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ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA
and DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health
and welfare of their patients. If a doctor fails to live up to this precept, he is made
accountable for his acts. A mistake, through gross negligence or incompetence or plain
human error, may spell the difference between life and death. In this sense, the doctor
plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May
1995, which overturned the decision 4 of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda Ramos resulting in
her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka;
see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985.
They agreed that their date at the operating table at the DLSMC (another defendant),
would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents (findings from the Capitol
Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for
the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center, was also there for moral support.
She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival
of the doctor" even as he did his best to find somebody who will allow him to pull out his
wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the
feeling of his wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down
to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient,
heard somebody say that "Dr. Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw
Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The patient's nailbed became bluish and the patient was placed in
a trendelenburg position — a position where the head of the patient is placed in a
position lower than her feet which is an indication that there is a decrease of blood supply
to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos "that something wrong was . . .
happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25,
1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful
day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not have
happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional
Trial Court of Quezon City against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this Court
finds and so holds that defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For if
the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as the patient's
case was an elective, not an emergency case.
3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000,00 by way of exemplary damages; and,
SO ORDERED. 7
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,
and the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio
Ramos who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of the
decision, however, was sent nor received by the Coronel Law Office, then counsel on
record of petitioners. Rogelio referred the decision of the appellate court to a new
lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4 July 1995.
However, the appellate court denied the motion for extension of time in its Resolution
dated 25 July 1995. 9 Meanwhile, petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate
pleading on the assailed decision had not yet commenced to run as the Division Clerk
of Court of the Court of Appeals had not yet served a copy thereof to the counsel on
record. Despite this explanation, the appellate court still denied the motion to admit the
motion for reconsideration of petitioners in its Resolution, dated 29 March 1996,
primarily on the ground that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is,
on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next
day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of
time to file the present petition for certiorari under Rule 45. The Court granted the
motion for extension of time and gave petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted from the receipt of the resolution of the
Court of Appeals within which to submit the petition. The due date fell on 27 May 1996.
The petition was filed on 9 May 1996, well within the extended period given by the
Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
II
III
Before we discuss the merits of the case, we shall first dispose of the procedural issue
on the timeliness of the petition in relation to the motion for reconsideration filed by
petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due
course since the motion for reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate court for having been filed
beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the
motion for reconsideration is attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office.
In fact, a copy of the decision of the appellate court was instead sent to and received by
petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as
Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record.
Thus, no copy of the decision of the counsel on record. Petitioner, not being a lawyer
and unaware of the prescriptive period for filing a motion for reconsideration, referred
the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent
to the party's lawyer at his given address. With a few exceptions, notice to a litigant
without notice to his counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the counsel on record of
petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against petitioner. Moreover, since the
Court of Appeals already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied the motion for
reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on
this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the
case. For a more logical presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction
speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of
the occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiff's prima facie
case, and present a question of fact for defendant to meet with an explanation. 13 Where
the thing which caused the injury complained of is shown to be under the management
of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it
affords reasonable evidence, in the absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter
of common knowledge and experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant
who is charged with negligence. 15 It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and,
as such, does not create or constitute an independent or separate ground of liability. 17
Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 18 It
is regarded as a mode of proof, or a mere procedural of convenience since it furnishes
a substitute for, and relieves a plaintiff of, the burden of producing specific proof of
negligence. 19 In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a step in the process
of such proof, permitting the plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
In the above requisites, the fundamental element is the "control of instrumentality" which
caused the damage. 22 Such element of control must be shown to be within the
dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition
to proving injury or damage, must show a situation where it is applicable, and must
establish that the essential elements of the doctrine were present in a particular
incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res
ipsa loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of
that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because the injury itself provides
the proof of negligence. 27 The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and
not to matters that are within the common knowledge of mankind which may be testified
to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill
and experience are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. 29
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care. 30 Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the doctrine of
res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that
the patient must do is prove a nexus between the particular act or omission complained
of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations:
leaving of a foreign object in the body of the patient after an operation, 32 injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another part was intended, 34
knocking out a tooth while a patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of
the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that
the consequences of professional care were not as such as would ordinarily have
followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished. 40 The real question, therefore, is whether
or not in the process of the operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of
the untoward consequence. 41 If there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas
Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission he
was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff for
they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause
of action is stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here.
In the present case, Erlinda submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall bladder. On that fateful day she
delivered her person over to the care, custody and control of private respondents who
exercised complete and exclusive control over her. At the time of submission, Erlinda
was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and
prior to the performance of cholecystectomy she suffered irreparable damage to her
brain. Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in the absence of negligence of
someone in the administration of anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper procedure was followed.
Furthermore, the instruments used in the administration of anesthesia, including the
endotracheal tube, were all under the exclusive control of private respondents, who are
the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and under these circumstances the
Court would be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to
secure the desired results of an operation nor on an alleged lack of skill in the diagnosis
or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus,
upon all these initial determination a case is made out for the application of the doctrine
of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not
saying that the doctrine is applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res ipsa loquitur
coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of
Appeals erred in finding that private respondents were not negligent in the care of
Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether
the alleged negligence was the proximate cause of Erlinda's comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the
testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the
testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid
enough to admit that she experienced some difficulty in the endotracheal intubation 45 of
the patient and thus, cannot be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were able to show that the
brain damage sustained by Erlinda was not caused by the alleged faulty intubation but
was due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal),
a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora. On the
other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in
favor of petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in
the process of intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards Erlinda
and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents
were unable to disprove the presumption of negligence on their part in the care of
Erlinda and their negligence was the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal
nexus upon which liability is based. As will be shown hereinafter, private respondents'
own testimonies which are reflected in the transcript of stenographic notes are replete of
signposts indicative of their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the
operating room right beside the patient when the tragic event occurred. Witness Cruz
testified to this effect:
ATTY. PAJARES:
ATTY. ALCERA:
COURT:
A: As have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand
where I was at.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).
More importantly, there is no evidence that she ever auscultated the patient or that she
conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to
testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz
is not an anesthesiologist, she can very well testify upon matters on which she is
capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. 48 This
is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert
witnesses is not required. It is the accepted rule that expert testimony is not necessary
for the proof of negligence in non-technical matters or those of which an ordinary person
may be expected to have knowledge, or where the lack of skill or want of care is so
obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact
that anesthesia procedures have become so common, that even an ordinary person can
tell if it was administered properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a medical
degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose
long experience and scholarship led to her appointment as Dean of the Capitol Medical
Center School at Nursing, was fully capable of determining whether or not the intubation
was a success. She had extensive clinical experience starting as a staff nurse in
Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50 Reviewing witness Cruz' statements, we
find that the same were delivered in a straightforward manner, with the kind of detail,
clarity, consistency and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who
admitted that she experienced difficulty in inserting the tube into Erlinda's trachea, to
wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: When you said "mahirap yata ito," what were you referring to?
51
A: Yes, because of (sic) my first attempt, I did not see right away.
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense
that she encountered hardship in the insertion of the tube in the trachea of Erlinda
because it was positioned more anteriorly (slightly deviated from the normal anatomy of
a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck
and protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents
adduced no evidence demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would
mean postponing the procedure. From their testimonies, it appears that the observation
was made only as an afterthought, as a means of defense.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first
time on the day of the operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day
of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up
and needs of Erlinda. She was likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez' act of seeing her patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing
around with the trial court's ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the difference between an
elective surgery and an emergency surgery just so her failure to perform the required
pre-operative evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
However, the exact opposite is true. In an emergency procedure, there is hardly enough
time available for the fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes before surgery, if at all.
Elective procedures, on the other hand, are operative procedures that can wait for days,
weeks or even months. Hence, in these cases, the anesthesiologist possesses the
luxury of time to be at the patient's beside to do a proper interview and clinical
evaluation. There is ample time to explain the method of anesthesia, the drugs to be
used, and their possible hazards for purposes of informed consent. Usually, the pre-
operative assessment is conducted at least one day before the intended surgery, when
the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she
had all the time to make a thorough evaluation of Erlinda's case prior to the operation
and prepare her for anesthesia. However, she never saw the patient at the bedside.
She herself admitted that she had seen petitioner only in the operating room, and only
on the actual date of the cholecystectomy. She negligently failed to take advantage of
this important opportunity. As such, her attempt to exculpate herself must fail.
Private respondents repeatedly hammered the view that the cerebral anoxia which led
to Erlinda's coma was due to bronchospasm 59 mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her system. Towards this end, they presented
Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an
unpredictable drug reaction to the short-acting barbiturate. We find the theory of private
respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology
simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the court about anesthesia
practice and procedure and their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a pharmacologist and, as such, could not have
been capable, as an expert would, of explaining to the court the pharmacologic and
toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
ATTY. LIGSAY:
DR. JAMORA:
A: No.
Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?
Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge
of the subject matter about which he or she is to testify, either by the study of
recognized authorities on the subject or by practical experience. 63 Clearly, Dr. Jamora
does not qualify as an expert witness based on the above standard since he lacks the
necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field, private respondents'
intentionally avoided providing testimony by competent and independent experts in the
proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced
Erlinda's coma by triggering an allergic mediated response, has no support in evidence.
No evidence of stridor, skin reactions, or wheezing — some of the more common
accompanying signs of an allergic reaction — appears on record. No laboratory data
were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-
mediated bronchospasm happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical proof, and against the weight of
available evidence, then every anesthetic accident would be an act of God. Evidently,
the Thiopental-allergy theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to advanced in order to
absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was
the faulty intubation which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the
result would not have occurred. 64 An injury or damage is proximately caused by an act
or a failure to act, whenever it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the dominant, moving or producing
cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlinda's
brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was
a failure. This fact was likewise observed by witness Cruz when she heard respondent
Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body
of Erlinda. The development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered the esophagus instead of
the respiratory tree. In other words, instead of the intended endotracheal intubation
what actually took place was an esophageal intubation. During intubation, such
distention indicates that air has entered the gastrointestinal tract through the esophagus
instead of the lungs through the trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is
in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal tube (up
to the time the tube was withdrawn for the second attempt) was fairly significant. Due to
the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As
stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he
noticed that the nailbeds of Erlinda were already blue. 67 However, private respondents
contend that a second intubation was executed on Erlinda and this one was
successfully done. We do not think so. No evidence exists on record, beyond private
respondents' bare claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into the proper
orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a
successful intubation. In fact, cyanosis was again observed immediately after the
second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting
that the tube was successfully inserted during the second attempt, it was obviously too
late. As aptly explained by the trial court, Erlinda already suffered brain damage as a
result of the inadequate oxygenation of her brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated
with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of
difficult intubations may be anticipated by performing a thorough evaluation of the
patient's airway prior to the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate diligence and reasonable care
been used in the pre-operative evaluation, respondent physician could have been much
more prepared to meet the contingency brought about by the perceived anatomic
variations in the patient's neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique.
71
In other words, an experienced anesthesiologist, adequately alerted by a thorough
pre-operative evaluation, would have had little difficulty going around the short neck and
protruding teeth. 72 Having failed to observe common medical standards in pre-operative
management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral
anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the so-called "captain of the ship," 73 it is the surgeon's responsibility
to see to it that those under him perform their task in the proper manner. Respondent
Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as
the "captain" of the operative team) in not determining if his anesthesiologist observed
proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the
patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled
another procedure in a different hospital at the same time as Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's operation. Because of this, he had
little or no time to confer with his anesthesiologist regarding the anesthesia delivery.
This indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique
practice (among private hospitals) of filling up specialist staff with attending and visiting
"consultants," 74 who are allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors who
apply for "consultant" slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the hospital who either
accept or reject the application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally
required to attend clinico-pathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physician's performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant
who regularly falls short of the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending
and visiting "consultant" staff. While "consultants" are not, technically employees, a
point which respondent hospital asserts in denying all responsibility for the patient's
condition, the control exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee relationship, with the exception
of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for
the purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending and visiting
physicians. This being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for petitioner's condition.
76
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. 77 Such responsibility ceases when
the persons or entity concerned prove that they have observed the diligence of a good
father of the family to prevent damage. 78 In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that they
observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility
over respondent physicians, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and supervision of the latter. It failed to
adduce evidence with regard to the degree of supervision which it exercised over its
physicians. In neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of Article 2180.
Having failed to do this, respondent hospital is consequently solidarily responsible with
its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and
relying on the testimonies of the witnesses for the private respondents. Indeed, as
shown by the above discussions, private respondents were unable to rebut the
presumption of negligence. Upon these disquisitions we hold that private respondents
are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total
of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the
plaintiff, "subject to its being updated" covering the period from 15 November 1985 up to
15 April 1992, based on monthly expenses for the care of the patient estimated at
P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of
its decision would be grossly inadequate to cover the actual costs of home-based care
for a comatose individual. The calculated amount was not even arrived at by looking at
the actual cost of proper hospice care for the patient. What it reflected were the actual
expenses incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.
Given these considerations, the amount of actual damages recoverable in suits arising
from negligence should at least reflect the correct minimum cost of proper care, not the
cost of the care the family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are
those suffered by him as he has duly proved. The Civil Code provides:
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect to
take into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty. 80 In other words, temperate damages can
and should be awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided for. The
reason is that these damages cover two distinct phases.
As it would not be equitable — and certainly not in the best interests of the
administration of justice — for the victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to the compensatory damages
previously awarded — temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should take into account
the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having
premised our award for compensatory damages on the amount provided by petitioners
at the onset of litigation, it would be now much more in step with the interests of justice
if the value awarded for temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes in such care. They
should not be compelled by dire circumstances to provide substandard care at home
without the aid of professionals, for anything less would be grossly inadequate. Under
the circumstances, an award of P1,500,000.00 in temperate damages would therefore
be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where
the injury suffered by the plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result of the injury (amputation),
and were certain to be incurred by the plaintiff, they were likely to arise only in the
future. We awarded P1,000,000.00 in moral damages in that case.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have
to be replaced and readjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical
and occupational therapy. All of these adjustments, it has been documented, are painful.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has
been in a comatose state for over fourteen years now. The burden of care has so far
been heroically shouldered by her husband and children, who, in the intervening years
have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner
would be virtually impossible to quantify. Even the temperate damages herein awarded
would be inadequate if petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not
even scratch the surface of the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral pain, psychological damage
and injury suffered by the victim or those actually affected by the victim's condition. 84
The husband and the children, all petitioners in this case, will have to live with the day to
day uncertainty of the patient's illness, knowing any hope of recovery is close to nil.
They have fashioned their daily lives around the nursing care of petitioner, altering their
long term goals to take into account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility of the care of the victim. The
family's moral injury and suffering in this case is clearly a real one. For the foregoing
reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause injury or
death to their patients. However, intent is immaterial in negligence cases because
where negligence exists and is proven, the same automatically gives the injured a right
to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for
the purpose of preventing complications. A physician's experience with his patients
would sometimes tempt him to deviate from established community practices, and he
may end a distinguished career using unorthodox methods without incident. However,
when failure to follow established procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is made between the deviation
and the injury or damage, the physician would necessarily be called to account for it. In
the case at bar, the failure to observe pre-operative assessment protocol which would
have influenced the intubation in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages computed as of the
date of promulgation of this decision plus a monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00
as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as
exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED