G.R. No. 124354 April 11, 2002 By 10:00 in the morning, when Dr.

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
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON at the hospital at around 12:10 in the afternoon, or more than three (3) hours after
RAYMOND RAMOS, petitioners, the scheduled operation.
vs.
COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival.
DR. PERFECTA GUTIERREZ, respondents. 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
RESOLUTION pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish discoloration of Erlinda’s
nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call
KAPUNAN, J.: 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
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
placed in a position lower than her feet. At this point, Cruz went out of the operating
Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29,
room to express her concern to petitioner Rogelio that Erlinda’s operation was not
1999, of this Court holding them civilly liable for petitioner Erlinda Ramos’ comatose
going well.
condition after she delivered herself to them for their professional care and
management.
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
For better understanding of the issues raised in private respondents’ respective
wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio
motions, we will briefly restate the facts of the case as follows:
that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was
released from the hospital only four months later or on November 15, 1985. Since
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help,
the ill-fated operation, Erlinda remained in comatose condition until she died on
was advised to undergo an operation for the removal of a stone in her gall bladder
August 3, 1999.1
(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
Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages
morning at private respondent De Los Santos Medical Center (DLSMC). Since neither
against private respondents. After due trial, the court a quo rendered judgment in
petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist,
favor of petitioners. Essentially, the trial court found that private respondents were
Dr. Hosaka recommended to them the services of Dr. Gutierrez.
negligent in the performance of their duties to Erlinda. On appeal by private
respondents, the Court of Appeals reversed the trial court’s decision and directed
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
petitioners to pay their "unpaid medical bills" to private respondents.
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-
Petitioners filed with this Court a petition for review on certiorari. The private
law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol
respondents were then required to submit their respective comments thereon. On
Medical Center, was allowed to accompany her inside the operating room.
December 29, 1999, this Court promulgated the decision which private respondents
now seek to be reconsidered. The dispositive portion of said Decision states:
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
WHEREFORE, the decision and resolution of the appellate court appealed
operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime,
from are hereby modified so as to award in favor of petitioners, and
the patient, petitioner Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo ako
solidarily against private respondents the following: 1) P1,352,000.00 as
ng ibang Doctor."
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 attorney’s fees; and 5) the costs of the suit.2
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the
following as grounds therefor:
I 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.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 APPEAL’S 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 PETITIONER’S 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. 4
Private respondent De Los Santos Medical Center likewise moves for reconsideration
on the following grounds:
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.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.6 The Court noted these pleadings in the Resolution of July 17, 2000.7
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.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 Erlinda’s 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.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. 10
The conduct of a preanesthetic/preoperative evaluation prior to an operation,
whether elective or emergency, cannot be dispensed with.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 patient’s 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.12
Physical examination of the patient entails not only evaluating the patient’s 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 patient’s
cervical spine mobility, temporomandibular mobility, prominent central incisors,
deceased or artificial teeth, ability to visualize uvula and the thyromental distance. 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 auscultated 14 the
patient’s heart and lungs and checked the latter’s blood pressure to determine if
Erlinda was indeed fit for operation.15 However, she did not proceed to examine the
patient’s airway. Had she been able to check petitioner Erlinda’s 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
physician’s centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.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.17
What is left to be determined therefore is whether Erlinda’s hapless condition was
due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was
under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and cardiac
arrest resulting in the patient’s comatose condition was brought about by the
anaphylactic reaction of the patient to Thiopental Sodium (pentothal). 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. 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.20
These symptoms of an allergic reaction were not shown to have been extant in
Erlinda’s 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." 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 Court’s attention to her
synopsis on what transpired during Erlinda’s 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.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
Q 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).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 Erlinda’s 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. 24 Cruz,
Erlinda’s 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.25Cruz further averred that she noticed
that the abdomen of Erlinda became distended. 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 patient’s 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.27 In Voss vs. Bridwell,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."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.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. 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, 32 especially a fellow
specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,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 patient’s 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."35 Hence, only the anesthesiologist who inserted the endotracheal
tube into the patient’s 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. 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. 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.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 patient’s nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes that the counsel for Dr. Hosaka
admitted that in practice, the anesthesiologist would also have to observe the
surgeon’s acts during the surgical process and calls the attention of the surgeon
whenever necessary39 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 other’s 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 patient’s
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 Erlinda’s scheduled operation subjected her to
continued starvation and consequently, to the risk of acidosis, 40 or the condition of
decreased alkalinity of the blood and tissues, marked by sickly sweet breath,
headache, nausea and vomiting, and visual disturbances.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
patient’s 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
patient’s 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 x 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.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,"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 DLSMC’s 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 Code45 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 x46
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.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.48 Second, it is not the hospital but the patient who pays the consultant’s
fee for services rendered by the latter.49 Third, a hospital does not dismiss a
consultant; instead, the latter may lose his or her accreditation or privileges granted
by the hospital.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 hospital’s 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 doctor’s orders are carried out strictly.51
After a careful consideration of the arguments raised by DLSMC, the Court finds that
respondent hospital’s 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 DLSMC’s 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.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 Erlinda’s 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
Erlinda’s treatment and care from the date of promulgation of the Decision up to the
time the patient expires or survives.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 Erlinda’s 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 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.54
However, subsequent to the promulgation of the Decision, the Court was informed
by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. 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, attorney’s fees and costs of suit should be awarded to
petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows: MIGUEL AMPIL, Petitioner,
vs.
(1) Private respondent De Los Santos Medical Center is hereby absolved from liability NATIVIDAD and ENRIQUE AGANA, Respondents.
arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;
RESOLUTION
(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, CORONA, J.:
1985 and are ordered to pay petitioners—
With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second
(a) P1,352,000.00 as actual damages; motion for reconsideration2urging referral thereof to the Court en banc and seeking
modification of the decision dated January 31, 2007 and resolution dated February
(b) P2,000,000.00 as moral damages; 11, 2008 which affirmed its vicarious and direct liability for damages to respondents
Enrique Agana and the heirs of Natividad Agana (Aganas).
(c) P100,000.00 as exemplary damages;
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private
(d) P100,000.00 as attorney’s fees; and Hospital Association of the Philippines (PHAP)5 all sought to intervene in these cases
invoking the common ground that, unless modified, the assailed decision and
resolution will jeopardize the financial viability of private hospitals and jack up the
(e) the costs of the suit.
cost of health care.
SO ORDERED.
The Special First Division of the Court granted the motions for intervention of MMSI,
AHI and PHAP (hereafter intervenors),6 and referred en consulta to the Court en
G.R. No. 126297 February 2, 2010
banc the motion for prior leave of court and the second motion for reconsideration
of PSI.7
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
Due to paramount public interest, the Court en banc accepted the referral8 and
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents.
heard the parties on oral arguments on one particular issue: whether a hospital may
be held liable for the negligence of physicians-consultants allowed to practice in its
x - - - - - - - - - - - - - - - - - - - - - - -x premises.9

G.R. No. 126467 To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan
Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad Agana (later
NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., substituted by her heirs), in a complaint10 for damages filed in the Regional Trial Court
Emma Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil
AGANA, Petitioners, and Dr. Fuentes neglected to remove from her body two gauzes11 which were used
vs. in the surgery they performed on her on April 11, 1984 at the Medical City General
THE COURT OF APPEALS and JUAN FUENTES, Respondents. Hospital. PSI was impleaded as owner, operator and manager of the hospital.

x - - - - - - - - - - - - - - - - - - - - - - -x In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil
and Dr. Fuentes for damages.13 On appeal, the Court of Appeals (CA), absolved Dr.
G.R. No. 127590 Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to
claim reimbursement from Dr. Ampil.141avvphi1
On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA
decision.15 PSI filed a motion for reconsideration 16 but the Court denied it in a
resolution dated February 11, 2008.17
The Court premised the direct liability of PSI to the Aganas on the following facts and
law:
First, there existed between PSI and Dr. Ampil an employer-employee relationship as
contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals18 that
"for purposes of allocating responsibility in medical negligence cases, an employer-
employee relationship exists between hospitals and their consultants." 19Although
the Court in Ramos later issued a Resolution dated April 11, 200220 reversing its
earlier finding on the existence of an employment relationship between hospital and
doctor, a similar reversal was not warranted in the present case because the defense
raised by PSI consisted of a mere general denial of control or responsibility over the
actions of Dr. Ampil.21
Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the
public impression that he was its agent.22 Enrique testified that it was on account of
Dr. Ampil's accreditation with PSI that he conferred with said doctor about his wife's
(Natividad's) condition.23 After his meeting with Dr. Ampil, Enrique asked Natividad
to personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad engaged the
services of Dr. Ampil, at the back of their minds was that the latter was a staff
member of a prestigious hospital. Thus, under the doctrine of apparent authority
applied in Nogales, et al. v. Capitol Medical Center, et al.,25 PSI was liable for the
negligence of Dr. Ampil.
Finally, as owner and operator of Medical City General Hospital, PSI was bound by its
duty to provide comprehensive medical services to Natividad Agana, to exercise
reasonable care to protect her from harm, 26 to oversee or supervise all persons who
practiced medicine within its walls, and to take active steps in fixing any form of
negligence committed within its premises.27 PSI committed a serious breach of its
corporate duty when it failed to conduct an immediate investigation into the
reported missing gauzes.28
PSI is now asking this Court to reconsider the foregoing rulings for these reasons:
I
The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December
29, 1999) that "an employer-employee relations exists between hospital and their
consultants" stays should be set aside for being inconsistent with or contrary to the
import of the resolution granting the hospital's motion for reconsideration in Ramos
vs. Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable to PSI since
the Aganas failed to prove an employer-employee relationship between PSI and Dr.
Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has
found that there is no employer-employee relationship in this case and that the
doctor's are independent contractors.
II
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily
and specifically look to the Medical City Hospital (PSI) for medical care and support;
otherwise stated, respondents Aganas did not select Medical City Hospital (PSI) to
provide medical care because of any apparent authority of Dr. Miguel Ampil as its
agent since the latter was chosen primarily and specifically based on his qualifications
and being friend and neighbor.
III
PSI cannot be liable under doctrine of corporate negligence since the proximate
cause of Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of
the principle of corporate negligence.29
In their respective memoranda, intervenors raise parallel arguments that the Court's
ruling on the existence of an employer-employee relationship between private
hospitals and consultants will force a drastic and complex alteration in the long-
established and currently prevailing relationships among patient, physician and
hospital, with burdensome operational and financial consequences and adverse
effects on all three parties.30
The Aganas comment that the arguments of PSI need no longer be entertained for
they have all been traversed in the assailed decision and resolution. 31
After gathering its thoughts on the issues, this Court holds that PSI is liable to the
Aganas, not under the principle of respondeat superior for lack of evidence of an
employment relationship with Dr. Ampil but under the principle of ostensible agency
for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate
negligence for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice medicine, 32 in reality it
utilizes doctors, surgeons and medical practitioners in the conduct of its business of
facilitating medical and surgical treatment.33 Within that reality, three legal
relationships crisscross: (1) between the hospital and the doctor practicing within its
premises; (2) between the hospital and the patient being treated or examined within
its premises and (3) between the patient and the doctor. The exact nature of each
relationship determines the basis and extent of the liability of the hospital for the
negligence of the doctor.
Where an employment relationship exists, the hospital may be held vicariously liable
under Article 217634 in relation to Article 218035 of the Civil Code or the principle
of respondeat superior. Even when no employment relationship exists but it is shown
that the hospital holds out to the patient that the doctor is its agent, the hospital may
still be vicariously liable under Article 2176 in relation to Article 1431 36 and Article
186937 of the Civil Code or the principle of apparent authority. 38 Moreover,
regardless of its relationship with the doctor, the hospital may be held directly liable
to the patient for its own negligence or failure to follow established standard of
conduct to which it should conform as a corporation.39
This Court still employs the "control test" to determine the existence of an employer-
employee relationship between hospital and doctor. In Calamba Medical Center, Inc.
v. National Labor Relations Commission, et al.40 it held:
Under the "control test", an employment relationship exists between a physician and
a hospital if the hospital controls both the means and the details of the process by
which the physician is to accomplish his task.
xxx xxx xxx
As priorly stated, private respondents maintained specific work-schedules, as
determined by petitioner through its medical director, which consisted of 24-hour
shifts totaling forty-eight hours each week and which were strictly to be observed
under pain of administrative sanctions.
That petitioner exercised control over respondents gains light from the undisputed
fact that in the emergency room, the operating room, or any department or ward
for that matter, respondents' work is monitored through its nursing supervisors,
charge nurses and orderlies. Without the approval or consent of petitioner or its
medical director, no operations can be undertaken in those areas. For control test
to apply, it is not essential for the employer to actually supervise the performance
of duties of the employee, it being enough that it has the right to wield the
power. (emphasis supplied)
Even in its December 29, 1999 decision41 and April 11, 2002
resolution42 in Ramos, the Court found the control test decisive.
In the present case, it appears to have escaped the Court's attention that both the
RTC and the CA found no employment relationship between PSI and Dr. Ampil, and
that the Aganas did not question such finding. In its March 17, 1993 decision, the
RTC found "that defendant doctors were not employees of PSI in its hospital, they
being merely consultants without any employer-employee relationship and in the
capacity of independent contractors."43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the
issues of negligence, agency and corporate liability. In its September 6, 1996 decision,
the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was
clear in its discussion on the matter that it viewed their relationship as one of mere
apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration of
Dr. Fuentes.46 PSI also appealed from the CA decision, and it was then that the issue
of employment, though long settled, was unwittingly resurrected.
In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding became final and conclusive even to
this Court.47 There was no reason for PSI to have raised it as an issue in its petition.
Thus, whatever discussion on the matter that may have ensued was purely academic.
Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this
particular instance, the concurrent finding of the RTC and the CA that PSI was not the
employer of Dr. Ampil is correct. Control as a determinative factor in testing the
employer-employee relationship between doctor and hospital under which the
hospital could be held vicariously liable to a patient in medical negligence cases is a
requisite fact to be established by preponderance of evidence. Here, there was
insufficient evidence that PSI exercised the power of control or wielded such power
over the means and the details of the specific process by which Dr. Ampil applied his
skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously
liable for the negligence of Dr. Ampil under the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient
(Natividad)48 that the doctor (Dr. Ampil) was its agent. Present are the two factors
that determine apparent authority: first, the hospital's implied manifestation to the
patient which led the latter to conclude that the doctor was the hospital's agent; and
second, the patient’s reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition
of his wife; that after the meeting and as advised by Dr. Ampil, he "asked [his] wife
to go to Medical City to be examined by [Dr. Ampil]"; and that the next day, April 3,
he told his daughter to take her mother to Dr. Ampil.50 This timeline indicates that it
was Enrique who actually made the decision on whom Natividad should consult and
where, and that the latter merely acceded to it. It explains the testimony of Natividad
that she consulted Dr. Ampil at the instigation of her daughter.51
Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for choosing Dr.
Ampil to contact with in connection with your wife's illness?
A. First, before that, I have known him to be a specialist on that part of the body as a
surgeon, second, I have known him to be a staff member of the Medical City which
is a prominent and known hospital. And third, because he is a neighbor, I expect
more than the usual medical service to be given to us, than his ordinary
patients.52 (emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was
significantly influenced by the impression that Dr. Ampil was a staff member of
Medical City General Hospital, and that said hospital was well known and prominent.
Enrique looked upon Dr. Ampil not as independent of but as integrally related to
Medical City.
PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of
record that PSI required a "consent for hospital care" 53 to be signed preparatory to
the surgery of Natividad. The form reads:
Permission is hereby given to the medical, nursing and laboratory staff of the Medical
City General Hospital to perform such diagnostic procedures and to administer such
medications and treatments as may be deemed necessary or advisable by
the physicians of this hospital for and during the confinement of xxx. (emphasis
supplied)
By such statement, PSI virtually reinforced the public impression that Dr. Ampil was
a physician of its hospital, rather than one independently practicing in it; that the
medications and treatments he prescribed were necessary and desirable; and that
the hospital staff was prepared to carry them out.1avvphi1
PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the
exclusive basis of the Aganas’ decision to have Natividad treated in Medical City
General Hospital, meaning that, had Dr. Ampil been affiliated with another hospital,
he would still have been chosen by the Aganas as Natividad's surgeon.54
The Court cannot speculate on what could have been behind the Aganas’ decision
but would rather adhere strictly to the fact that, under the circumstances at that
time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member
of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised
his wife Natividad to go to the Medical City General Hospital to be examined by said
doctor, and the hospital acted in a way that fortified Enrique's belief.
This Court must therefore maintain the ruling that PSI is vicariously liable for the
negligence of Dr. Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that PSI made the following admission
in its Motion for Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for
Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was
personally engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as
"Captain of the Ship", and as the Agana's doctor to advise her on what to do with her
situation vis-a-vis the two missing gauzes. In addition to noting the missing gauzes,
regular check-ups were made and no signs of complications were exhibited during
her stay at the hospital, which could have alerted petitioner PSI's hospital to render
and provide post-operation services to and tread on Dr. Ampil's role as the doctor
of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to
her discharge is borne by the finding of facts in this case. Likewise evident
therefrom is the absence of any complaint from Mrs. Agana after her discharge
from the hospital which had she brought to the hospital's attention, could have
alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's
attention. But this was not the case. Ms. Agana complained ONLY to Drs. Ampil and
Fuentes, not the hospital. How then could PSI possibly do something to fix the
negligence committed by Dr. Ampil when it was not informed about it at
all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana "informed the
hospital of her discomfort and pain, the hospital would have been obliged to act on
it."56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had no power to control
the means or method by which Dr. Ampil conducted the surgery on Natividad Agana,
it had the power to review or cause the review of what may have irregularly
transpired within its walls strictly for the purpose of determining whether some form
of negligence may have attended any procedure done inside its premises, with the
ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its business as well as
its prominence57 in the hospital industry, it assumed a duty to "tread on" the "captain
of the ship" role of any doctor rendering services within its premises for the purpose
of ensuring the safety of the patients availing themselves of its services and facilities.
Third, by such admission, PSI defined the standards of its corporate conduct under
the circumstances of this case, specifically: (a) that it had a corporate duty to
Natividad even after her operation to ensure her safety as a patient; (b) that its
corporate duty was not limited to having its nursing staff note or record the two
missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's
role in it, bringing the matter to his attention, and correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its second motion for
reconsideration that the concept of corporate responsibility was not yet in existence
at the time Natividad underwent treatment;58 and that if it had any corporate
responsibility, the same was limited to reporting the missing gauzes and did not
include "taking an active step in fixing the negligence committed."59 An admission
made in the pleading cannot be controverted by the party making such admission
and is conclusive as to him, and all proofs submitted by him contrary thereto or
inconsistent therewith should be ignored, whether or not objection is interposed by
a party.60
Given the standard of conduct that PSI defined for itself, the next relevant inquiry is
whether the hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil
assumed the personal responsibility of informing Natividad about the two missing
gauzes.61 Dr. Ricardo Jocson, who was part of the group of doctors that attended to
Natividad, testified that toward the end of the surgery, their group talked about the
missing gauzes but Dr. Ampil assured them that he would personally notify the
patient about it.62 Furthermore, PSI claimed that there was no reason for it to act on
the report on the two missing gauzes because Natividad Agana showed no signs of
complications. She did not even inform the hospital about her discomfort. 63
The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and nonchalantly delegate
to Dr. Ampil the duty to review what transpired during the operation. The purpose
of such review would have been to pinpoint when, how and by whom two surgical
gauzes were mislaid so that necessary remedial measures could be taken to avert any
jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that purpose
to be achieved by merely hoping that the person likely to have mislaid the gauzes
might be able to retrace his own steps. By its own standard of corporate conduct,
PSI's duty to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad about
the missing gauzes, PSI imposed upon itself the separate and independent
responsibility of initiating the inquiry into the missing gauzes. The purpose of the first
would have been to apprise Natividad of what transpired during her surgery, while
the purpose of the second would have been to pinpoint any lapse in procedure that
led to the gauze count discrepancy, so as to prevent a recurrence thereof and to
determine corrective measures that would ensure the safety of Natividad. That Dr.
Ampil negligently failed to notify Natividad did not release PSI from its self-imposed
separate responsibility.
Corollary to its non-delegable undertaking to review potential incidents of negligence
committed within its premises, PSI had the duty to take notice of medical records
prepared by its own staff and submitted to its custody, especially when these bear
earmarks of a surgery gone awry. Thus, the record taken during the operation of
Natividad which reported a gauze count discrepancy should have given PSI sufficient
reason to initiate a review. It should not have waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation and consequently did
not initiate a review of what transpired during Natividad’s operation. Rather, it
shirked its responsibility and passed it on to others – to Dr. Ampil whom it expected
to inform Natividad, and to Natividad herself to complain before it took any
meaningful step. By its inaction, therefore, PSI failed its own standard of hospital
care. It committed corporate negligence.
It should be borne in mind that the corporate negligence ascribed to PSI is different
from the medical negligence attributed to Dr. Ampil. The duties of the hospital are
distinct from those of the doctor-consultant practicing within its premises in relation
to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation
gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil.
All this notwithstanding, we make it clear that PSI’s hospital liability based on
ostensible agency and corporate negligence applies only to this case, pro hac vice. It
is not intended to set a precedent and should not serve as a basis to hold hospitals
liable for every form of negligence of their doctors-consultants under any and all
circumstances. The ruling is unique to this case, for the liability of PSI arose from an
implied agency with Dr. Ampil and an admitted corporate duty to Natividad. 64
Other circumstances peculiar to this case warrant this ruling,65 not the least of which
being that the agony wrought upon the Aganas has gone on for 26 long years, with
Natividad coming to the end of her days racked in pain and agony. Such wretchedness
could have been avoided had PSI simply done what was logical: heed the report of a
guaze count discrepancy, initiate a review of what went wrong and take corrective
measures to ensure the safety of Nativad. Rather, for 26 years, PSI hemmed and
hawed at every turn, disowning any such responsibility to its patient. Meanwhile, the
options left to the Aganas have all but dwindled, for the status of Dr. Ampil can no
longer be ascertained.66
Therefore, taking all the equities of this case into consideration, this Court believes
₱15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest
from the finality of this resolution to full satisfaction.
WHEREFORE, the second motion for reconsideration is DENIED and the motions for
intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by
her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus
Agana and Raymund Agana) and Enrique Agana the total amount of ₱15 million,
subject to 12% p.a. interest from the finality of this resolution to full satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon receipt by all
concerned parties of this resolution.
SO ORDERED.
G.R. No. 165279 June 7, 2011
DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica
Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision 1 dated June 15,
2004 as well as the Resolution2dated September 1, 2004 of the Court of Appeals (CA)
in CA-G.R. CV No. 58013 which modified the Decision 3dated September 5, 1997 of
the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents’ 11-year old daughter, Angelica Soliman, underwent a
biopsy of the mass located in her lower extremity at the St. Luke’s Medical Center
(SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic
type,4 a high-grade (highly malignant) cancer of the bone which usually afflicts
teenage children. Following this diagnosis and as primary intervention, Angelica’s
right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As
adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the
chances of recurrence and prevent the disease from spreading to other parts of the
patient’s body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr.
Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a
medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous) administration of
the first cycle of the chemotherapy regimen. Because SLMC refused to release a
death certificate without full payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp
Crame for post-mortem examination. The Medico-Legal Report issued by said
institution indicated the cause of death as "Hypovolemic shock secondary to multiple
organ hemorrhages and Disseminated Intravascular Coagulation."5
On the other hand, the Certificate of Death6 issued by SLMC stated the cause of death
as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit 7 against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelica’s safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the
essential precautions in detecting early the symptoms of fatal blood platelet
decrease and stopping early on the chemotherapy, which bleeding led to
hypovolemic shock that caused Angelica’s untimely demise. Further, it was
specifically averred that petitioner assured the respondents that Angelica would
recover in view of 95% chance of healing with chemotherapy ("Magiging normal na
ang anak nyo basta ma-chemo. 95% ang healing") and when asked regarding the side
effects, petitioner mentioned only slight vomiting, hair loss and weakness
("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina"). Respondents thus
claimed that they would not have given their consent to chemotherapy had
petitioner not falsely assured them of its side effects.
In her answer,8 petitioner denied having been negligent in administering the
chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patient’s normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the
capacity to compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events
(sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.
Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelica’s
surgery and discussed with them Angelica’s condition. Petitioner told respondents
that Angelica should be given two to three weeks to recover from the operation
before starting chemotherapy. Respondents were apprehensive due to financial
constraints as Reynaldo earns only from ₱70,000.00 to ₱150,000.00 a year from his
jewelry and watch repairing business.9Petitioner, however, assured them not to
worry about her professional fee and told them to just save up for the medicines to
be used.
Petitioner claimed that she explained to respondents that even when a tumor is
removed, there are still small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small lesions in order to lessen
the chance of the cancer to recur. She did not give the respondents any assurance
that chemotherapy will cure Angelica’s cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low
count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelica’s ovary; (6) damage to the heart and kidneys;
and (7) darkening of the skin especially when exposed to sunlight. She actually talked
with respondents four times, once at the hospital after the surgery, twice at her clinic
and the fourth time when Angelica’s mother called her through long distance.10 This
was disputed by respondents who countered that petitioner gave them assurance
that there is 95% chance of healing for Angelica if she undergoes chemotherapy and
that the only side effects were nausea, vomiting and hair loss. 11 Those were the only
side-effects of chemotherapy treatment mentioned by petitioner.12
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she
be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy,
bringing with them the results of the laboratory tests requested by petitioner:
Angelica’s chest x-ray, ultrasound of the liver, creatinine and complete liver function
tests.13 Petitioner proceeded with the chemotherapy by first administering hydration
fluids to Angelica.14
The following day, August 19, petitioner began administering three chemotherapy
drugs – Cisplatin,15 Doxorubicin16and Cosmegen17 – intravenously. Petitioner was
supposedly assisted by her trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his
testimony, Dr. Marbella denied having any participation in administering the said
chemotherapy drugs.20
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelica’s face.21They asked petitioner about it, but she merely
quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis
on the matter.23
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and
was thus provided with oxygen inhalation apparatus. This time, the reddish
discoloration on Angelica’s face had extended to her neck, but petitioner dismissed
it again as merely the effect of medicines.24 Petitioner testified that she did not see
any discoloration on Angelica’s face, nor did she notice any difficulty in the child’s
breathing. She claimed that Angelica merely complained of nausea and was given ice
chips.251avvphi1
On August 22, 1993, at around ten o’clock in the morning, upon seeing that their child
could not anymore bear the pain, respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay,
let’s observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked
petitioner’s permission to bring their child home. Later in the evening, Angelica
passed black stool and reddish urine.26 Petitioner countered that there was no record
of blackening of stools but only an episode of loose bowel movement (LBM).
Petitioner also testified that what Angelica complained of was carpo-pedal spasm,
not convulsion or epileptic attack, as respondents call it (petitioner described it in the
vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium
determination and stopped the chemotherapy. When Angelica was given calcium
gluconate, the spasm and numbness subsided.27
The following day, August 23, petitioner yielded to respondents’ request to take
Angelica home. But prior to discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents that the chemotherapy
will be temporarily stopped while she observes Angelica’s muscle twitching and
serum calcium level. Take-home medicines were also prescribed for Angelica, with
instructions to respondents that the serum calcium test will have to be repeated after
seven days. Petitioner told respondents that she will see Angelica again after two
weeks, but respondents can see her anytime if any immediate problem arises. 28
However, Angelica remained in confinement because while still in the premises of
SLMC, her "convulsions" returned and she also had LBM. Angelica was given oxygen
and administration of calcium continued.29
The next day, August 24, respondents claimed that Angelica still suffered from
convulsions. They also noticed that she had a fever and had difficulty
breathing.30 Petitioner insisted it was carpo-pedal spasm, not convulsions. She
verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing
and had fever. She then requested for an electrocardiogram analysis, and infused
calcium gluconate on the patient at a "stat dose." She further ordered that Angelica
be given Bactrim,31 a synthetic antibacterial combination drug,32 to combat any
infection on the child’s body.33
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood
on her anus and urine. When Lina asked petitioner what was happening to her
daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units of platelet
concentrates were then transfused to Angelica. Petitioner prescribed Solucortef.
Considering that Angelica’s fever was high and her white blood cell count was low,
petitioner prescribed Leucomax. About four to eight bags of blood, consisting of
packed red blood cells, fresh whole blood, or platelet concentrate, were transfused
to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but
petitioner claimed it was lesser in amount and in frequency. Petitioner also denied
that there were gadgets attached to Angelica at that time.34
On August 29, Angelica developed ulcers in her mouth, which petitioner said were
blood clots that should not be removed. Respondents claimed that Angelica passed
about half a liter of blood through her anus at around seven o’clock that evening,
which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was
given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal
tube because this may induce further bleeding.35She was also transferred to the
intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood
and her body turned black. Part of Angelica’s skin was also noted to be shredding by
just rubbing cotton on it. Angelica was so restless she removed those gadgets
attached to her, saying "Ayaw ko na"; there were tears in her eyes and she kept
turning her head. Observing her daughter to be at the point of death, Lina asked for
a doctor but the latter could not answer her anymore. 36 At this time, the attending
physician was Dr. Marbella who was shaking his head saying that Angelica’s platelets
were down and respondents should pray for their daughter. Reynaldo claimed that
he was introduced to a pediatrician who took over his daughter’s case, Dr. Abesamis
who also told him to pray for his daughter. Angelica continued to have difficulty in
her breathing and blood was being suctioned from her stomach. A nurse was posted
inside Angelica’s room to assist her breathing and at one point they had to revive
Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel consisted of blood-like fluid.
Angelica requested for an electric fan as she was in pain. Hospital staff attempted to
take blood samples from Angelica but were unsuccessful because they could not even
locate her vein. Angelica asked for a fruit but when it was given to her, she only
smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr.
Marbella. That night, Angelica became hysterical and started removing those gadgets
attached to her. At three o’clock in the morning of September 1, a priest came and
they prayed before Angelica expired. Petitioner finally came back and supposedly
told respondents that there was "malfunction" or bogged-down machine.37
By petitioner’s own account, Angelica was merely irritable that day (August 31).
Petitioner noted though that Angelica’s skin was indeed sloughing off. 38 She stressed
that at 9:30 in the evening, Angelica pulled out her endotracheal tube.39 On
September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.40 The cause of death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelica’s other organs to fail. 41 Petitioner
attributed this to the patient’s poor defense mechanism brought about by the cancer
itself.42
While he was seeking the release of Angelica’s cadaver from SLMC, Reynaldo claimed
that petitioner acted arrogantly and called him names. He was asked to sign a
promissory note as he did not have cash to pay the hospital bill. 43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal
Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelica’s
cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed
at the Department of Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and
areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and
lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver;
(5) kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of
"hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation." Dr. Vergara opined that this can be attributed to the
chemical agents in the drugs given to the victim, which caused platelet reduction
resulting to bleeding sufficient to cause the victim’s death. The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was
too short, considering the survival rate of about 3 years. The witness conceded that
the victim will also die of osteosarcoma even with amputation or chemotherapy, but
in this case Angelica’s death was not caused by osteosarcoma. Dr. Vergara admitted
that she is not a pathologist but her statements were based on the opinion of an
oncologist whom she had interviewed. This oncologist supposedly said that if the
victim already had DIC prior to the chemotherapy, the hospital staff could have
detected it.44
On her part, Dr. Balmaceda declared that it is the physician’s duty to inform and
explain to the patient or his relatives every known side effect of the procedure or
therapeutic agents to be administered, before securing the consent of the patient or
his relatives to such procedure or therapy. The physician thus bases his assurance to
the patient on his personal assessment of the patient’s condition and his knowledge
of the general effects of the agents or procedure that will be allowed on the patient.
Dr. Balmaceda stressed that the patient or relatives must be informed of all known
side effects based on studies and observations, even if such will aggravate the
patient’s condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s lower
extremity, testified for the defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or removal of the amputated part will
completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still remains
at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to
other vital organs like the liver, causing systemic complications. The modes of
therapy available are the removal of the primary source of the cancerous growth and
then the residual cancer cells or metastasis should be treated with chemotherapy.
Dr. Tamayo further explained that patients with osteosarcoma have poor defense
mechanism due to the cancer cells in the blood stream. In the case of Angelica, he
had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner because he felt that petitioner is a
competent oncologist. Considering that this type of cancer is very aggressive and will
metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her death).
Cancer cells in the blood cannot be seen by the naked eye nor detected through bone
scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child
patients who had osteogenic sarcoma he had handled, he thought that probably all
of them died within six months from amputation because he did not see them
anymore after follow-up; it is either they died or had seen another doctor.46
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest skill
and knowledge in the administration of chemotherapy drugs on Angelica but despite
all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that
he considered petitioner one of the most proficient in the treatment of cancer and
that the patient in this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the standard of negligence
laid down in Picart v. Smith,47 the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence. Respondents were ordered
to pay their unpaid hospital bill in the amount of ₱139,064.43.48
Respondents appealed to the CA which, while concurring with the trial court’s finding
that there was no negligence committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as her attending
physician failed to fully explain to the respondents all the known side effects of
chemotherapy. The appellate court stressed that since the respondents have been
told of only three side effects of chemotherapy, they readily consented thereto. Had
petitioner made known to respondents those other side effects which gravely
affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood
platelet count, bleeding, infections and eventual death -- respondents could have
decided differently or adopted a different course of action which could have delayed
or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants’ child was suffering from a malignant disease. The attending
physician recommended that she undergo chemotherapy treatment after surgery in
order to increase her chances of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Li’s representation that the deceased
would have a strong chance of survival after chemotherapy and also because of the
representation of appellee Dr. Rubi Li that there were only three possible side-effects
of the treatment. However, all sorts of painful side-effects resulted from the
treatment including the premature death of Angelica. The appellants were clearly
and totally unaware of these other side-effects which manifested only during the
chemotherapy treatment. This was shown by the fact that every time a problem
would take place regarding Angelica’s condition (like an unexpected side-effect
manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely,
those unexpected side-effects culminating in the loss of a love[d] one caused the
appellants so much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which
would entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed
decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is
ordered to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorney’s fee of P30,000.00.
SO ORDERED.49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in
holding her liable for actual, moral and exemplary damages and attorney’s fees.
Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy,
including death, petitioner argues that it was foolhardy to imagine her to be all-
knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent
doctor, petitioner cannot possibly predict how a particular patient’s genetic make-
up, state of mind, general health and body constitution would respond to the
treatment. These are obviously dependent on too many known, unknown and
immeasurable variables, thus requiring that Angelica be, as she was, constantly and
closely monitored during the treatment. Petitioner asserts that she did everything
within her professional competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her current
position as co-director for clinical affairs of the Medical Oncology, Department of
Medicine of SLMC, petitioner contends that in the absence of any clear showing or
proof, she cannot be charged with negligence in not informing the respondents all
the side effects of chemotherapy or in the pre-treatment procedures done on
Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads
to bleeding and death. She explains that the response rate to chemotherapy of
patients with osteosarcoma is high, so much so that survival rate is favorable to the
patient. Petitioner then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy, other medicines and
supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a respirator,
or into her kidneys that she would have to undergo dialysis. Indeed, respondents
could have spent as much because of these complications. The patient would have
been deprived of the chance to survive the ailment, of any hope for life and her
"quality of life" surely compromised. Since she had not been shown to be at fault,
petitioner maintains that the CA erred in holding her liable for the damages suffered
by the respondents.50
The issue to be resolved is whether the petitioner can be held liable for failure to fully
disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a claim, a patient must prove
that a health care provider, in most cases a physician, either failed to do something
which a reasonably prudent health care provider would have done, or that he or she
did something that a reasonably prudent provider would not have done; and that
that failure or action caused injury to the patient.51
This Court has recognized that medical negligence cases are best proved by opinions
of expert witnesses belonging in the same general neighborhood and in the same
general line of practice as defendant physician or surgeon. The deference of courts
to the expert opinion of qualified physicians stems from the former’s realization that
the latter possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating, hence the indispensability of expert
testimonies.52
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to
respondents’ child was not proven considering that Drs. Vergara and Balmaceda, not
being oncologists or cancer specialists, were not qualified to give expert opinion as
to whether petitioner’s lack of skill, knowledge and professional competence in
failing to observe the standard of care in her line of practice was the proximate cause
of the patient’s death. Furthermore, respondents’ case was not at all helped by the
non-production of medical records by the hospital (only the biopsy result and medical
bills were submitted to the court). Nevertheless, the CA found petitioner liable for
her failure to inform the respondents on all possible side effects of chemotherapy
before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767, doctors were
charged with the tort of "battery" (i.e., an unauthorized physical contact with a
patient) if they had not gained the consent of their patients prior to performing a
surgery or procedure. In the United States, the seminal case was Schoendorff v.
Society of New York Hospital53 which involved unwanted treatment performed by a
doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the basic right of a
patient to give consent to any medical procedure or treatment: "Every human being
of adult years and sound mind has a right to determine what shall be done with his
own body; and a surgeon who performs an operation without his patient’s consent,
commits an assault, for which he is liable in damages."54 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.55
Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to
the physician alone. Thus, respect for the patient’s right of self-determination on
particular therapy demands a standard set by law for physicians rather than one
which physicians may or may not impose upon themselves.57 The scope of disclosure
is premised on the fact that patients ordinarily are persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not the full measure of a physician’s
responsibility. It is also his duty to warn of the dangers lurking in the proposed
treatment and to impart information which the patient has every right to expect.
Indeed, the patient’s reliance upon the physician is a trust of the kind which
traditionally has exacted obligations beyond those associated with armslength
transactions.58 The physician is not expected to give the patient a short medical
education, the disclosure rule only requires of him a reasonable explanation, which
means generally informing the patient in nontechnical terms as to what is at stake;
the therapy alternatives open to him, the goals expectably to be achieved, and the
risks that may ensue from particular treatment or no treatment.59 As to the issue of
demonstrating what risks are considered material necessitating disclosure, it was
held that experts are unnecessary to a showing of the materiality of a risk to a
patient’s decision on treatment, or to the reasonably, expectable effect of risk
disclosure on the decision. Such unrevealed risk that should have been made known
must further materialize, for otherwise the omission, however unpardonable, is
without legal consequence. And, as in malpractice actions generally, there must be a
causal relationship between the physician’s failure to divulge and damage to the
patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part
of physician’s overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge
that such risks inherent in procedure of very low incidence. Cited as exceptions to
the rule that the patient should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he cannot evaluate
data, and where the patient is a child or incompetent. 62 The court thus concluded
that the patient’s right of self-decision can only be effectively exercised if the patient
possesses adequate information to enable him in making an intelligent choice. The
scope of the physician’s communications to the patient, then must be measured by
the patient’s need, and that need is whatever information is material to the decision.
The test therefore for determining whether a potential peril must be divulged is its
materiality to the patient’s decision.63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that
for liability of the physician for failure to inform patient, there must be causal
relationship between physician’s failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.
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.64
Examining the evidence on record, we hold that there was adequate disclosure of
material risks inherent in the chemotherapy procedure performed with the consent
of Angelica’s parents. Respondents could not have been unaware in the course of
initial treatment and amputation of Angelica’s lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When
petitioner informed the respondents beforehand of the side effects of chemotherapy
which includes lowered counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin darkening, there is reasonable
expectation on the part of the doctor that the respondents understood very well that
the severity of these side effects will not be the same for all patients undergoing the
procedure. In other words, by the nature of the disease itself, each patient’s reaction
to the chemical agents even with pre-treatment laboratory tests cannot be precisely
determined by the physician. That death can possibly result from complications of
the treatment or the underlying cancer itself, immediately or sometime after the
administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most
other major medical procedures, but such conclusion can be reasonably drawn from
the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered
the variables in the recommended treatment for their daughter afflicted with a life-
threatening illness. On the other hand, it is difficult to give credence to respondents’
claim that petitioner told them of 95% chance of recovery for their daughter, as it
was unlikely for doctors like petitioner who were dealing with grave conditions such
as cancer to have falsely assured patients of chemotherapy’s success rate. Besides,
informed consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical data, may
not be legally necessary.65
The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed consent,
"the plaintiff must prove both the duty and the breach of that duty through expert
testimony.66 Such expert testimony must show the customary standard of care of
physicians in the same practice as that of the defendant doctor.67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOH’s Operational and Management Services charged with receiving
complaints against hospitals, does not qualify as expert testimony to establish the
standard of care in obtaining consent for chemotherapy treatment. In the absence of
expert testimony in this regard, the Court feels hesitant in defining the scope of
mandatory disclosure in cases of malpractice based on lack of informed consent,
much less set a standard of disclosure that, even in foreign jurisdictions, has been
noted to be an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining "adequate" disclosure
has undergone a dynamic evolution. A standard once guided solely by the
ruminations of physicians is now dependent on what a reasonable person in the
patient’s position regards as significant. This change in perspective is especially
important as medical breakthroughs move practitioners to the cutting edge of
technology, ever encountering new and heretofore unimagined treatments for
currently incurable diseases or ailments. An adaptable standard is needed to account
for this constant progression. Reasonableness analyses permeate our legal system
for the very reason that they are determined by social norms, expanding and
contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the legal
standard of disclosure is not subject to construction as a categorical imperative.
Whatever formulae or processes we adopt are only useful as a foundational starting
point; the particular quality or quantity of disclosure will remain inextricably bound
by the facts of each case. Nevertheless, juries that ultimately determine whether a
physician properly informed a patient are inevitably guided by what they perceive as
the common expectation of the medical consumer—"a reasonable person in the
patient’s position when deciding to accept or reject a recommended medical
procedure."68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated
June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals
in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City,
Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.

No costs.

SO ORDERED.