to Corazon's admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelio's belief that Dr. Estrada was
a member of CMC's medical staff.50 The Consent on Admission
and Agreement explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H.
Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or
person in custody of Ma. Corazon, and representing
his/her family, of my own volition and free will, do
consent and submit said Ma. Corazon to Dr. Oscar
Estrada (hereinafter referred to as Physician) for cure,
treatment, retreatment, or emergency measures, that the
Physician, personally or by and through the Capitol
Medical Center and/or its staff, may use, adapt, or
employ such means, forms or methods of cure,
treatment, retreatment, or emergency measures as he
may see best and most expedient; that Ma. Corazon
and I will comply with any and all rules, regulations,
directions, and instructions of the Physician, the
Capitol Medical Center and/or its staff; and, that I will
not hold liable or responsible and hereby waive and
forever discharge and hold free the Physician, the Capitol
Medical Center and/or its staff, from any and all claims of
whatever kind of nature, arising from directly or
indirectly, or by reason of said cure, treatment, or
retreatment, or emergency measures or intervention of
said physician, the Capitol Medical Center and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition and
free will, do consent and submit said CORAZON
NOGALES to Hysterectomy, by the Surgical Staff and
Anesthesiologists of Capitol Medical Center and/or
whatever succeeding operations, treatment, or emergency
measures as may be necessary and most expedient; and,
that I will not hold liable or responsible and hereby waive
and forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center
and/or its staff, from any and all claims of whatever kind
of nature, arising from directly or indirectly, or by reason
of said operation or operations, treatment, or emergency
measures, or intervention of the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or its
staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was
an independent contractor-physician, the Spouses Nogales could
not have known that Dr. Estrada was an independent contractor.
Significantly, no one from CMC informed the Spouses Nogales
that Dr. Estrada was an independent contractor. On the contrary,
Dr. Atencio, who was then a member of CMC Board of Directors,
testified that Dr. Estrada was part of CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding
to Dr. Espinola, who was then the Head of the Obstetrics and
Gynecology Department of CMC, gave the impression that Dr.
Estrada as a member of CMC's medical staff was collaborating
with other CMC-employed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is sometimes
characterized as an inquiry on whether the plaintiff acted in
reliance upon the conduct of the hospital or its agent, consistent
with ordinary care and prudence.54
The records show that the Spouses Nogales relied upon a perceived
employment relationship with CMC in accepting Dr. Estrada's
services. Rogelio testified that he and his wife specifically chose
Dr. Estrada to handle Corazon's delivery not only because of their
friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the [CMC]." 55 In
other words, Dr. Estrada's relationship with CMC played a
significant role in the Spouses Nogales' decision in accepting Dr.
Estrada's services as the obstetrician-gynecologist for Corazon's
delivery. Moreover, as earlier stated, there is no showing that
before and during Corazon's confinement at CMC, the Spouses
Nogales knew or should have known that Dr. Estrada was not an
employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best
medical care and support services for Corazon's delivery. The
Court notes that prior to Corazon's fourth pregnancy, she used to
give birth inside a clinic. Considering Corazon's age then, the
Spouses Nogales decided to have their fourth child delivered at
CMC, which Rogelio regarded one of the best hospitals at the
time.56 This is precisely because the Spouses Nogales feared that
Corazon might experience complications during her delivery
which would be better addressed and treated in a modern and big
hospital such as CMC. Moreover, Rogelio's consent in Corazon's
hysterectomy to be performed by a different physician, namely Dr.
Espinola, is a clear indication of Rogelio's confidence in CMC's
surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its
facilities" is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of
treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v.
Novant Health, Inc.,57 to wit:
"The conception that the hospital does not undertake to
treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to
procure them to act upon their own responsibility, no
longer reflects the fact. Present day hospitals, as their
manner of operation plainly demonstrates, do far
more than furnish facilities for treatment. They
regularly employ on a salary basis a large staff of
physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge
patients for medical care and treatment, collecting for
such services, if necessary, by legal action. Certainly,
the person who avails himself of 'hospital facilities'
expects that the hospital will attempt to cure him, not
that its nurses or other employees will act on their own
responsibility." x x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are
estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms consist of
two parts. The first part gave CMC permission to administer to
Corazon any form of recognized medical treatment which the
CMC medical staff deemed advisable. The second part of the
documents, which may properly be described as the releasing part,
releases CMC and its employees "from any and all claims" arising
from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for
injury to Corazon due to negligence during her treatment or
operation. Neither do the consent forms expressly exempt CMC
from liability for Corazon's death due to negligence during such
treatment or operation. Such release forms, being in the nature of
contracts of adhesion, are construed strictly against hospitals.
Besides, a blanket release in favor of hospitals "from any and all
claims," which includes claims due to bad faith or gross
negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of
establishments like hospitals but may only mitigate liability
depending on the circumstances.58 When a person needing urgent
medical attention rushes to a hospital, he cannot bargain on equal
footing with the hospital on the terms of admission and operation.
Such a person is literally at the mercy of the hospital. There can be
no clearer example of a contract of adhesion than one arising from
such a dire situation. Thus, the release forms of CMC cannot
relieve CMC from liability for the negligent medical treatment of
Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 200259
Resolution that the filing of petitioners' Manifestation confined
petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and
Dr. Uy, who have filed their comments, the Court deems it proper
to resolve the individual liability of the remaining respondents to
put an end finally to this more than two-decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause
of Corazon's bleeding and to suggest the correct remedy to Dr.
Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to
correct the error of Nurse Dumlao in the administration of
hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a
lower dosage of magnesium sulfate. However, this was after
informing Dr. Estrada that Corazon was no longer in convulsion
and that her blood pressure went down to a dangerous level. 61 At
that moment, Dr. Estrada instructed Dr. Villaflor to reduce the
dosage of magnesium sulfate from 10 to 2.5 grams. Since
petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's
defense remains uncontroverted. Dr. Villaflor's act of
administering a lower dosage of magnesium sulfate was not out of
her own volition or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call
the attention of Dr. Estrada on the incorrect dosage of magnesium
sulfate administered by Dr. Villaflor; (2) to take corrective
measures; and (3) to correct Nurse Dumlao's wrong method of
hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident
physician then at CMC, she was merely authorized to take the
clinical history and physical examination of Corazon.62 However,
that routine internal examination did not ipso facto make Dr. Uy
liable for the errors committed by Dr. Estrada. Further, petitioners'
imputation of negligence rests on their baseless assumption that
Dr. Uy was present at the delivery room. Nothing shows that Dr.
Uy participated in delivering Corazon's baby. Further, it is
unexpected from Dr. Uy, a mere resident physician at that time, to
call the attention of a more experienced specialist, if ever she was
present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention
of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their
errors.63 Petitioners insist that Dr. Enriquez should have taken, or
at least suggested, corrective measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist
whose field of expertise is definitely not obstetrics and
gynecology. As such, Dr. Enriquez was not expected to correct Dr.
Estrada's errors. Besides, there was no evidence of Dr. Enriquez's
knowledge of any error committed by Dr. Estrada and his failure to
act upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the
delivery of blood Corazon needed.64 Petitioners claim that Dr.
Lacson was remiss in her duty of supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the
delivery of blood from the time of the request until the transfusion
to Corazon. Dr. Lacson competently explained the procedure
before blood could be given to the patient.65 Taking into account
the bleeding time, clotting time and cross-matching, Dr. Lacson
stated that it would take approximately 45-60 minutes before blood
could be ready for transfusion. 66 Further, no evidence exists that
Dr. Lacson neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered
immediate hysterectomy without determining the underlying cause
of Corazon's bleeding. Dr. Espinola should have first considered
the possibility of cervical injury, and advised a thorough
examination of the cervix, instead of believing outright Dr.
Estrada's diagnosis that the cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was based on the
information he received by phone is not negligence. The Court
agrees with the trial court's observation that Dr. Espinola, upon
hearing such information about Corazon's condition, believed in
good faith that hysterectomy was the correct remedy. At any rate,
the hysterectomy did not push through because upon Dr. Espinola's
arrival, it was already too late. At the time, Corazon was
practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals,
Fourth Circuit, held that to recover, a patient complaining of
injuries allegedly resulting when the nurse negligently injected
medicine to him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected medicine
intravenously; and (3) such injection was the proximate cause of
his injury.
In the present case, there is no evidence of Nurse Dumlao's alleged
failure to follow Dr. Estrada's specific instructions. Even assuming
Nurse Dumlao defied Dr. Estrada's order, there is no showing that
side-drip administration of hemacel proximately caused Corazon's
death. No evidence linking Corazon's death and the alleged
wrongful hemacel administration was introduced. Therefore, there
is no basis to hold Nurse Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under
Article 2211 of the Civil Code, which states that in crimes and
quasi-delicts, interest as a part of the damages may, in a proper
case, be adjudicated in the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition. The
Court finds respondent Capitol Medical Center vicariously liable
for the negligence of Dr. Oscar Estrada. The amounts of P105,000
as actual damages and P700,000 as moral damages should each
earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court. The
Court affirms the rest of the Decision dated 6 February 1998 and
Resolution dated 21 March 2000 of the Court of Appeals in CA-
G.R. CV No. 45641.
SO ORDERED.
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO
AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and
delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric its
character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the
health, and indeed, the very lives of those placed in the hospital’s
keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals’ Decision2 dated September 6,
1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198
affirming with modification the Decision3 dated 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 staff 4 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 Natividad’s
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
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. Ampil’s 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 Natividad’s 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 attorney’s 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. 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 Decision6 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 Natividad’s 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 Natividad’s
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 Court’s
attention to other possible causes of Natividad’s detriment. He
argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s 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 Natividad’s body.
Dr. Ampil’s 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
Natividad’s 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 patient’s 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 patient’s 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 patient’s 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 patient’s 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 Natividad’s 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. Ampil’s negligence is the
proximate cause12 of Natividad’s 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 Natividad’s vagina established
the causal link between Dr. Ampil’s 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
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 Natividad’s 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 plaintiff’s prima facie
case, and present a question of fact for defendant to meet with an
explanation.13 Stated differently, where the 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 defendant’s 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 Natividad’s 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 patient’s 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 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 one’s 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 physician’s 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 Hospital 26 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 hospital’s 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
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
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, 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
PSI’s 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 hospital’s 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 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 physician’s 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,
PSI’s 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 hospital’s act of listing him and his
specialty in its lobby directory, as in the case herein. The high
costs of today’s 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 hospital’s 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 judiciary’s 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
hospital’s corporate negligence extends to permitting a physician
known to be incompetent to practice at the 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 PSI’s 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 PSI’s 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 PSI’s 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 Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospital’s 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 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 patient’s 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 hospital’s 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.